Davis v. Davis — 78 A.D. 500

Majority

p. 500

Hannah Davis, Appellant, v. Frederick A. Davis, Respondent.

Headnote

Appeal — order modifying a decree of divorce as to alimony — when it is proper.

An order modifying a decree of divorce, by reducing the amount of alimony directed to be paid thereby, is appealable to the Appellate Division. Circumstances under which alimony may properly be reduced, considered.

Appeal by the plaintiff, Hannah Davis, by John Orear, as committee of the person arid property of said Hannah Davis, an incompetent person, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 28tli day of June, 1902, modifying a decree of divorce rendered in the action on the 6th day of January, 1897, by reducing the amount of alimony therein directed to be paid from ten dollars a week to six dollars a week.for a period of three years.

Charles Irving Oliver, for the appellant.

Peter P. Smith, for the respondent.

There is no doubt about the appealability of this order. ( Collins v. Collins, 10 Hun, 272 , 277.) The application to reduce the alimony called for the exercise of the discretion of the learned judge at Special Term, and, under the circumstances disclosed by the papers, we are not prepared to say that this discretion was not properly exercised. There is no- hard and fast rule as to the proportion of a divorced husband’s income which shall be applied in the form of alimony to the support of his wife. The proper amount must vary according to the circumstances of each case. The fact that the wife here was being cared for in a hospital for the insane at a very moderate rate and that the husband had necessarily incurred and must necessarily incur large expenses for medical attendance in consequence of a serious illness, were proper matters for consideration upon the application. The reduction is limited in duration to a period of three years, and if any change in the wife’s condition requires an increased expenditure on her account,

p. 501

there is nothing to prevent a further application to the court to modify the decree.

We think the order should be affirmed.

Goodrich, P. J., Woodward and Hirschberg, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.