People ex rel. Lagos v. Lagos

—In a habeas corpus proceeding by a divorced father relating to the custody of a minor child of the parties, in which the petitioner (father) moved to transfer custody of said child to him or, in the alternative, to stay enforcement of a prior order, entered August 13, 1964, directing him to pay $905 to respondent (mother) in payment of support arrears, and in which the mother cross-moved to punish him for contempt for failure to pay said $965 as provided in a stipulation of the parties and an order entered thereon, the father appeals from an order of the Supreme Court, Queens County, entered December 31, 1964 upon the court’s decision after a hearing, which denied the petitioner’s motion and granted the respondent’s cross motion. Order modified on the law by: (a) striking therefrom the first, second and third decretal paragraphs which (1) adjudge petitioner in contempt, fine him the sum of $965 and provide that he may purge himself by paying $100 per month; (2) provide that said payments are to be made at the offices of respondent’s attorneys; and (3) authorize the issuance of an order of commitment without further notice in the event of petitioner’s default in complying with said purging provisions; and (b) substituting therefor a provision denying said cross motion. As so modified, the order is affirmed, without costs. The findings of fact are affirmed. That part of the order of August 13, 1964, which directs payment of $965 to respondent is enforcible under article 52 of the CPLR. CPLR 5104 is not applicable to a part of an order which may be so enforced. The cross motion to punish petitioner for contempt should have been denied (Judiciary Law, § 753, subd. A, par. 3). Beldoek, P. J., Ughetta, Christ, Hill and Hopkins, JJ., concur.