Woicik v. Woicik

Order of the Supreme Court, New York County, entered May 8, 1979, denying motion of defendant-appellant wife for an order directing entry of a money judgment for alimony arrears, unanimously affirmed, without costs or disbursements. Whether an order awarding judgment for alimony arrears should be granted where a party has failed to make payments required by a judgment of divorce rests within the sound discretion of the court (Domestic Relations Law, §244). We find Special Term acted properly in denying defendant’s application. (See Math v Math, 39 AD2d 583, affd 31 NY2d 693; Aleszczyk v Aleszczyk, 55 AD2d 840.) Plaintiff, if he chooses, may, as indicated by Special Term, move to vacate the alimony provision of the divorce decree (Aleszczyk v Aleszczyk, supra). Defendant, upon such application, will be entitled to support her claim for alimony or seek appropriate modification of the divorce decree. Although plaintiff in 1971 filed a notice of appeal from the divorce judgment, he never perfected the appeal. He now moves to have his appeal added to and consolidated with defendant’s appeal from the order of May 8, 1979. Defendant cross-moves to dismiss plaintiff’s appeal. In view of our decision, the motion and cross motion are dismissed as academic. Concur—Birns, J. P., Sandler, Sullivan, Markewich and Yesawich, JJ.