Opinion
April 10, 1950.
In an action for divorce, an order entered on the decision of an Official Referee, in Queens County, adjudges the appellant to be in contempt for failure to make payments directed by the final judgment, as modified; imposes a fine in the amount of the arrears; awards attorneys' fees; and denies appellant's cross motion to amend the final judgment nunc pro tunc. Order dated January 6, 1950, modified on the facts by striking the words and figure "One Thousand One Hundred ninety two ($1,192.00)" from the second, third, and fourth ordering paragraphs and substituting in place thereof in each of said paragraphs the figure "$1,102.00." As thus modified the order, and the order of the Special Term, Queens County, dated February 14, 1950, awarding attorneys' fees on the appeal, are affirmed, without costs. The Official Referee, to whom the contempt proceeding was referred by order of the court, had power to determine the proceeding. Pawelek v. Pawelek ( 266 App. Div. 711) will not be followed. The agreement entered into while the parties were husband and wife was effective to measure the amount of the husband's liability for support during the period covered by the agreement, but was not effective to stop the continuing payments ordered by the judgment. ( Rubinfeld v. Rubinfeld, 264 App. Div. 888, appeal dismissed 289 N.Y. 838.) The agreement in Shacknow v. Shacknow ( 248 App. Div. 827) was entered into when the parties were not husband and wife, and consequently it was not contrary to section 51 Dom. Rel. of the Domestic Relations Law. It was proper to compute arrears to the date of the hearing. No basis appears in the record for holding that the awards for attorneys' fees are excessive. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.