Citation Numbers: 50 A.D.2d 917
Filed Date: 12/29/1975
Status: Precedential
Modified Date: 1/12/2022
—In an action in which the plaintiff husband was awarded a divorce by a judgment of the Supreme Court, Nassau County, dated September 15, 1971, defendant appeals, as limited by her brief, from so much of an order of the same court, dated August 23, 1974, as granted plaintiff’s motion to annul and delete the alimony awarded defendant in the aforesaid judgment. Order reversed insofar as appealed from, on the law, without costs, and plaintiff’s motion denied. On September 15, 1971 plaintiff was awarded a judgment of divorce against defendant on the grounds of cruel and inhuman treatment. Defendant, however, was awarded alimony, custody of the infant child and other related relief. No appeal from the judgment was taken by either party. Over two and one-half years later plaintiff moved to modify the judgment by annulling and deleting the provision for alimony, claiming that the trial court had been divested of the discretion to make such award by reason of the wife’s misconduct (Domestic Relations Law, § 236; Math v Math, 39 AD2d 583; Sacks v Sacks, 26 AD2d 575, mot for lv to app den 18 NY2d 583). Defendant opposed the motion on the ground that the award of