Bartenbach v. Bartenbach

271 A.D.2d 799

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1946
• Status: Published

Opinion

Appeal by defendant husband from an order granting motion of plaintiff wife for the entry of a money judgment for the amount of arrears due under a decree of divorce computed on a $7 a week basis, an amount less than that provided for in the decree, and denying defendant’s cross motion to modify the final decree by striking therefrom all provisions in respect of payments of alimony, on the ground that plaintiff wife had released her claim thereto by an oral agreement. Order affirmed, with $50 costs and disbursements. The only method by which a divorce decree may be modified in respect of alimony is that set forth in section^ 1155 and 1170 of the Civil Practice Act. No agreement of the parties has an> effect on such a decree unless it is made effective by judicial action. (Gewirtz v. Gewirtz, 189 App. Div. 483; Beeler v. Beeler, 225 App. Div. 757.) There is no credible proof in this record of an oral release by the plaintiff in respect of the defendant’s obligations to pay alimony under the final decree. The fact that plaintiff has sought a money judgment in an amount less than that for which she was free to apply under the decree, gives rise to no grievance on the part of the defendant. This disposition is made without prejudice to either party moving" to modify the decree in respect of changed conditions growing out of children reaching their majority, or otherwise. In the event of such an application, the extent, if any, to which a modification should ensue, may be affected by the increased needs of the wife as a consequence of increased living expenses. (Domestic Relations Law, § 51.) Lewis, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.