Opinion
February 24, 1966
Appeal from the Oneida Special Term.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs, in accordance with the memorandum. Memorandum: On this appeal from an order holding the plaintiff in contempt for failing to make certain support payments under an order for temporary alimony and counsel fees, plaintiff asserts, and defendant's affidavit on the motion establishes, that the defendant failed to make any showing upon which a finding could be made that payment could not be enforced by means of sequestration of his property. While the contempt order recites "and it further appearing presumptively to the satisfaction of the court that payment cannot be enforced by means of sequestration of plaintiff's property", no factual showing was made to support such a finding. Section 245 Dom. Rel. of the Domestic Relations Law makes such a finding essential to permit enforcement of a support order by contempt (see Haas v. Haas, 197 App. Div. 619, 622). A prompt trial of the issues should be had and following the trial of the action and on application of the defendant the court may in its discretion, if it is found to be appropriate, provide by final judgment that alimony be paid nunc pro tunc from the time of the commencement of the action deducting such support as has been paid the defendant since that time (see Doncourt v. Doncourt, 245 App. Div. 91, affd. 275 N.Y. 470; Mittman v. Mittman, 263 App. Div. 384).