Gross v. Gross

• Decision Date: 25 June 1984
• Citation: 477 N.Y.S.2d 52,102 A.D.2d 880
• Parties: Joan GROSS, Appellant, v. James A. GROSS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 52

477 N.Y.S.2d 52

102 A.D.2d 880

Joan GROSS, Appellant, v. James A. GROSS, Respondent.

Supreme Court, Appellate Division, Second Department.

June 25, 1984.

Dawson & Schwartz, Mineola (Richard B. Schwartz and Michael Grodofsky, Mineola, of counsel), for appellant.

Schaffer & Henner, Forest Hills (Eugene D. Zinbarg and Perry S. Friedman, New York City, of counsel), for respondent.

Before GIBBONS, J.P., and BROWN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, plaintiff wife appeals from so much of a judgment of the Supreme Court, Nassau County, entered December 7, 1982, as provided for (1) the sale of the marital premises, and (2) a reduction in the amount of alimony awarded to her from $175 per week to $125 per week upon the sale of the marital premises.

Judgment modified, on the law, by deleting from the fourth decretal paragraph the provision decreasing the award of alimony upon the sale of the marital premises from $175 per week to $125 per week. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.

The provision in the judgment reducing the award of alimony by $50 per week upon the sale of the marital premises is improper. The rules of this court provide that "judgment speaks as of its date and is based on then existing facts * * * provisions requiring a change in the future will not be included in the judgment, therefore, until the event on which change is predicated occurs" (22 NYCRR 699.9 see Ralske v. Ralske, 85 A.D.2d 598, 445 N.Y.S.2d 9, app. dsmd. 56 N.Y.2d 644; see, also, Doris v. Doris, 81 A.D.2d 602, 437 N.Y.S.2d 716; Matter of Bender v. Bender, 72 A.D.2d 745, 421 N.Y.S.2d 257; Lebowitz v. Lebowitz, 37 A.D.2d 841, 326 N.Y.S.2d 22; cf. Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15). Defendant husband may seek to modify the judgment upon the sale of the marital premises, if he be so advised.

We have considered the remaining contention of the plaintiff wife and find it to be without merit.