Arcidiacono v. Arcidiacono

Appellate Division of the Supreme Court of New York

Arcidiacono v. Arcidiacono

31 A.D.2d 883, 298 N.Y.S.2d 290, 1969 N.Y. App. Div. LEXIS 4566

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 20, 1969

StatusPublished

This text of 31 A.D.2d 883 (Arcidiacono v. Arcidiacono) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arcidiacono v. Arcidiacono, 31 A.D.2d 883, 298 N.Y.S.2d 290, 1969 N.Y. App. Div. LEXIS 4566 (N.Y. Ct. App. 1969).

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Opinion

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 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). (Appeal from order of Onondaga Special Term granting motion to punish for contempt.) Present —■ Goldman, P. J., Del Veeehio, Moule, Bastow and Henry, JJ.

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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 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). (Appeal from order of Onondaga Special Term granting motion to punish for contempt.) Present —■ Goldman, P. J., Del Veeehio, Moule, Bastow and Henry, JJ.

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Bluebook (online)

31 A.D.2d 883, 298 N.Y.S.2d 290, 1969 N.Y. App. Div. LEXIS 4566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arcidiacono-v-arcidiacono-nyappdiv-1969.

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