Benarroch v. Benarroch

Jan 31, 1977
Versions:55 A.D.2d 943
391 N.Y.S.2d 138
1977 N.Y. App. Div. LEXIS 10223

In a matrimonial action, the defendant husband appeals from (1) a judgment of divorce of the Supreme Court, Queens County, dated February 18, 1976, and (2) so much of an order of the same court, dated February 18, 1976, as (a) denied defendant’s motion to modify the temporary alimony and support provisions of an order of the same court, dated May 2, 1975, and (b) granted plaintiffs cross motion to adjudge defendant in contempt of court and for a counsel fee. Judgment modified, on the facts, by deleting from the fourth decretal paragraph thereof the words: "plus the sum of seventy-five dollars per week for the maintenance of the child making a total sum of one hundred and fifty dollars per week,” and substituting therefor the following: "plus the sum of $45 per week for the maintenance of the child making a total sum of $120 per week”. As so modified, judgment affirmed. Order affirmed insofar as appealed from. Plaintiff is awarded one bill of costs to cover both appeals. The record supports the finding that defendant’s refusal to engage in sexual relations was unjustified, and constituted abandonment (see Domestic Relations Law, § 170, subd [2]; Dudzick v Dudzick, 84 Misc 2d 731). His failure to comply with the pendente lite order, which directed him to pay $65 per week in alimony and child support was willful and deliberate; the order finding him in contempt of court did not constitute an abuse of discretion (see Domestic Relations Law, § 245; Judiciary Law, § 770). Furthermore, since defendant’s testimony at trail as to his income was impeached several times, the court was justified in reaching its onw conclusions as to his actual income and earning capacity (see Hoffman v Hoffman, 63 Misc 2d 245; Kay v Kay, 37 NY2d 632). Under the proof adduced, the award of child support at the rate of $75 a week was excessive to the extent indicated herein. Cohalan, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.