Ford v. Ford , 118 A.D.2d 1004 ( 1986 )

Casey, J.

Appeal from an order of the Supreme Court at Special Term (Prior, Jr., J.), entered September 9, 1985 in Albany County, which denied plaintiffs motion for a money judgment for arrearages in maintenance and child support.

A judgment of divorce was entered against defendant, upon his default, in September 1977. The judgment contained a provision directing defendant to pay maintenance in the amount of $125 per week and child support of $60 per week. It is undisputed that from October 1977 until February 1985, defendant paid plaintiff $220 biweekly, which she accepted. Defendant maintains that this reduced payment resulted from an oral agreement between the parties, but plaintiff denies having made such an agreement.

In February 1985, after defendant won a substantial amount of money in the State lottery, plaintiff moved to punish defendant for contempt for failing to pay maintenance and child support. Special Term denied the motion, holding that plaintiff’s conduct in accepting the reduced payments for some seven years without taking any steps to enforce the judgment operates as a waiver and bars her claim for past due maintenance or child support. Plaintiff took no appeal from the order denying her motion, but instead brought the instant motion, which Special Term also denied, seeking a money judgment for the arrearages.

We conclude that Special Term properly denied the second motion. The only issue decided on the prior motion was that plaintiff did not have a claim for arrearages. The doctrine of collateral estoppel or issue preclusion bars plaintiff from relitigating an issue that has been finally determined, and we find that all the elements of the doctrine are present here (see, Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485).

Order affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.