Lucci v. Lucci
| Decision Date | 06 May 1996 |
| Parties | Marijane LUCCI, Respondent-Appellant, v. Robert LUCCI, Appellant-Respondent, Lucci Realty Corp., et al., Defendants-Respondents, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Marshall S. Belkin, White Plains, for appellant-respondent.
Cerrato, Sweeney, Cohn, Stahl & Vaccaro, White Plains (Julius W. Cohn and Carl Stahl, of counsel), for respondent-appellant.
David I. Grauer, White Plains, for defendants-respondents.
Before BRACKEN, J.P., and MILLER, SULLIVAN and HART, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, for a divorce and ancillary relief and to impose a constructive trust, (1) the defendant husband appeals from so much of a judgment of the Supreme Court, Westchester County (Gurahian, J.), dated April 26, 1991, as, after a nonjury trial, awarded the plaintiff wife counsel fees, and the plaintiff wife cross-appeals, as limited by her brief, from stated portions of the same judgment, which, inter alia, (a) dismissed her causes of action to impose a constructive trust upon one half of the stock of Lucci Realty Corp., (b) failed to award her a share of the husband's wholly-owned businesses on the ground that they were not marital property subject to equitable distribution, (c) awarded her maintenance of only $300 per week for four years and vacated a pendente lite order of support, and (d) failed to set aside the transfer of personal property by the husband, and (2) the plaintiff wife appeals from so much an order of the same court, entered December 17, 1991, as denied her motion to vacate the judgment of divorce and direct a new trial on the ground of newly-discovered evidence. By decision and order of this court dated August 8, 1994, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Westchester County, to set forth the factors considered and the reasons for its determinations as to equitable distribution and maintenance (see, Lucci v. Lucci, 207 A.D.2d 386, 616 N.Y.S.2d 222). The Supreme Court, Westchester County, has filed its report.
ORDERED that the judgment is modified, on the law and the facts, by (1) deleting the second decretal paragraph thereof and substituting therefor a decretal paragraph awarding the plaintiff pendente lite maintenance arrears from July 9, 1986, to the date of the defendant's application for relief from the temporary order, and (2) deleting the 3rd, 6th, 14th, and 15th decretal paragraphs; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith and for entry of an appropriate amended judgment; and it is further,
ORDERED that the order dated December 17, 1991, is affirmed insofar as appealed from, without costs or disbursements.
We find that the Supreme Court erred in canceling the arrears which accrued under the temporary maintenance order dated September 9, 1986 (awarding temporary maintenance as of July 9, 1986), prior to the defendant's application for relief from the order. Domestic Relations Law § 244 provides that a court shall not issue an order reducing or canceling arrears which have accrued prior to the making of an application for relief from a judgment or order unless the defaulting party shows good cause for failure to make an application prior to the accrual of such arrears and the facts and circumstances constituting good cause are set forth in a written memorandum decision (see also, Harris v. Harris, 259 N.Y. 334, 182 N.E. 7; Conklin v. Conklin, 90 A.D.2d 817, 455 N.Y.S.2d 842). Retroactive payments of permanent maintenance should be made only if the award is in excess of any temporary maintenance award, rather than as credits for overpayment of temporary maintenance (see, Maier v. Maier, 201 A.D.2d 919, 607 N.Y.S.2d 778; Rodgers v. Rodgers, 98 A.D.2d...
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