Praeger v. Praeger

• Decision Date: 25 June 1990
• Citation: 557 N.Y.S.2d 394,162 A.D.2d 671
• Parties: Donald L. PRAEGER, Appellant, v. Helene C. PRAEGER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 394

557 N.Y.S.2d 394

162 A.D.2d 671

Donald L. PRAEGER, Appellant, v. Helene C. PRAEGER, Respondent.

Supreme Court, Appellate Division,

Second Department.

June 25, 1990.

Auerbach Lewittes Geiger Tulis & Plescia, White Plains (Paul M. Lewittes and Laura L. Spring, on the brief), for appellant.

William N. Binderman, New York City, for respondent.

Before BRACKEN, J.P., and SULLIVAN, HARWOOD and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by a judgment entered June 22, 1988, in which a stipulation of settlement entered into between the parties on September 11, 1987, was incorporated but not merged, the plaintiff husband appeals (1) from so much of an order of a Supreme Court, Dutchess County (Beisner, J.), entered November 10, 1988, as denied his motion for downward modification of maintenance and child support, (2) from so much of an order of the same court, also entered November 10, 1988, as granted stated portions of the defendant wife's motion for leave to enter a money judgment for certain arrears due the wife pursuant to the judgment of divorce and stipulation of settlement, (3) from so much of an order of the same court, entered March 8, 1989, as, upon renewal, adhered to the original determination denying a downward modification of maintenance and child support, and (4) from so much of an order of the same court, also entered March 8, 1989, as granted that branch of the defendant wife's motion which was for leave to enter a money judgment for further arrears in maintenance and child support.

ORDERED that the appeal from so much of the order entered November 10, 1988, as granted stated portions of the defendant's motion for leave to enter a money judgment for certain arrears is dismissed as abandoned; and it is further,

ORDERED that the appeal from so much of the order entered March 8, 1989, as granted that branch of the defendant's motion which was for leave to enter a money judgment for further arrears, is dismissed as abandoned; and it is further,

ORDERED that the appeal from the order entered November 10, 1988, which denied the plaintiff's motion for downward modification of his maintenance and child support obligations is dismissed, as that order was superseded by the order entered March 8, 1989, made upon renewal; and it is further,

ORDERED that the order entered March 8, 1989, made upon renewal, is affirmed insofar as appealed from; and it is further,

ORDERED that the defendant is awarded one bill of costs.

Although the plaintiff husband purports to appeal from two orders entered November 10, 1988 and March 8, 1989, respectively, which dealt with the award of support and maintenance arrears and other moneys due the wife, in his brief the husband has failed to discuss the propriety of these orders. Accordingly, we find that the appeals from these orders have been abandoned.

The plaintiff, an ophthamologist and surgeon, had agreed, in a stipulation of settlement which was incorporated but not merged in the judgment of divorce, to make certain maintenance payments to the wife for six years and certain child support payments for their child. At the time that he entered into the stipulation he was approximately 53 years old, and had a history of heart disease, having previously undergone open-heart surgery, and suffered several heart attacks.

Approximately nine months after the execution of the agreement, the plaintiff suffered a stroke which he claimed rendered him disabled and unable to practice medicine, and forced him to close his office and dissolve his professional corporation. According to his moving papers, he now has a monthly net disability income of approximately $10,000, whereas he once made approximately $300,000 per year in his practice. Because of the resultant decrease in his income, the plaintiff argued that he should be relieved of or have lessened...