Schoonheim v. Schoonheim

Order, Supreme Court, New York County (Gomez, J.), entered on or about February 26, 1981, which denied the plaintiff husband’s motion pursuant to CPLR 3103 (subd [a]) for a protective order, unanimously reversed on the law and the facts, and the motion granted, without costs. The parties were divorced in 1979, and the wife was awarded, on consent, custody of the two children and child support on an escalating scale, which presently stands at $75 per week for each child. In 1980, the plaintiff-appellant husband moved to modify the divorce judgment to obtain custody. The wife defaulted on the return date, and a hearing was directed. By order to show cause the wife moved to vacate her default and, among other things, to modify the divorce judgment to increase child support to $150 per week per child. Her motion to vacate was denied with leave to renew before the Justice presiding at the previously directed hearing on custody. The husband contends that the children did not reside with the wife during most of the year 1980, and that the daughter still does not reside with her. The wife contends that after the divorce and original child support order in 1979, the husband’s father died and the plaintiff came into a substantial inheritance. There does not seem to be any dispute about that fact, which would seem to obviate any necessity for financial disclosure. This matter started as an issue of whether custody should be changed. The court at Special Term Part V denied the motion for a protective order and directed financial disclosure prior to the hearing on the issue of custody and upward modification. In the event that the husband receives custody, there will be no need for a financial disclosure. The basic claim as to whether the default should be opened and custody transferred should first be determined before the court reaches the question of upward modification. (Goldman v Salzberg, 45 AD2d 680; Barnett Robinson, Inc. v F. Staal, Inc., 43 AD2d 826.) Concur — Kupferman, J. P., Sullivan, Carro, Markewich and Silverman, JJ.