Paris v. Paris

• Decision Date: 01 April 1996
• Citation: 226 A.D.2d 381,640 N.Y.S.2d 238
• Parties: In the Matter of Elaine C. PARIS, Appellant-Respondent, v. Stuart A. PARIS, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 238

640 N.Y.S.2d 238

226 A.D.2d 381

In the Matter of Elaine C. PARIS, Appellant-Respondent, v. Stuart A. PARIS, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

April 1, 1996.

DaSilva & Keidel, Garden City (Willard H. DaSilva, of counsel), for appellant-respondent.

Reisman, Peirez, Reisman & Calica, L.L.P., Garden City (Seymour J. Reisman and Susan T. Kluewer, of counsel), for respondent-appellant.

Before COPERTINO, J.P., and PIZZUTO, FRIEDMANN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In a support proceeding pursuant to Family Court Act article 4, the wife appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Medowar, J.), dated January 25, 1995, as denied her objections to so much of an order of the same court (Watson, H.E.), dated November 9, 1994, as (1) denied her cross petition for a money judgment for child support arrears and (2) granted the husband a credit for purported overpayments of child support, and the husband cross-appeals from so much of the same order as denied his objections to so much of the order dated November 9, 1994, as denied his petition for downward modification of his child support obligations.

ORDERED that the order dated January 25, 1995, is modified by deleting the provision thereof which denied the wife's cross petition for a money judgment for child support arrears and substituting therefor a provision granting the wife's cross petition; as so modified, the order is affirmed, with costs to the wife, and the matter is remitted to the Family Court, Nassau County for a determination of the child support arrears due to the wife and entry of an appropriate judgment.

In accordance with the various temporary support orders the husband was obligated to make child support payments which were greater than the $5,127.35 per month which was ultimately set by the Hearing Examiner in the final order of support dated January 31, 1994. Significantly, the husband filed no written objections to and undertook no appeal of the final order of support. In the aftermath of the final order, the husband made child support payments which were substantially less than the $5,127.35 per month required. On August 30, 1994, the husband filed a petition for downward modification of his child support obligation and, in support thereof, relied upon an alleged change of circumstances which the record evinces had already been considered during the underlying support proceedings. The wife cross-petitioned, inter alia, for a money judgment for arrears.

By order dated November 9, 1994, the Hearing Examiner denied the husband's petition and denied the wife's cross petition for a money judgment for the arrears which had accrued under the final order of support. In denying the wife's cross petition, the Hearing Examiner acknowledged that there were months where the husband paid less than the amount called for in the final order, but nevertheless found that the wife was not entitled to arrears. The Hearing Examiner reasoned that the husband's payments pursuant to the temporary support orders, which were greater than the payments ultimately required in the final order, effectively offset any arrears which occurred after the final order was entered. Both parties filed objections to the Hearing Examiner's determination. By order dated January 23, 1995, the Family Court denied the parties' respective objections. In denying the wife's objections, the Family Court stated that the "Hearing Examiner correctly applied credit for over-payments made under the temporary child...