Johanny v. Johanny

Appellate Division of the Supreme Court of New York

Johanny v. Johanny

41 A.D.2d 568, 340 N.Y.S.2d 192, 1973 N.Y. App. Div. LEXIS 5401

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

DecidedJanuary 29, 1973

StatusPublished

Cited by5 cases

This text of 41 A.D.2d 568 (Johanny v. Johanny) 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

Johanny v. Johanny, 41 A.D.2d 568, 340 N.Y.S.2d 192, 1973 N.Y. App. Div. LEXIS 5401 (N.Y. Ct. App. 1973).

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Opinion

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 nova on the question of the effectiveness of sequestration of appellant’s property pursuant to section 245 of the Domestic Relations Law and (2) a new determination. In our opinion, there was a failure to comply with section 245 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 nova Special Term should consider the principles annunciated in Matter of Roe v. Hoe (29 N T 2d 188). Munder, Acting P. J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.

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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 nova on the question of the effectiveness of sequestration of appellant’s property pursuant to section 245 of the Domestic Relations Law and (2) a new determination. In our opinion, there was a failure to comply with section 245 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 nova Special Term should consider the principles annunciated in Matter of Roe v. Hoe (29 N T 2d 188). Munder, Acting P. J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

41 A.D.2d 568, 340 N.Y.S.2d 192, 1973 N.Y. App. Div. LEXIS 5401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johanny-v-johanny-nyappdiv-1973.

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