Derosia v. Derosia

Appellate Division of the Supreme Court of New York

Derosia v. Derosia

61 A.D.2d 885, 402 N.Y.S.2d 875, 1978 N.Y. App. Div. LEXIS 10380

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 17, 1978

StatusPublished

Cited by4 cases

This text of 61 A.D.2d 885 (Derosia v. Derosia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Derosia v. Derosia, 61 A.D.2d 885, 402 N.Y.S.2d 875, 1978 N.Y. App. Div. LEXIS 10380 (N.Y. Ct. App. 1978).

Pincite

Opinion

Order unanimously reversed, without costs, and matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding under section 244 of the Domestic Relations Law, plaintiff moved for an order directing the entry of judgment in the sum of $6,905, which is the amount that she claims that the defendant is in default of payment as required by a judgment of divorce granted to her on January 30, 1974. Defendant’s affidavit in response to the motion asserts that he is not in arrears beyond the sum of $715. He seeks a denial of plaintiff’s application or, alternatively, that the entry of judgment be limited to $715. Plaintiff appeals from Special Term’s order which retroactively and prospectively modified the judgment of divorce by reducing the amount of support payments to the plaintiff and directed that all of plaintiff’s prior claims "be settled” by the defendant’s payment to her of $2,500. The order was premised solely upon the motion papers. Initially we note that it was improper for the court to address a modification of alimony in the absence of a formal application therefor (Gottlieb v Gottlieb, 50 AD2d [886]*886921; Domestic Relations Law, § 236). Defendant has not sought modification, nor does he allege the requisite "substantial change of circumstances” to justify such relief (Hickland v Hickland, 56 AD2d 978, 979; Canfield v Canfield, 55 AD2d 694). Defendant’s answering affidavit raises a material issue of fact as to the extent of defendant’s default of payments. A plenary hearing is required to resolve that issue and to determine the amount of any judgment to be entered on plaintiff’s behalf (see Pecukonis v Pecukonis, 49 AD2d 985; Poitier v Poitier, 42 AD2d 645; Salvati v Salvati, 37 AD2d 858). (Appeal from order of Onondaga Supreme Court—alimony and support.) Present—Moule, J. P., Simons, Dillon, Hancock, Jr., and Denman, JJ.

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Order unanimously reversed, without costs, and matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding under section 244 of the Domestic Relations Law, plaintiff moved for an order directing the entry of judgment in the sum of $6,905, which is the amount that she claims that the defendant is in default of payment as required by a judgment of divorce granted to her on January 30, 1974. Defendant’s affidavit in response to the motion asserts that he is not in arrears beyond the sum of $715. He seeks a denial of plaintiff’s application or, alternatively, that the entry of judgment be limited to $715. Plaintiff appeals from Special Term’s order which retroactively and prospectively modified the judgment of divorce by reducing the amount of support payments to the plaintiff and directed that all of plaintiff’s prior claims "be settled” by the defendant’s payment to her of $2,500. The order was premised solely upon the motion papers. Initially we note that it was improper for the court to address a modification of alimony in the absence of a formal application therefor (Gottlieb v Gottlieb, 50 AD2d [886]*886921; Domestic Relations Law, § 236). Defendant has not sought modification, nor does he allege the requisite "substantial change of circumstances” to justify such relief (Hickland v Hickland, 56 AD2d 978, 979; Canfield v Canfield, 55 AD2d 694). Defendant’s answering affidavit raises a material issue of fact as to the extent of defendant’s default of payments. A plenary hearing is required to resolve that issue and to determine the amount of any judgment to be entered on plaintiff’s behalf (see Pecukonis v Pecukonis, 49 AD2d 985; Poitier v Poitier, 42 AD2d 645; Salvati v Salvati, 37 AD2d 858). (Appeal from order of Onondaga Supreme Court—alimony and support.) Present—Moule, J. P., Simons, Dillon, Hancock, Jr., and Denman, JJ.

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Bluebook (online)

61 A.D.2d 885, 402 N.Y.S.2d 875, 1978 N.Y. App. Div. LEXIS 10380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derosia-v-derosia-nyappdiv-1978.

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