Badenhop v. Badenhop

Decision Date16 November 1981
Citation84 A.D.2d 773,444 N.Y.S.2d 111
PartiesHelen J. BADENHOP, Respondent, v. Robert W. BADENHOP, Appellant.
CourtNew York Supreme Court — Appellate Division

Seward & Seward, Rockville Centre (Robert S. Seward, Rockville Centre, of counsel), for appellant.

Yellon & Fanelli, Mineola (Herman Yellon and Richard A. Fanelli, Mineola, of counsel), for respondent.

Before MOLLEN, P. J., and DAMIANI, GIBBONS and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In a support proceeding, the appeal is from an order of the Family Court, Nassau County, entered May 14, 1981, which denied appellant's motion, inter alia, to vacate an order of sequestration, to require the petitioner to account for all sums received by her as receiver and to require repayment of $500 in counsel fees which he had been ordered to pay to petitioner's attorney.

Order reversed, without costs or disbursements, and matter remitted to the Family Court, Nassau County, for further proceedings consistent herewith.

The petitioner-wife moved by order to show cause in the Family Court, Nassau County, to enforce a support order dated December 20, 1976. Arrearages were alleged. Neither the order to show cause nor a summons dated November 5, 1980 issued pursuant to that order was served although the Nassau County Sheriff's Department attempted service at the appellant-husband's former residence. Appellant was living in the Virgin Islands at the time. On November 19, 1980 a Family Court hearing was held, but the appellant did not appear. On November 24, 1980 an order of sequestration was granted pursuant to sections 457 and 429 of the Family Court Act. By notice of motion dated February 3, 1981 the husband moved for a rehearing to vacate the order. Following the rehearing held on April 21, 22 and 23, 1981 the order of sequestration was continued. Although the appellant should have been given notice of the initial hearing held in November, 1980 pursuant to the very liberal notice provisions of section 427 of the Family Court Act, he had actual notice of the rehearing which involved a reconsideration of the original motion for a sequestration order. Thus, reversal cannot now be sought on grounds of lack of notice.

Appellant complains that no evidence was introduced showing an ability on his part to pay arrearages. However, a person's salaried employment may be prima facie proof of his ability to pay (Matter of Roth v. Roth, 45 A.D.2d 758, 357 N.Y.S.2d 126). Similarly in the case at bar, app...

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12 cases
  • McCann v. Guterl
    • United States
    • New York Supreme Court — Appellate Division
    • 19 Marzo 1984
    ...payments. It bears noting that the applicant must prove she is entitled to counsel fees in a support proceeding (Badenhop v. Badenhop, 84 A.D.2d 773, 444 N.Y.S.2d 111; Matter of Maneri v. Maneri, 54 A.D.2d 716, 387 N.Y.S.2d 464). An award of counsel fees must take into consideration a party......
  • Lenaar v. Lubavitch
    • United States
    • New York Civil Court
    • 6 Septiembre 2019
    ...asserts the right to cross-examination (Weinberg v. Weinberg , 95 AD2d 828, 467 N.Y.S.2d 20 (2d Dept, 1983); Badenhop v. Badenhop , 84 AD2d 773, 444 N.Y.S.2d 111 [2d Dept, 1981]. The converse is also true as Judge Acosta so aptly stated in Dupuis v. 424 East 72 Street Owners Corp. , 9 Misc ......
  • Jane PP v. Paul QQ
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Marzo 1984
    ...Theresa L., 99 Misc.2d 578, 582, 416 N.Y.S.2d 1000) and adequately established her inability to pay counsel fees (see Badenhop v. Badenhop, 84 A.D.2d 773, 444 N.Y.S.2d 111). A review of the parties' financial affidavits and testimony confirms a disparity in income justifying the Order affir......
  • Priester v. Harp
    • United States
    • New York Supreme Court — Appellate Division
    • 16 Febrero 1984
    ...in view of respondent's gross salary of $58,130 per year, which is prima facie proof of his ability to pay (see Badenhop v. Badenhop, 84 A.D.2d 773, 444 N.Y.S.2d 111; Roth v. Roth, 45 A.D.2d 758, 759, 357 N.Y.S.2d 126), and the questionable amounts alleged as Order modified, on the facts, b......
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