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Lamothe v. Lamothe

Appellate Division of the Supreme Court of New York, Second Department
Jan 24, 1994
200 A.D.2d 655 (N.Y. App. Div. 1994)

Opinion

January 24, 1994

Appeal from the Supreme Court, Westchester County (Woods, J.).


Ordered that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal from so much of the order dated June 4, 1991, as directed a hearing, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order dated June 4, 1991, is modified, on the law, by (1) deleting the provision thereof which adhered to the original determination, made in the order dated March 15, 1991, directing the sequestration of the defendant's one-half interest in the College Point property, and substituting therefor a provision vacating that portion of the original determination, and (2) deleting the provision thereof which directs a hearing as to the propriety of the defendant's transfer of his one-half interest in the College Point property; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith, including, if the plaintiff be so advised, joinder of the transferee of the defendant's one-half interest in the College Point property.

In light of husband's history of dilatory conduct in this action, his history of defying court orders, and the unequivocal communication by the trial court of a firm trial date, the Supreme Court properly denied his request for vacatur of the default judgment of divorce (see, O'Donnell v. O'Donnell, 172 A.D.2d 654, 655; Otto v. Otto, 150 A.D.2d 57, 58; Matter of Mitcham v. Mitcham, 125 A.D.2d 473; Wilson v. Wilson, 97 A.D.2d 897, 898; Trippe v. Trippe, 113 A.D.2d 935).

Moreover, in light of the uncontroverted evidence that the husband failed to pay child support, the Supreme Court properly granted the wife an award of child support arrears without conducting a hearing on the issue (see, Felton v. Felton, 175 A.D.2d 794, 795; Scheinkman, 1991 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 244, 1994 Pocket Part, at 322).

The Supreme Court was not required to direct the posting of security as a condition for sequestration of the husband's one-half interest in the College Point property (see, Domestic Relations Law § 243; Beal v. Beal, 196 A.D.2d 471; Rose v. Rose, 138 A.D.2d 475; Dowdle v. Dowdle, 114 A.D.2d 699, 701). However, while the wife's cross motion for sequestration was sub judice, the husband transferred his one-half interest in the College Point property to a third party, without informing either the wife or the Supreme Court. Absent the joinder of the purported transferee, that interest cannot be sequestered, and a hearing on the propriety of the husband's transfer would be futile (see, Glassman v. Glassman, 309 N.Y. 436; Rosenberg v. Rosenberg, 259 N.Y. 338; Friedman v. Friedman, 125 A.D.2d 539; Smith v. Smith, 65 A.D.2d 757; Patterson v Patterson, 251 App. Div. 272; Kunzeck v. Kunzeck, 102 Misc.2d 607).

We have considered the defendant's remaining contentions and find them to be without merit. Rosenblatt, J.P., Ritter, Copertino and Joy, JJ., concur.


Summaries of

Lamothe v. Lamothe

Appellate Division of the Supreme Court of New York, Second Department
Jan 24, 1994
200 A.D.2d 655 (N.Y. App. Div. 1994)
Case details for

Lamothe v. Lamothe

Case Details

Full title:ELLEN LAMOTHE, Respondent, v. DONALD LAMOTHE, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 24, 1994

Citations

200 A.D.2d 655 (N.Y. App. Div. 1994)
606 N.Y.S.2d 772

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