Carson v. Schettine

Judgment unanimously reversed, without costs, and matter remitted to Supreme Court, Livingston County, for further proceedings in accordance with the following memorandum: In this action on a separation agreement for unpaid child support accrued since June, 1974, Trial Term erred in awarding the full contractual amount of arrears without considering the possible effect of the husband’s disability on his support obligation in light of the provision in the agreement that “if the husband suffers a serious loss of income * * * the amount of support he is to pay may be reviewed by any Court of appropriate jurisdiction.” Although the husband in his answer raised as an affirmative defense that “on or about June 13, 1974 * * * Defendant sustained an injury that has caused the Defendant to suffer a serious loss of income within the provisions of the * * * Separation Agreement” and at trial adduced some proof of disability and loss of income, Trial Term, construing the agreement as requiring that the husband apply for review or modification and noting that the husband had not so applied, declined to consider the issue. We read the provision as permitting review by a court of the husband’s support obligation when the question of serious loss of income is raised as a defense in an action for arrears and, therefore, remit for a hearing and determination on this issue. (Appeal from judgment of Livingston Supreme Court, Houston, J. — support.) Present — Dillon, P. J., Cardamone, Hancock, Jr., Denman and Schnepp, JJ.