Stafford v. Stafford

• Decision Date: 24 June 1960
• Citation: 27 Misc.2d 9,203 N.Y.S.2d 935
• Parties: Marian Joan STAFFORD, Plaintiff, v. William F. STAFFORD, Jr., Defendant.
• Court: New York Supreme Court

Page 935

203 N.Y.S.2d 935

27 Misc.2d 9

Marian Joan STAFFORD, Plaintiff, v. William F. STAFFORD, Jr., Defendant.

Supreme Court, Special Term, Nassau County, Part I.

June 24, 1960.

Nathaniel M. Gallin, New York City, for plaintiff.

Joseph Feinstein, New York City, for defendant.

BERNARD S. MEYER, Justice.

Motion to punish for contempt for failure to pay alimony, for security and for additional counsel fee. Defendant cross-moves for an order of modification claiming financial inability to continue the required payments and contending that a provision of the original decree requiring him to pay life insurance premiums is invalid and that he is entitled to a reduction because not all of the children continue to live with and be supported by plaintiff. Plaintiff argues that the cross-motion may not be considered because defendant is in arrears, and because a motion to modify must be brought on by order to show cause.

Defendant 'is not prevented from applying for a reduction in alimony because of arrears.' Bittson v. Bittson, 7 A.D.2d 867(8), 182 N.Y.S.2d 103, 104. His cross-motion does not specify whether it is made under the Civil Practice Act, § 1172-a, subd. 3 which authorizes modification in a contempt proceeding where defendant shows financial inability to comply, or under the broader power of revision granted by C.P.A. § 1170. The provision of § 1172-a referred to authorizes a defense which, it would appear, may be raised by answering affidavit, although cross-motion is considered the better practice. Tripp, A Guide To Motion Practice (Rev.Ed.) § 161, p. 396, Par. 2. An order to show cause is a jurisdictional prerequisite to initiation of an original application under C.P.A. § 1170 because that section requires that the court prescribe the manner in which notice of the application is to be given. But the same reasoning which upheld such an application made by notice of motion personally served on defendant, Silverman v. Silverman, 189 Misc. 227, 70 N.Y.S.2d 90, requires that an application by cross-motion be sustained. Not only is cross-motion expressly authorized by C.P.A. § 117 as a means of initiating requests for relief, but plaintiff in bringing on her own application has made the attorney who makes that application for her, her agent for service of any request for cross-relief. Whether the cross-motion be under § 1170 or 1172-a, therefore, it is not jurisdictionally defective.

If the application is based on § 1172-a(3) only financial inability may be considered. Defendant's affidavit is wholly conclusory on that question, being phrased in terms of 'approximate' income, and being unsupported by any financial records or reports. It does not make a prima facie showing that either his income or his mode of living has changed, and is, therefore, insufficient to entitle him to a hearing on the defense of financial inability. Guglielmone v. Guglielmone, 5 A.D.2d 778(13), 169 N.Y.S.2d 931; Shanley v. Shanley, 275 App.Div. 775, 87 N.Y.S.2d 617; See Kruger v. Kruger, 279 App.Div. 808(1), 109 N.Y.S.2d 779. S...