Opinion
December 12, 1977
In a matrimonial action in which a judgment of divorce had been previously entered, defendant appeals from an order of the Supreme Court, Rockland County, dated December 9, 1976, which, inter alia, granted plaintiff's motion to hold him in contempt of court for failure to comply with the provisions of the judgment of divorce. Order modified, on the law, by deleting (1) from the second, third, fourth and sixth decretal paragraphs thereof the amount "$4,487.11", and substituting therefor the amount "$880", (2) from the second and third decretal paragraphs the references to unpaid bills and (3) from the sixth decretal paragraph thereof all words beginning with "in installments of" and ending with "such installment payments to be". As so modified, order affirmed, without costs or disbursements. Defendant may purge himself of the contempt upon payment to plaintiff of $880 within 60 days after entry of the order to be made hereon. There was ample evidence in the record to support the finding that defendant-appellant was able to make the alimony payments. Under the circumstances, his refusal to do so constitutes a willful violation of the divorce decree (see Zeitlan v Zeitlan, 44 A.D.2d 608). However, the court incorrectly included two items in the amount payable to plaintiff-respondent. First, the court included $1,607.11, which represents various unpaid bills which accrued prior to the divorce. No provision was made in the divorce decree for such payment. Second, the court included in the contempt order amounts which became due after the issuance of the order to show cause. Such arrears must be the subject of a separate proceeding (see Hammer v Hammer, 48 A.D.2d 878). Rabin, J.P., Shapiro, Suozzi and O'Connor, JJ., concur.