Gerringer v. Gerringer

Decision Date17 July 1989
Citation543 N.Y.S.2d 734,152 A.D.2d 652
PartiesMona Adele GERRINGER, Respondent-Appellant, v. Irwin GERRINGER, Appellant-Respondent.
CourtNew York Supreme Court — Appellate Division

Allan Kuslansky, Cornwall-on-Hudson, for appellant-respondent.

Kathryn S. Lazar, Fishkill, for respondent-appellant.

Before MOLLEN, P.J., and THOMPSON, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were previously divorced, the defendant husband appeals from so much of (1) an order of the Supreme Court, Dutchess County (Beisner, J.), dated February 26, 1988, as, without a hearing, granted that branch of the plaintiff wife's motion which was for leave to enter a judgment for arrears, inter alia, of maintenance and denied his cross motion to modify the judgment of divorce by terminating his obligation to pay maintenance, and (2) an order of the same court, entered June 17, 1988, as upon renewal and reargument of the plaintiff wife's motion and his cross motion, adhered to its original determination. The plaintiff wife cross-appeals from so much of the order dated February 26, 1988, as denied that branch of her motion which was for attorneys' fees.

ORDERED that the cross-appeal is dismissed as abandoned; and it is further,

ORDERED that the appeal from the order dated February 26, 1988, is dismissed, as the portions of that order appealed from were superseded by the order dated June 13, 1988, made upon renewal and reargument; and it is further

ORDERED that the order entered June 17, 1988, is affirmed insofar as appealed from; and it is further

ORDERED that the respondent-appellant is awarded one bill of costs.

The wife was properly granted leave to enter a judgment for arrears in the principal amount of $2,346.31 covering the period from August 1987 through December 4, 1987. The husband admitted that he failed to pay the maintenance required by the parties' settlement stipulation which was incorporated but not merged into the judgment of divorce. We agree with the Supreme Court that the husband did not show good cause for failing to seek relief from the support obligation before his default (see, Domestic Relations Law § 244; Penziner v. Penziner, 123 A.D.2d 674, 676, 507 N.Y.S.2d 45).

We also agree with the finding that the husband fell "far short of demonstrating the requisite extreme hardship upon which modification of this divorce judgment depends" (see, Domestic Relations Law § 236[B][9][b]. The...

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    ......Pintus, supra, 104 A.D.2d at 868, 480 N.Y.S.2d 501; see also, Gerringer v. Gerringer, 152 A.D.2d 652, 653, 543 N.Y.S.2d 734).         Accordingly, on the basis of the plaintiff's insufficient showing, the Supreme ......
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