Rothenberg v. Rothenberg , 277 A.D.2d 909 ( 1950 )

Defendant appeals from two orders, one of which denied his motion (1) to vacate so much of a judgment of separation as directs him to pay alimony and for the support of a child of the parties; and (2) to stay enforcement of the provisions of the judgment with respect, to such alimony and support, counsel fee, and the collection of costs; and the second of which granted the plaintiff’s motion to punish the defendant for contempt of court in failing to pay such alimony, support and counsel fee. The first above-mentioned order is modified by striking from the decretal paragraph the words “in all respects denied ” and inserting in place thereof a provision granting the motion to the extent of relieving defendant of the obligation to pay alimony and for the support of the child, commencing November 7, 1949, and denying defendant’s motion in all other respects. As so modified, the order is affirmed, without costs. Settle order on notice. The second above-mentioned order is reversed and the plaintiff’s motion denied, without costs. This corat is satisfied that the appellant is mentally and physically incapable of being gainfully employed and that he has been in such unfortunate position for a considerable period of time The respondent has offered no showing to the contrary. In addition, the child of the marriage, for whose support the judgment directed the appellant to make payment, reached the age of twenty-one years on September 23, 1949, and she has been gainfully employed and self-supporting for a number of years. Carswell, Acting P. J., Johnston, Adel, Wenzel and MaeCrate, JJ., concur. [See post, p. 951.]