Opinion
January 22, 1957
Order denying plaintiff's motion to punish the defendant for contempt unanimously affirmed. Order denying plaintiff's motion for the entry of judgment for the amount of arrears due and unpaid under the decree unanimously reversed and the motion granted. While a stipulation settling several disputes between the parties and requiring certain implementing action on the part of the plaintiff underlay the decree of separation entered in this action, the decree, as pointed out in our decision on a prior appeal ( 286 App. Div. 514), was an independent determination of the court. It contained no reference to the other action to be taken, and the provision for the payment of alimony was unconditional. So long as the decree stood it was defendant's obligation to abide by its terms, although we agree that the circumstances of the nonpayment here absolve defendant of the charge of contempt. The plaintiff's attack on the decree, successfully resisted by defendant, did not undermine the decree or suspend the operation of its provisions. No more now may defendant contend that there was a period during which he was exempt from the obligation of paying alimony. Settle order on notice, without costs.
Concur — Peck, P.J., Breitel, Botein, Valente and Bergan, JJ.