Nicit v. Nicit

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered February 15, 1990, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, to, inter alia, direct respondent to comply with a previous order for support of petitioner.

By an order dated August 23, 1989, respondent, an attorney, was directed to pay petitioner $8,599.98 in retroactive spousal support. He thereafter paid his wife $1,600.62 and when she *795sought to enforce the award, he claimed credit for $6,999.36, which petitioner withdrew from a bank account in her name. According to respondent, the account was established in the early 1980’s as an Individual Retirement Account to take advantage of the tax deduction allowed for nonworking spouses. Respondent claims that the money placed in that account was his and that he never intended to make a gift of the money to petitioner. The Hearing Examiner and Family Court rejected this claim.

Respondent’s use of the withdrawn funds as a credit or setoff against the retroactive spousal award constitutes an impermissible unilateral change in the terms of the order, which directs him to pay $8,599.98 (see, Keff v Keff, 95 AD2d 888). Family Court’s order should therefore be affirmed.

Order affirmed, with costs. Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.