Hermans v. Hermans

• Decision Date: 03 November 1988
• Citation: 144 A.D.2d 719,534 N.Y.S.2d 737
• Parties: In the Matter of Dorothy M. HERMANS, Appellant, v. Earl D. HERMANS, Also Known as E. Douglas Hermans, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 737

534 N.Y.S.2d 737

144 A.D.2d 719

In the Matter of Dorothy M. HERMANS, Appellant, v. Earl D. HERMANS, Also Known as E. Douglas Hermans, Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 3, 1988.

Neil S. Weiner (Rebecca Finkler, of counsel), Albany, for appellant.

Val Serbalik, Mechanicville, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, MIKOLL and HARVEY, JJ.

WEISS, Justice.

Appeal from an order of the Family Court of Albany County (Cheeseman, J.), entered September 30, 1987, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 4, for an upward modification of maintenance, and directed that a prior order of maintenance be terminated.

The parties were married in May 1965 and divorced in December 1966 pursuant to a decree which provided, inter alia, respondent pay $25 per week maintenance to petitioner. In November 1986, petitioner commenced this proceeding seeking an upward modification in maintenance. No maintenance adjustments had been made during the preceding 20-year period. Respondent answered and filed a cross petition seeking to terminate or reduce his maintenance obligation. A hearing was held before a Hearing Examiner (see, Family Ct. Act § 439), during the course of which respondent expressly withdrew his cross petition. The Hearing Examiner concluded, nonetheless, that it would be inequitable to continue respondent's maintenance obligation and directed that it be terminated. Family Court adopted the findings and decision of the Hearing Examiner, and this appeal by petitioner ensued.

We affirm. Initially, we observe that petitioner challenges Family Court's order only insofar as it directs the termination of support. Petitioner maintains that Family Court acted without subject matter jurisdiction inasmuch as respondent withdrew his cross petition seeking to terminate the prior maintenance order. We disagree. Domestic Relations Law § 236(B)(9)(b) authorizes Family Court to "annul or modify any prior order or judgment as to maintenance" upon the application of either party (emphasis supplied). It follows that petitioner's application vested Family Court with subject matter jurisdiction over the propriety of the support award, notwithstanding the withdrawal of respondent's cross petition.

The issue thus distills to whether a substantial change in circumstances occurred justifying the termination of maintenance (Domestic Relations Law § 236[B][9][b]; see, Matter of Archer v. Archer, App.Div., 531 N.Y.S.2d 69). It is evident that the Hearing Examiner and...