| Hayek v Hayek |
| 2009 NY Slip Op 04536 [63 AD3d 1598] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Cheryl A. Hayek, Respondent, v George M. Hayek,Appellant. |
—[*1] Gleichenhaus, Marchese & Weishaar, P.C., Buffalo (Charles J. Marchese of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), enteredFebruary 25, 2008. The order modified defendant's child support obligation.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the second through sixth ordering paragraphs and by providing that the modification ofchild support shall be retroactive to October 4, 2006 and as modified the order is affirmedwithout costs, and the matter is remitted to Supreme Court, Erie County, for further proceedingsin accordance with the following memorandum: Plaintiff, the former wife of defendant, filed anorder to show cause on October 4, 2006 seeking, inter alia, modification of defendant's childsupport obligation, and defendant contends on appeal that Supreme Court erred in directing himto pay increased child support retroactive to the year 2002. We agree with defendant that thecourt erred in directing that the child support modification be retroactive to a date prior to thefiling of the instant order to show cause. Pursuant to Domestic Relations Law § 236 (B)(7) (a), a modification of child support shall "be effective as of the date of the applicationtherefor" (see § 240 [1] [j]). Thus, the court should have directed that themodification of child support be retroactive to October 4, 2006, the date on which plaintiff filedthe order to show cause seeking that relief (see Bailey v Bailey, 48 AD3d 1123, 1124-1125 [2008]; Kelly v Kelly, 19 AD3d 1104,1107 [2005], appeal dismissed 5 NY3d 847 [2005], reconsideration denied 6NY3d 803 [2005]). We therefore modify the order accordingly, and we remit the matter toSupreme Court to recalculate support arrears for the period from October 4, 2006 throughNovember 2, 2007.
We have considered defendant's further contentions and conclude that they are withoutmerit. Finally, we note that plaintiff's cross appeal was deemed abandoned and dismissed basedon plaintiff's failure to perfect it in a timely manner (see 22 NYCRR 1000.12 [b]). Wetherefore have not considered plaintiff's requests for affirmative relief.Present—Martoche, J.P., Smith, Centra, Fahey and Pine, JJ.