Opinion
February 20, 1969
Appeal from the Onondaga Special Term.
Present — Goldman, P.J., Del Vecchio, Moule, Bastow and Henry, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: Special Term, without any finding that alimony payments could not be enforced by means of sequestration of defendant's property, erroneously held defendant in contempt. A judgment of separation as amended by an order entered April 11, 1968, required defendant to pay plaintiff $3,000 arrears of alimony and $500 counsel fees within 20 days. Upon defendant's failure to make the payments plaintiff obtained an order requiring defendant to show cause why he should not be held in contempt of court. Her affidavit on which the show cause order was based did not allege, as required by section 245 Dom. Rel. of the Domestic Relations Law, that payment could not be enforced by means of sequestration of defendant's property. There are no facts alleged in plaintiff's affidavit excusing enforcement by sequestration and there is no finding in the order to show cause or in the order appealed from that payment could not be so enforced. Because of this failure to meet the statutory requirements the order must be reversed ( Haas v. Haas, 197 App. Div. 619, 622; Spargo v. Spargo, 25 A.D.2d 612; Schalk v. Schalk, 27 A.D.2d 793).