Kawar v. Kawar
| Decision Date | 30 September 1996 |
| Parties | Christine KAWAR, Appellant, v. Abraham KAWAR, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Gerald Mann, New York City (Eugene N. Sosnoff, of counsel), for appellant.
Before BRACKEN, J.P., and KRAUSMAN, GOLDSTEIN and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were divorced by judgment dated January 3, 1994, the plaintiff wife appeals from an order of the Supreme Court, Kings County (Imperato, J.H.O.), dated March 20, 1995, which denied her motion to hold the defendant husband in contempt for failure to pay maintenance and child support, after an inquest conducted upon the defendant's default in opposing the motion.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for imposition of an appropriate penalty.
By order dated April 10, 1992, the husband was directed to pay pendente lite child support of $130 per week and pendente lite maintenance of $75 per week. In or about July 1993, the wife moved to hold the husband in contempt of that order. The motion was brought by order to show cause, warning the husband of the penalties which could be imposed for contempt. The husband was personally served with those motion papers, which included a copy of the pendente lite order.
After a nonjury trial, a judgment of divorce entered January 7, 1994, continued the award of $130 per week child support and $75 per week maintenance. In the decision upon which the divorce judgment was based, the court noted that the husband did not dispute that he failed to comply with the pendente lite order, and held that if arrears were not satisfied by January 15, 1994, "then plaintiff's application to hold defendant in contempt may be restored to the calendar on ten days notice by regular and certified mail to defendant and his current counsel".
The husband failed to satisfy the arrears, and the wife served a notice of inquest upon the husband and his counsel by regular and certified mail. Upon the defendant's default at the inquest, the wife testified that she had received "[n]othing" from the husband in child support or maintenance. She further testified that her husband was an automobile mechanic, who always worked for cash. The Judicial Hearing Officer denied the motion, on the grounds that the wife failed to prove: (1) that the husband was personally served...
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