Ruggerio v. Ruggerio
| Decision Date | 20 May 1991 |
| Citation | 173 A.D.2d 595,570 N.Y.S.2d 177 |
| Parties | John J. RUGGERIO, Appellant, v. Rosemarie Provetto RUGGERIO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Dranoff & Johnson, Pearl River and Michael T. D'Ambrosio, Scarsdale, (Alan D. Scheinkman, of counsel), for appellant (two briefs filed).
Leslie I. Levine, White Plains, for respondent.
Before KOOPER, J.P., and HARWOOD, ROSENBLATT and RITTER, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, in which the parties were divorced by judgment dated September 14, 1988, the plaintiff husband appeals (1) as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Delaney, J.), entered July 12, 1989, as denied, "without prejudice", that branch of his motion which was for downward modification of the child support provisions of the judgment of divorce, (2) as limited by his brief, from so much of an order and judgment (one paper), of the same court, entered October 25, 1989, as, after a hearing, denied that branch of his renewed cross motion which was for downward modification of the child support provisions of the judgment of divorce, and (3) from an order of the same court, entered December 19, 1989, which, after a hearing, granted the defendant's application to punish him for civil contempt for failure to pay child support.
ORDERED that the defendant is awarded one bill of costs.
The parties were divorced by judgment dated September 14, 1988. The judgment of divorce incorporates the terms of a stipulation of settlement, which survives and does not merge into the divorce judgment. The stipulation requires, inter alia, that the husband, an insurance salesman earning no less than $53,000 per year, pay to the wife, who waived maintenance, $500 per week for the support of their two children, then both under the age of 10. By November 1988 disputes had arisen between the parties regarding the terms of the divorce judgment. Among the parties' ensuing applications to the court was one by the husband for downward modification of the child support provisions of the judgment of divorce and another by the wife for an order holding the husband in civil contempt for his failure to pay child support.
Although the issue of downward modification of child support was originally set down for a hearing, the court thereafter denied the husband's application, without taking evidence, on the ground that the husband failed to submit an affidavit of net worth as required by 22 NYCRR 202.16. The court also, in effect, denied the wife's contempt application "to give the husband the opportunity to correct the deficiency in child support".
The first of several appeals by the husband is from so much of the order and judgment entered July 10, 1989, as denied the application, his first, for downward modification of child support. The husband does not challenge on appeal that portion of the same order and judgment which awards the wife child support arrears in the principal amount of $17,000, some of which were fixed on a previous enforcement motion. The husband's second appeal is from so much of an order and judgment, entered October 25, 1989, issued after an evidentiary hearing, as denied the husband's second application for downward modification, which application was made with leave of the court when the first application was denied for improper form. As with the first appeal, the husband does not challenge that portion of the order and judgment entered October 25, 1989, as awards the wife $6,500 in additional child support arrears which accrued after the issuance of earlier enforcement orders. The husband's third appeal is from an order granting the wife's motion to hold the husband...
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