Frys v. Frys

Appellate Division of the Supreme Court of New York

Frys v. Frys

120 A.D.2d 975, 502 N.Y.S.2d 881, 1986 N.Y. App. Div. LEXIS 57083

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

DecidedMay 23, 1986

StatusPublished

Cited by2 cases

This text of 120 A.D.2d 975 (Frys v. Frys) 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

Frys v. Frys, 120 A.D.2d 975, 502 N.Y.S.2d 881, 1986 N.Y. App. Div. LEXIS 57083 (N.Y. Ct. App. 1986).

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Opinion

— Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: It was error for Matrimonial Special Term to award maintenance to defendant pursuant to Domestic Relations Law § 236 (B) (9) (b). The provisions of that paragraph expressly do not apply to a separation agreement made, as here, prior to the effective date of the Equitable Distribution Law (EDL) (Domestic Relations Law § 236 [B], eff July 19, 1980). Such an agreement is governed by pre-EDL statutory provisions and decisional law (De Jose v De Jose, 66 NY2d 804; Strader v Strader, 91 AD2d 852). Thus an award of support may be made to defendant wife upon a showing "that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge” (McMains v McMains, 15 NY2d 283, 285). We reject defendant’s claim that the proof in this record satisfies that standard. The maintenance award must be vacated. (Appeals from order of Supreme Court, Erie County, Flaherty, J. — contempt.) Present — Dillon, P. J., Callahan, Doerr, Pine and Balio, JJ.

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— Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: It was error for Matrimonial Special Term to award maintenance to defendant pursuant to Domestic Relations Law § 236 (B) (9) (b). The provisions of that paragraph expressly do not apply to a separation agreement made, as here, prior to the effective date of the Equitable Distribution Law (EDL) (Domestic Relations Law § 236 [B], eff July 19, 1980). Such an agreement is governed by pre-EDL statutory provisions and decisional law (De Jose v De Jose, 66 NY2d 804; Strader v Strader, 91 AD2d 852). Thus an award of support may be made to defendant wife upon a showing "that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge” (McMains v McMains, 15 NY2d 283, 285). We reject defendant’s claim that the proof in this record satisfies that standard. The maintenance award must be vacated. (Appeals from order of Supreme Court, Erie County, Flaherty, J. — contempt.) Present — Dillon, P. J., Callahan, Doerr, Pine and Balio, JJ.

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Bluebook (online)

120 A.D.2d 975, 502 N.Y.S.2d 881, 1986 N.Y. App. Div. LEXIS 57083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frys-v-frys-nyappdiv-1986.

Opinion

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