Silverglit v. Silverglit

45 A.D.2d 1048, 358 N.Y.S.2d 28, 1974 N.Y. App. Div. LEXIS 4316

Opinion

In an action in which a judgment of the Supreme Court, Nassau County, was entered January 22, 1970, granting .plaintiff a divorce, after a nonjury trial, defendant appeals, as limited by his brief, from an order of the Supreme Court, Nassau County,, entered December 10, 1973, which, after a hearing, inter alia, punished defendant for contempt for his failure to make alimony and child support payments totaling $6,695 and awarded plaintiff the sum of $1,500 for counsel fees. Order modified, on the law and the facts, by deleting in the third decretal paragraph the phrase “ for the period from January 14, 1970 to March 17, 1970” and substituting therefor the phrase “for the five weeks beginning January 29, 1970 ”; by deleting in the same paragraph, the amount of “ $185 per week ” and substituting therefor the amount of “ $175 per week ”; and by deleting the amount “ $6,695 ” in the third, fourth, fifth, sixth, seventh and eighth decretal paragraphs and substituting therefor the amount “ $5,820 ”. As so modified, order affirmed insofar as appealed from, without costs. The judgment of divorce, entered January 22, 1970 provided for weekly payments of $85 in alimony and $45 in child support for each of the parties’ two children for a total of $175 per week. In her moving papers, plaintiff requested $875 for a period of five weeks “ from January 28, 1970 through April 1, 1970”. In his brief, defendant concedes that he held back five weeks of payment to plaintiff commencing January 29, 1970 for a total of $875. The order appealed from inter alia states that defendant failed to make payments “of $185 per week * * * from January 14, 1970 to March 17, 1970”, which is a period of 10 weeks commencing at a date prior to the date of entry of the judgment of divorce. There is no provision in the judgment of divorce for retroactive payments. The court’s supporting memorandum, dated November 12, 1973, correctly refers to weekly payments of $175 but states: “From January 14, 1970 to March 17, 1970, he failed to make either alimony or child support payments, which totaled the sum of $1,750”. The relief granted is therefore modified to conform to the relief requested and to the judgment of divorce. Hopkins, Acting P. J., Martuscello, Latham, Benjamin and Munder, JJ., concur.