Gagliardi v. Gagliardi

Citation236 N.Y.S.2d 510,18 A.D.2d 788
PartiesElsie GAGLIARDI, Plaintiff-Respondent, v. James GAGLIARDI, Defendant-Appellant.
Decision Date22 January 1963
CourtNew York Supreme Court Appellate Division

Daniel G. Levin, Ossining, of counsel (Smyth & Levin, Ossining, attorneys), for defendant-appellant.

I. Irving Braff, of counsel (Braff & Braff, New York City, attorneys), for plaintiff-respondent.



Defendant husband appeals from an order granting his motion to modify permanent alimony payable to his wife under judgment of separation granted in 1948. Twice, since 1948, the judgment was modified on defendant husband's application to reduce the rate of alimony payable. He now complains that the amount of $22 per week was reduced to only $20 although he claimed a substantial decline in income as a result of arthritis which partially disabled him during the year. The wife admits to having a position that pays her approximately $100 per seek, but she argues that defendant does not support his conclusory assertions. The husband argues that he should have had a hearing in the light of the disputed issues and that the court also improperly conditioned the reduction on the payment of arrears of some $94 or $96.

The papers submitted by both parties are insufficient. They fail to disclose the details and circumstances upon which a court may determine, assuming the assertions to be true, what should be the disposition or whether a hearing on disputed issues is necessary. Indeed, so much is left unsaid that the existence of genuine issues of fact is not established.

The husband, at the very least, should have supported his affidavit with documentation obtained from his employer or from other sources showing the actual decline in income and sufficient detail to show whether or not the decline was likely to continue. He also was obligated to disclose what was the general situation with regard to his assets, with documentation, if such is available, and if not, with explanation as to why such documentation is not available.

The wife, on the other hand, makes no attempt to indicate her needs or to show to what extent her needs have been substantially affected by the marriage or her daughter, a circumstance upon which the husband relies heavily. At the same time the wife makes broad assertions concerning the husband's private life, but without detail or corroboration.

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7 cases
  • McGinnis v. McGinnis
    • United States
    • North Carolina Court of Appeals
    • January 8, 1980
    ...v. Hickland, 56 A.D.2d 978, 393 N.Y.S.2d 192 (1977); Gibb v. Gibb, 49 A.D.2d 886, 372 N.Y.S.2d 743 (1975); Gagliardi v. Gagliardi, 18 A.D.2d 788, 236 N.Y.S.2d 510 (1963). In the present case, both plaintiff, who was the movant in the New York court, and defendant filed affidavits in the New......
  • Hickland v. Hickland
    • United States
    • New York Supreme Court — Appellate Division
    • March 31, 1977
    ...377 N.Y.S.2d 583, 584), and the burden of proving the requisite change rests upon the party seeking the reduction (Gagliardi v. Gagliardi, 18 A.D.2d 788, 236 N.Y.S.2d 510). Such a showing must initially be by affidavit before the hearing processes of the court are invoked (id.). Herein, the......
  • Martin v. Martin
    • United States
    • New York Supreme Court — Appellate Division
    • June 28, 1993
    ...voluntary retirement constituted such a change in his own circumstances demonstrated the need for a hearing (see, Gagliardi v. Gagliardi, 18 A.D.2d 788, 236 N.Y.S.2d 510). The former husband's papers failed to make a sufficient showing of a substantial change in circumstances warranting eli......
  • Gutillo v. Gutillo
    • United States
    • New York Supreme Court — Appellate Division
    • October 31, 1968
    ...(§§ 461(b), 466(c)). The burden of establishing such a change rests upon the party seeking the reduction (Gagliardi v. Gagliardi, 18 A.D.2d 788, 236 N.Y.S.2d 510; Schwartz v. Schwartz, 23 A.D.2d 204, 259 N.Y.S.2d 751). The husband offered no proof to satisfy this burden but, over the object......
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