Windecker v. Windecker

73 A.D.2d 601, 422 N.Y.S.2d 119, 1979 N.Y. App. Div. LEXIS 14390

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1979
• Status: Published

Opinion

In a matrimonial action, plaintiff appeals from so much of an order of the Supreme Court, Nassau County, entered April 20, 1978, as, upon reargument, adhered to a previous order of the same court, dated February 24, 1978, denying his motion for a downward modification of alimony. Order reversed insofar as appealed from, without costs or disbursements, order dated February 24, 1978 vacated, and case remitted to Special Term for an evidentiary hearing on the application for a downward modification. The record here demonstrates that the Family Court did not reach the issue of whether the plaintiff was without knowledge of his wife’s employment status when he entered into the stipulation incorporated into the judgment of divorce. Therefore, it was error for Special Term to deny plaintiffs application for a downward modification based upon the earlier decision of the Family Court. Moreover, evidence was adduced suggesting a change in circumstances occurring subsequent to the Family Court’s order which should have been considered on the merits at Special Term. Accordingly, a hearing should have been held on the plaintiffs application (see Dostanko v Dostanko, 57 AD2d 885). Mollen, P. J., Titone, O’Connor, Cohalan and Margett, JJ., concur.