41 A.D.2d 523 | N.Y. App. Div. | 1973
Order and judgment (one paper), Supreme Court, New York County, entered on September 27, 1972, adjudging plaintiff guilty of contempt and fining him in the sum of $83,684.28, together with costs and counsel fees, unanimously modified, on the law, the facte and in the exercise of discretion, to the extent of reversing and striking all the decretal paragraphs of said order, except that part of the first decretal paragraph which denied plaintiff’s cross motion, and remanding the motion to punish for contempt to the Trial Term for a hearing on the issue as to whether or not the failure of the plaintiff husband to comply with the judgment of divorce was willful, and otherwise affirmed, without costs and without disbursements. The question of deliberateness enters into the husband’s failure to honor his commitments, as required by the court order, but this cannot be satisfactorily determined in the absence of a hearing. (Domestic Relations Law, § 246, subd. 1; see, also, Holahan v. Holalman, 234 App. Div. 572; Shuck v. Shuck, 40 A D 2d 665.) On the representation that the plaintiff is faithfully paying now the sum of $350 a week towards the support of the wife and children, we make no further direction as to any other interim payments. Settle order on notice. Concur — McGivern, J. P., Nunez, Murphy, Steuer and Capozzoli, JJ.
