Opinion
March 18, 1963
In an action for divorce and other relief, wherein a judgment was entered in plaintiff's favor on May 10, 1962, directing the defendant husband to pay plaintiff alimony of $40 a week for her support and for the support of their infant child, and further directing him to pay $10 a week on account of alimony arrears, plaintiff appeals from an order of the Supreme Court, Kings County, dated November 7, 1962 which denied her motion: (a) to punish the husband for contempt for failure to make the payments directed by the judgment; and (b) to require him to pay her expenses incident to the motion. Order modified, by striking out the first decretal paragraph denying the plaintiff's motion insofar as it seeks to punish said defendant for contempt, and by substituting therefor a provision granting the motion in this respect, and: (a) adjudging said defendant to be in contempt; (b) fining him the sum of $1,724, representing the arrears up to September 28, 1962, by reason of his contempt; and (c) directing that he may purge himself of his contempt by making the support payments of $40 a week due after said date under the judgment, and by paying $10 a week on account of the fine of $1,724. As so modified, order affirmed, with $10 costs and disbursements to plaintiff. In our opinion, the learned Justice at Special Term should not have relitigated the financial status of the husband after so short an interval between the date of the judgment and the date of the motion, in the absence of a showing that such status has been adversely changed for reasons beyond the husband's control ( Presberg v. Presberg, 285 App. Div. 1134). Beldock, P.J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.