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June 10, 1975

HARRIET HOLTZMAN AND WILLIAM J. GREENE, Clerk of the Family Court of the State of New York for the County of New York, Defendants

The opinion of the court was delivered by: DUFFY


 Aaron Holtzman, the plaintiff in this action, seeks a preliminary and permanent injunction to declare Section 429 of the New York Family Court Act illegal. This particular section deals with the sequestration of assets found within the State of New York. The plaintiff claims that this injunctive action is based upon the Fourteenth Amendment to the United States Constitution and upon Section 1983 of Title 28, U.S.C. The plaintiff herein has requested the convening of a three judge court, pursuant to 28 U.S.C. §§ 2281 and 2284, to issue the injunction and declare that the sequestration provisions of Section 429 of the New York Family Court Act are unconstitutional. At the same time, the defendant Harriet Holtzman has moved to dismiss this action on various grounds.

 For the reasons set out below the motion by the plaintiff is denied in all respects and the defendant's motion to dismiss is granted.

 The legal issues raised by both sides are fairly complex and I believe that before discussing these problems it is best that the uncontroverted facts be set out so that all may be seen in proper context.

 In 1965, the defendant Harriet Holtzman and the plaintiff Aaron Holtzman were married in New York City. They are now embroiled in a separation and support action in the Family Court for the County of New York (Manhattan). For the purpose of clarity the defendant Harriet Holtzman will be referred to as "wife" and the plaintiff Aaron Holtzman will be referred to as "husband".

 At all times relevant hereto, the husband was and is a resident, domiciliary and citizen of the Republic of Mexico. The wife was and is a citizen of the United States. After the marriage the husband and wife took up residence in Mexico City. Between the date of the marriage and early 1974, when the parties separated and the wife returned to New York, three children were born of the union. These children are now residing with their mother in New York City and are involved in the Family Court action to the extent that the wife is seeking support not only for herself but also for them.

 On March 14, 1974, some 13 months prior to the time this action was brought, the wife obtained an order from the Family Court directing the Clerk of that Court to sequester funds of the husband on deposit at a New York bank. After the sequestration had been effected, on March 21, 1974 the wife immediately filed in Family Court the action for support. This action was based upon quasi in rem jurisdiction over the funds sequestered. The summons and petition for support were mailed to the husband in Mexico.

 Both counsel for the husband and counsel for the wife agree that the wife could not have obtained personal jurisdiction for the Family Court over the husband even through the most liberal reading of the New York long arm statute. N.Y. CPLR § 302, (McKinney 1972).

 In the application for the order of sequestration made to Judge Pagnucco of the Family Court, the wife alleged that the husband had informed her that he would no longer make support payments for her and the three children and that in fact he had stopped such payments. The application also stated that if sequestration was not effected the husband could immediately transfer his funds out of the United States and that without sequestration of the funds any orders of the Family Court for the support of the wife and the children would be totally unenforceable.

 After the sequestration had been effected and apparently after the husband received the summons and petition, the husband moved in the Family Court to vacate the order of sequestration. The motion was denied. Thereafter the husband appealed to the Appellate Division. That appellate court dismissed the appeal for procedural reasons (the husband had failed to apply for permission to appeal) but the Appellate Division went out of its way to say that if the matter was properly before it, it would have affirmed on the merits of the appeal. At least in the abortive appeal to the Appellate Division the husband argued the same "due process" position which is advanced in the case at bar.

 Before turning to the specific arguments of the parties, two things should also be noted: first, the hearing on the support petition is now scheduled for June 12, 1975 after the husband has successfully had it adjourned five times and second, immediately prior to the institution of this action the husband entered a general appearance in the State Family Court action.

 Husband claims that the sequestration provisions attacked are unconstitutional because of the "absence of provisions for an immediate post-sequestration hearing and the absence of a provision requiring the party seeking a sequestration to post a bond." (Plaintiff's Memorandum of Law, p. 4)

 Since the husband had the opportunity to move to vacate the sequestration (and did so) the first part of this argument must fall. *fn1" It is clear that the Appellate Division of the New York State system would have actually adjudicated the merits if the husband had proceeded properly. To say that in this case there was no opportunity for prompt review is to ignore the record.

 The argument that the plaintiff seeking a support order from the Family Court should be required to post a bond is a request to ignore reality. A wife with three minor children who is suing for support certainly cannot be expected to post a bond for such a sequestration order ...

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