Mangiamele v. Mangiamele

— Appeal by defendant from an order denying, without prejudice to renewal when the criminal proceeding now pending shall have been disposed of, his motion to modify a judgment of separation by reducing the $35 a week he is directed to pay for the support of his wife and two children to a sum commensurate with his present income. Order reversed on the law and the facts, without costs, and matter remitted to Special Term to take testimony or refer the matter to an official referee to take proof as to the financial ability of defendant, and to make a determination accordingly. Where a judgment in a matrimonial action is rendered on defendant’s default, an award of alimony contained therein may be modified, not merely on the basis of changed circumstances after the rendition of the decree, but also on the basis of facts which existed at the time of the decree, but which were not presented or considered at the trial and were, therefore, unknown to the court. (Cf. New York ex rel. Halvey v. Halvey, 330 U. S. 610, 613.) If the facts stated by defendant are true, a modification of the judgment with respect to alimony would appear to be warranted. Nolan, P. J., Johnston, Sneed, Wenzel and Mac-Crate, JJ., concur.