19 A.D.2d 873 | N.Y. App. Div. | 1963
Order, entered on September 30, 3963, unanimously reversed, on the facts and on the law and in the exercise of discretion, with $20 costs and disbursements to the appellant, and motion of plaintiff to punish defendant for contempt granted, with $10 costs. Defendant failed to properly explain his noncompliance with the directions contained in the judgment of separation for the payment of alimony and for support of the child of the marriage. There was no satisfactory prima facie showing of defendant’s financial inability to make the payments as directed. On the record here, the defendant should have been and is adjudged guilty of contempt for failure to make such payments. (See Judiciary Law, § 770; Civ. Prae. Act, §§ 1172, 1172-a; Domestic Relations Law, §§ 245, 246: 18 Carmody-Wait, New York Practice, §§ 87, 88, pp. 538-542.) The defendant’s failure to pay as directed was calculated to and actually did defeat, impede, impair or prejudice the rights and remedies of the plaintiff herein. The defendant is fined the amount of the arrears still remaining unpaid, together with the costs of the appeal, and $10 costs of this motion, and in default of the payment of such fine within 10 days from date of service of copy of the order hereon with notice of entry, he shall be committed. Concur — Rabin, J. P., Valente, McNally and Eager, JJ.; Stevens, J., concurs in the result but would grant defendant leave to renew the application for reduction upon proper papers. Settle order on notice.
