Opinion
January 10, 1994
Appeal from the Supreme Court, Suffolk County (Fierro, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which awarded the defendant former husband a credit for "sums already repaid"; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and determination as to the portion of the $22,337.48 debt owed by the defendant to the plaintiff which remains unpaid, and for entry of a money judgment in the plaintiff's favor for any balance due.
The plaintiff former wife sought modification of the terms of the parties' divorce judgment, entered pursuant to a stipulation of settlement, so as to direct the former husband to provide child support. We agree with the Supreme Court that this relief is not warranted, given the absence of competent proof that the needs of the child in question are not being adequately met (see, Matter of Brescia v. Fitts, 56 N.Y.2d 132, 139; Matter of Levy v. Levy, 193 A.D.2d 801; Matter of Bernstein v. Goldman, 180 A.D.2d 735; see also, Matter of Sheffer v Fershtadt, 195 A.D.2d 516; Matter of Dinkins v. Mabry, 194 A.D.2d 787).
We agree with the plaintiff former wife that the Supreme Court erred in awarding the defendant former husband a credit for "sums already repaid", which he claimed amounted to $10,045, against a $22,337.48 debt, which the divorce judgment required him to deposit in certain bank accounts. Although the defendant annexed to his motion papers certain canceled checks from his parents to the plaintiff former wife, there is no indication that the defendant's father wrote those checks on the defendant's behalf in partial satisfaction of that judgment debt. Therefore, we remit the matter of the Supreme Court, Suffolk County, for a hearing on the amount still due and owing, and for entry of a money judgment in the plaintiff's favor for any amount which remains unpaid.
We have examined the plaintiff former wife's remaining contentions and find them to be without merit. Thompson, J.P., Bracken, Balletta and Joy, JJ., concur.