Baia v. Baia

—Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In 1985 Family Court modified a divorce decree entered in 1966 by directing respondent to pay petitioner support in the amount of $20 per week for a total of 52 weeks and providing that thereafter no alimony shall be paid. Petitioner appeals from that portion of the order which limits alimony to a definite period of 52 weeks. Under the circumstances here present, whether alimony should have been eliminated at a future date should not have been decided by Family Court (see, Tumolillo v Tumolillo, 71 AD2d 625, affd 51 NY2d 790; Sterlace v Sterlace, 52 AD2d 743, 744; Matter of Stolls v Cabot, 45 AD2d 1014). The provision terminating petitioner’s alimony after 52 weeks constitutes an in futuro 989 modification not based on changed circumstances and must be deleted (see, McClusky v McClusky, 87 AD2d 973; see also, Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236A:8, at 168-169). In all other respects, the order is affirmed. (Appeal from order of Erie County Family Court, Killeen, J.—enforce divorce decree.) Present—Dillon, P. J., Boomer, Green, Balio and Law-ton, JJ.