Opinion
March 24, 1952.
Plaintiff appeals from portions of two orders made in an action in which a judgment of separation was granted to her on November 9, 1943. The judgment was modified on August 18, 1944, by reducing the amount provided therein for support of plaintiff and the two children of the parties from $40 a week to $25 a week. The appeal is from so much of one of the orders as denies plaintiff's application for an increase of said amount; limits to $180 the fine imposed in adjudging defendant to be in contempt of court for failure to make payments in accordance with the judgment as modified; and denies plaintiff's application for a counsel fee and expenses for bringing on these applications. As to the second order, the appeal is from so much thereof as grants defendant's cross motion to modify the judgment further to the extent of reducing the amount for support to the sum of $10 a week. The first above-mentioned order is modified by striking out the first and second ordering paragraphs thereof and by substituting a provision that plaintiff's motion to modify the judgment, for counsel fee and expenses, and to punish defendant for contempt and to fine him in an amount in excess of $180, is remitted to Special Term for determination after a hearing conducted by the court or an official referee, in the discretion of the Special Term. The second order is modified by striking out the second and third ordering paragraphs and by substituting a provision that defendant's cross motion to modify the judgment is likewise remitted. As so modified, the orders are affirmed, without costs. The record on appeal does not disclose whether the limitation of the fine to $180 was based on a finding that the arrears were not more than that, or whether the fine was limited to a portion of the arrears, in discretion. If based on a finding that the arrears were only $180, the finding would be incorrect, as undoubtedly based on a requirement to pay $10 a week and not $25 a week. (See Bartenbach v. Bartenbach, 271 App. Div. 799. ) The issues upon which the several applications are based can best be determined in this matter after a hearing. Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ., concur. [See post, p. 1024.]