Hickland v. Hickland

• Decision Date: 03 July 1980
• Citation: 77 A.D.2d 683,430 N.Y.S.2d 15
• Parties: Richard A. HICKLAND, Appellant, v. Alice M. HICKLAND, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 15

430 N.Y.S.2d 15

77 A.D.2d 683

Richard A. HICKLAND, Appellant, v. Alice M. HICKLAND, Respondent.

Supreme Court, Appellate Division, Third Department.

July 3, 1980.

Richard A. Hickland, appellant pro se.

John S. Hall, Warrensburg (Henry D. Sintzenich, II, Warrensburg, of counsel), for respondent.

Robert Abrams, Atty. Gen. (Jeremiah Jochnowitz and William J. Kogan, Asst. Atty. Gen., of counsel), appeared pursuant to § 71 of the Executive Law.

Before SWEENEY, J. P., and KANE, STALEY, MAIN and CASEY, JJ.

MEMORANDUM DECISION.

Appeals (1) from an order of the Supreme Court at Special Term, entered September 11, 1979 in Washington County, which denied plaintiff's motion for an order discontinuing alimony, and (2) from an order of the Supreme Court at Special Term, entered October 30, 1979 in Washington County, which awarded defendant a judgment in the sum of $8,000, representing plaintiff's arrearage in alimony payments.

The parties were married July 20, 1946. On April 16, 1974, a judgment was entered in Washington County granting a divorce to defendant wife and awarding her $50 per week alimony. Although this court modified the judgment, inter alia, by deleting the award of alimony, the Court of Appeals reinstated the award (Hickland v. Hickland, 46 A.D.2d 954, 362 N.Y.S.2d 240, mod. 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, cert. den. 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310). Following the decision of the Court of Appeals, a judgment for arrearage in alimony payments was entered in favor of defendant in the amount of $5,000. Thereafter, plaintiff moved for an order discontinuing the alimony previously awarded to defendant, relieving him from all accumulated installments thereof and vacating the judgment for arrearage in the sum of $5,000. By order, entered September 11, 1979, plaintiff's motion was denied. Plaintiff has appealed from this order and also from an order entered October 30, 1979 awarding defendant a judgment of $8,000 for arrearage in alimony payments.

Relying on Orr v. Orr (440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306), plaintiff urges reversal on the ground that section 236 of the Domestic Relations Law is similar to the Alabama statute therein declared unconstitutional as sex-based. There must be an affirmance (see Goodell v. Goodell, App.Div., 429 N.Y.S.2d 789).

Orders affirmed, with costs.