Opinion
June 16, 1998
Appeal from the Supreme Court, New York County (Fern Fisher-Brandveen, J.).
The motion court properly granted defendant wife a judgment for arrears in maintenance pursuant to Domestic Relations Law § 244 Dom. Rel., instead of requiring her to commence a plenary action alleging breach of the parties' 1986 modification of their 1972 separation agreement. There is no question that the parties' 1972 separation agreement was "incorporated by reference" into their divorce judgment, as contemplated by Domestic Relations Law § 244, and that the 1972 separation agreement permitted written modifications thereto such as the one executed by the parties in 1986 ( see, Enck v. Enck, 228 A.D.2d 999). There is also no question that, as the motion court found, the 1986 document was intended by the parties to modify the husband's maintenance obligation under the 1972 separation agreement.
Also proper was the motion court's determination that plaintiff husband had not demonstrated good cause for his failure to apply for relief from his maintenance obligation prior to the accrual of arrears, and, accordingly, that any such relief should be prospective only ( see, Soba v. Soba, 213 A.D.2d 472, 473; Benjamin v. Benjamin, 70 A.D.2d 813, 814). Finally, the motion court's referral of plaintiff husband's request for downward modification of his maintenance obligation to a Referee was correct, since issues of fact were raised by his averments indicating that he had access to trust and investment income.
Concur — Milonas, J. P., Nardelli, Wallach and Saxe, JJ.