Peters v. Peters

CourtNew York Supreme Court Appellate Division
Citation14 A.D.2d 778,219 N.Y.S.2d 906
PartiesTheresa Mary PETERS, Respondent, v. George Joseph PETERS, Appellant.
Decision Date02 October 1961

Rubin & Rubin, New Rochelle, for appellant, Sol Rubin, New Rochelle, of counsel.

Joseph M. Baltz, Jr., White Plains, for respondent.



In a divorce action by a wife, in which the interlocutory judgment of divorce, rendered in her favor in 1950, required the defendant husband to pay $150 a month to the wife as permanent alimony for her support and for the support of their two infant children, the defendant appeals from an order of the Supreme Court, Westchester County, dated March 13, 1961, denying his motion to terminate his obligation to make the alimony payments directed by the judgment or, in the alternative, to reduce the amount of such payments.

The application was made on the ground that one of the children, a daughter, has been married and fully emancipated for about three years; that the other child, a son, who attained the age of 20 in January, 1961, was also emancipated and self-supporting; and that plaintiff was self-supporting.

Order reversed, without costs, and matter remitted to Special Term for the taking of testimony, before the court or a referee, as to the financial condition of the parties and their son.

The amount of plaintiff's current income and assets, and the relative income of the respective parties, should be considered in determining the amount of the monthly alimony payments which should now be made by defendant to plaintiff (Phillips v. Phillips, 1 A.D.2d 393, 150 N.Y.S.2d 646, affirmed 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738; Sacknoff v. Sacknoff, 6 A.D.2d 879, 177 N.Y.S.2d 756, affirmed 7 N.Y.2d 771, 194 N.Y.S.2d 40, 163 N.E.2d 144). Defendant may not be compelled to support the daughter, who is married and emancipated; nor may defendant be required to support the son, if he is self-supporting (Sloan v. Sloan, 286 App.Div. 1102, 145 N.Y.S.2d 797; Graffeo v. Graffeo, 7 A.D.2d 741, 180 N.Y.S.2d 844).

However, the fact that defendant is no longer liable for the support of the daughter and the fact that defendant may not be liable now for the support of the son, does not mean that defendant is automatically entitled to a reduction in the total amount of the alimony directed to be paid by the judgment (Sloan v. Sloan, supra; Graffeo v. Graffeo,...

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19 cases
  • Day v. Day, 5048
    • United States
    • Supreme Court of Nevada
    • September 9, 1966
    ...his claim was a modification proceeding (Crook v. Crook, 80 Ariz. 275, 296 P.2d 951, 58 A.L.R.2d 352 (1956); Peters v. Peters, 14 App.Div.2d 778, 219 N.Y.S.2d 906 (1961); Hayes v. Hayes, 156 S.W.2d 34 (Mo.App.1941); Davis v. Davis, 68 App.D.C. 240, 96 F.2d 512 (1938)), and may be read to st......
  • Benson v. Benson
    • United States
    • New York Supreme Court Appellate Division
    • December 29, 1980
    ...defendant from providing for his continued support (see Schubert v. Schubert, 46 A.D.2d 667, 359 N.Y.S.2d 845; Peters v. Peters, 14 A.D.2d 778, 219 N.Y.S.2d 906; 11 B Zett-Edmonds-Schwartz, N.Y.Civ.Prac., § 41.03(2)(a)(v), p. Insofar as there is insufficient proof in the record as to the ne......
  • Henry v. Boyd
    • United States
    • New York Supreme Court Appellate Division
    • March 6, 1984
    ...(see, also, Schiffman v. Schiffman, 79 A.D.2d 971, 972, 434 N.Y.S.2d 458; Lyle v. Lyle, 72 A.D.2d 597, 421 N.Y.S.2d 98; Peters v. Peters, 14 A.D.2d 778, 219 N.Y.S.2d 906). The fact that the child is married and emancipated, however, is not necessarily determinative "when considering the app......
  • Adlerman v. Adlerman
    • United States
    • New York Supreme Court Appellate Division
    • December 13, 1966 circumstances is to be determined on her allegations without attempting to resolve those disputed by defendant. (Peters v. Peters, 14 A.D.2d 778, 219 N.Y.S.2d 906; cf. Brody v. Brody, 22 A.D.2d 646, 252 N.Y.S.2d 1008; Liebmann v. Liebmann, 22 A.D.2d 663, 253 N.Y.S.2d BOTEIN, P.J., and BR......
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