57 A.D.2d 546 | N.Y. App. Div. | 1977
In a matrimonial action, the defendant appeals from so much of an order of the Supreme Court, Westchester County, dated August 17, 1976, as, in denying the plaintiff’s motion to hold him in contempt for his failure to pay child support, (1) determined that the proper means of resolving the issue raised by his opposition to the plaintiff’s motion was an action for a declaratory judgment, (2) directed him to commence such an action within 30 days and (3) granted the plaintiff leave to renew should he fail to commence such an action. Order reversed insofar as appealed from, on the law, without costs or disbursements, and application to hold defendant in contempt denied outright. Plaintiff’s judgment of divorce from defendant, as modified on appeal (Joachim v Joachim, 48 AD2d 855), awarded her alimony, custody of their minor daughter and $35 per week for support of the child. The defendant subsequently applied for and received Social Security benefits, with the result that plaintiff receives monthly Social Security payments (which now equal $35 per week) for the benefit of the child. On the advice of counsel the defendant continued to pay plaintiff alimony but stopped paying child support. The plaintiff moved to punish him for contempt for his failure to make eight specified child support payments, and he opposed the motion on the ground that the Social Security payments