Malaga v. Malaga
| Decision Date | 25 April 2005 |
| Docket Number | 2003-09754. |
| Citation | 2005 NY Slip Op 03206,17 A.D.3d 642,794 N.Y.S.2d 99 |
| Parties | ROSE MALAGA, Also Known as ROSE COLOMBO, Respondent, v. CESAR A. MALAGA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the amended judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the order is modified accordingly.
The parties were divorced by judgment of the Supreme Court, Suffolk County, dated August 21, 1990, after almost 30 years of marriage. Incorporated in the judgment, but not merged therein, was their stipulation of settlement which provided, inter alia, that the defendant would pay maintenance to the plaintiff in the sum of $800 per month for a period of eight months. In 1999 the plaintiff filed a motion in the original matrimonial action pursuant to Domestic Relations Law § 236 (B) (9) (b), inter alia, to modify the judgment dated August 21, 1990, so as to award her maintenance. After a psychiatric evaluation and a hearing, the Supreme Court granted that branch of the plaintiff's motion which was to award her maintenance finding that she established "extreme hardship" in that, inter alia, her personality disorder precluded her from being self-supporting. The Supreme Court awarded lifetime maintenance in the sum of $2,000 per month. The amended judgment was entered one year and four months later.
In circumstances where a separation agreement or stipulation of settlement has been incorporated, but not merged, into a judgment of divorce, a court is authorized to modify maintenance obligations even after the term for durational maintenance in the stipulation has expired (see Sass v Sass, 276 AD2d 42 [2000]). A court, however, may only grant such a modification, either upward or downward, upon the showing of "extreme hardship" (Domestic Relations Law § 236 [B] [9] [b]; Sheila C. v Donald C., 5 AD3d 123 [2004]; Busetti v Busetti, 108 AD2d 769, 771 [1985]).
The record does not support the conclusion of the Supreme...
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