Cooper v. Cooper

• Decision Date: 31 January 1992
• Citation: 179 A.D.2d 1035,578 N.Y.S.2d 800
• Parties: Shirley H. COOPER, Appellant-Respondent, v. Irving COOPER, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 800

578 N.Y.S.2d 800

179 A.D.2d 1035

Shirley H. COOPER, Appellant-Respondent, v. Irving COOPER, Respondent-Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Jan. 31, 1992.

Thielman & Thielman by Phillip Thielman, Buffalo, for appellant-respondent.

Norton, Radin, Hoover, Freedman by Bernard Freedman, Kenmore, for respondent-appellant.

Before DENMAN, P.J., and PINE, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

Plaintiff appeals from that portion of an order of Supreme Court that summarily denied her application for upward modification of alimony. Defendant cross-appeals, contending that the court erred in awarding plaintiff $1500 in attorney's fees incurred on the application. Additionally, defendant contends that the court erred in denying a hearing on the issue of whether the parties' financial stipulation survived the judgment of divorce.

The court properly determined the merger-survival issue without a hearing. Merger occurs unless the parties' agreement expressly stipulates against it (Matter of Wlodarek v. Wlodarek, 78 A.D.2d 981, 433 N.Y.S.2d 672; accord, Nicoletti v. Nicoletti, 43 A.D.2d 699, 349 N.Y.S.2d 794). Here, the agreement is silent on the issue and thus is deemed to merge into the decree and not survive it as a separate and independent contract (Matter of Fishman v. Fisher, 77 A.D.2d 596, 430 N.Y.S.2d 11; Nicoletti v. Nicoletti, supra ).

The court erred in determining plaintiff's application without a hearing. An application for modification of alimony should not be denied without a hearing unless the moving papers are insufficient to demonstrate a ground for the relief sought (Matter of Shipley v. Shipley, 55 A.D.2d 577, 578, 390 N.Y.S.2d 85; Parsons v. Parsons, 54 A.D.2d 861, 388 N.Y.S.2d 605; Stroh v. Stroh, 52 A.D.2d 844, 382 N.Y.S.2d 816; Ciaschi v. Ciaschi, 49 A.D.2d 991, 374 N.Y.S.2d 723). Plaintiff's papers allege a substantial change of circumstances warranting an increase in alimony (see, Kover v. Kover, 29 N.Y.2d 408, 413, 328 N.Y.S.2d 641, 278 N.E.2d 886). She alleges that, as a result of the general increase in the cost of living, the purchasing power of her alimony has been reduced by nearly one-half in the 15 years since the divorce. She also alleges that she has incurred unanticipated and uninsured medical expenses of about $500 per month. Finally, she avers that defendant's income has increased substantially since the divorce.

The court should not have awarded attorney's fees in the absence of an affidavit attesting to counsel's services. Without such affidavit, the court could not determine the nature,...