Julia Krauss, Appellant, v. Otto Krauss, Respondent

Julia Krauss, Appellant, v. Otto Krauss, Respondent. (No. 2.) First Department, July 8, 1908. Husband and wife—refusal to pay alimony—contempt —extent of liability—order—proper recitals. As the court cannot annul a provision for alimony nunc pro tunc as of the date of the plaintiff’s remarriage, so as to cut off alimony already, accrued under the decree, it is error to limit the defendant’s liability for contempt in failing to pay said alimony to the date of the remarriage, but he should be held for all alimony which has already accrued at the date when the provision for alimony can be properly annulled. In adjudging a husband in default for failing to pay alimony, the court should find and adjudge that his failure tended to and did defeat, impair, impede and prejudice the rights of the wife. Appeal by the plaintiff, Julia Krauss, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1908, adjudging the defendant guilty of contempt for failure to pay alimony. William Douglas Moore, for the appellant. John B. Doyle [John Vernou Bouvier, Jr., and Dudley Davis with him on the brief],for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: This is the case in which .the court modified the decree with respect to alimony on account of the remarriage' of the plaintiff. The appeal from that order was argued and will be decided herewith. (Krauss v. Krauss, No. 1, 127 App. Div. 740.) The order in this case was based upon the decree as modified by the other order. The application to punish the defendant for contempt was made on account of his failure to pay the alimony, aggregating the sum cf $1,650, which accrued under the decree on and prior to the 1st day of April, 1907, and was unpaid. The court, having modified the decree by limiting defendant’s, liability for alimony to the date of the plaintiff’s remarriage., only adjudged the defendant guilty of contempt for failing to pay $1,184. In this respect the order is erroneous because the modification of the decree was erroneous for the reasons assigned in the opinion rendered on the other appeal. The moving papers show that $1,600 back alimony accrued prior to the 1st day of April, 1907, which has not been paid, and $50 on the first day of that month; that the decree was duly served on the defendant and that a personal demand was duly made on him for payment of this amount. The court, therefore, should have found that the defendant owed the plaintiff the sum of $1,650 accrued alimony for which he was .in default and in contempt. The Court should also have adjudged in the order that the defendant’s failure and refusal to pay the alimony in accordance with the decree tended to and did defeat, impair, impede and prejudice the rights of the plaintiff. An adjudication of one or more of these things is essential to a valid order to punish a party for a civil contempt of this nature and it must be recited in the order. It follows that the order should be modified by inserting a provision adjudging that the defendant was in contempt for his failure and refusal to pay the plaintiff the sum of $1,650 alimony which-had accrued under the decree herein and remained unpaid, and that his failure and refusal to' pay such alimony tended to and did defeat, impair, impede and prejudice the rights and remedies of the plaintiff herein, and by providing that a commitment in the usual form shall issue unless the defendant shall,'within one month after the entry and service of this order, pay $10 costs and the disbursements'of the plaintiff on this appeal to be-taxed, and $450 of the alimony within the same time and $100 of the remainder of the alimony .per month thereafter for twelve-months until the whole amount thereof is paid, such payments to be made to the plaintiff’s attorneys and the .order to be settled on notice. Ingraham,. McLaughlin, Houghton and Soott, JJ., concurred. Order modified as directed in opinion. Settle order on notice.