Summary
In Cappione, as in Hickland, we clearly stated that where, as here, a party asserts his financial inability to comply with the support provisions of a divorce decree as a defense, he is entitled to an evidentiary hearing to resolve conflicting claims before he can be adjudged in contempt.
Summary of this case from Hough v. HoughOpinion
May 4, 1978
Appeal from an order of the Supreme Court, entered June 24, 1977 in St. Lawrence County, which held defendant in contempt for noncompliance with an order of support, without a hearing. Subdivision 3 of section 246 Dom. Rel. of the Domestic Relations Law provides that where a person asserts his financial inability to comply with the support provisions of a divorce decree as a defense in a proceeding against him pursuant to section 245, he is entitled to an evidentiary hearing to resolve conflicting claims before he can be adjudged in contempt (cf. Hickland v Hickland, 56 A.D.2d 978, and cases cited therein for full discussion of this issue). Here, Supreme Court decided the issue of contempt on the affidavits alone. Order reversed, on the law and the facts, without costs, and matter remitted for further proceedings not inconsistent herewith. Mahoney, P.J., Greenblott, Sweeney, Staley, Jr., and Main, JJ., concur.