Cranford v. Cranford

• Decision Date: 01 July 1985
• Citation: 112 A.D.2d 129,490 N.Y.S.2d 824
• Parties: Robert F. CRANFORD, Appellant, v. Millicent CRANFORD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 824

490 N.Y.S.2d 824

112 A.D.2d 129

Robert F. CRANFORD, Appellant, v. Millicent CRANFORD, Respondent.

Supreme Court, Appellate Division Second Department.

July 1, 1985.

Frederick C. Hayes, New York City (John B. Bell, on brief), for appellant.

Stanley N. Kutcher, New York City, for respondent.

Before BRACKEN, J.P., and O'CONNOR, RUBIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated February 15, 1984, as (1) granted defendant wife's motion for leave to enter judgment for arrears in alimony in the sum of $2,910 which accrued for the period from January 5, 1980 through September 26, 1983 and for counsel fees in the sum of $900, and (2) denied plaintiff's cross motion, inter alia, for an order dismissing defendant's motion and modifying said judgment of divorce so as to vacate the award of alimony. (We deem defendant's notice of appeal from the decision of January 5, 1984 to be a premature notice of appeal from the order.) The appeal brings up for review so much of an order of the same court, dated May 23, 1984, as upon reargument, adhered to the original determination.

Appeal from the order dated February 15, 1984 dismissed. That order was superseded by the order dated May 23, 1984, made upon reargument.

Order dated May 23, 1984 affirmed insofar as reviewed.

Defendant is awarded one bill of costs.

In the absence of a showing of good cause by plaintiff for his failure to seek relief from the $15 per week alimony award originally provided for in a stipulation of settlement between the parties and subsequently incorporated but not merged into the judgment of divorce prior to the accrual of arrearages, the special referee was obliged to direct the entry of judgment against plaintiff for the conceded period of time when he defaulted in his obligation thereunder (Domestic Relations Law § 244, see, Malta v. Malta, 87 A.D.2d 988, 450 N.Y.S.2d 120). The evidence in the record amply supports a finding that defendant did not agree to forgive the debt nor waive her right to recover the arrearages. That determination turned upon the credibility of the parties at the hearing, which the special referee was uniquely qualified to assess. Thus, the referee did not abuse his discretion in granting that branch of defendant's motion which sought to compel entry of a judgment against plaintiff (see, Lewandoski v. Lewandoski, 278 App.Div. 1004, 105 N.Y.S.2d 789).

Nor has plaintiff demonstrated a substantial change in either his or defendant's financial circumstances between the time the alimony award was agreed upon and the time of his cross motion, so as to warrant vacatur of said award (see, Kover v. Kover, 29 N.Y.2d 408, 413, 328 N.Y.S.2d 641, 278 N.E.2d 886; ...