Atlass v. Atlass

PARKER, J.,

pro

tem.

This is an appeal from an order purporting to modify a decree of divorce in so far as said decree provided for the payment of alimony by the defendant to plaintiff. The facts are not disputed. Plaintiff had obtained an interlocutory decree which provided that defendant pay to her a certain sum. monthly for a period of two years and a less sum thereafter until further order of the court. A year having elapsed from the entry of the said interlocutory decree, there was duly made and entered the final decree of divorce in which the prior order with reference to alimony and support was continued in force. Subsequent to the entry of the final decree and on January 9, 1928, the plaintiff remarried a person other than the defendant, and since her said marriage was at all times living with her husband. On March 31, 1928, appellant filed in the court' below a notice of motion for an order modifying the decree by striking therefrom the portion thereof providing for payments for the support and maintenance of plaintiff. The facts were not disputed. The remarriage was conceded, having taken place in the state of New York on the date alleged. In view of the place of marriage it sufficiently appeared that appellant’s application was timely made. It is further undisputed that there were no children of the former marriage. The motion, coming on regularly to be heard, was submitted on the affidavits of the appellant and the affidavit of respondent’s counsel, which latter affidavit, as hereinafter noted, set up no facts other than those supporting the contention of affiant that the purported alimony provisions were in fact intended as a property settlement. After hearing, the court entered its order as follows: “It is ordered, adjudged and decreed that the previous order of this court contained in the interlocutory judgment of divorce he and the same is hereby modified in the following particulars: From and after the 26th day of April, 1928, the defendant shall not be required to pay the plaintiff any further sums of money for her

[516]

support and maintenance pending the further order of this court. ’ ’

It is appellant’s claim that the order should have provided that such payments cease as of the date of the remarriage, rather than as of the date the order was made. Hence the appeal.