Schweig v. Schweig

Clarke, J.:

This is an order ad judging the defendant in contempt for disobedience of an order requiring him- to pay alimony and counsel fee pendente lite in an action for an absolute divorce, which said order was appealed from, and upon.said appeal has been reversed by this court in the opinion handed down herewith as having been improvidently made. (Schweig v. Schweig, No. 1, 122 App. Div. 786.) The order which granted the alimony pendente lite also provided : “ That said. defendant be permitted to.visit and see the child of the parties hereto, in the City of New York, twice a week, to wit, on Sunday and "Wednesday of each week, in the City of New York, and that said plaintiff permit and allow the defendant to see said child during the pendency of this action at such place in the City of New York as may be agreed upon, or as this court shall hereafter direct.”

. At the time of the commencement of the action the plaintiff had been actually residing, and is still residing, in the city of Pittsburgh) Penn., and since the making of said order she has not complied or attempted to comply with the provisions thereof requiring her to permit and allow the defendant to visit and see the child twice a week in the city of New York. As, however, said. provision does not appear by said order to have been'a condition precedent, I do -not think the failure of the plaintiff to obey the provisions thereof would furnish justification to the defendant for not paying the alimony and counsel fee allowed so long as said order remained unreversed.

Although we have now reversed said order upon the ground that it was improperly granted, it was thé duty of the defendant to obey it, unless-he had obtained, a stay, or until it was modified, set aside or reversed. Section 1773 of the Code of Civil Procedure provides for the enforcement of orders for the payment of alimony by the issuance of an order to show cause, why the husband should not be punished for his failure to make the payment required, “ and, thereupon, proceedings must be taken to punish him as prescribed in title third of chapter seventeenth of this act.” Section 2266 of the Code óf Civil Procedure contained in said title and chapter provides that when a right or remedy of a party to a civil action or special proceeding, pending in the court or before the judge or referee, may be defeated, impaired, impeded' or prejudiced by a neglect or violation of duty or other misconduct, the offense must be punished as prescribed in this title, which is entitled “ Proceedings to punish a contempt of court, other than a criminal contempt.”

Section 2283 of the Code of Civil Procedure provides that upon the return of an order to show cause the questions which arise must be determined as upon any other motion, and if the determination is to the effect specified in the last section but one, the order thereupon must be to the same effect as the final order therein prescribed.

The section alluded to is 2281, which provides if it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to an action or a special proceeding brought in the court or before the judge or referee, the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or.both, as the nature of the case requires. '

The order appealed from does not comply with sections 2283 and 2281 of the Code of Civil Procedure, in that there is no determination therein contained that the offense charged, and held to have been committed, was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to the action. This court held in Socialistic Co-operative Publishing Assn. v. Kuhn, No. 2(51 App. Div. 583): “Ina civil action, before a defendant can be punished for a contempt of court, * * * there must first be an adjudication that he is not only guilty of a contempt of court, but that his act—of which the opposing party complains—■ not only has a tendency to, but actually does, defeat, impair, impede or prejudice the rights or remedies of the party complaining,” and that as in the order appealed from there was no adjudication, either that the defendants-had been guilty of contempt or that the acts of which the plaintiff complained, had defeated or impaired, impeded or prejudiced its rights or remedies in any respect, reversed the order.

In Fischer v. Raab (81 N. Y. 235) the Court of Appeals said : “ It will be seen that the misconduct which can be treated and punished as a contempt must be such as to defeat, impair, impede or prejudice a right or remedy of a party to a civil action, and that the alleged misconduct does have such effect must be made to appear and be adjudicated.” .

This rule has been specifically applied to orders punishing for contempt by non-payment of alimony in divorce cases. (Sandford v. Sandford, 40 Hun, 540.) Daniels, J., said : “ The order from which the appeal has been taken contains no such adjudication, and because of that omission it fails to comply with what has been directed by these sections of the statute. In each of these respects the proceeding was wholly defective, and the order from which the appeal has been taken cannot be sustained.” To the, same effect, Mahon v. Mahon (18 J. & S. 92); Whitney v. Whitney (19 Civ. Proc. Rep. 265) ; Mendel v. Mendel (4 N. Y. St. Repr. 556).

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements.

Pattebson, P. J., McLaughlin and Houghton, JJ.,,concurred;

' Ingbaham, J., dissented.,

Order reversed, with ten dollars costs and disbursements.