Wallace v. Wallace — 140 A.D. 800

Majority

p. 800

Mary Wallace, Appellant, v. Patrick H. Wallace, Respondent.

Third Department,

November 16, 1910.

Headnote

Husband and wife — failure to pay alimony —• contempt — appeal — when Appellate Division will find facts admitted in court below.

A husband who refuses to pay alimony which accrued pending an unsuccessful appeal, after due service of the order and demand for payment, should be punished for contempt.

Where such motion was denied and there is no issue of fact owing to the absence of opposing affidavits in the court below, the Appellate Division will make the determination which the Special Term should have made and find that the defendant committed the offense; and that it was calculated to and actually did defeat, impair, impede and prejudice the rights of the plaintiff.

Appeal by the plaintiff, Mary Wallace, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 16th day of June, 1910, denying the plaintiff’s motion to have defendant punished for contempt of court.

p. 801

John W. Roddy, for the appellant.

James R. Stevens, for the respondent.'

In this action for a separation defendant had been ordered to pay the plaintiff, his wife, four dollars a week alimony. On his motion an order was subsequently made discontinuing the payment of such alimony. This last-mentioned order on appeal to this court was reversed and the motion denied. ( 137 App. Div. 936 .) Thereupon, after service of proper papers and a demand of the defendant for the unpaid alimony, amounting to sixty-four dollars, which was -refused, a motion was made by plaintiff to punish the defendant for contempt in not complying with the order requiring the payment of such alimony. This motion was denied and the plaintiff appeals. The motion should have been granted.

No opposing affidavits were presented in the court below. There is no question of fact. This court may make the determination which should have been made at Special Term.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten. dollars costs, and a determination is hereby made that the defendant has committed the offense charged, and that it was calculated to and actually did defeat, impair, impede and prejudice the rights of the plaintiff, and that for such misconduct the defendant pay a fine of sixty-four dollars, and in addition thereto the said costs and disbursements, and that he be imprisoned until such fine is paid.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and a determination is hereby made that the defendant has committed the offense charged, and that it was calculated to and actually did defeat, impair, impede and prejudice the rights of the plaintiff, and that for such misconduct the defendant pay a fine of sixty-four dollars, and in addition thereto the said costs and disbursements hereby allowed, and that he be imprisoned until such fine is paid.