Smith v. Smith, 3
| Decision Date | 12 March 1993 |
| Docket Number | No. 3,3 |
| Citation | 595 N.Y.S.2d 278,191 A.D.2d 1010 |
| Parties | Matter of Elsie J. SMITH, Appellant, v. Lum SMITH, Respondent. Appeal |
| Court | New York Supreme Court — Appellate Division |
Elsie J. Smith, pro se.
Lum Smith, pro se.
Before PINE, J.P., and FALLON, BOOMER, DAVIS and BOEHM, JJ.
In dismissing the petition to enforce the order of Supreme Court in a divorce action that granted child support and maintenance pendente lite, Family Court cited Weaver v. Weaver, 72 A.D.2d 221, 424 N.Y.S.2d 573. Weaver was a proceeding brought after the granting of the judgment of divorce to hold defendant in contempt for failing to obey the temporary order of alimony and child support. Contrary to Family Court's determination, the court "may enforce a pendente lite order granting maintenance or child support by granting leave to enter a money judgment for arrears pursuant to Domestic Relations Law § 244, even where the application for such relief is made after the entry of the final judgment in the matrimonial action [citations omitted] * * * This rule must be distinguished from the rule which precludes enforcement of a pendente lite order by way of civil contempt after the termination of the matrimonial action" (citing cases including Weaver v. Weaver, supra ) (Patricia Lynn N. v. Vincent Michael N., 152 A.D.2d 547, 548, 543 N.Y.S.2d 694).
We remit the matter to Family Court for the determination of any motions pending at the time of dismissal and for a hearing on the petition.
Order unanimously reversed on the law with costs and matter remitted to Erie County Family Court for further proceedings.
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