TAYLOR v. TAYLOR (1998)

Judgment, Supreme Court, New York County (Fern Fisher-Brandveen, J.), entered March 21, 1997, which awarded defendant wife maintenance arrears pursuant to Domestic Relations Law § 244, and order, same court and Justice, entered September 17, 1997, which, insofar as appealable, directed an evidentiary hearing on the husband's request for a downward modification of his maintenance obligation, unanimously affirmed, without costs.   Appeal from orders, same court and Justice, entered January 16, 1997 and February 11, 1997, unanimously dismissed, without costs.

The motion court properly granted defendant wife a judgment for arrears in maintenance pursuant to Domestic Relations Law § 244, instead of requiring her to commence a plenary action alleging breach of the parties' 1986 modification of their 1972 separation agreement.   There is no question that the parties' 1972 separation agreement was “incorporated by reference” into their divorce judgment, as contemplated by Domestic Relations Law § 244, and that the 1972 separation agreement permitted written modifications thereto such as the one executed by the parties in 1986 (see, Enck v. Enck, 228 A.D.2d 999, 645 N.Y.S.2d 121).   There is also no question that, as the motion court found, the 1986 document was intended by the parties to modify the husband's maintenance obligation under the 1972 separation agreement.

Also proper was the motion court's determination that plaintiff husband had not demonstrated good cause for his failure to apply for relief from his maintenance obligation prior to the accrual of arrears, and, accordingly, that any such relief should be prospective only (see, Soba v. Soba, 213 A.D.2d 472, 473, 623 N.Y.S.2d 891;  Benjamin v. Benjamin, 70 A.D.2d 813, 814, 417 N.Y.S.2d 479).   Finally, the motion court's referral of plaintiff husband's request for downward modification of his maintenance obligation to a referee was correct, since issues of fact were raised by his averments indicating that he had access to trust and investment income.

MEMORANDUM DECISION.