Marks v. Marks

MOORE, P. J. By an interlocutory decree of divorce entered in favor of plaintiff on December 1, 1950, it was ordered that defendant pay to plaintiff for her support $65 per month. It provided further that “commencing November 30, 1950, and continuing thereafter for the period of one year only, excepting that plaintiff may request the Court to continue support payments for a longer period of time for sufficient cause, and that the request for such extension must be made on or before October 30, 1951, and should plaintiff [284]fail to make said request within said time that all support for plaintiff is automatically to cease and terminate.' ’ While the order was based upon a property settlement agreement executed by the parties such agreement was not incorporated in the decree by reference or otherwise. The only indication in the judgment of such contract is the statement: “a property settlement agreement was introduced in evidence and was approved.”

On October 22, 1951, plaintiff instituted proceedings for the purpose of obtaining such a modification of the decree as would require respondent to continue the support payments beyond the termination date fixed in the decree. Such relief having been denied, the wife now appeals from the order of denial. The question for decision is whether the trial court abused its discretion by its denial of such relief. Appellant contends that she is physically unfit to support herself by reason of the chronic rheumatoid arthritis from which she suffers. It is argued that respondent consented to make support payments for his wife as provided in the property settlement agreement because of plaintiff’s poor health and her resulting inability to work at full-time employment ; that it was the intention of the parties for the alimony payments to continue until plaintiff’s physical condition improved or until her remarriage; that since her condition has not improved there is necessarily “sufficient cause” for extending the payments.

Neither the decree nor the property settlement contract contains a provision that respondent will continue support payments until plaintiff’s physical condition improved. On the contrary, the latter instrument provides only for the maintenance of appellant for one year. Then follows a possible limitation on the termination, provided appellant can sustain the burden of demonstrating that “sufficient cause” is present justifying such extension. If an improvement in appellant’s health had been required as a basis for a termination of respondent’s obligation, it would have been reasonably logical and certainly a simple task for the parties so to state in their agreement.