Marrano v. Marrano

Appellate Division of the Supreme Court of New York

Marrano v. Marrano

145 A.D.2d 983, 536 N.Y.S.2d 355, 1988 N.Y. App. Div. LEXIS 14086

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 1988

StatusPublished

Cited by1 cases

This text of 145 A.D.2d 983 (Marrano v. Marrano) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marrano v. Marrano, 145 A.D.2d 983, 536 N.Y.S.2d 355, 1988 N.Y. App. Div. LEXIS 14086 (N.Y. Ct. App. 1988).

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Opinion

— Order unanimously reversed on the law without costs and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The court, without a hearing, held defendant in contempt for failure to comply with the provisions of the parties’ financial stipulation, which was incorporated but not merged into their judgment of divorce (see, Singer v Singer, 52 AD2d 774). Because the record does not establish that alternative enforcement procedures were inadequate or that the [984]*984court considered alternatives, it was error for the court to grant plaintiff’s motion to hold defendant in contempt (Domestic Relations Law § 245; Wiggins v Wiggins, 121 AD2d 534; Heitzman v Heitzman, 105 AD2d 682, 683-684; Barreca v Barreca, 77 AD2d 793). Additionally, since the parties’ stipulation does not provide the time frame within which defendant must undergo a physical examination, the court should direct defendant to comply within a specified period before entertaining plaintiff’s application for contempt. The court’s award of counsel fees also cannot be sustained because it was based on its improper order adjudicating defendant to be in contempt (Barreca v Barreca, supra, at 794; Raphan v Raphan, 63 AD2d 624, 626). (Appeal from order of Supreme Court, Erie County, Forma, J. — contempt of court.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.

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— Order unanimously reversed on the law without costs and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The court, without a hearing, held defendant in contempt for failure to comply with the provisions of the parties’ financial stipulation, which was incorporated but not merged into their judgment of divorce (see, Singer v Singer, 52 AD2d 774). Because the record does not establish that alternative enforcement procedures were inadequate or that the [984]*984court considered alternatives, it was error for the court to grant plaintiff’s motion to hold defendant in contempt (Domestic Relations Law § 245; Wiggins v Wiggins, 121 AD2d 534; Heitzman v Heitzman, 105 AD2d 682, 683-684; Barreca v Barreca, 77 AD2d 793). Additionally, since the parties’ stipulation does not provide the time frame within which defendant must undergo a physical examination, the court should direct defendant to comply within a specified period before entertaining plaintiff’s application for contempt. The court’s award of counsel fees also cannot be sustained because it was based on its improper order adjudicating defendant to be in contempt (Barreca v Barreca, supra, at 794; Raphan v Raphan, 63 AD2d 624, 626). (Appeal from order of Supreme Court, Erie County, Forma, J. — contempt of court.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.

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Bluebook (online)

145 A.D.2d 983, 536 N.Y.S.2d 355, 1988 N.Y. App. Div. LEXIS 14086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marrano-v-marrano-nyappdiv-1988.

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