| N.Y. App. Div. | Apr 18, 1960
In an action for a separation, the wife appeals from an order made under section 1172-a of the Civil Practice Act, relieving the husband of the provisions of an order adjudging him in contempt for failure to comply with the provisions of the judgment of separation directing the payment of alimony and counsel fees, and modifying the judgment by reducing the alimony required to be paid from $25 to $12.50 a week. Order modified by striking out the first ordering paragraph and by substituting therefor a provision that the motion insofar as it seeks an order relieving the husband of his contempt is in all respects denied. As so modified, order affirmed, without costs. Respondent’s failure to make the payments directed from the time of the entry of the final judgment in October, 1958 to the time when he was ordered to be committed to the civil jail in April, 1959, is entirely unexplained; and he has utterly failed to give any convincing evidence that he made a reasonable and fair effort to comply with the terms of the order. His conduct can only be said to have been willful, deliberate and contumacious in the extreme, to have resulted eventually in the loss of his position and to have created a situation which was self-imposed. Under the circumstances, it was an improvident exercise of discretion to relieve respondent of his contempt. (See Fredenburgh v. Fredenburgh, 149 Misc. 391" date_filed="1933-09-15" court="N.Y. Sup. Ct." case_name="Fredenburgh v. Fredenburgh">149 Misc. 391; cf. Zeitz v. Zeitz, 262 A.D. 750" date_filed="1941-05-05" court="N.Y. App. Div." case_name="Zeitz v. Zeitz">262 App. Div. 750; Caldwell v. Caldwell, 259 App. Div. 845.) Beldock, Acting P. J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur.