Meyer v. Meyer

• Decision Date: 19 November 1957
• Citation: 10 Misc.2d 728,169 N.Y.S.2d 190
• Parties: Mollie MEYER, Plaintiff, v. Samuel MEYER, Defendant.
• Court: New York Supreme Court

Page 190

169 N.Y.S.2d 190

10 Misc.2d 728

Mollie MEYER, Plaintiff, v. Samuel MEYER, Defendant.

Supreme Court, Special Term, Bronx County, Part I.

Nov. 19, 1957.

Rehearing Denied Dec. 10, 1957.

Lawrence R. Condon, New York City, Abraham Hornstein, New York City, of counsel, for plaintiff.

Oscar A. Blaustein, New York City, for defendant.

TILZER, Justice.

This is a motion by plaintiff to amend the judgment of this court, entered on July 5, 1951 and granting plaintiff $225 monthly for her support and maintenance, and $225 monthly for the support of the two infant children.

The judgment had incorporated therein a separation agreement previously entered into by the parties. Whether such agreement survives the judgment is not in issue on this motion and could only be determined after trial. Sureau v. Sureau, 280 App.Div. 927, 116 N.Y.S.2d 470, affirmed 305 N.Y. 720, 112 N.E.2d 786.

This application is based upon changed circumstances, to wit: increased income of the defendant; increased costs of maintenance and education and decreased value of the dollar. Defendant, besides denying the increased income as alleged, or material in his circumstances or that of the plaintiff, refers to the separation agreement as binding upon the plaintiff. However, the court finds that the plaintiff is not endeavoring to change the terms of the separation agreement.

The law governing this application is stated in Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265. At page 303, last paragraph of 282 N.Y., at page 268 of 26 N.E.2d, in considering the contention of the plaintiff that the provisions for support of wife and children incorporated in a decree of divorce pursuant to a valid agreement of the parties, may not be changed or modified without the consent of both parties, the court stated 'The court, in the exercise of its powers conferred by statute, directed the defendant to pay the sum which both parties, at that time, agreed would be a suitable provision for his wife and children. That direction might be enforced in manner provided by the statute, though the contractual obligation could not be so enforced; and might be modified thereafter by the court, though the contractual obligation could not be so modified without the consent of the parties. The plaintiff having invoked the power conferred upon the court by statute, to direct the defendant to make suitable provision for her support, the defendant may invoke the power of the court, conferred by that same statute, to modify its directions for 'the effect of the statute is to write a reservation into every final judgment of divorce.' Fox v. Fox. 263 N.Y. 68, 70, 188 N.E. 160. The direction contained in the judgment entered upon the plaintiff's motion must be read as if it included an express reservation that it may thereafter be annulled, varied or modified pursuant to statute'.

The plaintiff herein is seeking to modify the judgment under the change of circumstances alleged. But the change of circumstances as alleged is not altogether supported by proof. Statements of the defendant's ownership of huge real estate and business interests and of his income therefrom could be substantiated by proof with a little investigation if such was...