Hirst v. Hirst

Appellate Division of the Supreme Court of New York

Hirst v. Hirst

112 A.D.2d 569, 491 N.Y.S.2d 504, 1985 N.Y. App. Div. LEXIS 55920

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

DecidedJuly 11, 1985

StatusPublished

Cited by1 cases

This text of 112 A.D.2d 569 (Hirst v. Hirst) 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

Hirst v. Hirst, 112 A.D.2d 569, 491 N.Y.S.2d 504, 1985 N.Y. App. Div. LEXIS 55920 (N.Y. Ct. App. 1985).

Pincite

Opinion

Kane, J. P.

Appeal (1) from an order of the Supreme Court at Special Term (Bradley, J.), entered June 27, 1984 in Albany County, which granted plaintiff’s motion for entry of a money judgment against defendant for the amount of temporary maintenance due in arrears and for counsel fees, and (2) from the judgments entered thereon.

On March 7, 1984, an order was made, inter alia, directing defendant to pay $50 per week in temporary maintenance to plaintiff and to pay $500 in counsel fees. Defendant failed to make any of the required payments and plaintiff moved for entry of a money judgment for the amounts due. Plaintiff also moved to punish defendant for contempt due to his failure to make the required payments. Defendant opposed the applications, stating that he was financially unable to make the payments. Special Term denied the motion for contempt, but granted plaintiff’s motion for an order directing entry of a [570]*570judgment for $350, representing temporary maintenance arrears, and for $500, representing counsel fees. This appeal by defendant ensued.

We must affirm. Domestic Relations Law § 244, in pertinent part, provides that upon any default in paying any sum of money order to be paid in a divorce action: "the court shall make an order directing the entry of judgment for the amount of such arrears * * * unless the defaulting party shows good cause for failure to make application for relief from the * * * order directing such payment prior to the accrual of such arrears” (emphasis supplied). In this case, defendant did not make a cross motion for any relief and in opposition to plaintiffs application, pursuant to Domestic Relations Law § 244 for entry of judgments, defendant set forth no reason for his failure to make a prior application for relief from the order directing payment of temporary maintenance and counsel fees. Accordingly, Special Term was required to order entry of the judgments in question (see, Vigo v Vigo, 97 AD2d 463, Keff v Keff, 95 AD2d 888, 889; Coveleski v Coveleski, 93 AD2d 924).

Order and judgments affirmed, with costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Kane, J. P.

Appeal (1) from an order of the Supreme Court at Special Term (Bradley, J.), entered June 27, 1984 in Albany County, which granted plaintiff’s motion for entry of a money judgment against defendant for the amount of temporary maintenance due in arrears and for counsel fees, and (2) from the judgments entered thereon.

On March 7, 1984, an order was made, inter alia, directing defendant to pay $50 per week in temporary maintenance to plaintiff and to pay $500 in counsel fees. Defendant failed to make any of the required payments and plaintiff moved for entry of a money judgment for the amounts due. Plaintiff also moved to punish defendant for contempt due to his failure to make the required payments. Defendant opposed the applications, stating that he was financially unable to make the payments. Special Term denied the motion for contempt, but granted plaintiff’s motion for an order directing entry of a [570]*570judgment for $350, representing temporary maintenance arrears, and for $500, representing counsel fees. This appeal by defendant ensued.

We must affirm. Domestic Relations Law § 244, in pertinent part, provides that upon any default in paying any sum of money order to be paid in a divorce action: "the court shall make an order directing the entry of judgment for the amount of such arrears * * * unless the defaulting party shows good cause for failure to make application for relief from the * * * order directing such payment prior to the accrual of such arrears” (emphasis supplied). In this case, defendant did not make a cross motion for any relief and in opposition to plaintiffs application, pursuant to Domestic Relations Law § 244 for entry of judgments, defendant set forth no reason for his failure to make a prior application for relief from the order directing payment of temporary maintenance and counsel fees. Accordingly, Special Term was required to order entry of the judgments in question (see, Vigo v Vigo, 97 AD2d 463, Keff v Keff, 95 AD2d 888, 889; Coveleski v Coveleski, 93 AD2d 924).

Order and judgments affirmed, with costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Bluebook (online)

112 A.D.2d 569, 491 N.Y.S.2d 504, 1985 N.Y. App. Div. LEXIS 55920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirst-v-hirst-nyappdiv-1985.

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