Harrington & Mahoney (Kelly L. Ball of counsel), for plaintiff.
William R. Hites for defendant.
John P. Lane, J.
The parties were divorced by judgment granted August 25, 1998. In pertinent part, the judgment of divorce provides that the former marital home be sold and the net proceeds be divided equally between the parties. Defendant was awarded custody of the two infant children of the marriage. She and the children were to remain in the home, and the parties were to
share mortgage and other expenses associated with the home until it was sold. Plaintiff was directed to pay $50 per week as spousal maintenance for 18 months and $268.39 biweekly as child support. Plaintiff was ordered to immediately pay a past due award of $750 counsel fees to defendant's attorney. 
An interim order made in 1994 directed plaintiff to pay defendant $65 per week as support for their two children. When plaintiff fell behind in these payments, an income execution was issued that required deduction of $130 from plaintiff's biweekly wages for payment to defendant through the Erie County Support Collection Unit. Plaintiff made no effort to pay defendant the $138.39 in additional biweekly child support called for by the judgment. In defense of this default, he contends that defendant failed to pay her share of the mortgage on the marital residence and he made the full payment each month to avoid foreclosure. Using plaintiff's figures, he overpaid what he owed by $151.48 each month. 
According to defendant, plaintiff never paid spousal maintenance as directed. He stopped making payments on the mortgage in November 1999 and a foreclosure proceeding was later commenced. Plaintiff did not increase his child support payments after he stopped paying the mortgage. Although the custody and child support provisions in the judgment had not been modified, the parties' older child, Robert Paladino II, moved in with plaintiff in February 2000 and enlisted in the Army the following August.
The judgment provides that the parties share reasonable and necessary uninsured health-related expenses of the children. Plaintiff contends that defendant failed to pay her share of these expenses and he was compelled to pay more than his share. Defendant disputes this claim. Plaintiff presumably would be entitled to a credit for any excess amount that he paid against the $3,900 he owes defendant for unpaid maintenance. However, she is not seeking enforcement of his maintenance obligation at this time.
Each party blames the other for their failure to sell the home. As it was lost through foreclosure, the issue is now moot. Plaintiff's obligation to pay the judgment for attorney's fees and disbursements previously awarded is not affected by the loss of the home through foreclosure. 
Plaintiff's attorney argues that the parties entered into an oral modification of the financial provisions contained in the judgment and a hearing should be held. Plaintiff makes no such claim in his affidavit; however, he infers that defendant acquiesced in his practice of paying her share of the mortgage with child support funds. As the parties' submissions raise no factual issues with respect to the amount of child support arrears due through August 2000, no hearing is required (see, Burroughs v Burroughs, 262 A.D.2d 993).
" Under the current scheme for enforcing court-ordered child support obligations, courts may not reduce or cancel any arrears that have accrued" (Matter of Dox v Tynon,90 N.Y.2d 166, 168; see, Domestic Relations Law § 236 [B]  [b]; § 244). Defendant's delay in seeking to enforce plaintiff's obligation does not change the rule (see, Matter of Dox v Tynon, supra, at 174-175; see also, Shirback v Shirback,115 A.D.2d 992). There is no assertion by plaintiff that his former wife expressly waived her entitlement to child support payments (cf., O'Connor v Curcio,281 A.D.2d 100 [2d Dept. 2001]). Thus, plaintiff's claim that he used child support funds to pay defendant's share of the monthly mortgage ...