Gottlieb v. Gottlieb

50 A.D.2d 921, 377 N.Y.S.2d 624, 1975 N.Y. App. Div. LEXIS 12172

Opinion

— In a matrimonial action in which plaintiff had been granted a judgment of divorce, she appeals (1) from so much of an order of the Supreme Court, Nassau County, dated February 10, 1975, as modified the said judgmenst by reducing the alimony payable to her by defendant from $100 per week to $50 per week and (2) from a further order of the same court, dated May 15, 1975, which denied her motion to renew the issue of the reduction of the alimony. Order dated February 10, 1975 reversed insofar as appealed from and order dated May 15, 1975 reversed, without costs, and action remanded to Special Term for a new hearing on the issue of alimony. The respondent husband appeared pro se in response to the motion seeking to have him adjudged in contempt for failure to comply with the provision for alimony contained in the judgment of divorce. At the contempt hearing held on January 28, 1975 the husband testified that the change in his wife’s financial position (she obtained a job at a salary of $150 per week) warranted a downward modification of alimony. The trial court treated his testimony as an application for such relief, without, however, being specifically requested to do so. In remanding the proceeding to Special Term, we note that, pursuant to section 236 of the Domestic Relations Law, a formal application should be made when a downward modification of alimony is sought and that defendant should make such a formal application in this case in order to fix the limits of the hearing. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur. The respondent husband appeared pro se in response to the motion seeking to have him adjudged in contempt for failure to comply with the provision for alimony contained in the judgment of divorce. At the contempt hearing held on January 28, 1975 the husband testified that the change in his wife’s financial position (she obtained a job at a salary of $150 per week) warranted a downward modification of alimony. The trial court treated his testimony as an application for such relief, without, however, being specifically requested to do so. In remanding the proceeding to Special Term, we note that, pursuant to section 236 of the Domestic Relations Law, a formal application should be made when a downward modification of alimony is sought and that defendant should make such a formal application in this case in order to fix the limits of the hearing. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.