Zellermayer v. Zellermayer

• Decision Date: 16 February 1971
• Parties: Marilyn ZELLERMAYER, Respondent, v. Philip ZELLERMAYER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 147

319 N.Y.S.2d 147

36 A.D.2d 636

Marilyn ZELLERMAYER, Respondent, v. Philip ZELLERMAYER, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 16, 1971.

Bacharach, Green & Bass, Bernard Bacharach, White Plains, for plaintiff-respondent.

Gilberg & Gilberg, Mount Vernon, for defendant-appellant; Michael H. Gilberg, David C. Gilberg, Mount Vernon, on the brief.

Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and LATHAM, JJ.

MEMORANDUM BY THE COURT.

In an action in which a judgment was entered granting plaintiff a separation and directing a hearing to be held on the issues of support, defendant appeals from (1) a further judgment (by its terms merged with the original judgment) of the Supreme Court, Westchester County, entered May 15, 1970, after the hearing held pursuant to the original judgment, which, Inter alia, ordered defendant to pay $60 a week for support of each of the parties' two children and $80 a week for plaintiff's support, and (2) an order of the same court entered July 23, 1970, which, Inter alia, granted plaintiff's motion to adjudge defendant in contempt of court for alleged violations of directions in said further judgment and awarded plaintiff $250 for counsel fees for services rendered in bringing the contempt proceeding.

Judgment modified, on the law and the facts and in the interests of justice, by striking therefrom the first decretal paragraph, which directed defendant to pay the above-mentioned amounts weekly for support of plaintiff and the children. As so modified, judgment affirmed, without costs, and case remanded to Special Term for a hearing De novo on the question of defendant's earning capacity and the specific needs of plaintiff and the children for support.

Order reversed, on the law and the facts, without costs, and motion to adjudge defendant in contempt of court denied.

Plaintiff commenced this action by service of the summons. A certificate of no necessity was issued by the Conciliation Commissioner, after which the parties entered into a stipulation with his assistance, the terms of which were to be incorporated into a subsequent judgment separating the parties, should such a judgment be forthcoming. The provisions of the stipulation were made expressly subject to the approval of the court, when and if it incorporated the stipulation into a judgment. When the original judgment of separation was granted in favor of plaintiff, she sought to have the terms of the stipulation incorporated into it. Defendant argued that there had been a change of circumstances since the terms of the stipulation were agreed upon and that he could no longer afford to pay the $200 a week support which the stipulation required. It was uncontroverted that at the time the stipulation was executed he was earning $400 a week, working in an executive capacity in a corporation controlled by his father; and that thereafter he was dismissed from that position by his father, under circumstances clearly evidencing an estranged relationship. Attempts at reconcilitation with his father and efforts to be restored to his former position were in vain. He sought employment in many fields of endeavor, all to no avail. He admitted, however, that he had not sought employment in the line of business in which he had been engaged for the past 10...