Opinion
May 23, 1980
Appeal from the Monroe Supreme Court.
Present — Cardamone, J.P., Simons, Schnepp, Doerr and Witmer, JJ.
Order unanimously reversed insofar as it denied appellant a hearing and otherwise order affirmed, without costs, and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: Defendant husband appeals from an order of Supreme Court, Monroe County, which denied his application to have section 236 Dom. Rel. of the Domestic Relations Law declared unconstitutional as being a deprivation of his rights under the Fourteenth Amendment of the United States Constitution, denying him equal protection of the law, and to cancel an award of alimony granted in favor of plaintiff in August, 1978. In the alternative he asks that the judgment of divorce granted in favor of his wife be modified insofar as it refers to alimony and support because of a change of circumstances. His application was denied without a hearing. While defendant's financial affidavit in support of his petition is brief, it is sufficient to warrant a hearing based upon a change in circumstances (see Huber v Huber, 59 A.D.2d 1063), at which the burden will be on him to establish the economic basis warranting a reduction in alimony and support payments and to come forward with supporting proof which he has failed to provide thus far (see Hickland v Hickland, 56 A.D.2d 978; Matter of Shipley v. Shipley, 55 A.D.2d 577). Defendant's challenge to the constitutionality of section 236 of the Domestic Relations Law is without merit, since the award of alimony in this case predated Orr v. Orr ( 440 U.S. 268) and no appeal therefrom was pending on the date Orr was decided. Although the Orr decision is binding on us, we have held that it is to be applied prospectively only (Martin v Martin, 74 A.D.2d 419).