Opinion
June 26, 1989
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is reversed insofar as appealed from, on the law and the facts, with costs, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith in order to determine the amount of arrears owed by the defendant to the plaintiff, any credits the defendant may have against those arrears, whether the child support and maintenance payments should be downwardly modified, and whether maintenance payments should be downwardly modified retroactively.
The plaintiff has moved for a judgment of arrears allegedly due under a previous temporary order of maintenance and child support. Despite sharply conflicting contentions in the moving and opposition papers as to the amount due, the Supreme Court calculated the arrears without any evidentiary hearing. We find that the court erred in directing the entry of a judgment without such a hearing as the disputed issues of fact make it impossible to ascertain the actual amount owed by the defendant to the plaintiff (see, Curtis v. Curtis, 132 A.D.2d 850; Graepel v Graepel, 125 A.D.2d 447; Switzer v. Switzer, 114 A.D.2d 499; Domestic Relations Law § 244).
Among the issues to be resolved at the hearing are the actual amounts paid by the defendant to the plaintiff; whether the direct payments by the defendant of the children's college expenses, if any, may be credited to the defendant; and whether the defendant is entitled to any offset with regard to the plaintiff's alleged rental income from the marital home of which the plaintiff has exclusive possession (see generally, Pottala v Pottala, 112 A.D.2d 553; Yecies v. Yecies, 108 A.D.2d 813; cf., Neumark v. Neumark, 120 A.D.2d 502).
Also to be determined at the hearing is whether the defendant had good cause for delaying his motion for a downward modification of maintenance and whether such downward modification, if appropriate, should be granted retroactively (see, Hornok v. Hornok, 121 A.D.2d 937; cf., Penziner v Penziner, 123 A.D.2d 674; Domestic Relations Law § 244). We emphasize, however, that this decision and order is not to be construed as expressing any opinion regarding the hearing court's ultimate decision on downward modification, credits, or any other issue arising at the hearing. Mollen, P.J., Spatt, Sullivan and Rosenblatt, JJ., concur.