Tommaso v. Tommaso

Appellate Division of the Supreme Court of New York

Tommaso v. Tommaso

35 A.D.3d 591, 826 N.Y.S.2d 420

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

DecidedDecember 12, 2006

StatusPublished

This text of 35 A.D.3d 591 (Tommaso v. Tommaso) 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

Tommaso v. Tommaso, 35 A.D.3d 591, 826 N.Y.S.2d 420 (N.Y. Ct. App. 2006).

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Opinion

In a matrimonial action in which the parties were divorced by judgment dated April 25, 2002 the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ross, J.), dated May 9, 2005, as denied, without a hearing, those branches of his motion which were for downward modification of his child support obligations and to cancel any arrears.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination in accordance herewith.

The Supreme Court denied, without a hearing, those branches of the plaintiffs motion which were for a downward modification of his child support obligations as set forth in the judgment of divorce and separation agreement, which was incorporated but not merged into the judgment, and to cancel any arrears which may have accrued, on the ground that the agreement was unfair or inequitable at the time it was made. However, there is an issue as to whether the agreement was unfair or inequitable at the time it was made. Accordingly, a hearing should have been held (see Miller v Miller, 18 AD3d 629 [2005]; cf. Binette v Binette-Acker, 23 AD3d 324 [2005]; Matter of Davis v Davis, 13 AD3d 623 [2004]). Schmidt, J.P., Santucci, Lifson and Lunn, JJ., concur.

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In a matrimonial action in which the parties were divorced by judgment dated April 25, 2002 the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ross, J.), dated May 9, 2005, as denied, without a hearing, those branches of his motion which were for downward modification of his child support obligations and to cancel any arrears.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination in accordance herewith.

The Supreme Court denied, without a hearing, those branches of the plaintiffs motion which were for a downward modification of his child support obligations as set forth in the judgment of divorce and separation agreement, which was incorporated but not merged into the judgment, and to cancel any arrears which may have accrued, on the ground that the agreement was unfair or inequitable at the time it was made. However, there is an issue as to whether the agreement was unfair or inequitable at the time it was made. Accordingly, a hearing should have been held (see Miller v Miller, 18 AD3d 629 [2005]; cf. Binette v Binette-Acker, 23 AD3d 324 [2005]; Matter of Davis v Davis, 13 AD3d 623 [2004]). Schmidt, J.P., Santucci, Lifson and Lunn, JJ., concur.

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Bluebook (online)

35 A.D.3d 591, 826 N.Y.S.2d 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tommaso-v-tommaso-nyappdiv-2006.

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