[Download] "Robert Werner v. Phyllis Werner" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Robert Werner v. Phyllis Werner
- Author : Supreme Court of New York
- Release Date : January 09, 1976
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
[55 A.D.2d 735 Page 735] In a matrimonial action, the defendant withdrew her answer and counterclaim during trial and plaintiff obtained a divorce on the ground of her cruel and inhuman treatment of him. Among other things, the decree awarded custody of their two minor children to the defendant, together with weekly support payments of $25 for each, and granted defendant the right to remain in the marital domicile until it is sold. No appeal was taken by defendant. However, less than two months after the date of the decree she requested a modification of the quoted language and plaintiff now appeals from the amended judgment granting her possession and occupancy of the residence without restriction. Since the basis for the divorce was the wife's misconduct, defendant was not entitled to alimony or occupancy of the marital residence and Special Term erred when fashioning the instant relief by relying on its discretionary authority to direct such possession under section 234 of the Domestic Relations Law (Domestic Relations Law, § 236; Hessen v Hessen, 33 N.Y.2d 406; Orloff v Orloff, 49 A.D.2d 975; Votta v Votta, 40 A.D.2d 532). Consequently, there was no legal reason to disturb the original decree unless, as defendant argues, its terms were meant to reflect an independent agreement between the parties which failed of its purpose. According to defendant, plaintiff's obligation to support the children would have been fixed at a different level if the divorce court had truly contemplated only a temporary occupancy of the housing and the present amendment thus does nothing more than restore the parties to their intended position. We reject this theory. In the first place, the burden would be upon [55 A.D.2d 735 Page 736]