Miller v. Miller

• Decision Date: 23 April 1990
• Citation: Miller v. Miller, 554 N.Y.S.2d 627, 160 A.D.2d 912 (N.Y. App. Div. 1990)
• Parties: June MILLER, Respondent, v. Julian MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 627

554 N.Y.S.2d 627

160 A.D.2d 912

June MILLER, Respondent, v. Julian MILLER, Appellant.

Supreme Court, Appellate Division Second Department.

April 23, 1990.

Haber & Jewell, Williston Park (Robert H. Jewell, of counsel), for appellant.

Eleanor B. Newirth, Manhasset, for respondent.

Before MANGANO, P.J., and BRACKEN, KUNZEMAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals from a judgment of the Supreme Court, Nassau County (Ain, J.), entered June 13, 1988, which is in favor of the plaintiff wife and against him in the principal sum of $63,714.96 for arrears due pursuant to an order of the same court dated September 29, 1986, which granted the plaintiff pendente lite relief, and the sum of $750 for counsel fees.

ORDERED that the judgment is affirmed, with costs.

The defendant husband was directed to pay pendente lite child support in the amount of $75 a week for each of the parties' two children. He unilaterally reduced his support payments by one-half when the parties daughter began to reside with him, even after his request for a modification of the pendente lite order was denied. The wife was entitled to a judgment for the child support arrears, as the husband did not obtain a court order permitting him to reduce his child support payments prior to accumulation of the arrears (see, Moheban v. Moheban, 149 A.D.2d 488, 540 N.Y.S.2d 717; Serafimovs v. Serafimovs, 134 A.D.2d 422, 521 N.Y.S.2d 44; Coveleski v. Coveleski, 93 A.D.2d 924, 462 N.Y.S.2d 330; Domestic Relations Law § 244). A hearing was not required, since the husband conceded that he was in default, and the amount of the arrears may be determined from the parties' affidavits (cf., Rogers v. Rogers, 151 A.D.2d 738, 543 N.Y.S.2d 129; Moheban v. Moheban, supra ).

The pendente lite order required the husband to pay the carrying charges on the marital residence. The husband does not dispute that he failed to make the required payments. The court properly directed entry of a judgment for the arrears in those payments as the husband did not show good cause for his failure to seek judicial relief prior to accumulation of the arrears (see, Scagnelli v. Scagnelli, 127 A.D.2d 754, 512 N.Y.S.2d 146; Penziner v. Penziner, 123 A.D.2d 674, 507 N.Y.S.2d 45). The conclusory allegations in the husband's affidavit are insufficient to raise any factual issues requiring a hearing (cf., Rogers v. Rogers, supra ).

With...