Levine v. Levine
| Decision Date | 25 September 1974 |
| Parties | Samuel LEVINE, Plaintiff, v. Judy LEVINE, Defendant. |
| Court | New York Supreme Court |
Schaeffer, Mackler Brothers & Greenberg, New York City, for plaintiff.
Carl Mione, Brooklyn, for defendant.
Motion by defendant wife to punish plaintiff for contempt for having defaulted in the payment of alimony in the sum of $200, and a counsel fee for making the motion.
Cross motion by plaintiff for an order modifying the judgment of divorce by striking therefrom the provision for alimony and related relief.
For all practical purposes, the thrust of plaintiff's cross motion is to strike the provision in the separation agreement providing for the payment of alimony because defendant allegedly was living openly with another man.
Plaintiff and defendant were married in the State of New York in 1962. There are two issue of the marriage who are 12 years and 11 years of age. Plaintiff is paying child support in the sum of $50 per week, so that is not an issue herein. On September 9, 1971 plaintiff was granted a judgment of divorce against the defendant on the basis of a two-year separation. The judgment incorporated a separation agreement entered into between the parties.
With respect to alimony, the separation agreement provides that plaintiff pay 'the sum of $25 per week for the support of the wife, as long as she does not remarry, in which event payment for her support shall cease.'
A hearing on the issue was held. Plaintiff raised various objections to the payment of the monies to the wife, including his claim of payment for carpeting and medical bills, which the court dismissed. The sole question remaining relates to the court's authority to eliminate the alimony provision from the judgment or, in reality, from the separation agreement, because another man is living with defendant. The evidence indicated that such was the case, although not for the past six months.
It is to be noted that the separation agreement in question, specifically states that support to the wife is to terminate upon her remarriage. Such an eventuality presents no problem. This provision in the separation agreement is reasonably based upon the fact that a woman must look to her current husband for Support rather than to a former husband. Thus, the termination of the former husband's duty rests upon a policy not to allow 'double support' rather than any technical change in the formal marital status of the woman involved. This rationale was recognized by the legislature when it enacted section 248 of the Domestic Relations Law, which provides that a court may in its discretion eliminate provision for alimony 'upon proof that the wife is habitually living with another man and holding herself out as his wife.'
In this modern day and age it must be recognized that informal and...
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...had long troubled the courts (See, In re Anonymous, 90 Misc.2d 801, 395 N.Y.S.2d 1000 (Fam.Ct., Nassau Co., 1977); Levine v. Levine, 79 Misc.2d 149, 359 N.Y.S.2d 744 (Sup.Ct., Kings Co., 1974); Citron v. Citron, 91 Misc.2d 785, 398 N.Y.S.2d 624 (Sup.Ct., Nassau Co., 1977); Stern v. Stern, 8......
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...and in its place substitute one which it thinks proper but which as a matter of fact the parties had never assented to. In Levine v. Levine (79 Misc 2d 149 ), the Supreme Court, Kings County (Hirsch, J.) enunciat its view that section 248 of the Domestic Relations Law inferentially supports......
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