Argento v. Argento

272 A.D.2d 487, 709 N.Y.S.2d 404, 2000 N.Y. App. Div. LEXIS 6548

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2000
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated June 23, 1999, as granted the plaintiffs motion to adjudge him to be in contempt of court for failure to comply with prior pendente lite support and maintenance orders, and for leave to enter a judgment for support and maintenance arrears in the amount of $14,795.12.

Ordered that the order is modified by deleting the provision thereof granting that branch of the plaintiffs motion which was for leave to enter a judgment in the sum of $14,795.12; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The court properly found the defendant to be in contempt (see, Matter of Powers v Powers, 86 NY2d 63; Matter of Sands v Sands, 105 AD2d 788). However, the court erred in granting the plaintiff leave to enter a judgment for arrears which accrued after the filing date of the defendant’s cross motion for a downward modification of his support and maintenance obligations. Although in its order dated March 3, 1999, the court granted that branch of the defendant’s motion which was for a downward modification pursuant to Domestic Relations Law § 236 (B) (9) (b) to the extent that “the issues are set down for a hearing”, no such hearing took place before the issuance of the order dated June 23, 1999, that is the subject of the instant appeal. Therefore, the matter is remitted to the Supreme Court, Queens County, for a hearing (see, Domestic Relations Law § 236 [B] [9] [b]). Santucci, J. P., Friedmann, McGinity and Smith, JJ., concur.