Jackson v. Jackson

206 A.D.2d 966, 616 N.Y.S.2d 285, 1994 N.Y. App. Div. LEXIS 7674

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1994
• Status: Published

Opinion

Judgment unanimously affirmed with costs. Memorandum: Defendant contends that Supreme Court erred in granting plaintiff judgment for arrears in the amount of $51,140 under a pendente lite order. Defendant challenges $47,571.98 of that amount and contends that the court erred in not allowing him to prove his financial inability to comply with the direction that he pay both mortgages encumbering the marital residence. Although plaintiff had originally sought to enforce the pendente lite order pursuant to Domestic Relations Law §§244 and 245, the parties stipulated that the court determine only the amount of arrears under it. Because defendant failed to move for a downward modification and offered no proof of good cause for his failure to do so, the court properly granted judgment for the full amount of the arrears (see, Domestic Relations Law § 244; Kutanovski v Kutanovski, 162 AD2d 662). Defendant’s re-spending affidavit to plaintiffs application for judgment under the pendente lite order did not request downward modification and cannot be construed as an application for such relief.

Defendant also contends that the court erred in directing the release of $500 held in escrow by plaintiffs counsel for payment of plaintiffs counsel’s fees. Because defendant did not appeal from that portion of the judgment that directed the release of the $500 held in escrow (see, CPLR 5515 [1]), that issue is not before us.

We conclude that the remaining issues raised by defendant are without merit. (Appeal from Judgment of Supreme Court, Nassau County, O’Brien, J.—Divorce.) Present—Pine, J. P., Lawton, Wesley, Doerr and Boehm, JJ.