economic and property rights of which she was allegedly deprived by virtue of the judgment of divorce. After an extensive hearing, the Referee to whom the matter was referred concluded that the wife was not entitled to increased alimony payments, that the child support payments should be increased only to an amount consistent with that which had been voluntarily assumed by defendant, and that the wife had waived her rights under section
170-a of the Domestic Relations Law. The report was confirmed at Special Term in the order which is the subject of this appeal. As to the wife’s claim for increased alimony payments, the record clearly sustains the Referee’s view that there was no change of circumstances established that would justify any modification of the divorce judgment. As to the application for increased child support payments, the critical factual issue litigated was whether the significantly improved standard of living of the husband following his remarriage resulted from his own economic success or derived from his second wife’s independent means. The evidence adduced by both parties on this question was unsatisfactory in important aspects. However, we are persuaded that the record adequately supports the Referee’s conclusion that the plaintiff did not sustain her burden of proof. Accordingly, the modification of the child support payments only to an amount roughly equivalent to increased payments voluntarily assumed by the husband is sustained. Turning to the action pursuant to section
170-a of the Domestic Relations Law, the following in sequence presents the operative circumstances. In 1965, plaintiff obtained a judgment of separation providing for certain alimony and child support payments. Thereafter, the Legislature enacted section
170 of the Domestic Relations Law effective September 1, 1967, which in pertinent part provided in subdivisions (5) and (6) that an action for divorce may be maintained where the husband and wife have lived apart pursuant to a decree or judgment of separation or separation agreement for a period of two years (now one) after such judgment or agreement. In 1969, the husband commenced an action for divorce pursuant to that section. The wife ultimately withdrew her answer in that action and the parties entered into a stipulation which in substance continued the alimony and child support provisions previously embodied in the judgment of separation. In
Gleason v Gleason (
26 NY2d 28 ) decided in 1970, the Court of Appeals held that subdivision (5) of section
170 of the Domestic Relations Law was retroactively available to permit a divorce even where the judgment of separation was rendered prior to its enactment and in favor of the spouse opposing the divorce. Following this decision and in reaction to it, the Legislature enacted section
170-a of the Domestic Relations Law in 1975. This section, in substance, authorized a spouse against whom a decree of divorce had been obtained under subdivision (5) or (6) of section
170 of the Domestic Relations Law, where the judgment or agreement of separation was obtained or entered into prior to January 21, 1970, to institute an action seeking recovery of an amount equivalent to the value of any economic and property rights of which the spouse was deprived by virtue of such decree. The value of such rights was to be calculated as though the defendant had died intestate and as if the death of the defendant had immediately antedated the divorce. The Referee held that the plaintiff had waived her rights under section
170-a when she withdrew her answer in the divorce action and entered into a stipulation containing the previously determined alimony and support provision. We disagree. It seems to us wholly untenable to find a waiver of fights under a statute not yet enacted because a spouse did not oppose a divorce action where there was no defense to the action under the controlling statute. (See
Coffman v Coffman, 60