Frys v. Frys

— Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: It was error for Matrimonial Special Term to award maintenance to defendant pursuant to Domestic Relations Law § 236 (B) (9) (b). The provisions of that paragraph expressly do not apply to a separation agreement made, as here, prior to the effective date of the Equitable Distribution Law (EDL) (Domestic Relations Law § 236 [B], eff July 19, 1980). Such an agreement is governed by pre-EDL statutory provisions and decisional law (De Jose v De Jose, 66 NY2d 804 ; Strader v Strader, 91 AD2d 852 ). Thus an award of support may be made to defendant wife upon a showing "that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge” (McMains v McMains, 15 NY2d 283 , 285). We reject defendant’s claim that the proof in this record satisfies that standard. The maintenance award must be vacated. (Appeals from order of Supreme Court, Erie County, Flaherty, J. — contempt.) Present — Dillon, P. J., Callahan, Doerr, Pine and Balio, JJ.