Wlodarek v. Wlodarek

Order unanimously reversed, without costs, and matter remitted to Jefferson County Family Court for further proceedings in accordance with the following memorandum: Appellant husband appeals from two orders of Family Court. The first held him in contempt for a willful failure to pay alimony and child support and the second denied his motion to vacate the order of commitment entered on the court’s finding of contempt. The proceedings were initiated by appellant’s petition to modify the support provisions contained in a prior divorce decree. Family Court apparently believed that it was powerless to modify the provisions of the decree and granted the cross motion of respondent wife seeking enforcement of the support and alimony provisions for payment of arrearages. The alimony and support provisions of the divorce decree were not the result of a prior general separation agreement but were composed upon the oral stipulation of opposing counsel at the time of the divorce trial. There was no stipulation against merger and they were not, as the court apparently believed, subject to the rule stated in Matter of Boden v Boden (42 NY2d 210). The alimony should have been modified if appellant produced sufficient evidence of a change in his circumstances warranting such relief. Appellant did so by establishing that since the divorce he had lost his job and was dependent entirely upon the income from a military pension and unemployment insurance. These circumstances overcame the finding of willful nonpayment and required the court to review the application to modify (see Weaver v Weaver, 72 AD2d 221,223). We are unable to render that relief here because the needs of the parties cannot be determined on the present record, and the evidence indicates that there has probably been a change in the positions of the parties since the hearing. Accordingly, we reverse the orders and remit the matter to Family Court for further proceedings. (Appeal from order of Jefferson County Family Court — support.) Present — Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.