Mastrogiacomo v. Mastrogiacomo

• Decision Date: 13 October 1987
• Citation: 133 A.D.2d 671,519 N.Y.S.2d 841
• Parties: Leonard MASTROGIACOMO, Appellant, v. Helene R. MASTROGIACOMO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 841

519 N.Y.S.2d 841

133 A.D.2d 671

Leonard MASTROGIACOMO, Appellant, v. Helene R. MASTROGIACOMO, Respondent.

Supreme Court, Appellate Division,

Second Department.

Oct. 13, 1987.

Raymond P. Berberian, Forest Hills, for appellant.

Pirrotti & Bailly, Dobbs Ferry (Anthony J. Pirrotti, of counsel), for respondent.

Before THOMPSON, J.P., and NIEHOFF, EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by judgment dated October 21, 1974, the plaintiff husband appeals from an order of the Supreme Court, Kings County (Rigler, J.), dated October 24, 1986, which denied his motion for the termination of the provisions relating to alimony and medical expenses of the judgment of divorce and of a separation agreement which did not merge in the divorce judgment, and for an examination before trial with respect to the defendant wife's income and assets.

ORDERED that the order is affirmed, with costs.

The trial court did not err in denying, without a hearing, the husband's motion pursuant to Domestic Relations Law §§ 236(A)(1) and 248 to modify the judgment of divorce and the separation agreement, which was incorporated but not merged therein, so as to delete the requirement that he pay alimony and the medical expenses of the wife. The husband may challenge the separation agreement only by means of a plenary action (see, Culp v. Culp, 117 A.D.2d 700, 498 N.Y.S.2d 846). Therefore, even if this court were to modify downward the alimony provision of the divorce judgment, the wife's contractual rights in the separation agreement could not thereby be impaired (see, e.g., Kleila v. Kleila, 50 N.Y.2d 277, 283, 428 N.Y.S.2d 896, 406 N.E.2d 753; King v. Schultz, 29 N.Y.2d 718, 325 N.Y.S.2d 754, 275 N.E.2d 336; cf., Domestic Relations Law § 236[B][9][b] ). In any event, the husband failed to sustain his burden of demonstrating a change of circumstances sufficient to require a hearing on his motion to terminate the alimony provision of the judgment (see, Hickland v. Hickland, 56 A.D.2d 978, 979, 393 N.Y.S.2d 192; cf., Levinson v. Levinson, 97 A.D.2d 458, 459, 467 N.Y.S.2d 427). In order to terminate his support obligation pursuant to Domestic Relations Law § 248 the husband was required to satisfy a two-pronged test demonstrating both cohabitation and conduct by the wife amounting to "holding out" that she is married to another man (see, Bliss v. Bliss, 66 N.Y.2d 382, 387, 497 N.Y.S.2d 344, 488 N.E.2d 90...