Opinion
February 8, 1993
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order dated September 14, 1990, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated October 3, 1990, is affirmed, without costs or disbursements; and it is further,
Ordered that the order entered January 18, 1991, is reversed, on the law and as a matter of discretion, without costs or disbursements, and those branches of the plaintiff wife's motion which were for the appointment of a receiver for the husband's business and for an award of counsel fees are denied.
While it was improper for the wife to withhold visitation, the court did not improvidently exercise its discretion in denying the husband's request for cancellation of maintenance arrears and suspension of payments. It was also proper to award her judgment in the amount of the arrears. We make it clear, however, that this Court does not, and will not, condone the wife's institution of self-help.
We also find that the Supreme Court did not improvidently exercise its discretion in appointing the wife temporary receiver for the cooperative apartment. Enforcement of the support and maintenance provisions of an order or judgment entered in a matrimonial action by resort to sequestration and the appointment of a receiver pursuant to Domestic Relations Law § 243, is a drastic remedy, and should be invoked only when the record establishes that this remedy is necessary and appropriate (see, Matter of Brennan v Brennan, 109 A.D.2d 960, 961; see also, Peters v Peters, 127 A.D.2d 575; Hildenbiddle v Hildenbiddle, 110 A.D.2d 819). The appointment of a receiver is proper where the payor has a history of noncompliance with an obligation to pay temporary maintenance and child support (see, Catrone v Catrone, 92 A.D.2d 559).
At bar, the husband was directed to pay $250 per week in maintenance and $375 per week in child support. He continuously defaulted in making these payments, resulting in judgments against him. His persistent conduct in failing to make these payments warranted the appointment of a receiver for the rents and profits derived from the cooperative apartment (see, Rose v Rose, 38 A.D.2d 475; Catrone v Catrone, supra).
However, we find that the appointment of a receiver for the husband's business, Richard Rogers Design, Inc., was improper. Although the corporation is owned and operated by the husband, the corporation is not a party to this action, and application of its moneys to meet the husband's personal obligations would in essence be a dividend (see, Kretzer v Kretzer, 81 A.D.2d 802). Moreover, the record is devoid of information regarding the corporation's creditors, and whether the corporation is solvent, or has a surplus (see, Matter of Brennan v Brennan, 109 A.D.2d 960, supra; Kretzer v Kretzer, supra).
In any event, we note that in view of the intense animosity between the parties, it was improper to appoint the wife the receiver of the business (see, Fischer v Fischer, 111 A.D.2d 25; cf., Peters v Peters, 127 A.D.2d 575, supra; Edelman v Edelman, 83 A.D.2d 622).
The court did not err in awarding the plaintiff counsel fees in the amount of $1,000 in the order dated September 14, 1990, to defray the expenses of the wife's motion to enforce a support order (see, DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879).
However, the award of counsel fees in the amount of $800 in the order entered January 18, 1991, was improper. The wife brought her motion for appointment of a receiver over the husband's business eight days after a motion for identical relief had been denied, when there had been no change in circumstances. Accordingly, counsel fees with respect to that motion should have been denied. Thompson, J.P., Balletta, Copertino and Santucci, JJ., concur.