Opinion
March 1, 1944.
Neuer Neuer for plaintiff.
Louis Fabricant for defendant.
Under a decree of this court in an action for a separation, entered March 7, 1928, the defendant was ordered to pay sixty dollars per month to plaintiff for the support and maintenance of herself and the infant child of the parties. The child is now over twenty-one years of age and is self-supporting. Defendant now brings this application for a modification of the decree so as to reduce the amount of alimony. The defendant is now in the United States Navy where he is presently serving as a pharmacist's mate, second class, at which rating his basic pay is ninety-six dollars per month. The Servicemen's Dependents Allowance Act of 1942 (U.S. Code, tit. 37, § 201 et seq.; amd. Oct. 26, 1943) provides for a monthly family allowance to the dependent or dependents of any enlisted man in the United States Navy during the existence of the war and the six months immediately following the termination of the war. Section 105 of the Act (U.S. Code, tit. 37, § 205) provides for an allowance to a dependent wife of the sum of fifty dollars per month of which the enlisted man is charged with twenty-two dollars under section 106 (U.S. Code, tit. 37, § 206). However, subdivision (c) of said section 106 of the Act provides that the amount of the family allowance payable to such wife shall not exceed the amount provided to be paid under a court order, decree or a written agreement. The motion is granted to the extent of fixing the alimony at fifty dollars per month, and directing the defendant to take such steps as may be necessary to enable the plaintiff to receive the family allowance of fifty dollars per month as provided by the Act of Congress hereinbefore referred to, which allowance, when received by plaintiff, shall be deemed payment by the defendant of the alimony directed to be paid by the decree as modified. Submit order on notice. The suggestions as to a modification of the order so as to meet conditions after the termination of hostilities are not passed upon. When that time arrives either party may, of course, move to modify in the light of their respective conditions as they then may be.