Summary
In Aquino (49 A.D.2d 1013, supra) the Appellate Division, Fourth Department, affirmed the validity of a judgment incorporating provisions for the payment of alimony, which but for the stipulation between the parties would have violated section 236 Dom. Rel. of the Domestic Relations Law.
Summary of this case from Thaw v. ThawOpinion
October 24, 1975
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Simons and Del Vecchio, JJ.
Order unanimously affirmed, with costs. Memorandum: Not only did plaintiff waive the right to assert section 236 Dom. Rel. of the Domestic Relations Law prohibiting alimony to a wife where the divorce was obtained upon the grounds of her misconduct, but having not appealed from the award of alimony, plaintiff cannot now relitigate the legality of such award. Plaintiff's contention that defendant was living with another man and holding herself out as his wife within the meaning of section 248 Dom. Rel. of the Domestic Relations Law was not established on the record. In view of the changed circumstances of the plaintiff the reduction in alimony payments ordered from $45 per week to $40 per week was proper.