Staley v. Staley , 134 A.D.2d 911 ( 1987 )

— Order unanimously affirmed with costs. Memorandum: The former wife sought enforcement in Family Court of support under a divorce decree incorporating but not merging a separation agreement. The former husband counterclaimed for modification. The Hearing Examiner ruled that modification was required. Family Court, however, concluded that circumstances had not substantially changed from those within the contemplation of the parties at the time of the agreement and divorce decree, and therefore made an order dismissing the counterclaims and remitting the matter to the Hearing Examiner to determine the amount of arrears.

An appeal as a matter of right can be taken only from an order of disposition of Family Court (Family Ct Act § 1112 [a]). An order of disposition includes a final order or judgment (Ocasio v Ocasio, 49 AD2d 801, appeal dismissed 37 NY2d 921). The order appealed from was final with respect to the counterclaims, and the issues involved in the counterclaims were separate from the calculation of arrears under the decree, so that respondent had the right to appeal this order even though the order was not final with respect to the petition.

On the merits, we agree with Family Court for reasons stated in its opinion that the counterclaims were properly dismissed.

Petitioner seeks mandatory counsel fees pursuant to Family Court Act § 438 (b) on the ground that respondent’s failure to pay was willful. That claim relates to her petition, as to which the order is nonfinal, and it is not properly before us on this appeal. (Appeal from order of Genesee County Family Court, Graney, J. — spousal support.) Present — Dillon, P. J., Callahan, Green, Pine and Lawton, JJ.