Opinion
February 5, 1993
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Boomer, J.P., Pine, Lawton, Boehm and Davis, JJ.
Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in summarily adjudging defendant in contempt of court for failure to pay maintenance pursuant to a court order. Defendant is entitled to notice whether civil or criminal contempt is sought and to a hearing on plaintiff's application to adjudicate him in contempt because a factual dispute exists that cannot be resolved on the motion papers. Defendant contends that he is financially unable to comply with the order for support (see, Domestic Relations Law § 246; Boritzer v Boritzer, 137 A.D.2d 477, 478; Hough v Hough, 125 A.D.2d 791, 792; cf., Bowie v Bowie, 182 A.D.2d 1049). His financial ability to comply with the order for support is probative on the issue of willfulness. Because no hearing was conducted, the matter must be remitted for that purpose.
Finally, the court had no authority, even upon an adjudication of contempt, to direct the sale of the marital residence owned by the parties as tenants by the entirety (see, Matter of Violi, 65 N.Y.2d 392, 395; Kahn v Kahn, 43 N.Y.2d 203, 209-210; Jancu v Jancu, 174 A.D.2d 428; Berk v Berk, 170 A.D.2d 564, 565).