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Wife Appeals Judgment Regarding Spousal Support

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered April 10, 1989, the defendant former wife appeals from (1) stated portions of an order of the Supreme Court, Nassau County, entered May 7, 1996, which, after a hearing, inter alia, reduced the plaintiff former husband’s total child support and maintenance obligation to $300 per week, and (2) so much of a judgment of the same court, entered May 23, 1996, as failed to award her interest on the support arrears.

A New York Custody Lawyer said that, on May 10, 1985, the parties entered into a stipulation of settlement in New York concerning their marital dispute. The stipulation provided for, among other things, maintenance for the respondent and child support for the children, in weekly sums, and for cost-of-living increases. By judgment of the Supreme Court, Nassau County, dated September 5, 1985, the respondent was granted an uncontested separation. The judgment of separation provided that the stipulation would survive and not be merged in the judgment. The judgment directed the petitioner to make specific maintenance and child support payments. Further, by order dated March 5, 1993, the judgment of separation was amended nunc pro tunc to incorporate by reference all of the terms of the stipulation.

A Westchester County Family Lawyer said that, by judgment entered October 25, 1988, the petitioner was granted a bilateral uncontested divorce by the Superior Court of New Jersey, Middlesex County. The judgment of divorce makes no provision for maintenance or child support, nor does it refer to the parties’ stipulation in New York which dealt with these economic issues.

A Suffolk County Family Lawyer said that, In February 1991 the respondent served an income execution by mail, on the petitioner at his current residence in Connecticut. In the instant proceeding the petitioner moved to vacate the income execution based on a mistake of fact pursuant to CPLR 5241(a)(8) and (e). He asserted that the income execution was based on a nonexistent order, and that the court lacked in personam jurisdiction over him. The court denied the motion and, upon re-argument, adhered to its original determination.

The issue in this case is whether the court erred in reducing the total child support and maintenance obligation to $300 per week.

The plaintiff showed sufficient evidence for the Supreme Court to find that a downward modification of the total child support and maintenance obligation was warranted. However, when, as here, the circumstances warrant modification of child support, the Child Support Standards Act must be applied to determine the level of child support and any deviation therefrom must be explained. This was not done in the instant case. The Supreme Court also failed to state its reasons for the amount of maintenance it awarded. Moreover, the record is insufficient to permit us to make that determination.

The petitioner’s argument that the income execution is invalid because the judgment of separation was merged in the New Jersey judgment of divorce lacks merit. The parties agreed before the New Jersey court that the judgment of divorce would deal only with the status of the marriage, and not with the economic issues, and that all economic issues would be determined in the “New York proceeding”. Therefore, under the circumstances of this case, the general rule that the provisions of a judgment of separation merge into a foreign bilateral divorce judgment is inapplicable to the financial provisions of the judgment of separation. The income execution was properly served on the petitioner in Connecticut pursuant to CPLR 5241(d).

Accordingly, the matter is remitted to the Supreme Court, Nassau County for a new determination as to child support and maintenance. When making its awards, the Supreme Court shall specify the amount it is awarding for child support and maintenance. The defendant’s remaining contentions are without merit.

Accordingly, the court ordered that the order is modified by deleting the provision thereof which reduced the plaintiff former husband’s total child support and maintenance obligation to $300 per week; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Nassau County for a new determination as to child support and maintenance in accordance with Domestic Relations Law § 236(B)(6) and § 240; and it is further, ordered that the judgment is affirmed insofar as appealed from; and it is further, ordered that the defendant former wife is awarded one bill of costs.

If you wish to contest the amount of child support, seek the assistance of a Nassau Child Support Attorney and Nassau Family Attorney at Stephen Bilkis and Associates. Call us.

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