Zakheim v. Zakheim

43 A.D.2d 755, 349 N.Y.S.2d 860, 1973 N.Y. App. Div. LEXIS 2967

Opinion

Appeal from an order- of the Family Court of Sullivan County, entered August 16, 1973, committing him for failure to make support payments. Petitioner and appellant were divorced on July 24, 1973. They are the parents of two children. A temporary support order, was entered in Family Court on August 13, 1970 directing appellant to pay $55 per week for the support of the two children. On January 16, 1973 the Family Court reduced the payments to $50 per week. Subsequently, by stipulation the parties again reduced the amount to $45 and this stipulation was incorporated in the ultimate divorce decree. This is the amount that appellant is presently obligated to pay. By July 31, 1973 he had fallen behind by four payments and the present proceeding was instituted. Appellant urges several grounds for reversal including a contention that the proceeding was improperly commenced. With this contention we agree. To obtain the relief sought here petitioner had to proceed by an order to show cause (Sloan v. Sloan, 57 Mise 2d 654; Domestic Relations Law, § 245). Such was not done and this was fatal. The order, therefore, must be reversed. Order reversed, on the law, and petition dismissed, without costs. Herlihy, P. J., Cooke, Sweeney, Kane and Main, JJ., concur.