On February 26, 2013, Plaintiff Roseanne P. ("Plaintiff") filed an order to show cause, affidavit, affirmation of A. Albert Buonamici, Esq. ("Plaintiff's Counsel"), and exhibits thereto, seeking a money judgment for alimony arrears, statutory interest, and counsel fees. [*2]

On April 3, 2013, Defendant Gustav P. ("Defendant") filed a notice of cross motion, affidavit, and affirmation of Debra Palazzo, Esq.,("Defendant's Counsel") seeking an order modifying the Judgment of Divorce by terminating the order requiring Defendant to pay lifetime alimony in the amount of $75.00 per week and annulling all alimony arrears accrued to date and attorney's fees as well as such other and further relief as the court may deem just and proper.

On April 15, 2013, Plaintiff filed an affidavit, and affirmation of Plaintiff's Counsel and exhibit thereto, in further support of her order to show cause and in opposition to Defendant's cross motion.

On April 22, 2013, Defendant filed a reply affirmation of Defendant's Counsel in support of his cross motion and, on April 30, 2013, Defendant filed a supplemental affirmation of Defendant's Counsel in opposition to Plaintiff's order to show cause.

On May 6, 2013, Plaintiff filed a reply affirmation of Plaintiff's Counsel in support of Plaintiff's order to show cause.

BACKGROUND OF THE ACTION

The parties were married on October 28, 1972 in New York State and there was one child of the marriage. The parties were divorced pursuant to a Judgment of Divorce, filed May 8, 1981 ("Judgment of Divorce").

Pursuant to the Judgment of Divorce, Defendant was required to pay alimony to Plaintiff in the amount of $75.00 per week.

On October 23, 2000, Plaintiff filed an order to show cause against Defendant seeking to enforce the terms of the Judgment of Divorce requiring payment of child support and alimony and counsel fees. The parties settled the matter by entering into a "So Ordered" Stipulation, dated January 25, 2001 ("January 2001 Order"),in which the parties entered into an agreement pertaining to claims for child support and alimony arrears, requiring Defendant to pay a total sum of $35,000.00 in full satisfaction of Plaintiff's claim for arrears and attorney's fees; the sum of $15,000.00 of that total amount was required to be paid on or before March 1, 2001; the remaining $20,000.00 was to be paid, together with five percent interest per annum, over a period of five years, payable in the sum of $377.42 per month for sixty months commencing no later than March 1, 2001. Pursuant to the January 2001 Order, the parties also agreed to modify Defendant's weekly obligation to pay $75.00 per week, so that, effective June 30, 2001, Defendant was required to make an annual payment of $3,900.00 to Plaintiff on that date and every anniversary of that date thereafter.

For the reasons set forth below, the Court grants Plaintiff's order to show cause in part and denies it in part. Defendant's cross motion is denied in its entirety.

CONCLUSIONS OF LAW

A.A Twenty Year Statute of Limitation Applies

Contrary to Defendant's assertion, Plaintiff is not barred from seeking enforcement of Defendant's payment obligation that is set forth in the January 2001 Order. The time frame for Plaintiff's action for enforcement of the terms of the January 2001 Order is governed by CPLR § 211, "Actions to be commenced within twenty years," as amended on August 8, 1987, which provides, in relevant part, as follows:

(e)For support, alimony or maintenance. An action or proceeding to enforce any temporary order, permanent order or judgment of any court of competent [*3]jurisdiction which awards support, alimony or maintenance, regardless of whether or not arrears have been reduced to a money judgment, must be commenced within twenty years from the date of a default in payment. This section shall only apply to orders which have been entered subsequent to the date upon which this section shall become effective.

Here, although the Judgment of Divorce preceded this statutory amendment, the January 2001 Order did not. As there can be no real dispute that the January 2001 Order was entered after the enactment of this CPLR provision, the twenty year statute of limitations period applies. As Plaintiff's enforcement action is well within that twenty year period, Defendant's application to dismiss Plaintiff's claims on this ground is denied.

