
    Elizabeth M. Dolan, Appellant, v. Harry T. Dolan, Respondent.
   Appeal from a final judgment entered in the Office of the Clerk of Broome County, February 13, 1945, in favor of defendant dismissing the complaint as to both causes of action. The action was to set aside a separation agreement entered into June 25, 1934, and as a second cause of action to obtain a decree of separation. The amount which the agreement provided should be paid to the plaintiff by the defendant was inadequate and improvident at the time the agreement was made and is at the present time. The agreement relieved the defendant of any obligation to support his children. As found by the trial court the agreement was executed at a time when the parties were living together as husband and wife. The financial condition of the defendant has materially improved since the execution of the separation agreement. The amount paid by the defendant to the plaintiff, under present circumstances, is inadequate. Findings of Fact numbered 13, 14, 15, 16, 17, 18 and 19 are reversed. Conclusions of Law numbered 1, 2, 3, 4, 5 and 6 are disapproved. The following Findings of Fact and Conclusions of Law are made as a substitute for the findings and conclusions which are reversed and disapproved:

Findings of Fact:

(1) At the time the agreement was made the amount agreed to be paid the plaintiff for her support and that of the children of the marriage was inadequate and improvident.

(2) That subsequent to the execution of the separation agreement the earnings and income of the defendant have been substantially increased and are now sufficient to justify the payment of a larger amount than provided for by the separation agreement.

Conclusions of Law:

The separation agreement should be rescinded and the judgment dismissing the action for separation reversed, with costs and disbursements to appellant.

The amount to he paid to the plaintiff by the defendant is fixed at the sum of $125 per month until the determination of the action.

An order may be entered providing for such payment on the first day of each month hereafter.

All concur. [See post, p. 867.]  