Pintus v. Pintus
| Decision Date | 09 October 1984 |
| Citation | 480 N.Y.S.2d 501,104 A.D.2d 866 |
| Parties | Estelle PINTUS, Appellant-Respondent, v. Fred M. PINTUS, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jacob Goodman, New Rochelle (Jay R. Fisherman, New Rochelle, of counsel), for appellant-respondent.
Fahey, Isaac & Neale, White Plains (Evelyn K. Isaac, White Plains, of counsel; Barbara Lerman, Larchmont, on brief), for respondent-appellant.
Before RUBIN, J.P., and BOYERS, LAWRENCE and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, (1) the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County, dated March 29, 1983, as granted that portion of the defendant husband's cross motion which was for a suspension of the maintenance payments defendant was required to make to her pursuant to a stipulation of settlement incorporated into, but not merged with, a judgment of divorce between the parties, to the extent of suspending such payments for the period from May 21, 1982 until November 1, 1982, when he was unemployed, and (2) the defendant husband cross-appeals, as limited by his brief, from so much of the same order as denied that portion of his cross motion which was for a downward modification of his maintenance obligations under the stipulation of settlement and judgment; as directed the County Clerk of Westchester County to enter a money judgment in favor of plaintiff against him for the sum of $3,150, representing his arrears in maintenance payments from November 1, 1982 until March 1, 1983, with interest from the latter date; and as awarded plaintiff $1,200 in counsel fees.
Order modified, on the law and the facts, by increasing the amount of the money judgment that the County Clerk of Westchester County is directed to enter against defendant pursuant to the second decretal paragraph thereof by the sum of $4,025, making a total money judgment of $7,175, with interest from March 1, 1983. As so modified, order affirmed, without costs or disbursements. The findings of fact by Special Term are affirmed, except where specifically indicated below.
The parties entered into a stipulation of settlement, which was read into the record in open court and which was incorporated into, but not merged with, a judgment of divorce between the parties dated March 5, 1982. The stipulation,inter alia, required defendant to pay plaintiff $175 per week in maintenance for the period of one year after the entry of the judgment of divorce and $150 per week thereafter until her death, remarriage or permanent cohabitation with another man, with the following provision: "The husband reserves his rights under the Domestic Relations Law, Section 236(b) in the event of the loss of his job, disability or retirement at age sixty-five to apply to the court for a change of circumstances under the provisions of Section 236(b)".
By order to show cause, dated May 27, 1982, plaintiff moved for an order holding defendant in contempt for failing to comply with various provisions of the stipulation of settlement and the divorce decree, not including the provision relating to maintenance. In addition to opposing plaintiff's motion, by affidavit sworn on June 3, 1982, defendant cross-moved, inter alia, for a suspension or, in the alternative, a reduction of the maintenance payments he was required to make pursuant to the parties' stipulation and the divorce judgment, asserting that he had been terminated from his employment, effective May 21, 1982. Plaintiff submitted a reply affidavit, dated June 10, 1982, in which she sought enforcement of the maintenance provisions of the stipulation and divorce decree, including an order requiring defendant to pay the arrears which had accrued up until that date. Defendant admitted, during the hearing before Special Term on the maintenance issue, that he unilaterally ceased making maintenance payments to plaintiff after he became unemployed.
We conclude that a party seeking a modification of the maintenance provisions of a divorce decree reflecting the terms of a stipulation of settlement, which has been incorporated into, but not merged with that judgment, should be required to demonstrate that the continued enforcement of those provisions previously agreed to by the parties would create "extreme hardship". This is the same standard that a party is required to meet to obtain a modification of the maintenance provisions of a judgment of divorce reflecting the terms of an unmerged separation agreement, pursuant to section 236 () of the Domestic Relations Law. That statutory provision reads in pertinent part: "Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or decree incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the decree or order as modified shall supersede the terms of the prior agreement...
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