B.Plaintiff is not Barred from Seeking Alimony from 2007-2012

To preclude a claim on the ground of laches, there must be a showing not only of a delay, but also an injury, change of position or other disadvantage resulting from such delay. Haberman v. Haberman, 216 AD2d 525, 527 (2d Dept. 1995) (proof that party waited almost four years before seeking arrears and defendant claimed he relied to his detriment upon an agreement that party would waive the payments entitled defendant to hearing on issue of laches); Messina v. Messina, 143 A.D. 735, 737 (2d Dept. 1988) (delay in commencing legal proceedings to enforce support obligation does not itself establish waiver of rights) .

Here, although Plaintiff does not dispute that in 2007 Defendant sent her a letter advising her that he could not pay alimony, Defendant has not alleged any prejudice or injury as a result of Plaintiff's failure to respond or to make a demand for payment until the filing of this action. Mere inaction or delay in bringing a proceeding, without a showing of prejudice, does not constitute laches. Haverman at 527; Messina at 737. Defendant's failure to allege any prejudice or injury as a result of Plaintiff's failure to demand the payments owed is fatal to his claim of laches.

Here, Defendant was obligated to pay Plaintiff the sum of $3,900.00 per year on June 30th of each year after 2001, and owed Plaintiff arrears as of 2007 as to other payments as set forth in the January 2001 Order. Other than his claim with respect to the statute of limitations, Defendant does not dispute the validity of the January 2001 Order. Accordingly, the Court finds that Defendant owes $30,193.56 in alimony arrears pursuant to the January 2001 Order.

C.The Court will not Award Statutory Interest on Arrears

Plaintiff's request for statutory interest on all the arrears owed is denied. Absent a willful failure to pay, an award of interest is inappropriate. See Messina at 737;

DRL § 244.

The Court notes that Plaintiff does not dispute that Defendant sent her a letter in 2007 informing her that he could no longer afford to pay. Plaintiff does not refute Defendant's contention that she did not respond to that letter. In addition, Plaintiff has not refuted Defendant's contention that, although Plaintiff is seeking a money judgment, she failed to send the requisite 10 day notice of demand for payment before making such request.

Based on these facts, the Court does not find Defendant's failure to pay the arrears that have accrued to be willful such that a finding of contempt or an award of interest is warranted. Manno v. Manno, 224 AD2d 395, 399 (2d Dept. 1996); Messina at 737 (no award of interest [*4]absent evidence of willful failure to pay arrears).

Thus, this portion of Plaintiff's order to show cause is denied.

D.Defendant's Application to Cancel Past Arrears is Denied

Defendant's application to cancel past arrears in alimony payments is denied.

Defendant has not demonstrated any good cause for his failure to seek prior relief from the alimony award. Penziner v, Penziner, 123 AD2d 674, 675 (2d Dept. 1986)(alimony arrears may not be cancelled unless defaulting party shows good cause, prior to accrual of arrears, for failure to make application for relief from prior judgment or order directing such payment); see also LiGreci v. LiGreci, 87 AD3d 722, 726 (2d Dept. 2011).

In fact, Defendant's agreement in 2001 to the stipulation that is embodied in the January 2011 Order evidences his knowledge that relief from arrears can be sought. Notwithstanding Defendant's experience in 2001 and the fact that in 2007 Defendant sent a letter to Plaintiff saying he could no longer pay, he failed to seek relief from the January 2001 Order until this enforcement action by Plaintiff.

E.Defendant's Application for a Downward

Modification of Alimony is Denied

Defendant's application for a downward modification of alimony also is denied as he has wholly failed to meet his evidentiary burden to establish, by clear and convincing evidence, that he has had a substantial change in circumstances which would warrant a downward modification of alimony.

Under the law applicable to this 1981 Judgment of Divorce, Plaintiff's alimony award as against Defendant may be modified only upon a clear and convincing showing of a substantial change in circumstances. DRL 236(A); Matter of Hermans v. Hermans, 74 NY2d 876, 878 (1989)(alimony award made after trial in pre-Equitable Distribution law divorce case may only be modified upon clear and convincing showing of a substantial change in circumstance); Stein-Sapir v. Stein-Sapir, 82 AD2d 416, 416 (1st Dept. 2011).

