Hermans v. Hermans

Decision Date24 October 1989
Citation74 N.Y.2d 876,547 N.Y.S.2d 832,547 N.E.2d 87
Parties, 547 N.E.2d 87 In the Matter of Dorothy M. HERMANS, Appellant, v. Earl D. HERMANS, also known as E. Douglas Hermans, Respondent.
CourtNew York Court of Appeals Court of Appeals

Neil S. Weiner, Albany, for appellant.

Val M. Serbalik, Mechanicville, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be modified, with costs to appellant, by reinstating the order for spousal maintenance and, as so modified, affirmed.

In this proceeding brought under article 4 of the Family Court Act for an increase of an alimony award included within a 1966 judgment of divorce, the Family Court had the power to grant relief to the respondent in the form of an order decreasing or even terminating the alimony obligation, notwithstanding the absence of a pending formal request for such relief (see, Domestic Relations Law § 236[A]; see also, § 236[B]. Inasmuch as respondent had initially applied for a downward modification, petitioner had adequate notice that such relief was a possibility. Thus, in the absence of some showing of actual prejudice, petitioner cannot complain because the Family Court terminated respondent's alimony obligation even after respondent had withdrawn his formal request for such relief (see, CPLR 3017[a].

Nevertheless, the courts below applied the wrong standard in terminating the alimony award. The Family Court based its decision in part on "changes in the law since 1966[,] evidenc[ing] a change in attitude and thinking" and the provisions of the current Domestic Relations Law permitting maintenance awards that are limited in duration (Domestic Relations Law § 236[B][1][a]. In support of their conclusions that indefinite alimony payments were unnecessary, both courts below also cited the short duration of the parties' marriage, petitioner's age at the time of the divorce and the fact that she was then employed. Finally, the Appellate Division noted that petitioner currently holds full-time employment. 144 A.D.2d 719, 534 N.Y.S.2d 737.

Under the case law applicable to this 1966 divorce judgment, an alimony award may be modified only upon a clear and convincing showing of a substantial change in circumstances (Brody v. Brody, 22 A.D.2d 646, 252 N.Y.S.2d 1008, affd. 19 N.Y.2d 790, 279 N.Y.S.2d 732, 226 N.E.2d 539; see, Kover v. Kover, 29 N.Y.2d 408, 413, 328 N.Y.S.2d 641, 278 N.E.2d 886; see also, Domestic Relations Law § 236[B][9][b]. This standard requires a particularized showing of facts concerning the personal and financial circumstances of the parties both at the time of the original divorce settlement...

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  • People v. Dearstyne
    • United States
    • New York Supreme Court — Appellate Division
    • May 21, 2020
  • Matter of Flynn v. Rockwell
    • United States
    • New York Supreme Court — Appellate Division
    • June 6, 2002
    ...applicable standard for modification requires "a clear and convincing showing of a substantial change in circumstances" (Matter of Hermans v Hermans, 74 N.Y.2d 876, 878; see, Matter of Vitek v Vitek, 170 A.D.2d 908, 908; Matter of Kronenberg v Kronenberg, 101 A.D.2d 951, 951). Respondent se......
  • Dunlap v. Dunlap
    • United States
    • New York Supreme Court — Appellate Division
    • May 27, 1993
    ...his children's schooling was "reasonably foreseeable at the time of the entry of the divorce judgment" (Matter of Hermans v. Hermans, 74 N.Y.2d 876, 879, 547 N.Y.S.2d 832, 547 N.E.2d 87). Although we commiserate with defendant and recognize the inequity of burdening him with sole responsibi......
  • Daniel M.G. v. Annette P.
    • United States
    • New York Supreme Court — Appellate Division
    • March 10, 2020
    ...the burden of proof, on his petition for downward modification, was his, not the mother's (see e.g. Matter of Hermans v. Hermans , 74 N.Y.2d 876, 547 N.Y.S.2d 832, 547 N.E.2d 87 [1989] ), and he did not refute the mother's testimony on this point. His arguments about the propriety of the ap......
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