Janusz v. Janusz , 416 N.Y.S.2d 144 ( 1979 )

Order unanimously affirmed, with costs to plaintiff. Memorandum: In affirming we reject appellant’s contention that the order appealed from should have modified the judgment of divorce of the parties, granted September 14, 1970, to delete any order for the payment of alimony by the appellant to the respondent. There is no support in the record for appellant’s allegation that prior to the divorce of the parties respondent agreed to waive her right to alimony upon the sale of jointly held property in exchange for appellant’s consent to a default divorce. In any event, such an agreement would be prohibited by General Obligations Law (§ 5-311) (see Reed v Robertson, 302 NY 596). Nor can the agreement between the parties executed December 18, 1974 be interpreted as a waiver of alimony. (Appeals from order of Erie Supreme Court—alimony arrears.) Present—Cardamone, J. P., Hancock, Jr., Schnepp, Callahan and Witmer, JJ.