Opinion
December 23, 1963
In an action for a judicial separation, in which a judgment of separation had been entered in favor of the plaintiff wife and thereafter modified, the husband appeals from an order of the Supreme Court, Queens County, entered July 1, 1963 after trial before a Referee, which granted the wife's motion to adjudge him in contempt and which imposed a fine, including counsel fee, for his failure to comply with the provision of said judgment directing him to pay all carrying charges, "including * * * all necessary repairs and replacements" on the house owned by the defendant but awarded by the judgment to the plaintiff and to the parties' children as their residence. Order reversed, without costs, and motion to punish the husband for contempt and for the allowance of a counsel fee, denied. The judgment (as modified) is not sufficiently definite to furnish a basis to punish defendant for contempt by reason of an alleged violation of its provisions ( Matter of Carlson v. Podeyn, 12 A.D.2d 810; Adams v. Adams, 179 App. Div. 152; Rowley v. Feldman, 66 App. Div. 463; Saal v. South Brooklyn Ry. Co., 122 App. Div. 364; Matter of Mitchell v. Sperling, 229 App. Div. 204). Before instituting the motion to punish the defendant for contempt by reason of the alleged violation by him of the terms of the judgment relating to "all necessary repairs and replacements," the precise amount due and unpaid for such repairs and replacements should have been fixed by the court upon a preliminary motion ( Sabbeth v. Sabbeth, 2 Misc.2d 64; Matter of Battista, 176 Misc. 85). In any event, it was error to take testimony regarding circumstances arising subsequent to the date of the contempt motion ( Siegel v. Siegel, 8 A.D.2d 333; Rayex Corp. v. Sanchez, 6 A.D.2d 902, 903, mot. for lv. to app. dsmd. 5 N.Y.2d 915). Likewise, the fine was improper because it was not based upon an amount due at the time the motion was made ( Matter of Long Is. Trust Co. v. Ross, 39 Misc.2d 41; Williamson v. Drogaris, 248 App. Div. 627). [For prior appeals in this action, see 17 A.D.2d 973 and 19 A.D.2d 714.] Ughetta, Kleinfeld, Rabin and Hopkins, JJ., concur; Beldock, P.J., concurs in the result.