Benarroch v. Benarroch , 1978 N.Y. App. Div. LEXIS 14078 ( 1978 )

On the court’s own motion, the decision and order of this court, both dated November 6, 1978, are vacated and recalled and the following substituted decision is rendered: In a matrimonial action, the plaintiff wife appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Queens County, dated December 30, 1976, as granted defendant’s application to reduce his alimony and child support obligations. Order reversed insofar as appealed from, on the law and the facts, without costs or disbursements, (1) the first, second and fourth decretal paragraphs thereof are deleted and defendant’s application to modify the judgment of divorce by reducing his alimony and child support obligations is denied and (2) all language in the third decretal paragraph thereof, beginning with the words "and that after the counsel fees have been” and ending with the words "Defendant’s income increases”, is deleted. The action is remanded to Special Term for further proceedings on plaintiff’s application for a wage assignment. Special Term abused its discretion when it modified the alimony and support provisions of the judgment of divorce in the absence of a showing by defendant that he had suffered a " 'substantial change of circumstances’ ” (see Kover v Kover, 29 NY2d 408, 413). Consequently, the original provisions for alimony and child support, as modified by this court, must remain in effect (see Benarroch v Benarroch, 55 AD2d 943). Special Term should reconsider plaintiff’s application for a wage assignment in the light of our determination herein. Hopkins, J. P., Martuscello, Latham and Hawkins, JJ., concur.