Opinion
October 13, 1987
Appeal from the Supreme Court, Kings County (Rigler, J.).
Ordered that the order is affirmed, with costs.
The trial court did not err in denying, without a hearing, the husband's motion pursuant to Domestic Relations Law § 236 (A) (1) and § 248 to modify the judgment of divorce and the separation agreement, which was incorporated but not merged therein, so as to delete the requirement that he pay alimony and the medical expenses of the wife. The husband may challenge the separation agreement only by means of a plenary action (see, Culp v. Culp, 117 A.D.2d 700). Therefore, even if this court were to modify downward the alimony provision of the divorce judgment, the wife's contractual rights in the separation agreement could not thereby be impaired (see, e.g., Kleila v. Kleila, 50 N.Y.2d 277, 283; King v. Schultz, 29 N.Y.2d 718; cf., Domestic Relations Law § 236 [B] [9] [b]). In any event, the husband failed to sustain his burden of demonstrating a change of circumstances sufficient to require a hearing on his motion to terminate the alimony provision of the judgment (see, Hickland v. Hickland, 56 A.D.2d 978, 979; cf., Levinson v. Levinson, 97 A.D.2d 458, 459). In order to terminate his support obligation pursuant to Domestic Relations Law § 248 the husband was required to satisfy a two-pronged test demonstrating both cohabitation and conduct by the wife amounting to "holding out" that she is married to another man (see, Matter of Bliss v. Bliss, 66 N.Y.2d 382, 387). There is an insufficient basis in the record before us upon which to direct a hearing on the issue of whether the holding-out requirement was met (see, Gershen v. Gershen, 120 A.D.2d 641, 642; Hofmeister v. Hofmeister, 120 A.D.2d 802). Moreover, at bar, the separation agreement provides for termination of the alimony provision only upon the wife's remarriage or the death of either party. Thus, the terms of the agreement are different from those provided by Domestic Relations Law § 248 and must be enforced by the court absent some overriding public policy reason not present at bar (see, Scharnweber v. Scharnweber, 65 N.Y.2d 1016, 1017).
We have considered the husband's remaining argument and find it to be without merit. Thompson, J.P., Niehoff, Eiber, Sullivan and Harwood, JJ., concur.