268 A.D. 1006 | N.Y. App. Div. | 1944
Order denying motion of plaintiff to modify a final judgment of divorce so as to provide therein for payment of alimony by defendant to plaintiff for her support and maintenance, reversed on the law, with ten dollars costs and disbursements, and the matter remitted to the Special Term for the taking of such proof, by a reference or otherwise, as the parties may adduce as to their respective financial circumstances and other material factors, and for determination in accordance therewith. The power derived from the statute to provide for alimony in a reasonable amount is not circumscribed by the prior agreement of the parties (Goldman v. Goldman, 282 H. Y. 296; Hoops v. Hoops, 292 H. Y. 428; Boehm v. Boehm, 262 App. Div. 104) and, in any event, the provision in the prior separation agreement for release of the obligation of the husband in consideration of the sum of $300 is, on its face, a violation of section 61 of the Domestic Relations Law. (Hyff v. Kyff, 286 H. Y. 71.) • Inasmuch as the learned Special Term justice held that the original application was defective as to notice, his further determination to deny on the merits was unnecessary and, therefore, the merits were not conclusively adjudicated so as to bar the plaintiff from making her present application. Close, P. J., Hagarty, Johnston and Aldrich, JJ., concur; Carswell, J., concurs in result.