Opinion
October 13, 1977
Postjudgment order of the Supreme Court, New York County, entered June 18, 1976, denying defendant's motion (a) for an order modifying the alimony and support provisions of the divorce judgment, (b) for an order adjudging plaintiff in contempt for failure to comply with the provisions of the divorce judgment directing relinquishment to defendant of certain articles of personal property, and (c) for a money judgment against plaintiff for the value of the personal property allegedly withheld, unanimously modified, on the law, on the facts and in the exercise of discretion, and the applications to punish for contempt and for a money judgment are granted only to the extent of directing a hearing on the issue as to whether plaintiff wrongfully withheld said personal property and, if so, whether such withholding was willful under the terms of the divorce decree, and otherwise affirmed, without costs and without disbursements. Defendant-appellant seeks on this appeal from the postjudgment order to have this court review that portion of the judgment which provides that the stipulation of settlement shall survive the judgment. As no appeal was taken from the judgment of divorce, that provision of the judgment is binding upon him. In addition, defendant has not shown change of circumstances to warrant any reduction in alimony. There appears to be a factual basis for defendant's claim that plaintiff willfully failed to relinquish various items of personal property to defendant. Thus, the denial of a hearing on that issue by Special Term was an abuse of discretion and a denial of due process. Therefore, a hearing is warranted on the issue whether plaintiff is wrongfully withholding such property and, if so, whether such withholding is willful under the terms of the divorce decree.
Concur — Murphy, P.J., Birns, Capozzoli and Markewich, JJ.