McMains v. McMains

Appellate Division of the Supreme Court of New York

McMains v. McMains

20 A.D.2d 792, 248 N.Y.S.2d 153, 1964 N.Y. App. Div. LEXIS 4275

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

DecidedMarch 2, 1964

StatusPublished

This text of 20 A.D.2d 792 (McMains v. McMains) 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

McMains v. McMains, 20 A.D.2d 792, 248 N.Y.S.2d 153, 1964 N.Y. App. Div. LEXIS 4275 (N.Y. Ct. App. 1964).

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Opinion

— In a divorce action, in which a judgment in the plaintiff wife’s favor awarding her alimony of $100 a month for her support was entered in 1945, the defendant appeals: (a) from an order of the Supreme Court, Queens County, dated July 5, 1963, which granted plaintiff’s motion, amended the [793]*793judgment by increasing to $350 a month the alimony awarded to plaintiff, and directed defendant to pay $250 to plaintiff as a counsel fee upon the motion; and (b) from the decision of the court upon which such order was based. Order reversed on the law, without costs; and motion denied, without costs. Appeal from decision dismissed; no appeal lies from a decision. In 1944, prior to the entry of the judgment, the parties had entered into a separation agreement which provided for the payment by the husband to the wife of $100 a month for her support. The judgment thereafter entered likewise provided for the payment to the wife of $100 a month for her support. A divorce decree may not be amended so as to provide alimony payments to the wife in excess of those fixed by the parties in a separation agreement where the amount of the alimony is incorporated in the decree and where the agreement is not merged in the decree (Schmezel v. Schmezel, 287 N. Y. 21; Goldman v. Goldman, 282 N. Y. 296). Beldock, P. J., Christ, Brennan and Rabin, JJ., concur; Hill, J., not voting.

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— In a divorce action, in which a judgment in the plaintiff wife’s favor awarding her alimony of $100 a month for her support was entered in 1945, the defendant appeals: (a) from an order of the Supreme Court, Queens County, dated July 5, 1963, which granted plaintiff’s motion, amended the [793]*793judgment by increasing to $350 a month the alimony awarded to plaintiff, and directed defendant to pay $250 to plaintiff as a counsel fee upon the motion; and (b) from the decision of the court upon which such order was based. Order reversed on the law, without costs; and motion denied, without costs. Appeal from decision dismissed; no appeal lies from a decision. In 1944, prior to the entry of the judgment, the parties had entered into a separation agreement which provided for the payment by the husband to the wife of $100 a month for her support. The judgment thereafter entered likewise provided for the payment to the wife of $100 a month for her support. A divorce decree may not be amended so as to provide alimony payments to the wife in excess of those fixed by the parties in a separation agreement where the amount of the alimony is incorporated in the decree and where the agreement is not merged in the decree (Schmezel v. Schmezel, 287 N. Y. 21; Goldman v. Goldman, 282 N. Y. 296). Beldock, P. J., Christ, Brennan and Rabin, JJ., concur; Hill, J., not voting.

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Bluebook (online)

20 A.D.2d 792, 248 N.Y.S.2d 153, 1964 N.Y. App. Div. LEXIS 4275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmains-v-mcmains-nyappdiv-1964.

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