Michelsen v. Michelsen , 98 A.D.2d 630 ( 1983 )

Appeal from the order of the Supreme Court, New York County (Stecher, J.), entered June 29, 1982, is dismissed, without costs, as subsumed in the judgment thereon. Judgment of the Supreme Court, New York County (Stecher, J.), entered July 20,1982, is modified, on the law, to strike therefrom the award to plaintiff for accrued arrears and the matter remanded for a hearing on the issue of the amount, if any, of arrears payable to plaintiff for maintenance, and otherwise affirmed, without costs. Upon the plaintiff’s application herein, defendant husband resubmitted an affidavit submitted on a prior matter, alleging that plaintiff resided with one Jonathan Donald. Pursuant to paragraph 14(b) of the separation agreement between the parties, alimony would abate upon the remarriage of plaintiff wife. Paragraph 17 of the same agreement defines remarriage to include the wife taking up residence with an adult male. Prior to emancipation of the child in the case of such “remarriage”, payments are to be reduced to $125 per month and after emancipation will cease. Plaintiff wife did not refute this allegation and Special Term did not directly address the issue. In view of the burdensome amount of papers submitted to Special Term and the failure by defendant to address this point in his main opposing affidavits to plaintiff’s motion, we are remanding to provide plaintiff an opportunity to oppose and to allow Special Term to resolve the issue of whether defendant had a defense to payment of alimony pursuant to the terms of the separation agreement. We have considered the remaining arguments raised by defendant-appellant and find them to be without merit. Concur — Ross, Asch and Alexander, JJ.