Babin v. Babin

Order unanimously modified in accordance with memorandum and as so modified affirmed, without costs of this appeal to either party. Memorandum: In November, 1956 plaintiff wife was granted a decree of separation which awarded her custody of two children of the marriage and directed defendant to pay $30 weekly for the support of the wife and the two children. In January, 1959 custody of the infant son was transferred to the defendant but no change was made in the monetary award to plaintiff. Whatever doubt this created was resolved in November, 1959 when an order was made directing defendant to pay $30 weekly towards the support and maintenance of plaintiff and the infant daughter, who remained in plaintiff’s custody. In October, 1960 defendant was some $250 in arrears in these payments and a proceeding was commenced to compel him to comply with the order made in 1959. This resulted in the order now under review. The court without taking any proof made an order reducing the weekly payments to $20. It appeared from the bench conference conducted by the court that the net weekly salary of defendant was identical with that received in 1959 when the order was made awarding plaintiff $30 weekly for the support of herself and the infant daughter. The order of the court reducing such amount to $20 per week was an improvident exercise of discretion. Moreover, the defendant through the years has exhibited a callous disregard of the decrees of the court. At the time the reduction was made, as has been stated, defendant was in arrears to the extent of more than $250. This flagrant disregard of the prior order was specifically forgiven, by the order-appealed from and at the same time the weekly payment was reduced with no showing that the defendant’s income had been reduced. The order should bo modified by reinstating the award to plaintiff of the sum of $30 per week effective 10 days after the service upon defendant of a copy of the order to be entered herein. (Appeal by plaintiff from order of Erie Special Term denying plaintiff’s motion to have defendant adjudged in contempt for failure to pay $30 per week.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.