Martocci v. Martocci , 68 A.D.2d 934 ( 1979 )

In a matrimonial action in which the plaintiff was granted a divorce, she appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, entered May 29, 1978, as (1) after a hearing, granted the defendant’s motion for a downward modification of the alimony provision of the judgment of divorce from $300 per week to $210 per week, and (2) in granting plaintiff’s cross motion for a judgment for arrears in alimony, stayed enforcement thereof provided that defendant pay the sum of $25 per week on account. Order reversed insofar as appealed from, on the facts and as an exercise of discretion, with costs, defendant’s motion is denied and the matter is remitted to Special Term for computation of present arrears and the entry of an appropriate amended judgment therefor. In our opinion the defendant failed to establish a change of circumstances warranting a downward modification of the alimony provision of the judgment of divorce. In addition, it was an improvident exercise of discretion to stay enforcement of the judgment for the arrears on condition that defendant pay only $25 per week on account since it appears that his financial condition is sufficient to permit payment of those arrears in a lump sum. Hopkins, J. P., Damiani, Rabin and Mangano, JJ., concur.