97 N.Y.S. 618 | N.Y. App. Div. | 1906
On February 6, 1902, a final judgment was entered herein granting to the plaintiff an absolute divorce from the defendant. In said judgment it was also provided that the plaintiff should have the care, custody and control during hi: minority of the child of said parties, and that said defendant during the natural life of the plaintiff and during the minority, in case of her death, of the child, rfl'vuld contribute to the plaintiff the sum of twenty dollars j>er week for her ¡.upport and the support, maintenance, care and education of said child, the first payment to be made January 24, 1902, and each week thereafter. It appears that at the time of the making of the motion herein the defendant was in default in the payments provided for in said judgment in the sum of §2,840, and that the total paid under said judgment was §106. It further appears that the child is now fifteen years of age and is living with, md is supported by, the plaintiff. Both parties have married again since the divorce. The Special Term denied the motion to adjudge the defendant in contempt. The judgment stands unreversed, unappealed from and not modified. The default in payment is not denied. The plaintiff was entitled to proceed as for a contempt, and the order asked for should have been granted. The plaintiff, in her moving papers and in the brief submitted in her behalf, states that inasmuch as she has married again she does not desire any further personal support from the defendant, but that as the next friend of her and his minor child, she asks that the defendant be required to pay ten dollars'a week for his education and support, and asks that if this court on this application has the,power to modify the judgment accordingly, it do so. A party may voluntarily waive his rights, and this offer may be embodied in an appropriate order, said reduction to date from the issuance of the order to show cause herein. The order appealed from should be reversed, with ten dollars costs and disbursements, and the application to adjudge the defendant in contempt granted, with ten dollars costs. O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursr ments, and motion granted, with ten dollars costs.