DISERIO, J.
Sidney Schwamm for petitioner. Alex J. Glauberman for respondent. DISERIO, J. Petitioner though receiving pursuant to an agreement, and embodied in the decree of an Arkansas divorce, alimony in the sum of $200 monthly for her maintenance and support as well as for the maintenance and support of an only child makes application pursuant to section 92 and subdivision 1 of section 137, of the Domestic Relations Court Act of the City of New York for an order to compel respondent to provide more fairly for his infant son, and according to his substantial means. The respondent admittedly earns $40,000 gross, and claims it nets him at least $20,000 net annually. It is conceded, respondent is regularly paying the alimony provided for in the Arkansas decree, and that to the credit of the respondent other moneys have been expended by him for the child as well as for the mother. The parties were married in Indiana in 1939. They lived together as husband and wife until about August 10, 1943, when they separated in the city of New York. Since the date of marriage the parties have been, and now are, residents of the city, county and State of New York. The infant petitioner is the only issue of said marriage and is nine years of age. Petitioner originally instituted an action for a separation in the Supreme Court, New York County, which resulted in a decree on June 21, 1944, in favor of the petitioner and against the respondent. The decree provided as follows: "Ordered, Adjudged and Decreed that the defendant pay to the plaintiff until such time as she remarries, alimony in the sum of $70.00 per week for her maintenance and support including the maintenance and support of the child thereafter; such permanent alimony to be paid each week commencing with the entry of the final decree herein; and until such time as the decree is entered, the defendant is to continue payments of temporary alimony as heretofore ordered." Their marital status still unsatisfactory, they thereafter and on August 16, 1945, made arrangement that petitioner was to seek a divorce in Arkansas and that respondent was to appear in the same. And as consideration for the respondent's appearing, the parties agreed to modify the decree of the New York Supreme Court as follows:
"(a) That the terms and conditions of a judgment in an action for a separation between the First and Second Parties dated the 15th day of January, 1944, and entered in the Supreme Court of the State of New York, County of New York, shall be modified as follows:
"That the First Party shall pay to the Second Party during the lifetime of the Second Party, or until such time as she remarries, alimony in the sum of Two Hundred ($200.00) Dollars per month for her maintenance and support, including the maintenance and support of the child, free of income tax, in addition to which the First Party shall pay for the medical care of the child, and if the First Party shall choose to have the child sent to any private school or summer camp, such expenses shall be likewise paid by him."
On October 23, 1945, a decree of divorce was obtained by the petitioner against the respondent in the State of Arkansas. The decree recites the appearance of the respondent pursuant to his said agreement with petitioner, and embodied the alimony as provided for the maintenance and support for the petitioner and the child.
permit its courts to alter the provisions of their decrees of divorce insofar as they deal with alimony and maintenance." (
Matter of Karchmer v. Kane, 275 App. Div. 715.) (See
Mallina v. Mallina, 167 Misc. 343.) Subdivision 1 of section 137 of the Domestic Relations Court Act of the City of New York reads as follows: "If the marriage relationship shall have been terminated by final decree of the supreme court of the state of New York or by judgment of any other court of competent jurisdiction, when valid in the state of New York, a petition may be filed or an order for support made or enforced in the family court only for the benefit of a child of such marriage." (See, also,
Scrima v. Scrima, 265 App. Div. 483.) And only recently, and on October 4, 1950, Mr. Justice JACOB PANKEN, one of our Justices, sitting in Kings County, in the case of
Farah v. Farah (99 N. Y. S. 2d 972, 975) upheld the theory that pursuant to section 137 of the Domestic Relations Court Act, and the cases therein cited, "A change of circumstances certainly empowers this Court to make other provision than reserved in the award incorporated in the decree of divorce between parties." (See, also,
"Stone" v. "Stone", 44 N. Y. S. 2d 558.) The alimony provided in the Arkansas decree for both is $200 monthly. I am without power to apportion or disturb it and yet, can provide for the child according to the father's present means. Since I am powerless to divide it, it is hereby ordered that the father in addition to the sum therein provided and which, he is regularly paying, be compelled to pay an additional sum of $115 monthly, solely and for the needs and requirements of the child. Payment to commence with the next payment of alimony due after due service of a copy of this order. Further, and in the interests of justice and so that the father may enjoy more of the companionship and society of his said child, and the child likewise of his father in the way of visitation, the payment of this order is conditioned upon the father having visitation as follows: On alternate week ends beginning on Friday afternoons after school, until Sunday at 8:00 P.M. For the summer months and the winter or spring holidays, as originally agreed and being carried out between the parties, except that the summer vacation period be extended for three weeks, instead of for two, as was originally agreed upon. [*] Names used herein are fictitious for the purposes of publication.