Opinion
April 10, 1989
Appeal from the Supreme Court, Queens County (Modugno, J.H.O.).
Ordered that the appeal from the order dated March 30, 1988, is dismissed, without costs or disbursements, as an order directing a judicial hearing to aid in the disposition of a motion is not appealable as of right (see, Palma v. Palma, 101 A.D.2d 812; Perez v. Perez, 100 A.D.2d 962); and it is further,
Ordered that the order dated September 30, 1987, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated March 11, 1988, is modified, on the law, by deleting therefrom the provision denying that branch of the plaintiff's motion which was for leave to enter a judgment for arrears in child support, and substituting therefor a provision granting that branch of the motion to the extent of directing a hearing to determine the amount of the arrears; as so modified, the order dated March 11, 1988, is affirmed insofar as appealed from, without costs or disbursements.
Contrary to the plaintiff's contentions, we find that except for the issue of expanded visitation, the decision after hearing dated June 29, 1987, which was the basis for the order dated September 30, 1987, contained an adequate recitation of the essential facts upon which the court rendered its decision (see, Matter of Jose L.I., 46 N.Y.2d 1024; Rosen Trust v. Rosen, 53 A.D.2d 342, affd 43 N.Y.2d 693). We note, however, that the Judicial Hearing Officer's inadequate finding of fact with regard to expanded visitation need not warrant reversal and remittal as this court has a sufficient record to make such findings of fact (see, Matter of Jose L.I., supra; cf., McDermott v. McDermott, 124 A.D.2d 715) and, upon a review of the record, we find the order granting expanded visitation supported by sufficient facts.
We further find the court properly denied the plaintiff's request to hold the defendant in contempt and to award her attorney's fees, as the record reveals the defendant's failure to pay child support and maintenance was not willful (see, Domestic Relations Law § 237 [c]; § 245; Bulow v. Bulow, 121 A.D.2d 423; Altschul v. Altschul, 84 A.D.2d 798).
We find, however, that the court erred in not granting the plaintiff leave to enter a judgment against the defendant for the child support arrears. Domestic Relations Law § 244 requires a judgment be entered upon application when a party is in default on these payments and it is uncontested here that the defendant is in default. However, since the record contains no determination of the amount of the arrears, a hearing is required to determine such amount (see, Graepel v. Graepel, 125 A.D.2d 447, 450).
We have considered the remaining contentions raised by the parties and find them to be without merit. Kunzeman, J.P., Kooper, Sullivan and Balletta, JJ., concur.