Barrett v. Barrett

| N.Y. App. Div. | Nov 23, 1927

Per Curiam.

Defendant having failed to make the payments awarded by the court for temporary alimony, was guilty of contempt and subject, in the discretion of the court, to punishment therefor.

It appeared that he had the custody of and had entirely supported one of the two children, for whose care by plaintiff the order contemplated and had provided. The learned justice, by whom the motion to punish was heard, felt that plaintiff having been relieved by defendant from support of one of the children, his partial default in payment was not such as to impair, impede or prejudice the rights of the wife; that the contempt was technical only and that he should not be punished therefor.

Denial of punishment was within his power (Brill v. Brill, 148 A.D. 63" court="N.Y. App. Div." date_filed="1911-12-01" href="https://app.midpage.ai/document/brill-v-brill-5222697?utm_source=webapp" opinion_id="5222697">148 App. Div. 63) and we do not consider his refusal in this instance an abuse of discretion.

In so far, however, as the order appealed from assumes to direct that the payments theretofore made should stand in full of all payments required by the order fixing alimony, and also reduced the amount of the future payments, we think it unauthorized.

The motion was one to punish for contempt; defendant interposed no cross-motion whatsoever. The only question presented was that of plaintiff’s motion. Affirmative relief to defendant was neither asked nor necessary to meet the matter submitted." Doubtless the equities appealed as favoring defendant; the Special Term for Motions has not, however, general equity jurisdiction.

For these reasons the order appealed from should be modified by striking therefrom the provisions providing that the payments theretofore made should be in full to date of all payments required by the order and that in the future the defendant should pay but six dollars per week, and as so modified affirmed, without costs.

All concur. Present — Httbbs, P. J., Clark, Sears, Taylor and Sawyer, JJ.

Order modified by striking therefrom the provisions providing that the payments theretofore made should be in full to date of all payments required by the order and that in the future the defendant should pay but six dollars per week, and as so modified affirmed, without costs on this appeal to either party.