Heath v. Heath

128 A.D.2d 587, 513 N.Y.S.2d 10, 1987 N.Y. App. Div. LEXIS 44278

Opinion

In a matrimonial action, the plaintiff husband appeals from an order of the Supreme Court, Nassau County (Collins, J.), dated December 13, 1985, which, inter alia, denied his application for a downward modification of maintenance.

Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing consistent herewith.

Special Term improperly refused to address the plaintiff’s application for downward modification of the maintenance provisions of the separation agreement which, while not merged into the judgment of divorce, were incorporated therein. This was error. Domestic Relations Law § 236 (B) (9) (b) authorizes modification of the terms of a separation agreement which has been incorporated into a judgment of divorce upon a showing of extreme hardship (see, Pintus v Pintus, 104 AD2d 866). Accordingly, the matter is remitted for a hearing to determine whether there has been a substantial change of circumstances, and, if so, whether the plaintiff has shown that he will suffer extreme hardship if the maintenance terms are not modified, and further, whether he can demonstrate good cause for his failure to apply for judicial relief before allowing arrears to accrue (see, Busetti v Busetti, 108 AD2d 769, 771-772). Mangano, J. P., Thompson, Brown and Eiber, JJ., concur.