Opinion
January 28, 1952.
Appeal by defendant from an order which grants plaintiff's motion to punish him for contempt for failure to pay arrears of alimony directed to be paid by a judgment of divorce, and which denies defendant's cross motion to modify the judgment by reducing the amount of alimony therein directed to be paid. Defendant asserted, in opposition to plaintiff's motion, that he was, and had been for some time prior thereto, financially unable to comply with the judgment, that he had made certain payments which should have been, and which were not, credited to him, and that plaintiff had waived her claim to arrears of alimony by an oral agreement by which she consented to receive a lesser amount than that directed to be paid by the judgment, until such time as defendant's financial condition should improve. Order reversed, without costs, in the interests of justice, and the matter remitted to the Special Term so that it may be decided, after a hearing, whether defendant was and is, as he contends, financially unable to comply with the judgment (Civ. Prac. Act, §§ 1169, 1172-a) and to what extent he is entitled to credit, as against plaintiff's claims, for payments made as alleged in his affidavit submitted in opposition to the motion. Although the oral agreement asserted by defendant was of no effect, since it was not ratified and made effective by judicial action ( Gewirtz v. Gewirtz, 189 App. Div. 483; Beeber v. Beeber, 225 App. Div. 757; Bartenbach v. Bartenbach, 271 App. Div. 799), the affidavits submitted present issues of fact as to defendant's financial ability to comply with the judgment and as to the payments which he contends should be credited to him, which may be better determined after the taking of oral proof. (Cf. Shanley v. Shanley, 275 App. Div. 775, and cases cited.) Nolan, P.J., Carswell, Adel, MacCrate and Schmidt, JJ., concur.