Opinion
October 29, 1970
Appeal from the Erie Special Term.
Present — Goldman, P.J., Witmer, Gabrielli, Moule and Henry, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: Plaintiff in support of her application for the order appealed from stated that defendant had defaulted in paying $810 pursuant to a judgment of divorce and that no order of sequestration had been granted. There is no finding in the order appealed from that payment could not be enforced by sequestration. Although the order to show cause recited that "payment of said sums of money cannot be enforced by means of sequestration of defendant's property", the papers contained no fact to support such a finding. Section 245 Dom. Rel. of the Domestic Relations Law provides that before contempt proceedings may be started, it must appear "presumptively to the satisfaction of the court, that payment cannot be enforced by means of sequestration of his property" or that sequestration "would be ineffectual." Since the statutory requirements have not been complied with, the order must be reversed. ( Arcidiacono v. Arcidiacono, 31 A.D.2d 883; Schalk v. Schalk, 27 A.D.2d 793; Spargo v. Spargo, 25 A.D.2d 612.)