Handel v. Handel

94 A.D.2d 696, 461 N.Y.S.2d 1023, 1983 N.Y. App. Div. LEXIS 18122

Opinion

— In a matrimonial action in which the plaintiff was previously granted a divorce, she appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 9, 1982 which denied her motion to enforce certain provisions of the judgment of divorce and a stipulation, specifically, for (1) an income deduction order pursuant to section 49-b of the Personal Property Law, (2) a money judgment representing support payment arrears, and (3) counsel fees, “with leave to institute a plenary action in a proper forum”. Order reversed, with costs, and matter remitted to Special Term for further proceedings consistent herewith. The institution of a separate plenary action is not necessary to secure specific enforcement of the provisions of a judgment of divorce and surviving stipulation incorporated therein, where, as here, “the judgment of divorce recites that the court retains jurisdiction to enforce such provisions of the [stipulation] as are capable of specific enforcement” (Gilbert v Gilbert, 54 AD2d 752, 753; Holliday v Holliday, 58 AD2d 619, 620; see 19A Carmody-Wait 2d, NY Prac, § 118:101, pp 192-193). Accordingly, the merits of plaintiff’s application should be addressed. Titone, J. P., Gibbons, Niehoff and Boyers, JJ., concur.