Wikso v. Wikso

Appellate Division of the Supreme Court of New York

Wikso v. Wikso

164 A.D.2d 975, 559 N.Y.S.2d 419, 1990 N.Y. App. Div. LEXIS 16831

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

DecidedAugust 10, 1990

StatusPublished

Cited by4 cases

This text of 164 A.D.2d 975 (Wikso v. Wikso) 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

Wikso v. Wikso, 164 A.D.2d 975, 559 N.Y.S.2d 419, 1990 N.Y. App. Div. LEXIS 16831 (N.Y. Ct. App. 1990).

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Opinion

Order unanimously aifirmed with costs. Memorandum: In this proceeding pursuant to CPLR 5241 to correct or vacate an income execution for support enforcement on the ground of a mistake of fact, respondent contends that the amount of the arrears specified in the income execution is in error. He contends that he owes no money because the separation agreement which required him to pay maintenance was abrogated by the reconciliation of the parties. Respondent claims that the trial court erred when it summarily denied his application without a hearing.

Respondent’s claim is without merit. The Legislature did not intend that a mistake of fact include contentions involving legal questions (see, Mirabella v Mirabella, 131 Misc 2d 655). The issue of arrears is to be resolved on the basis of what the order of support directs and whether there has been compliance (see, Caldera v Caldera, 142 Misc 2d 434; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1990 Pocket Part, CPLR 5241, at 123). (Appeal from order of Supreme Court, Suffolk County, Leis, III, J.—maintenance and child support.) Present—Denman, J. P., Green, Pine, Balio and Lowery, JJ.

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Order unanimously aifirmed with costs. Memorandum: In this proceeding pursuant to CPLR 5241 to correct or vacate an income execution for support enforcement on the ground of a mistake of fact, respondent contends that the amount of the arrears specified in the income execution is in error. He contends that he owes no money because the separation agreement which required him to pay maintenance was abrogated by the reconciliation of the parties. Respondent claims that the trial court erred when it summarily denied his application without a hearing.

Respondent’s claim is without merit. The Legislature did not intend that a mistake of fact include contentions involving legal questions (see, Mirabella v Mirabella, 131 Misc 2d 655). The issue of arrears is to be resolved on the basis of what the order of support directs and whether there has been compliance (see, Caldera v Caldera, 142 Misc 2d 434; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1990 Pocket Part, CPLR 5241, at 123). (Appeal from order of Supreme Court, Suffolk County, Leis, III, J.—maintenance and child support.) Present—Denman, J. P., Green, Pine, Balio and Lowery, JJ.

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Bluebook (online)

164 A.D.2d 975, 559 N.Y.S.2d 419, 1990 N.Y. App. Div. LEXIS 16831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wikso-v-wikso-nyappdiv-1990.

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