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 NY2d 804; Strader v Strader, 91 AD2d 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 NY2d 283, 285). We reject defendant’s claim that the proof in this record satisfies that standard. The maintenance award must be vacated. (Appeals from order of Supreme Court, Erie County, Flaherty, J. — contempt.) Present — Dillon, P. J., Callahan, Doerr, Pine and Balio, JJ.