Opinion
March 1, 1978
Appeal from the Onondaga Supreme Court.
Present — Marsh, P.J., Moule, Simons, Denman and Witmer, JJ.
Resettled order unanimously modified by striking the second, third and fourth ordering paragraphs thereof and, as modified, affirmed, without costs. Memorandum: Petitioner obtained a judgment against her former husband, Steven Anson Coons, which was entered in Onondaga County Clerk's office on August 16, 1976 in the sum of $20,089.55. She ascertained that respondents were obligated to him on two life annuity contracts with a guaranteed 20-year period of payments from June 1, 1976, one yielding $49.47 per month and the other $76.65 per month, totaling $126.12 per month. Pursuant to CPLR 5222, on August 25, 1976 she served a notice on respondents restraining them from making such annuity payments to Mr. Coons; and in December, 1976 she petitioned Special Term for an order requiring respondents to make such payments to her until her said judgment is satisfied. Notice of the application was given to Mr. Coons. He retained an attorney to appear specially in the proceeding to contest the court's jurisdiction; but he submitted nothing by way of denial of the judgment debt nor anything to show that he needs these annuity payments for his current living expenses. The affidavit of his attorney with respect to Mr. Coon's financial condition was without probative value. Special Term properly denied Mr. Coon's motion to dismiss the petition and granted the petition; but the court erred in giving weight to the attorney's affidavit and deferring the operation of its order granting the petition until further order of the court. There being no denial of the debt and no showing that Mr. Coons needs the annuity payments for his living expenses, there was no basis for the court to exercise its discretion to defer the operation of the order in any respect under the authorities (see Wetmore v Wetmore, 149 N.Y. 520; Weigold v Weigold, 236 App. Div. 126; Fordyce v Fordyce, 80 Misc.2d 909). This decision is made without prejudice to an application by Mr. Coons at Special Term to invoke the exercise of the court's discretion to defer such payments in the future in whole or in part upon appropriate evidentiary showing.