Opinion
October 26, 1973
Appeal from the Onondaga Trial Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Cardamone and Henry, JJ.
Order unanimously affirmed, without costs. Memorandum: In affirming we observe (1) The informal agreement with respect to property and support for the two children was meant to be and was merged into the order of February 23, 1971 and the judgment of divorce of March 25, 1971. Hence, the court retains full power to reconsider plaintiff's right to and need of alimony from time to time ( McMains v. McMains, 15 N.Y.2d 283, 285-287). The record shows that plaintiff is in good health, well educated and is a qualified school teacher. "A wife is not entitled to a share of her husband's income as such nor is there a right to escalation [of property settlement or alimony] as the husband prospers but she must have minimum support" ( McMains v. McMains, supra, p. 288). In light of the circumstances of the separation and divorce herein and the conveyance of property by defendant to plaintiff, accepted by her without provision for alimony payments, plaintiff may only obtain modification of the decree to provide for payment of alimony upon a showing that she has inadequate earning capacity and funds to support herself in accordance with the standard of living which she enjoyed before the divorce. (2) The record does not support the statement made at Special Term that the older son is emancipated.