Here, Defendant's contentions that at the time of the divorce his income was approximately $50,000.00 per year and Plaintiff was unemployed and that Defendant now has an income from social security of $18,000.00 per year, dividends from his retirement funds, and wood working and cabinet making jobs,together with Defendant's submission of a copy of his 2011 federal income tax return, without any schedules attached thereto, do not establish clear and convincing evidence of a substantial change in circumstance. Koch v. Koch, 134 AD2d 574 (2d Dept. 1987); Vitek v. Vitek, 170 AD2d 908, 908-09 (3d Dept. 1991). Indeed, Defendant's contentions, and incomplete and out of date financial information, are wholly insufficient to even entitle Defendant to a hearing on the issue. Koch at 574 (conclusory and speculative allegations are insufficient to warrant a hearing on downward modification of alimony) Mishrick v. Mishrick, 251 AD2d 558, 558 (2d Dept. 1998)(no right to a hearing absent prima facie evidence establishing entitlement to downward modification); Lewis v. Lewis, 43 AD2d 462 (2d Dept.2007)(court is required to have hearing only when genuine issues of fact .

Accordingly, Defendant's cross motion is denied in its entirety.

F.Plaintiff is Awarded Reasonable Attorney Fees

It is within the Court's discretion to award counsel fees in post-judgment [*5]proceedings involving enforcement. Domestic Relations Law § 237; DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881 (1987). The Court notes that Plaintiff is seeking, in part, enforcement of an order — the January 2001 Order — that sets forth a payment plan for Defendant who had accrued significant arrears at that time.

The standard for awarding counsel fees includes an inquiry in to the nature and extent of services, the performance of counsel under the circumstances, the difficulty of the case, the results achieved and counsel's reputation in the legal community. Id.; see also Barnes v. Barnes, 54 AD2d 963 (2d Dept. 1976); McCann v. Guteri, 100 AD2d 577 (2d Dept. 1984). The party seeking the requested fees does not need to prove an inability to pay the fees, although the Court is guided by the relative financial circumstances of the parties and the merits of the matter before the Court. DeCabrera at 881.

The Court may consider, as here, the fact that Defendant failed to comply with the terms of the January 2001 Order and now has engaged in conduct which resulted in additional unnecessary litigation as a basis for the award of fees to Defendant. Here, despite the January 2001 Order directing Defendant to pay a sum certain annually as alimony as well as a schedule of payments to pay off arrears he had owed in child support and alimony, Plaintiff has failed to make the full amount of such payments and instead filed a cross motion seeking to vacate or modify such award.

The Court has reviewed the submission by Defendant with respect to attorney's fees. Unless the parties' consent to a determination of such fees on the written submissions, the Court will set a hearing date for determination of such fees on December 10, 2013.

The Court considered the following submission by the parties: the Order to Show Cause, dated February 26, 2013, together with the Affidavit of Plaintiff, sworn to February 21, 2013, the Affirmation of A. Albert Buonamici, Esq., dated February 25, 2013, and exhibits annexed thereto; the Notice of Cross motion, Affidavit of Defendant, sworn to March 18, 2013, Affirmation of Debra Palazzo, Esq., dated April 1, 2013, and exhibits annexed thereto; Affidavit of Plaintiff, sworn to April 10, 2013, and the Affirmation of A. Albert Buonamici, Esq., dated April 12, 2013; Reply Affirmation of Debra Palazzo, Esq., dated April 18, 2013; Supplemental Affirmation in Opposition of Debra Palazzo, Esq., dated April 24, 2013; the Reply Affirmation of A. Albert Buonamici, Esq., dated May 3, 2013.

This constitutes the Decision and Order of the Court.

Dated: White Plains, New York

November 14, 2013

HON. COLLEEN D. DUFFY.

Justice of the Supreme Court