In an action in which a judgment was entered granting plaintiff a divorce from appellant, the appeal is from an order of the Supreme Court, Rockland County, dated February 11, 1972, which (a) granted plaintiff's motion to adjudge appellant in contempt for failure to comply with the child support provisions of the judgment, fining him in the amount of $2,560, and (b) granted plaintiff a counsel fee of $150. Order reversed, without costs, and motion remanded to Special Term for (1) a hearing de novo on the question of the effectiveness of sequestration of appellant's property pursuant to section 245 Dom. Rel. of the Domestic Relations Law and (2) a new determination. In our opinion, there was a failure to comply with section 245 Dom. Rel. of the Domestic Relations Law. The record lacks a showing that the court was presumptively satisfied that sequestration would be ineffectual ( Spargo v. Spargo, 25 A.D.2d 612). Since contempt proceedings were brought without having complied with the clear statutory predicate of first seeking sequestration, there should have been no award of counsel fees ( Zellermayer v. Zellermayer, 36 A.D.2d 636). On the hearing de novo Special Term should consider the principles annunciated in Matter of Roe v. Doe ( 29 N.Y.2d 188). Munder, Acting P.J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.
Plaintiff's papers neither alleged nor did the court find that sequestration proceedings would not lie or would be ineffectual. Such finding is essential to permit enforcement of a support order by contempt (Domestic Relations Law, § 245; Spargo v. Spargo, 25 A.D.2d 612). In view of the fact that the award of alimony is reduced retroactive to October 8, 1970, the findings of arrears in the orders appealed from must be modified to recompute the amounts owing.
Moreover, Special Term unnecessarily curtailed the hearing into defendant's earning capacity when it failed to afford him a full opportunity to show if and to what extent the mental strain resulting from his marital estrangement affected his earning ability. In addition, an inquiry should have been made into the specific needs of the wife and children for support before incorporating any amounts for support into the judgment (cf. Goldman v. Goldman, 282 N.Y. 296). With respect to the July 23, 1970 order adjudging defendant in contempt of court, we need note only that section 245 Dom. Rel. of the Domestic Relations Law does not permit enforcement of support provisions of a separation judgment by contempt proceedings unless it appears presumptively to the satisfaction of the court that the ordered payments cannot be enforced by sequestration of the husband's property ( Spargo v. Spargo, 25 A.D.2d 612; Schalk v. Schalk, 27 A.D.2d 793). At the hearing held before the parties' stipulation was incorporated into the May 15 judgment it was ascertained on defendant's cross-examination that he had extensive holdings in securities, including stock in the Zellermayer Supply Corporation which alone was worth approximately $18,000, but that the securities were locked in a safe at his father's corporation's premises, to which he had no access. The support arrears for which defendant was held in contempt totaled only approximately $3,400. Defendant's attorney has affirmed that he has been negotiating with defendant's father to have him turn over defendant's securities so that they can be available for plaintiff and the children.
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.)
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).
Section 245 Dom. Rel. of the Domestic Relations Law does not permit enforcement of a divorce judgment by contempt proceedings unless it appears presumptively to the satisfaction of the court, that the payment cannot be enforced by means of the sequestration of his property. ( Spargo v. Spargo, 25 A.D.2d 612.) Here there was neither a factual showing that the judgment could not be so enforced nor a finding to that effect. Moreover, plaintiff having removed the children from the jurisdiction of the court and having thereby deprived defendant of the right of visitation granted to him by the decree, she is not entitled to the extraordinary remedy obtained.