Mazin v. Mazin

93 A.D.2d 881, 461 N.Y.S.2d 735, 1983 N.Y. App. Div. LEXIS 17763

Opinion

— In an action in which the plaintiff wife was granted a divorce, the defendant husband appeals from an order of the Supreme Court, Westchester County (Burchell, J.), dated January 29, 1982, which awarded the plaintiff arrears in alimony and child support in the total sum of $6,485, awarded her counsel fees in the amount of $750, and denied defendant’s cross motion to, inter alia, modify the judgment of divorce. Order modified by deleting all the provisions thereof except the provision denying defendant’s cross motion. As so modified, order affirmed, without costs or disbursements, and matter remitted to Special Term for further proceedings in accordance herewith. We affirm Special Term’s denial of defendant’s cross motion. However, there is a legitimate dispute as to the amount of arrears, and a hearing should have been held to resolve the issues (see Pecukonis v Pecukonis, 49 AD2d 985). Special Term also erred in awarding counsel fees to plaintiff when her application was contested and there was no evidence of the parties’ financial situation (see Entwistle v Entwistle, 92 AD2d 879; Sadofsky v Sadofsky, 78 AD2d 520). Titone, J. P., Lazer, Weinstein and Boyers, JJ., concur.