Opinion
June 16, 1986
Appeal from the Supreme Court, Westchester County (Martin, J.).
Order modified, on the law and the facts, by (1) deleting the figure "$20,835.39", and substituting therefor the figure "$5,745", representing the amount of alimony and child support arrears, (2) deleting the provision thereof which awarded the wife counsel fees, and (3) deleting the provision thereof which directed that a hearing be held on the wife's application to punish the husband for contempt, and substituting therefor a provision denying her application to punish the husband for contempt. As so modified, order affirmed, with costs to the appellant, and matter remitted to the Supreme Court, Westchester County, for a hearing on the wife's application for leave to enter a money judgment against the husband for medical and college expenses, and for attorneys' fees.
The husband failed to show good cause for his default in alimony and child support payments due pursuant to a judgment of divorce dated December 10, 1975. Domestic Relations Law § 244 directs the court, upon application, to grant leave to enter a money judgment for those arrears. The alleged oral modification of the divorce judgment is unenforceable as the husband has not established that it was supported by valuable consideration (see, Rehill v. Rehill, 306 N.Y. 126). However, a hearing is necessary to resolve issues of fact raised by the husband with regard to unpaid arrears of medical and college expenses claimed by the wife (see, Salvati v. Salvati, 37 A.D.2d 858).
The wife's application for counsel fees was improperly granted based solely on the request in the petition (see, Weinberg v Weinberg, 95 A.D.2d 828). Her application to punish the husband for contempt pursuant to Domestic Relations Law § 245 should have been denied as there was no evidence that payment of the arrears could not be enforced by other remedies (see, Covello v. Covello, 68 A.D.2d 818). Mangano, J.P., Gibbons, Brown and Kooper, JJ., concur.