Bennett v. Bennett

Mugglin, J.

(concurring). We concur in the result reached by

the majority, but would expand the rationale. We agree that our prior decisions require a showing that a remedy less drastic than contempt must be shown to be ineffectual before contempt is appropriate (see e.g. DeMeo v DeMeo, 281 AD2d 662 [enforcement of support]; MacKinnon v MacKinnon, 277 AD2d 636 [enforcement of periodic maintenance and a lump-sum award]; Mastrantoni v Mastrantoni, 242 AD2d 825 [enforcement of payment of debt assumed]). Nevertheless, it is our view that care must be taken to differentiate between what may be an effectual remedy to enforce a periodic payment, such as support and maintenance, and what would be effectual to enforce distribution of a marital asset.

Here, the divorce judgment directed defendant to divide the *808fire insurance proceeds evenly with his former spouse and, in direct violation of the order, he instead gave the money to his parents. We would hold that any remedy that does not require him to pay the judgment with reasonable promptness is ineffectual. Anything less penalizes plaintiff, rewards defendant for his willful violation of the order, and destroys the equitable nature of the distribution of assets crafted by Supreme Court in its previous decision.

Kane, J., concurs. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.