FRYS v. FRYS

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: It was error for Matrimonial Special Term to award maintenance to defendant pursuant to Domestic Relations Law § 236 (B) (9) (b). The provisions of that paragraph expressly do not apply to a separation agreement made, as here, prior to the effective date of the Equitable Distribution Law (EDL) (Domestic Relations Law § 236 [B], eff July 19, 1980). Such an agreement is governed by pre-EDL statutory provisions and decisional law (De Jose v De Jose, 66 N.Y.2d 804; Strader v Strader, 91 A.D.2d 852). Thus an award of support may be made to defendant wife upon a showing "that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge" (McMains v McMains, 15 N.Y.2d 283, 285). We reject defendant's claim that the proof in this record satisfies that standard. The maintenance award must be vacated.