From Casetext: Smarter Legal Research

Heath v. Heath

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 1987
128 A.D.2d 587 (N.Y. App. Div. 1987)

Opinion

March 9, 1987

Appeal from the Supreme Court, Nassau County (Collins, J.).


Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing consistent herewith.

Special Term improperly refused to address the plaintiff's application for downward modification of the maintenance provisions of the separation agreement which, while not merged into the judgment of divorce, were incorporated therein. This was error. Domestic Relations Law § 236 (B) (9) (b) authorizes modification of the terms of a separation agreement which has been incorporated into a judgment of divorce upon a showing of extreme hardship (see, Pintus v. Pintus, 104 A.D.2d 866). Accordingly, the matter is remitted for a hearing to determine whether there has been a substantial change of circumstances, and, if so, whether the plaintiff has shown that he will suffer extreme hardship if the maintenance terms are not modified, and further, whether he can demonstrate good cause for his failure to apply for judicial relief before allowing arrears to accrue (see, Busetti v. Busetti, 108 A.D.2d 769, 771-772). Mangano, J.P., Thompson, Brown and Eiber, JJ., concur.


Summaries of

Heath v. Heath

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 1987
128 A.D.2d 587 (N.Y. App. Div. 1987)
Case details for

Heath v. Heath

Case Details

Full title:ELLIOT B. HEATH, Appellant, v. FLORENCE C. HEATH, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 9, 1987

Citations

128 A.D.2d 587 (N.Y. App. Div. 1987)

Citing Cases

Matter of Cohen v. Seletsky

Consequently, stipulations of settlement as well as separation agreements entered into after the effective…

Vinnik v. Vinnik

ORDERED that the order and amended judgment is reversed insofar as appealed from, on the law, without costs…