Annie Fauls, Appellant, v. Thomas Fauls, Respondent

Annie Fauls, Appellant, v. Thomas Fauls, Respondent. Second Department, November 22, 1912. Husband and wife — divorce — contempt — failure to pay alimony during period between dismissal of case and restoration thereof to calendar. Where in an action for divorce a judgment is entered dismissing the case upon the failure of the plaintiff to appear and later the case is restored to the calendar as a favor to the plaintiff, the defendant should not be committed for contempt for failure to pay alimony pendente lite during the period between the entry of judgment of dismissal and the restoration of the case to the calendar. The order for alimony was in force and effect after the restoration of the case for trial, and the defendant is liable thereunder up to the time of the entry of the judgment of dismissal and for the period subsequent to the restoration of the case for trial. Appeal by the plaintiff, Annie Fauls, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of July, .1912. David F. Price, for the appellant. Richard A. Rendich, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This appeal is-from an order of the Special Term that denies a motion to commit the defendant for contempt for failure to pay alimony pendente. lite in an action against him for limited divorce. The defendant was ordered to. pay alimony from December 16,. 1911, and he obeyed until February 17, 1912. The defendant’s • affidavits show that on March 22, 1912, when the cause was reached for trial, the plaintiff did not appear, that the case was dismissed, formal judgment of dismissal was entered on April 5, 1912, and “on or about the 15th day of May, 1912, the said case was restored to the calendar for trials.” The plaintiff’s affidavits are silent upon these incidents. The defendant’s affidavits indicate that the dismissal was due to the refusal of the defendant to approve an agreement between the attorneys that, the case should be marked off of the trial calendar, that such refusal was made and made known to the plaintiff’s attorney at a time too late for him to be ready for trial and after he had made other engagements, and that the court, although apprised of the situation by the defendant’s attorney in accord with his agreement with his opponent to state the circumstances to the court/ dismissed the plaintiff. We may surmise that there was no lack of good faith, but that the course taken was due to the insistence of the defendant. It does not appear by what procedure the case “ was restored to the calendar for trials.” We cannot infer that it was upon consent, from the expression in the defendant’s affidavit “but at no time as deponent is informed and verily believes same to be true, has there ever been consented to or an. order entered reinstating the order, directing deponent to pay the plaintiff alimony.” If the case was restored to the. calendar for trials, the action is pending, and either the judgment of dismissal has been opened or has been vacated. In either event, in the absence of any direct disposition upon the subject, we think that the order for alimony pendente lite must be regarded as in full force and effect at and after the time of the restoration of the case for trial. But the question presented involves the period that intervened the entry of the judgment of dismissal and the restoration of the case for trial. We should assume that the judgment was properly made and entered, and that the restoration of the case for trial was an. act of favor to the plaintiff. We do not think that under the circumstances the omission of the defendant to pay the alimony during the ■ said period was a contempt. He had the right to assume that such an order fell with the judgment of dismissal. It does not appear that the judgment was either void Or was a mere nullity, or that it was procured "by any misconduct of the defendant. We think that the defendant was liable under the order and still is liable up to the time of the entry of the judgment, and that there is also such liability subsequent to the restoration of the case for trial. The order should be reversed, without further expression upon the merits, and the matter should be remitted to the Special Term, without costs of this appeal to either party. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred. Order reversed, and matter remitted to the Special Term, without costs of this appeal to either party.