Butler v. Butler , 377 N.Y.S.2d 75 ( 1975 )

— Three orders, Supreme Court, New York County, entered on May 19, 1975, which directed that the issue of the parties’ change in circumstances and the amount of arrears, if any, be referred to a Special Referee to hear and report with recommendations, unanimously affirmed, without costs and without disbursements. The separation agreement between the parties provided for support for the wife, which agreement was incorporated into but not merged in a divorce decree subsequently obtained. The husband applies for downward modification, and the wife cross-moves for the enforcement of the support provisions. One of the issues seems to be whether, while the husband is receiving retirement income, he is in "unemployment status” as that term appears in the agreement, when he works one day a week. While the wife may have a contract claim against her husband under the separation agreement, Sehmelzel v Schmelzel (287 NY 21, 26), if there is a substantial change in his financial circumstances, the court may in its discretion modify downward the alimony provisions contained in the decree. (Domestic Relations Law § 236; Le Due v Le Due, 14 AD2d 642.) The reference was proper under the circumstances. Concur — Kupferman, J. P., Murphy, Lupiano, Capozzoli and Lane, JJ.