Shkolnik v. Shkolnik
| Decision Date | 23 January 1973 |
| Citation | 41 A.D.2d 523,340 N.Y.S.2d 70 |
| Parties | Eliezer SHKOLNIK, Plaintiff-Appellant, v. Janet SHKOLNIK, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
R. I. Kalina, New York City, for plaintiff-appellant.
H. W. Harrison, Great Neck, for defendant-respondent.
Before McGIVERN, J.P., and NUNEZ, MURPHY, STEUER, and CAPOZZOLI, JJ.
Order and judgment (one paper), Supreme Court, New York County, entered on September 27, 1972, adjudging plaintiff guilty of contempt and fining him in the sum of $83,684.28, together with costs and counsel fees, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of reversing and striking all the decretal paragraphs of said order, except that part of the first decretal paragraph which denied plaintiff's cross-motion, and remanding the motion to punish for contempt to the Trial Term for a hearing on the issue as to whether or not the failure of the plaintiff-husband to comply with the judgment of divorce was wilful, and otherwise affirmed, without costs and without disbursements.
The question of deliberateness enters into the husband's failure to honor his commitments, as required by the court order, but this cannot be satisfactorily determined in the absence of a hearing. Domestic Relations Law, Sec. 246, Subd. 1. See, also, Holahan v. Holahan, 234 App.Div. 572, 255 N.Y.S. 693; Shuck v. Shuck, 40 A.D.2d 665, 337 N.Y.S.2d 1. On the representation that the plaintiff is faithfully paying now the sum of $350 a week towards the support of the wife and children, we make no further direction as to any other interim payments.
Settle order on notice.
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...has long been permitted. (Holahan v. Holahan, 234 A.D. 572, 573, 255 N.Y.S. 693 [4th Dept 1932]; compare e.g., Shkolnik v. Shkolnik, 41 A.D.2d 523, 340 N.Y.S.2d 70 [1st Dept.1973] and Larotondo v. Larotondo, 285 App.Div. 899, 137 N.Y.S.2d 866 [2nd Dept.1955] holding the failure to order a h......
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Agur v. Wilson
...a hearing when affidavits reveal a genuine question of fact as to the ability of a spouse to pay. E. g., Shkolnik v. Shkolnik, 41 App.Div.2d 523, 340 N.Y.S.2d 70 (1st Dep't 1973); Abbey v. Abbey, 7 App.Div.2d 910, 182 N.Y.S. 2d 845 (2d Dep't 1959); Larotondo v. Larotondo, 285 App.Div. 899, ......
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...he is entitled to a full evidentiary hearing (Matter of Passonno v. Passonno, 43 A.D.2d 773, 350 N.Y.S.2d 771; Shkolnik v. Shkolnik, 41 A.D.2d 523, 340 N.Y.S.2d 70) which includes the right to counsel. (Matter of Amicucci v. Moore, 42 A.D.2d 701, 346 N.Y.S.2d 152; Matter of Emerick v. Emeri......
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...to be called and subjected to cross-examination (Ciaschi v. Ciaschi, 49 A.D.2d 991, 374 N.Y.S.2d 723. See also, Shkolnik v. Shkolnik, 41 A.D.2d 523, 340 N.Y.S.2d 70). Further, one subject to possible contempt and imprisonment has an absolute right to counsel (Matter of Garris v. Garris, 51 ......