Slivko v. Slivko , 1976 N.Y. App. Div. LEXIS 12210 ( 1976 )

In an action in which the plaintiff husband was granted a judgment of divorce, he appeals from (1) a judgment of the Supreme Court, Kings County, entered October 8, 1974, in favor of defendant, upon an order of the same court, dated September 6, 1974, which granted her motion for a judgment for arrears of alimony and child support, and (2) so much of an order of the same court, entered August 21, 1975, as (a) granted the branch of defendant’s motion which sought to require him to post a bond as security for future payments of alimony and child support, (b) held him in contempt for failure to comply with a certain subpoena served upon him, (c) denied the branches of his cross motion which sought to (i) quash the said subpoena, (ii) punish defendant for contempt and (iii) modify the judgment entered October 8, 1974 and (d) awarded defendant $40 costs. Judgment reversed, and order reversed insofar as appealed from, all without costs or disbursements, and case remanded to the Special Term for a hearing and a new determination in accordance herewith. In view of the factual issues raised by the affidavits submitted on the motion for a judgment for arrears, it was. improper for Special Term to grant defendant summary judgment. The issues to be considered are (1) whether plaintiff was at all times free to visit his children in Belgium and (2) what the proper amount of arrears should be (see Salvati v Salvati, 37 AD2d 858). Martuscello, Acting P. J., Latham, Cohalan, Damiami and Titone, JJ., concur.