Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Plaintiff appeals from an order of Special Term which reduced the weekly alimony payments provided for in the original divorce decree. The parties were married on June 16, 1951 and thereafter and on April 28, 1958 entered into a voluntary separation agreement which provided, among other things, that the defendant would pay $25 per week to the plaintiff as long as she remained unmarried. The action for divorce, which incorporated the alimony provision, was brought by the plaintiff on the grounds of the adultery of the defendant and judgment was entered December 5, 1958. There was no issue of the said marriage. At the time of the separation agreement the plaintiff was working as a nurse at a Veterans' Administration Hospital and in 1958 she earned over $4,000 and at the time of this motion was earning approximately $5,600 per year. In April, 1960, a stipulation was entered into between the parties settling their rights as to jointly owned real estate and the contents thereof and all alimony due to April, 1960 by the payment to the plaintiff of $2,535. Subsequent thereto the plaintiff again brought this action to collect back alimony and the defendant countermoved for elimination of the alimony payments in the 1958 judgment of divorce. The plaintiff in her affidavit acknowledged a gross salary of $5,684.90 but set forth various expenses, including medical, to demonstrate that such amount was hardly sufficient. There were no supporting affidavits. The defendant acknowledged his net salary as $10,800 per year but claimed there was a changed condition as to his financial situation resulting from his remarriage and that he likewise was subject to many additional expenses, including loans for the purpose of making payments to the plaintiff, mortgage payments on his home and the cost of support of his new family. Special Term found, after considering the relative financial status of each party, together with the other changed circumstances, that the alimony payments should be reduced from $25 to $12.50 per week; that all alimony in arrears should be paid, together with attorney fees. Alimony is not intended to be used as a form of punishment or other punitive device. In these days when it is common for the wife to work (and, indeed, in many instances, receive more compensation than her spouse) it is necessary to treat alimony and its purposes from a present-day viewpoint. Precedent is of little value in arriving at a fair determination. Accordingly, we feel that there was pragmatic sanction, under the present facts and circumstances, for the court to exercise its discretionary power. Order unanimously affirmed, without costs.