Kellner v. Kellner

Order, entered on July 22, 1966, unanimously affirmed, without costs or disbursements. No opinion. Order, entered July 20, 1966, holding in abeyance plaintiff’s motion to punish defendant for contempt and referring the motion to a Special Referee to hear and report on the question of defendant’s financial ability, unanimously reversed, on the law and on the facts, with $30 costs and disbursements to plaintiff, the reference vacated, and the motion granted to the following extent: Defendant is adjudged in contempt and fined the sum of $8,010. He may purge himself of said fine by paying the sum of $1,010 within 10 days after service of a copy of the order to be entered hereon with notice of entry and by paying the balance at the rate of $1,000 per month thereafter, in addition to payment of current alimony as it accrues. Plaintiff is also awarded a counsel fee of $1,000 in connection with the motion and this appeal. The judgment of separation dated April 18, 1966, directed defendant to pay alimony of $250 a week commencing with February 24, 1966, plus a counsel fee of $3,500. No part of the fee has been paid, and by June 30, 1966, the date of the order requiring defendant to show cause why he should not be punished for contempt, the alimony arrears had mounted to $4,510. Nothing in extenuation of these defaults is found in the record. Defendant made no showing that his financial condition had suffered any material deterioration in the brief interim since the entry of judgment; accordingly a reference to relitigate his resources was unwarranted (Presberg v. Presberg, 285 App. Div. 1134; Gargiulo v. Gargiulo, 18 A D 2d 1013). Defendant is well aware that his obligation was prescribed by an order of court. An order of court, he must learn, is to be obeyed. Settle order on notice. Concur — Botein, P. J., Breitel, McNally, Steuer and Witmer, JJ.