Adrien v. Adrien
| Decision Date | 03 November 1978 |
| Citation | 65 A.D.2d 931,410 N.Y.S.2d 441 |
| Parties | Jean E. ADRIEN, Appellant, v. Arthur E. ADRIEN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, by John F. Lawton, Syracuse, for appellant.
Arthur E. Adrien, pro se.
Before MARSH, P. J., and CARDAMONE, SIMONS, DILLON and SCHNEPP, JJ.
The parties were married in 1948 and were divorced in the State of Maine in January, 1975. The divorce decree directed defendant to pay alimony of $125 per week. In October, 1975 defendant was held in contempt in Maine for nonpayment of alimony in the sum of $2,700. At the same time, upon defendant's untruthful assertions as to his income, the court reduced the alimony to $100 per week. The plaintiff was paid the arrearage, as directed by the court, from the proceeds of the sale of the marital residence.
Plaintiff appeals from an order which denied her application for judgment in the sum of an accumulated arrearage under the modified Maine divorce decree; further reduced the alimony award to $300 per month; and awarded counsel fees to plaintiff in the sum of $500 rather than $800 as requested.
A foreign judgment of divorce directing installment payments of alimony is entitled to full faith and credit and is enforceable in the courts of New York (U.S.Const., art. IV, § 1; Matter of Rhinelander, 290 N.Y. 31, 36-37, 47 N.E.2d 681, 683-684; Smith v. Smith, 255 App.Div. 652, 9 N.Y.S.2d 188; Hoch v. Hoch, 80 Misc.2d 653, 363 N.Y.S.2d 304). Upon a demonstration that the defendant was in arrears of alimony payments due under the Maine divorce decree as modified, Special Term had the discretionary power to direct the entry of judgment in plaintiff's favor for all or part of such arrearage (Domestic Relations Law, § 244).
In denying her application, Special Term determined that the value of certain tools which were awarded to defendant in the original judgment, but which he had not received, was approximately equal to the arrearage of $4,700. Upon that finding, the court "waived" the arrearage and forfeited defendant's claim to the tools. The court's determination with respect to the value of the tools is wholly without basis in the record and should not have been employed as a foundation for the exercise of the court's discretion denying plaintiff's request for relief. Judgment should have been granted to the plaintiff in the sum of $4,700 in accordance with the provisions of section 244 of the Domestic Relations Law.
Similarly, the evidence does not justify the reduction of alimony payments from $100 per week...
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