Colabella v. Colabella
| Decision Date | 29 January 1982 |
| Citation | 86 A.D.2d 643,447 N.Y.S.2d 26 |
| Parties | Eileen COLABELLA, Respondent, v. James R. COLABELLA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Daniel M. Singer, Great Neck (Paula Schwartz Frome, Great Neck, of counsel), for appellant.
Puglisi & Garber, Kew Gardens, for respondent.
Before DAMIANI, J. P., and LAZER, COHALAN and BRACKEN, JJ.
MEMORANDUM BY THE COURT.
In an action for a separation, the defendant husband appeals (1) as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, entered July 21, 1980, as (a) directed him to pay alimony of $50 per week, child support of $40 per week for each of the parties' three children, and the mortgage payments on the marital residence of $233 per month; (b) directed him to pay to the wife a total of $1,268, representing her one-half share of the parties' 1979 Federal and State income tax refunds based upon their joint tax returns and one-half of a check he received from the mortgagee bank, representing moneys it had held in a tax escrow account; and (c) directed him to pay to the wife the sum of $825 as arrears under a temporary alimony and support order; and (2) as limited by his brief and the effect of a stipulation of the parties, made in open court on October 6, 1981, and on which an order was entered November 12, 1981, from so much of an order of the same court entered December 11, 1980, as granted the wife's motion (a) for a wage deduction order pursuant to section 49-b of the Personal Property Law of $170 per week for future alimony and child support; (b) for entry of a money judgment in the sum of $1,573 for arrears in alimony and child support due under the judgment of separation and her interest in the New York State tax refund and mortgage escrow funds; (c) for a wage deduction of $25 per week to satisfy the aforesaid money judgment; (d) for an award of counsel fees to the wife in the sum of $500; and (e) for resettlement of the judgment of separation so as to provide for the payment of $265 per month toward the mortgage and carrying charges thereon rather than $233.
Judgment modified, on the facts, by reducing the child support to $25 per week per child. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements.
Order modified by (1) striking the words "in all respects" and "it is further" from the first decretal paragraph thereof and by adding thereto, after the word "granted", the words "to the following extent:"; (2) substituting the sum of $125 per week for the sum of $170 per week in the second decretal paragraph; and (3) striking the third, fourth, fifth and sixth decretal paragraphs thereof. As so modified, order affirmed insofar as appealed from, without costs or disbursements and the case is remitted to the Supreme Court, Nassau County, for a hearing and new...
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...Since the disputed issues of fact were never resolved at a hearing, the entry of a money judgment was improper (see, Colabella v. Colabella, 86 A.D.2d 643, 447 N.Y.S.2d 26). The trial court in its memorandum decision, granted the defendant such reasonable visitation rights as to be agreed u......
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