Opinion
July 1, 1985
Appeal from the Supreme Court, Kings County (Imperato, R.).
In the absence of a showing of good cause by plaintiff for his failure to seek relief from the $15 per week alimony award originally provided for in a stipulation of settlement between the parties and subsequently incorporated but not merged into the judgment of divorce prior to the accrual of arrearages, the special referee was obliged to direct the entry of judgment against plaintiff for the conceded period of time when he defaulted in his obligation thereunder (Domestic Relations Law § 244; see, Malta v. Malta, 87 A.D.2d 988). The evidence in the record amply supports a finding that defendant did not agree to forgive the debt nor waive her right to recover the arrearages. That determination turned upon the credibility of the parties at the hearing, which the special referee was uniquely qualified to assess. Thus, the referee did not abuse his discretion in granting that branch of defendant's motion which sought to compel entry of a judgment against plaintiff ( see, Lewandoski v Lewandoski, 278 App. Div. 1004).
Nor has plaintiff demonstrated a substantial change in either his or defendant's financial circumstances between the time the alimony award was agreed upon and the time of his cross motion, so as to warrant vacatur of said award ( see, Kover v. Kover, 29 N.Y.2d 408, 413; Miklowitz v. Miklowitz, 79 A.D.2d 795, lv denied 53 N.Y.2d 604). Merely because defendant was able to be self-supporting by operating her own funeral parlor and maintaining income-producing real property did not automatically relieve plaintiff from having to pay alimony ( McClusky v. McClusky, 87 A.D.2d 973; see also, Hickland v Hickland, 39 N.Y.2d 1, 6, cert denied 429 U.S. 941), particularly where defendant had been employed and was apparently receiving a greater net income at the time of the stipulation.
Although it is clear that defendant did not act as diligently as she could have with respect to prosecuting her claim for arrears, plaintiff failed to show that he was prejudiced solely as a result of this delay, which he was required to do in order to successfully assert the defense of laches ( Maule v. Kaufman, 33 N.Y.2d 58, 62; Seligson v. Weiss, 222 App. Div. 634, 638; cf. Meyer v. Meyer, 74 A.D.2d 945, appeal dismissed 50 N.Y.2d 1056). Bracken, J.P., O'Connor, Rubin and Kunzeman, JJ., concur.