Smith v. Smith

80 A.D.2d 749, 437 N.Y.S.2d 184, 1981 N.Y. App. Div. LEXIS 10488

Opinion

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In 1976 plaintiff obtained a conversion divorce from defendant after living apart from her for one year pursuant to a separation agreement. By the terms of that agreement defendant waived alimony but she was given exclusive possession of the marital home and defendant agreed to pay all taxes, mortgage expenses and carrying charges. In 1979 plaintiff instituted this proceeding seeking an “interpretation” that the payments required of him by the agreement should be reduced as each of his minor children reached majority. The court granted the application and also ordered that the wife’s right to occupy the premises would terminate when the last child reached 18 and that the premises should then be sold. The agreement is unambiguous and requires no interpretation and the court’s order improperly modified its terms (see Matter of Boden v Boden, 42 NY2d 210; McMains v McMains, 15 NY2d 283; Raines v Raines, 80 AD2d 721; and see, generally, 2 Foster & Freed, Law and the Family, § 26.8). The order is modified by striking the first four ordering paragraphs, and, insofar as it grants the wife’s cross motion to recover support arrears and other incidental damages, it is affirmed. (Appeal from order of Onondaga Supreme Court — modify separation agreement.) Present — Simons, J. P., Hancock, Jr., Doerr, Denman and Moule, JJ.