Opinion
April 15, 1971
Order and judgment (one paper), Supreme Court, New York County, entered on August 12, 1970, granting plaintiff's motion for an order modifying the judgment of divorce dated February 6, 1970 to increase alimony from $100 to $150 per week and denying defendant's motion to confirm the Referee's report, reversed, on the law, the facts and in the exercise of discretion, the Referee's report recommending that plaintiff's motion be denied is confirmed, and plaintiff's motion for an upward modification of alimony is denied, without costs and without disbursements to either party. This application for an upward modification of alimony was brought less than three years after entry of the original decree of divorce. The basis of the application is that since the decree of divorce the defendant's income has increased while plaintiff's income has decreased. With respect to the decrease in plaintiff's income, it is to be noted that even in the year prior to the divorce her income was only about $600 and that such was considered by the trial court when it rendered its original award. We note in this respect that there is nothing in the record to establish that plaintiff could not secure gainful employment if she so desires. Her ability for self-support is an important factor in determining the amount of alimony ( Phillips v. Phillips, 1 A.D.2d 393, affd. 2 N.Y.2d 742). With respect to the alleged increase in defendant's income, it does appear that there was a substantial increase in 1969, but at least part of such increase was shown to be temporary in nature. Upon an application of this nature, it is incumbent upon plaintiff to show a "substantial change of circumstances not within the contemplation of the parties at the time of settling and entry of the decree". ( Brody v. Brody, 22 A.D.2d 646, affd. 19 N.Y.2d 790.) Merely showing that the husband's income has increased does not satisfy such requirement. "A wife is not entitled to share in a husband's income as such". ( Hearst v. Hearst, 3 A.D.2d 706, affd. 3 N.Y.2d 967.) "Nor is there a right to escalation as the husband prospers". ( McMains v. McMains, 15 N.Y.2d 283, 288.) Plaintiff "is entitled to have sufficient means to enable her to live in a manner comparable to the one prevailing at the time the parties lived together". ( Blaufarb v. Blaufarb, 9 A.D.2d 86.) That standard was adopted in the alimony award in the decree of divorce and there has been no demonstration that the preseparation standard of living cannot be maintained on that award or that circumstances have so changed during the interim three-year period as to require an upward modification of that award. Concur ____ Stevens, P.J., Capozzoli, Markewich, Tilzer and Eager, JJ.