Opinion
February 16, 1971
In an action in which a judgment was entered granting plaintiff a separation and directing a hearing to be held on the issues of support, defendant appeals from (1) a further judgment (by its terms merged with the original judgment) of the Supreme Court, Westchester County, entered May 15, 1970, after the hearing held pursuant to the original judgment, which, inter alia, ordered defendant to pay $60 a week for support of each of the parties' two children and $80 a week for plaintiff's support, and (2) an order of the same court entered July 23, 1970, which, inter alia, granted plaintiff's motion to adjudge defendant in contempt of court for alleged violations of directions in said further judgment and awarded plaintiff $250 for counsel fees for services rendered in bringing the contempt proceeding. Judgment modified, on the law and the facts and in the interests of justice, by striking therefrom the first decretal paragraph, which directed defendant to pay the above-mentioned amounts weekly for support of plaintiff and the children. As so modified, judgment affirmed, without costs, and case remanded to Special Term for a hearing de novo on the question of defendant's earning capacity and the specific needs of plaintiff and the children for support. Order reversed, on the law and the facts, without costs, and motion to adjudge defendant in contempt of court denied. Plaintiff commenced this action by service of the summons. A certificate of no necessity was issued by the Conciliation Commissioner, after which the parties entered into a stipulation with his assistance, the terms of which were to be incorporated into a subsequent judgment separating the parties, should such a judgment be forthcoming. The provisions of the stipulation were made expressly subject to the approval of the court, when and if it incorporated the stipulation into a judgment. When the original judgment of separation was granted in favor of plaintiff, she sought to have the terms of the stipulation incorporated into it. Defendant argued that there had been a change of circumstances since the terms of the stipulation were agreed upon and that he could no longer afford to pay the $200 a week support which the stipulation required. It was uncontroverted that at the time the stipulation was executed he was earning $400 a week, working in an executive capacity in a corporation controlled by his father; and that thereafter he was dismissed from that position by his father, under circumstances clearly evidencing an estranged relationship. Attempts at reconciliation with his father and efforts to be restored to his former position were in vain. He sought employment in many fields of endeavor, all to no avail. He admitted, however, that he had not sought employment in the line of business in which he had been engaged for the past 10 years while in the employ of his father. He had been office manager and salesman for the above-mentioned corporation, Zellermayer Supply Corporation, which was engaged in the manufacture and sale of laundry supplies. There is some indication in the record that defendant's marital problems and the antagonistic attitude of his parents toward him caused him to become emotionally upset and possibly impaired his ability to cope with the responsibilities and pressures normally associated with executive positions, even if he were able to obtain such a position; and it is by no means clear that he could. In our opinion, Special Term erred when it concluded, as indeed it must have, that while there was a change of circumstances the mere failure of defendant to seek employment in positions similar to that which he had had, and at a salary comparable to that which he had while employed by his father, evidenced an attitude of defendant designed to frustrate his support obligations under the stipulation. We feel that defendant's earning capacity is not necessarily reflected by the salary he earned while an executive in his father's corporation. 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. Furthermore, in view of what the record indicates is a friendly relationship between plaintiff and defendant's father, sequestration proceedings could apparently have proceeded unhindered. 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. Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.