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Levene v. Levene

150 N.Y.S. 708 Court N.Y. App. Div. Decision date 1914-12-18 Docket No. 6588 English

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p. 708
LEVENE v. LEVENE.
(No. 6588.)
(Supreme Court, Appellate Division, First Department.
December 18, 1914.)

Headnote

Divorce (§ 245[1] )—Alimony.
AVhere there has been no change in the husband’s financial condition, it is useless to appoint a referee to take proof of the merits of his application to reduce alimony.
[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 691-695; Dec. Dig. § 245.*]
Appeal from Special Term, New York County. -
Action by Nellie Levene against Louis Levene. From an order appointing a referee to take proof of the merits of defendant’s application to reduce alimony, plaintiff appeals. Reversed.
Argued before CLARKE, McLAUGHLIN, LAUGHLIN, SCOTT, and HOTCHKISS, JJ.
Leo R. Brilles, of New York City, for appellant.
Alfred Frankenthaler, of New York City, for respondent.

The order appealed from appoints a referee to take testimony and proof, with his opinion upon the merits of ant’s application for the reduction of the amount of alimony directed to be paid to plaintiff under a judgment of separation. On June 4, 1913, plaintiff commenced this action for a legal separation. On June 17, 1913, temporary alimony was granted at the rate of $20 per week. The action was tried on December 22, 1913, defendant making no defense to the charges preferred against him in the complaint; the only question seriously litigated being that of the amount of permanent alimony to be granted, which was fixed by the decree at $25 per week. Now defendant asks for a reduction of the alimony, but he makes no different showing as to his financial ability than he made upon the motion for temporary alimony and upon the trial, so that, if everything he now says be accepted as true, no ground is shown for the reduction he seeks. The alleged decrease in the earnings of the corporation of which he is an officer and stockholder is not material, because it does not appear that he ever received any dividends upon his stock, or that the amount of his salary was dependent upon the extent of the company’s earnings. Under such circumstances, it is useless to appoint a referee.

Order appealed from reversed, with $10 costs and disbursements, with leave to defendant to renew upon further facts showing a change in his financial condition.