Somers v. Somers , 1962 N.Y. Misc. LEXIS 2987 ( 1962 )

Joseph A. Suozzi, J.

This is an application to amend a judgment of separation nunc pro tune, and to enter judgment for arrears in alimony payments, and for a counsel fee.

The provisions of the judgment entered in this action have given rise to protracted litigation. A motion to punish the defendant for failure to make payments in accordance with the decree was heretofore denied on the basis that the decree was ambiguous. Its pertinent provisions read as follows:

“ Ordered, Adjudged and Decreed that the defendant pay to the plaintiff a sum equal to one-quarter of the difference between defendant’s earnings by reason of his employment during any year, and plaintiff’s earnings for the same period”. * * *

“ Ordered * * * that for the period from June 1, 1960, up to and including May 31,1964, the defendant shall pay to the said plaintiff * * * the sum of $125.— per month * * * such payment to be applied to the obligation to pay the difference between one-quarter of defendant’s earnings and the earnings of the plaintiff. ’ ’

By this motion, the plaintiff seeks to add another decretal paragraph to make clear that the $125 per month payment is intended as a minimum and unconditional payment. An extract of the trial minutes shows that the parties by stipulation did in fact fix the $125 payment as a minimum payment. The decree does not so provide, and the defendant claims the original stipulation was changed before entry of final judgment.

The decree as entered requires the $125 payment to be applied in reduction of the defendant’s obligation to pay the difference between one quarter of the defendant’s earnings and the earnings of the plaintiff. The plaintiff requests an amendment to make the defendant pay the $125 per month in addition to any payments which may become due because of the difference in their earnings. The proposed amendment constitutes a substantial modification of the judgment, and not a mere correction of an ambiguity. No authorization exists for making such a modification under article 9 of the Civil Practice Act. While the court possesses inherent power over its judgment, the proposed amendment cannot be made without relitigating the issue of alimony. The application to amend the decree is denied.

The branch of the motion which requests leave to enter judgment for arrears in the sum of $2,750 is granted. Since the entry of the decree herein, the plaintiff’s earnings have exceeded those of the defendant. This circumstance nullified defendant’s obligation to make any payments resulting from a difference in the earnings of the parties. The defendant, however, thereby became liable under the decree for the monthly payment of $125, and he has failed to make any such payments with two exceptions.

The application for counsel fee is also granted, and the plaintiff is awarded a counsel fee of $300, which shall be payable within 15 days from the date of service of a copy of the order hereon with notice of entry.