
    Helen Hicks Earle (Now Bertie), Respondent, v. Charles Earle, Appellant.
    Second Department,
    November 13, 1914.
    Husband and wife — divorce—amendment of judgment providing for maintenance of child.
    Provision in a judgment for divorce, that the defendant husband pay a certain sum for the maintenance and support of his daughter in the custody of the plaintiff, modified.
    Appeal by the defendant, Charles Earle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of June, 1912, as amended by an order entered in said clerk’s-office on the 27th day of April, 1914, upon the decision of the court after a trial- at the Westchester Special Term. The defendant also appeals from the order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of April, 1914, which confirmed the report of a referee and modified the judgment herein, with notice of an intention to bring up for review an order entered in said clerk’s office on the 2d day of December, 1913, appointing a referee herein.
    
      Carlisle Norwood, for the appellant.
    
      Frank Trenholm, for the respondent.
   Jenks, P. J.:

In view of our former judgment (158 App. Div. 552) the plaintiff should not be relieved of her obligation, voluntarily assumed and confirmed by the decree of the court, unless she presents evidence of her present inability. The testimony taken before the referee does not establish to our satisfaction that the financial circumstances of the plaintiff have changed so materially since the decree as to justify the relief afforded to her. It is but natural, in a desire to prevail and to cast a burden upon the defendant, that the plaintiff would make the worst of every circumstance. The question of her ability is not to be determined by comparison of her income with her expenditures or the present state of her finances due to such expenditures, but by comparison of her income with what expenditures are necessary and proper under her circumstances. Her income is practically assured, and upon the death of her aged mother she is certain to receive a material increase thereof. It is quite true that her income has been increased by a regular allowance from her mother, which is a bounty, but it is hardly credible that such allowance would be withdrawn arbitrarily, and there is no suggestion why it need be. I can credit that plaintiff’s mother would prefer to have the defendant support the child, but that is no reason why a woman eighty-two years old, in receipt of a stated income, should arbitrarily henceforth withhold an allowance heretofore regularly made to her own daughter. When the plaintiff assumed this maintenance of her child, she was unmarried and depended upon her income. Since that time she has remarried. As the husband is obligated to support the wife, and as in this case no reason appears why this husband cannot, naturally this plaintiff, in so far as she is relieved from resort to her own income for her own support, would have more of that income to maintain this child. If, contrary to the normal, this wife supports the husband and thus has an additional burden, then certainly, in the absence of all proof of his inability to support his wife, there is no reason why the wife should be relieved from such maintenance of her child even to a degree. The second husband was called as a witness, and although he did testify to his contribution to the household expenses,, the learned referee did not permit full inquiry into his financial ability to support his wife. It seems to us that such inquiry was germane to the question of the ability of the plaintiff to apply her separate income to the maintenance of the child.

It is a pity that the keep of this young girl should be the subject of such .bitter and protracted litigation. Her welfare is the paramount consideration of the courts, and should be that of both of her parents, even though no longer man and wife. If the needs of this young girl fast growing into womanhood were no greater than those of the young child at the time of the decree, then I should hesitate to give the advice that follows. But in consideration of the natural increase of her expenses and the undoubted financial ability of the defendant, I advise that the judgment be modified so as to require the defendant to pay $325 a year instead of $750 for maintenance, provided the child remain in the household of her mother. But provided the child consent to be placed in a proper boarding school, I think that the decree should be affirmed so that the defendant should pay $750 per annum towards her maintenance therein. If the plaintiff does not consent to this modification, then I advise that the order be reversed, without costs, and a new hearing be granted. If the parties cannot agree upon the boarding school, the Special Term is empowered to designate one.

Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Decree conditionally affirmed in accordance with opinion. Order to be settled before the presiding justice.  