| Jones v Jones |
| 2009 NY Slip Op 06405 [65 AD3d 1016] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Maryann Jones, Respondent, v Melvin W. Jones, Sr.,Appellant. |
—[*1] Jonathan M. Young, LLC, Coram, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), datedApril 3, 2008, as granted those branches of the plaintiff's motion which were for pendente literelief, and (2) from an order of commitment of the same court dated August 11, 2008, which,after a hearing, and upon, in effect, the granting of that branch of the plaintiff's motion whichwas to adjudicate him in willful violation of prior pendente lite orders of support, confirmed thefinding of willful violation and committed him to the custody of the Suffolk County CorrectionalFacility for a term of 180 days, unless he purged himself of his contempt by paying the sum of$15,854 to be applied as directed by the court. By decision and order on motion dated August 22,2008 [2008 NY Slip Op 80955(U)], this Court granted that branch of the defendant's motionwhich was to stay enforcement of the order of commitment pending hearing and determination ofthe appeals.
Ordered that the order dated April 3, 2008 is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order of commitment is reversed, on the law, without costs ordisbursements, and that branch of the plaintiff's motion which was to adjudicate the defendant inwillful violation of the pendente lite orders is denied.
Pursuant to Domestic Relations Law § 245, a spouse may be punished for contemptfor failing to make payments pursuant to a pendente lite order, but it must appear"presumptively, to the satisfaction of the court," that payment cannot be enforced pursuant toDomestic Relations Law § 243 (sequestration), Domestic Relations Law § 244(money judgment), CPLR 5241 (income execution) or CPLR 5242 (income deduction) (see Klepp v Klepp, 35 AD3d 386[2006]; Higbee v Higbee, 260 AD2d 603 [1999]). Despite the availability of otherenforcement methods, a defaulting spouse may be punished for contempt where "the recorddemonstrates that the alternative remedies would be ineffectual" (Rosenblitt v Rosenblitt,121 AD2d 375 [1986]). Here, the plaintiff failed to show that other enforcement methodswould not be effective to secure payment of the arrears. Since there was [*2]no showing made by the plaintiff that she had attempted tosequester the defendant's property or garnish his wages, the Supreme Court erred in punishingthe defendant for contempt (see Nagle v Nagle, 155 AD2d 990 [1989]).
With respect to the order dated April 3, 2008, the court ordered payments described thereinwere not so prohibitive as to prevent the defendant from meeting his own financial obligations(see York v York, 276 AD2d 481 [2000]). Mastro, J.P., Covello, Balkin and Austin, JJ.,concur.