Opinion
November 15, 1988
Appeal from the Supreme Court, Oneida County, Grow, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, and matter remitted to Supreme Court, Oneida County, for a hearing, in accordance with the following memorandum: The court erred in denying defendant's application for a modification of a 1976 judgment of divorce without a hearing on his claim of a substantial change in plaintiff's financial circumstances. Defendant, by his affidavit, made the requisite showing of a possible change of circumstances (see, Levinson v. Levinson, 97 A.D.2d 458, 460; Matter of Hazell v. Hazell, 66 A.D.2d 986, lv dismissed 46 N.Y.2d 710; Hickland v Hickland, 56 A.D.2d 978). Plaintiff submitted neither an affidavit nor a financial statement (see, Levinson v. Levinson, supra, at 460).
Although the court unquestionably has the statutory authority to modify the judgment of divorce, it is powerless to change the parties' separation agreement, which survives the judgment and remains unimpeached (Domestic Relations Law § 236 (A); Goldman v Goldman, 282 N.Y. 296).