Baia v. Baia

129 A.D.2d 988, 514 N.Y.S.2d 156, 1987 N.Y. App. Div. LEXIS 45670

Opinion

—Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In 1985 Family Court modified a divorce decree entered in 1966 by directing respondent to pay petitioner support in the amount of $20 per week for a total of 52 weeks and providing that thereafter no alimony shall be paid. Petitioner appeals from that portion of the order which limits alimony to a definite period of 52 weeks. Under the circumstances here present, whether alimony should have been eliminated at a future date should not have been decided by Family Court (see, Tumolillo v Tumolillo, 71 AD2d 625, affd 51 NY2d 790; Sterlace v Sterlace, 52 AD2d 743, 744; Matter of Stolls v Cabot, 45 AD2d 1014). The provision terminating petitioner’s alimony after 52 weeks constitutes an in futuro modification not based on changed circumstances and must be deleted (see, McClusky v McClusky, 87 AD2d 973; see also, Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236A:8, at 168-169). In all other respects, the order is affirmed. (Appeal from order of Erie County Family Court, Killeen, J.—enforce divorce decree.) Present—Dillon, P. J., Boomer, Green, Balio and Law-ton, JJ.