Roseann Clark v Joseph Clark

Clark v Clark 2006 NY Slip Op 02488 [28 AD3d 415] April 4, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

Roseann Clark, Respondent,
v
Joseph Clark, Appellant.

—[*1]In a matrimonial action in which the parties were divorced by judgment dated November 3, 2004, the defendant appeals, by permission, from an order of the Supreme Court, Rockland County (O'Rourke, J.), dated February 23, 2005, which, inter alia, directed him to make monthly mortgage payments concerning the marital residence and provided that in the event of noncompliance with a purported order of the same court entered November 12, 2004, he "shall appear before this Court [to] show cause why an Order should not be entered . . . punishing [him] for contempt."

Ordered that the order is modified, on the law, by deleting the third decretal paragraph thereof; as so modified, the order is affirmed, without costs or disbursements.

The trial court threatened that the defendant would be punished with contempt if he violated an order "entered in open Court on November 12, 2004." The court incorrectly stated that it could find the defendant in contempt of that order, since there was never any order entered in open court on that date (see Judiciary Law § 750 [A] [3]; § 753 [A] [1]; Rudnick v Jacobson, 284 App Div 1064 [1954]).

The defendant's remaining contentions are either improperly before this Court or without merit. Schmidt, J.P., Santucci, Rivera and Skelos, JJ., concur.