In this declaratory judgment action, plaintiff seeks a declaration that he is not obligated to pay alimony to defendant pursuant to their written separation agreement. The parties were married in February, 1961. In August, 1969, they entered into a separation agreement which provided in paragraph 6 thereof that the husband shall pay alimony to the wife "[djuring the life of the [w]ife and until the [w]ife shall remarry”. Subsequently, a Mexican decree of divorce was obtained by the plaintiff. The terms of the separation agreement were incorporated in, but not merged with the decree. In commencing this action on or about July 12, 1974, plaintiff alleges that for approximately five years he has been paying alimony to his former wife "pursuant to the aforesaid decree and is not in default” and that she is living with another man, although not formally married to him. He charges that his former wife and the person with whom she is alleged to be living have conspired to conceal the fact of their cohabitation "for the express purpose of attempting to preserve for the defendant [former wife] the right to collect alimony” from the plaintiff. The defendant counterclaimed for alimony arrears commencing with the payment due July 1, 1974. Special Term’s granting of the defendant’s motion for summary judgment on her counterclaim gives rise to the instant appeal.
It is plaintiff’s contention that the issue raised by the pleadings as to whether his former wife is living with another man mandates denial of the summary relief requested by the defendant in light of section 248 of the Domestic Relations Law. The argument is not well taken. Section 248 of the Domestic Relations Law entitled "Modification of judgment or order in action for divorce or annulment” provides in pertinent part: "The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually
Under these circumstances this court has no power to abrogate the support terms of the separation agreement which provide for the cessation of alimony upon the remarriage of the wife. As this has not even been alleged to have occurred, the defendant is entitled to the payments provided for in the agreement. However, it is also clear that plaintiff on the
Accordingly, the order and judgment of the Supreme Court, New York County (Gomez, J.), entered respectively on February 18, 1975 and March 12, 1975, granting the defendant’s motion for summary judgment on her counterclaim for alimony arrears based on the terms of a separation agreement, should be affirmed, without costs and disbursements.