Crane v. Crane

144 A.D.2d 933, 534 N.Y.S.2d 252, 1988 N.Y. App. Div. LEXIS 14394

Opinion

Order unanimously modified on the law and as modified affirmed without costs, and matter remitted to Supreme Court, Oneida County, for a hearing, in accordance with the following memorandum: The court erred in denying defendant’s application for a modification of a 1976 judgment of divorce without a hearing on his claim of a substantial change in plaintiff’s financial circumstances. Defendant, by his affidavit, made the requisite showing of a possible change of circumstances (see, Levinson v Levinson, 97 AD2d 458, 460; Matter of Hazell v Hazell, 66 AD2d 986, lv dismissed 46 NY2d 710; Hickland v Hickland, 56 AD2d 978). Plaintiff submitted neither anaffidavit nor a financial statement (see, Levinson v Levinson, supra, at 460).

Although the court unquestionably has the statutory authority to modify the judgment of divorce, it is powerless to change the parties’ separation agreement, which survives the judgment and remains unimpeached (Domestic Relations Law § 236 (A); Goldman v Goldman, 282 NY 296). (Appeal from order of Supreme Court, Oneida County, Grow, J. — terminate maintenance.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.