Opinion
March 12, 1962
In an action for a judicial separation the defendant husband appeals from an order of the Supreme Court, Nassau County, dated November 10, 1960, which: (1) modified the judgment of separation in favor plaintiff wife, entered February 26, 1946 after trial, by amending its alimony provision in accordance with a stipulation between the parties, dated June 6, 1954, increasing the amount of the alimony payable for the support of the wife and the two children from $35 a week to $170 a month; (2) denied his motion to modify the judgment in accordance with a later stipulation, dated September 3, 1960, canceling the payment of alimony in its entirety; and (3) reduced the award of alimony from $170 to $125 a month on the ground that the son had reached his majority and the daughter had married. Order modified by striking out the provision reducing the alimony to $125 a month; and matter remitted to Special Term to determine, after a plenary hearing before the court or a Referee, the extent of the modification, if any, which should be granted. As so modified, order affirmed, without costs. There was no showing that the son, who had reached the age of 21, was likely to become a public charge or that the husband of the infant daughter cannot support her. Nevertheless, the interests of justice require a hearing as to the extent of the modification which should be granted ( Kruger v. Kruger, 279 App. Div. 808; cf. Phillips v. Phillips, 1 A.D.2d 393, affd. 2 N.Y.2d 742). The question as to whether the modification of the award should be retroactive to the return date of the motion rests in the Special Term's sound discretion to be exercised on the basis of all the facts adduced at the hearing ( Harris v. Harris, 259 N.Y. 334; see, e.g., Averett v. Averett, 110 Misc. 584, affd. 191 App. Div. 948; Rosenfield v. Rosenfield, 285 App. Div. 817). Beldock, P.J., Kleinfeld, Brennan, Hill and Rabin, JJ., concur.