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Healy v. Healy

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 18, 2010

GREGORY HEALY, PLAINTIFF-APPELLANT,
v.
DESIREE HEALY, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered December 8, 2008, which granted plaintiff's motion to accept and implement a report of the Special Referee recommending a downward modification of his spousal maintenance and child support obligations, but limited any credit for pre-modification payments to the period between March 23, 2007 and October 31, 2008, unanimously modified, on the law, to allow plaintiff a credit against future payments of spousal maintenance in the amount of any overpayments made between February 2, 2005 and October 21, 2008 of which he can submit written proof, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Sweeny, Nardelli, Freedman, JJ.

314802/04

On a prior appeal, this Court reversed the motion court's award of spousal maintenance and child support, which had been made retroactive to February 2, 2005, on the ground that the award had been improperly calculated (51 AD3d 551 [2008]). On remand, the Special Referee issued a report recommending a prospective downward modification of maintenance and support, as well as a credit for any pre-modification excess payments of maintenance that plaintiff could document in writing. In accepting and implementing the report, however, the motion court limited the credit for pre-modification excess spousal maintenance payments to the period between March 23, 2007 and October 31, 2008. Thus, the court let stand its original award with respect to the balance of the period during which plaintiff paid maintenance, despite this Court's determination as a matter of law that the award had been improperly calculated.

Plaintiff failed to preserve his argument that the Referee should also have allowed a credit for pre-modification excess child support payments (see Matter of Treider v Lamora, 44 AD3d 1241, 1243 [2007], lv denied 9 NY3d 817 [2007]).

M-310 - Gregory Healy v Desiree Healy Motion seeking to vacate stay and for poor person relief denied as academic, without costs.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100218

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