Frances Vogel v Gary Vogel

Vogel v Vogel 2004 NY Slip Op 08683 [12 AD3d 592] November 22, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Frances Vogel, Respondent,
v
Gary Vogel, Appellant.

—[*1]In a matrimonial action in which the parties were divorced by judgment entered June 25, 1986, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Berkowitz, J.), dated January 7, 2004, as denied that branch of his motion which was for an award of an attorney's fee and granted that branch of the plaintiff's cross motion which was for leave to enter a money judgment for arrears for child support, college expenses, medical expenses, and repairs to the marital residence.

Ordered that the order is modified, on the facts, by deleting the provision thereof granting that branch of the cross motion which was for leave to enter a money judgment for arrears in the amount of $130,318, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the actual amount of arrears; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant's submissions in opposition to the cross motion raised sufficient factual issues to require a hearing on the amount of child support arrears (see Palladino v Palladino, 264 AD2d 441 [1999]; Boris v Boris, 245 AD2d 409 [1997]). Moreover, the legitimacy and amount of the claimed arrears for college expenses, medical expenses, and repairs to the marital residence cannot be determined on this record (see Gnoza v Gnoza, 293 AD2d 571 [2002]; Rogers v Rogers, 151 AD2d 738 [1989]; Curtis v Curtis, 132 AD2d 850 [1987]). Accordingly, we remit this matter to the Supreme Court, Nassau [*2]County, for a hearing on these issues.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying that branch of his motion which was for an award of an attorney's fee (see Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]; Grossman v Grossman, 260 AD2d 602, 603 [1999]). Santucci, J.P., Schmidt, Cozier and Rivera, JJ., concur.