Smith v. Smith 105 A.D.2d 1120

Order unanimously modified and, as modified, affirmed, without costs, and matter remitted to Onondaga County Family Court for a hearing, in accordance with the following memorandum: At this modification hearing, Family Court had a mandatory duty to enter a money judgment in favor of petitioner for the arrears of child support due her rather than awarding installment payments (Family Ct Act, § 460, subd 1). Since the court determined that the respondent was not willful in failing to pay arrears, interest was properly excluded in the order. Furthermore, the court should conduct a hearing to determine if petitioner’s application for counsel fees is warranted (Roscini v Roscini, 45 AD2d 254). We have examined the petitioner’s application for upward modification for child support and find no abuse of discretion in the court’s ruling. (Appeal from order of Onondaga County Family Court, Buck, J. — support.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.