Mitcham v. Mitcham

125 A.D.2d 473, 509 N.Y.S.2d 573, 1986 N.Y. App. Div. LEXIS 62765

Opinion

— In a proceeding for a downward modification of previously ordered support payments, the petitioner appeals from an order of the Family Court, Westchester County (Facelle, J.), dated October 19, 1984, which dismissed the proceeding for failure to prosecute.

Ordered that the appeal is dismissed, without costs or disbursements.

Pursuant to a consent order of the Family Court, Westchester County (Barone, J.), entered March 15, 1983, the husband was directed to pay the sum of $290 per week for the support of his wife and two children and one half the cost of the children’s orthodontic bills. By petition dated May 2, 1984, the husband applied for a downward modification of the support amount based upon a change in circumstances, that is, his subsequent unemployment and the wife’s substantially increased income. By order dated June 5, 1984, the matter was referred to a Hearing Officer. Based upon the husband’s nonappearance at the hearing, the order under review dismissed his petition for failure to prosecute. As no appeal lies from an order entered upon the default of the aggrieved party (see, CPLR 5511), this appeal must, therefore, be dismissed. Mollen, P. J., Thompson, Rubin and Kunzeman, JJ., concur.