Kreuger v. Kreuger

• Decision Date: 27 October 1980
• Citation: 432 N.Y.S.2d 518,78 A.D.2d 692
• Parties: Judith KREUGER, Respondent, v. Martin KREUGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 518

432 N.Y.S.2d 518

78 A.D.2d 692

Judith KREUGER, Respondent, v. Martin KREUGER, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 27, 1980.

Siller & Galian, New York City (Sidney Siller, New York City, of counsel), for appellant.

Saul Edelstein, Brooklyn (Phil Brown, Brooklyn, on brief), for respondent.

Before DAMIANI, J. P., and TITONE, MANGANO and GIBBONS, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant husband, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated February 15, 1979, as denied his motion for a downward modification of the support and alimony provisions of a judgment of divorce between the parties.

Order reversed insofar as appealed from, without costs or disbursements and matter remitted to Special Term for a hearing in accordance herewith.

The parties settled the financial aspects of their divorce litigation and entered into an oral stipulation in open court that the husband would pay one-half the net amount he received on any check from any source to the wife, of which $20 per week was to be for alimony and the balance for support of the three children of the parties. The stipulation was incorporated but not merged into the judgment of divorce, dated October 10, 1973.

Sometime thereafter, the husband moved for a downward modification of the support provisions of the divorce judgment and to have the court fix a definite sum as his alimony and child support obligation. The husband claimed changed circumstances in that since the divorce he had suffered an unanticipated decrease in his yearly earnings and the wife had obtained gainful employment. In opposition the wife contended that at the time of their stipulation the parties contemplated that she would obtain employment and that any loss of income was due either to the fact that her husband had stopped working at certain employment which he had formerly engaged in to earn extra money beyond his salary as a teacher or because he was now being paid off the books.

By decision dated May 25, 1976, Mr. Justice HELLER directed a hearing on the husband's motion, but for some unexplained reason the hearing had not been held as of July 7, 1977 when the Court of Appeals decided Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791. When the case finally came on for a hearing before Madam Justice DUBERSTEIN (Justice HELLER having left the bench), she gave the parties the opportunity to submit briefs as to the impact of the Boden decision upon the issues in this case. After considering the matter Justice DUBERSTEIN concluded that the instant case presented issues of fact as to whether the alleged changes of circumstances were unforeseen and unreasonable and she therefore ordered the hearing to proceed as directed by Justice...