People ex rel. Kenney v. Kenney

• Decision Date: 11 January 1974
• Citation: 352 N.Y.S.2d 344,76 Misc.2d 927
• Parties: The PEOPLE of the State of New York ex rel. Marion KENNEY, Petitioner, v. Thomas J. KENNEY, Jr., Respondent.
• Court: New York Supreme Court

Page 344

352 N.Y.S.2d 344

76 Misc.2d 927

The PEOPLE of the State of New York ex rel. Marion KENNEY, Petitioner, v. Thomas J. KENNEY, Jr., Respondent.

Supreme Court, Special Term, New York County, Part V.

Jan. 11, 1974.

Robbins & Goldfeder, Bayside, for plaintiff.

Arthur W. Baily, New York City, for defendant.

MARTIN EVANS, Justice:

Motions numbered F1481 and F1482X of November 1, 1973, are consolidated for disposition.

Cross motion by respondent for an order modifying the judgment to eliminate the requirement to pay alimony is denied. Respondent alleges and petitioner denies that she was and is conducting a homosexual relationship with another woman and that they conduct themselves as a married couple. He requests that this alleged relationship should be analogized as a marriage and that alimony should be eliminated pursuant to section 248 of the Domestic Relations Law. That section mandates termination of alimony upon proof that the wife remarried and permits elimination of alimony in the discretion of the Court where the former wife is habitually living with another 'man' and holds herself out as 'his' wife although not married to such 'man.' There is no allegation of a valid re-marriage. The statute clearly refers to a relationship with a man. Assuming arguendo that plaintiff's allegations are true, this section is not applicable.

Motion by petitioner for an order pursuant to section 49--b of the Personal Property Law directing a deduction from respondent's remuneration for current alimony and for arrears of alimony is granted. So much of the motion seeking an order directing entry of a judgment for arrears is denied. The branch of the motion requesting a counsel fee for this application is granted. Respondent shall pay petitioner a counsel fee of $100 within 20 days after service of a copy of the order to be settled hereon with notice of entry. Respondent's employer is directed to withhold at the rate of $40 per week from his remuneration and forward it monthly pursuant to section 49--b of the Personal Property Law. This withholding shall be reduced to $30 for the 82nd week and further reduced thereafter to $20 per week. This will liquidate the conceded arrears of $1630 as of September 21, 1973.

There is a conflict of authority whether arrears may be enforced pursuant to a wage attachment. In De Jongh v. De Jongh, 13 Misc.2d 882, 177 N.Y.S.2d 53 and Langus v. Langus, 16 Misc.2d 648, 183 N.Y.S.2d 922, the courts ruled that section 49--b could not be used to collect arrears claiming it was not authorized or was not intended to be used for such purposes. Payment of arrears through use of the section was approved in Doe v. Doe, 37 Misc.2d 788, 234 N.Y.S.2d 688 and Nicoletti v. Nicoletti, N.Y.L.J., November 5, 1973, p. 20, col. 5. No authority has been cited for any of these decisions other than the statute itself.

The applicable portion of section 49--b, subdivision 1 states 'When a person is ordered by a court of record * * * to pay for the...