Moheban v. Moheban

• Decision Date: 10 April 1989
• Citation: Moheban v. Moheban, 540 N.Y.S.2d 717, 149 A.D.2d 488 (N.Y. App. Div. 1989)
• Parties: Djaleh MOHEBAN, Appellant, v. Nathan MOHEBAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 717

540 N.Y.S.2d 717

149 A.D.2d 488

Djaleh MOHEBAN, Appellant, v.Nathan MOHEBAN, Respondent.

Supreme Court of New York, Appellate Division Second Department.

April 10, 1989

Harry Salvan, New York City, for appellant.Nathaniel Moheban, Brooklyn, pro se.

In a matrimonial action, the plaintiff wife appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Queens County(Modugno, J.H.O.), dated September 30, 1987, as denied her cross motion to punish the defendant for contempt, for an award of counsel fees and to require the defendant to furnish a bond as security for child support arrears, and granted the defendant increased visitation, (2) so much of an order of the same court, dated March 11, 1988, as denied her motion, inter alia, to set aside the September 30, 1987, order due to alleged tampering, and for leave to enter a judgment for child support arrears, and (3) so much of an order of the same court dated March 30, 1988, as directed a hearing to consider the defendant's visitation rights and the defendant's request to punish the plaintiff for contempt.ORDERED that the appeal from the order dated March 30, 1988, is dismissed, without costs or disbursements, as an order directing a judicial hearing to aid in the disposition of a motion is not appealable as of right (see, Palma v. Palma, 101 A.D.2d 812, 474 N.Y.S.2d 990;Perez v. Perez, 100 A.D.2d 962, 474 N.Y.S.2d 989); and it is further, ORDERED that the order dated September 30, 1987, is affirmed insofar as appealed from, without costs or disbursements; and it is further ORDERED that the order dated March 11, 1988, is modified, on the law, by deleting therefrom the provision denying that branch of the plaintiff's motion which was for leave to enter a judgment for arrears in child support, and substituting therefor a provision granting that branch of the motion to the extent of directing a hearing to determine the amount of the arrears; as so modified, the order dated March 11, 1988, is affirmed insofar as appealed from, without costs or disbursements.Contrary to the plaintiff's contentions, we find that except for the issue of expanded visitation, the decision after hearing dated June 29, 1987, which was the basis for the order dated September 30, 1987, contained an adequate recitation of the essential facts upon which the court rendered its decision (see, Matter of Jose L.I., 46 N.Y.2d 1024, 416 N.Y.S.2d 537, 389 N.E.2d 1059;Rosen Trust v. Rosen, 53 A.D.2d 342, 386 N.Y.S.2d 491affd.43 N.Y.2d 693, 401 N.Y.S.2d 66, 371 N.E.2d 828).We note, however, that the Judicial Hearing Officer's...