Opinion
October 2, 1975
Judgment, Supreme Court, New York County, entered on June 30, 1975, adjudging defendant to be in contempt of court for "wilfully" disobeying a prior order requiring him to make payments of $40 per week for the support and maintenance of the children of the parties, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs and without disbursements, and matter remanded for a hearing on the issue of whether defendant "is financially unable to comply with such order" (Domestic Relations Law, § 246, subd 3). Defendant has asserted his financial inability to comply with the directions of the support order, while at the same time calling attention to his wife's wealth as well as the existence of trusts for the benefit of the parties' children. Accordingly, even though the affidavits which defendant submitted at Special Term are somewhat factually deficient, it is clear that no one will suffer by virtue of the hearing directed and that the interests of justice will be served thereby.
Concur — Markewich, J.P., Lupiano, Tilzer, Capozzoli and Lane, JJ.