27 Misc. 2d 9 | N.Y. Sup. Ct. | 1960
Motion to punish for contempt for failure to pay alimony, for security, and for additional counsel fee. Defendant cross-moves for an order of modification, claiming financial inability to continue the required payments and contending that a provision of the original decree requiring him to pay life insurance premiums is invalid and that he is entitled to a reduction because.not all of the children continue to live with and be supported by plaintiff. Plaintiff argues that the cross motion may not be considered because defendant is in arrears, and because a motion to modify must be brought on by order to show cause.
If the application is based on subdivision 3 of section 1172-a only financial inability may be considered. Defendant’s affidavit is wholly conclusory on that question, being phrased in terms of li approximate ” income, and being unsupported by any financial records or reports. It does not make a prima facie showing that either his income or his mode of living has changed, and is, therefore, insufficient to entitle him to a hearing on the defense of financial inability. (Guglielmone v. Guglielmone, 5 A D 2d 778; Shanley v. Shanley, 275 App. Div. 775; see Kruger v. Kruger, 279 App. Div. 808.) Since he admits that he has not paid $1,200 required by the decree to be paid, he is found in contempt and fined the sum of $1,200. He may purge his contempt by the payment of that sum, plus the costs of this proceeding and an allowance of $200 to plaintiff for counsel fees on this motion, within 20 days after service of a copy of the order to be entered hereon with notice of entry. The order may provide that, upon proof by affidavit of default in such payment, defendant may be committed without further notice.
Settle order granting the motion to punish for contempt as hereinabove set forth, setting the cross motion down for hearing on a date to be fixed in the order, deferring ruling on the application for the posting of security until after such hearing, and providing that plaintiff may apply at the end of said hearing for counsel fee on the cross motion.