Clarkson v. Clarkson

Appellate Division of the Supreme Court of New York

Clarkson v. Clarkson

42 A.D.2d 1028, 348 N.Y.S.2d 263, 1973 N.Y. App. Div. LEXIS 3283

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 26, 1973

StatusPublished

Cited by1 cases

This text of 42 A.D.2d 1028 (Clarkson v. Clarkson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clarkson v. Clarkson, 42 A.D.2d 1028, 348 N.Y.S.2d 263, 1973 N.Y. App. Div. LEXIS 3283 (N.Y. Ct. App. 1973).

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Opinion

Order unanimously affirmed, without costs. Memorandum: In affirming we observe (1) The informal agreement with respect to property and support for the two children was meant to be and was merged into the order of February 23, 1971 and the judgment of divorce of March 25, 1971. Hence, the court retains full power to reconsider plaintiff’s right to and need of alimony from time to time (McMains v. McMains, 15 N Y 2d 283, 285-287). The record shows that plaintiff is* in good health, well educated and is a qualified school teacher. “ A wife is not entitled to a share of her husband’s income as such nor is there a right to escalation [of property settlement or alimony] as the husband prospers but she must have minimum support ” (McMains v. McMains, supra, p. 288). In light of the circumstances of the separation and divorce herein and the conveyance of property by defendant to plaintiff, accepted by her without provision for alimony payments, plaintiff may only obtain modification of the decree to provide for payment of alimony upon a showing that she has inadequate earning capacity and funds to support herself in accordance with the standard of living which she enjoyed before the divorce. (2) The record does not support the statement made at Special Term that the older son is emancipated. (Appeals from order of Onondaga Trial Term in motions to modify judgment of divorce.) Present — Goldman, P. J., Del Vecchio, Witmer, Cardamone and Henry, JJ.

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Order unanimously affirmed, without costs. Memorandum: In affirming we observe (1) The informal agreement with respect to property and support for the two children was meant to be and was merged into the order of February 23, 1971 and the judgment of divorce of March 25, 1971. Hence, the court retains full power to reconsider plaintiff’s right to and need of alimony from time to time (McMains v. McMains, 15 N Y 2d 283, 285-287). The record shows that plaintiff is* in good health, well educated and is a qualified school teacher. “ A wife is not entitled to a share of her husband’s income as such nor is there a right to escalation [of property settlement or alimony] as the husband prospers but she must have minimum support ” (McMains v. McMains, supra, p. 288). In light of the circumstances of the separation and divorce herein and the conveyance of property by defendant to plaintiff, accepted by her without provision for alimony payments, plaintiff may only obtain modification of the decree to provide for payment of alimony upon a showing that she has inadequate earning capacity and funds to support herself in accordance with the standard of living which she enjoyed before the divorce. (2) The record does not support the statement made at Special Term that the older son is emancipated. (Appeals from order of Onondaga Trial Term in motions to modify judgment of divorce.) Present — Goldman, P. J., Del Vecchio, Witmer, Cardamone and Henry, JJ.

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Bluebook (online)

42 A.D.2d 1028, 348 N.Y.S.2d 263, 1973 N.Y. App. Div. LEXIS 3283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarkson-v-clarkson-nyappdiv-1973.

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