Aquino v. Aquino

49 A.D.2d 1013, 374 N.Y.S.2d 65, 1975 N.Y. App. Div. LEXIS 11365

Opinion

Order unanimously affirmed, with costs. Memorandum: Not only did plaintiff waive the right to assert section 236 of the Domestic Relations Law prohibiting alimony to a wife where the divorce was obtained upon the grounds of her misconduct, but having not appealed from the award of alimony, plaintiff cannot now relitigate the legality of such award. Plaintiff’s contention that defendant was living with another man and holding herself out as his wife within the meaning of section 248 of the Domestic Relations Law was not established on the record. In view of the changed circumstances of the plaintiff the reduction in alimony payments ordered from $45 per week to $40 per week was proper. (Appeal from order of Erie Supreme Court modifying divorce decree.) Present—Marsh, P. J., Moule, Cardamone, Simons and Del Vecchio, JJ.