Opinion
March 4, 1976
Order, Supreme Court, New York County, entered April 21, 1975, which granted defendant's motion to punish plaintiff for contempt and for a money judgment, directed that plaintiff be held in contempt for failure to pay the sum of $4,770 and granted plaintiff leave to purge himself by paying the sum of $25 per week in addition to the required weekly payments of $95 for alimony and support of the parties' two children, unanimously affirmed, without costs and disbursements. The terms of the judgment upon which the order appealed from is predicated are clear with respect to the issue herein, to wit, the plaintiff's obligation to pay alimony and support. No condition, precedent to the payment of child support, appears on this record. Payments made by plaintiff directly to the children are beyond the scope of the modified judgment of divorce. Further, plaintiff has not sufficiently demonstrated that he is unable to pay a total of $120 per week for alimony and support and to purge himself of contempt. Although the provisions of the agreement between the parties upon which the modified judgment is based survive the entry of that judgment, the critical fact is that defendant has proceeded under the terms of the judgment (see Domestic Relations Law, § 236).
Concur — Kupferman, J.P., Lupiano, Birns, Nunez and Lynch, JJ.