David v. David

• Decision Date: 21 February 1980
• Citation: 424 N.Y.S.2d 916,74 A.D.2d 542
• Parties: Lily DAVID, Plaintiff-Respondent, v. Harry S. DAVID, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 916

424 N.Y.S.2d 916

74 A.D.2d 542

Lily DAVID, Plaintiff-Respondent, v. Harry S. DAVID, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 21, 1980.

H. N. Cohen, Newburgh, for plaintiff-respondent.

E. C. Boggan, New York City, for defendant-appellant.

Before SULLIVAN, J. P., and MARKEWICH, SILVERMAN, YESAWICH and CARRO, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered August 31, 1979, granting plaintiff's motion for judgment for arrears of alimony, and granting $500 counsel fees to plaintiff and denying defendant's cross-motion for a modification of the alimony and support provisions in the divorce decree and judgment for arrears entered thereon on September 6, 1979, are both unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs, and the matter is remanded to the Supreme Court for further proceedings, in accordance with the memorandum hereon.

The parties were divorced in 1976. The divorce judgment incorporated by reference a separation agreement but provided that the agreement should survive. The agreement contained provisions for yearly escalation during the first five years of the payments for alimony and support. Defendant-husband claims that his financial circumstances and needs do not permit him to meet these payments.

A. Plaintiff-wife moved pursuant to DRL § 244 for a judgment for arrears of alimony. Special Term granted the motion saying:

The defendant does not deny the arrears. He goes into a long dissertation about his financial inability to pay. In the face of an enforcement proceeding such claims are of no avail.

But DRL § 244 provides that when the husband makes default in paying sums required by the judgment, the court "in its discretion" may direct the entry of judgment for the arrears or "for such part thereof as justice requires having a regard to the circumstances of the respective parties." Thus whatever may be the rights of the wife in a plenary action on the agreement, the court has discretion as to the amount of a judgment for arrears in a proceeding under DRL § 244. See Woicik v. Woicik, App.Div., 424 N.Y.S.2d 217 (1st Dept. Jan. 29, 1980). The Special Term justice apparently thought he did not have such discretion. We remand the matter to Special Term for the exercise of its discretion.

We have been informed that since the judgment for arrears was rendered, defendant-husband has paid the judgment and it is argued that there can be no restitution under the familiar principle that there can be no restitution of alimony once paid (Averett v. Averett, 110 Misc. 584, 181 N.Y.S. 645, aff'd 191 App.Div. 948, 181 N.Y.S. 927; Schneider v. Schneider, 204 Misc. 918, 125 N.Y.S.2d 739), and that therefore, the attack on the judgment is moot. We do not now pass on the question of whether there is a right of restitution with respect to sums paid on a judgment for arrears of alimony. In any event, the possibility of the judgment constituting collateral estoppel in the continuing litigation indicates that the question is not moot.

B. Special Term awarded $500 counsel fees. Small as this amount is, the award was premature. The separation agreement (paragraph 12) provides for counsel fees in the event of default, if the party seeking to enforce the agreement "is successful in such...