189 A.D. 603 | N.Y. App. Div. | 1919
The original judgment of divorce was entered on the report of a referee and the alimony therein awarded was $102.94
The plaintiff’s motion to have the modified decree vacated on the ground of fraud on the court, duress on her and lack of consideration is without merit. The material facts with respect thereto have been sufficiently stated. She withheld from the court the facts upon which she predicates the fraud and has acquiesced for about eighteen years in the modification which she induced the court to make and, therefore,
The other motion was made under section 1759, subdivision 2, of the Code of Civil Procedure and on the stipulation made on the trial of the divorce action. The modified decree struck out the provision for a further application to the court but I think that is no answer to the motion. The stipulation made on the trial still stands and, notwithstanding the modification of the decree and notwithstanding the fact that the defendant has since remarried, the plaintiff is entitled on the stipulation to apply under the Code of Civil Procedure (§ 1759, subd. 2), which so provided when the decree was entered, for an increase of the alimony. Nearly four years ago the youngest child became of age and thereafter, under the modified decree, the plaintiff was only entitled to $1,200 per annum, but the defendant continued to pay the $2,000 and says he intends so to do in the future. It appears that all of the children married and two of them are self-supporting but two of the daughters have separated from their husbands and are living with their mother with their children. One has a child eight years old and the other has a child three years of age and the plaintiff claims that the additional $800 has been used for the support of the daughters and the grandchildren and doubtless that is the theory on which the defendant continued to pay it. However, it appears by the defendant’s affidavit that his net income is about $7,000 per annum and that his present wife has an income from stock which he gave her of $2,000 per annum. The plaintiff shows that she is now fifty-one years of age, not in good health and not able to do her own work as heretofore since separating from her husband and that she cannot well get along on the $2,000 allowance.
We cannot increase the alimony to the plaintiff on the theory of any additional burden, owing to the fact that the children and grandchildren are living with her. It must be left to the defendant to discharge any moral obligation resting upon him toward his adult children and his grandchildren in such manner as to him may seem fit. But it will be observed that unless her alimony is increased the defendant will be obliged to pay her only $1,200 per annum since the
We cannot allow counsel fees on any of the motions for the decree of divorce has dissolved the bonds of matrimony and the parties are no longer husband and wife. (Lake v. Lake, 194 N. Y. 179; Farnham v. Farnham, 227 id. 155.)
It follows that the order denying the motion for an increase of alimony should be reversed, with ten dollars costs and disbursements, and motion granted increasing alimony to fifty-five dollars per week from the return day of the motion, with ten dollars costs, and other orders affirmed, without costs.
Clarke, P. J., Dowling, Page and Merrell, JJ., concurred.
Order denying motion for an increase of alimony reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, so far as to increase alimony to fifty-five dollars per week from May 19, 1919. Other orders affirmed, without costs.