Opinion
July 10, 1967
Appeal by defendant from so much of an order of the Supreme Court, Queens County, dated March 9, 1967, as granted plaintiff's motion to adjudge defendant in contempt of court, fined him in the amount of $3,250, awarded plaintiff a $250 counsel fee and set forth various incidental provisions, all of which portions of the order constitute the following decretal paragraphs thereof: the first through the eighth, inclusive, and the tenth. Order reversed insofar as appealed from, without costs; plaintiff's motion inter alia to adjudge defendant in contempt of court denied, except that insofar as said motion sought a direction to defendant to pay arrears in alimony of $50 a week due under the separation judgment dated July 30, 1964, it is granted to the extent of adjudging that defendant has defaulted in payment and is in arrears beginning with the instalment due on August 10, 1964 and directing defendant to pay said arrears at the rate of $10 per week, in addition to the instalments which shall continue to accrue; those portions of the report of the learned Special Referee, dated October 11, 1966, which are inconsistent with the disposition herein made are disaffirmed; and the remainder of the report is confirmed. Plaintiff, having frustrated the visitation rights granted under the judgment of July 30, 1964, by removing the child from the place of visitation where he was to be available and taking him to Florida, is not entitled to the extraordinary remedy of contempt for defendant's failure to make support payments ( Goldner v. Goldner, 284 App. Div. 961, affd. 309 N.Y. 675). Defendant, not having made a motion to amend the judgment of separation, cannot be relieved of his obligation of support ( Sterns v. Stevans, 11 A.D.2d 726). It was an improvident exercise of discretion to award counsel fees in the absence of a request therefor. Christ, Acting P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.