dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. Plaintiff instituted proceedings pursuant to section 245 of the Domestic Relations Law on February 7, 1979 to adjudge defendant in contempt of court for his noncompliance with the divorce decree granted to plaintiff and the order of the court of December 20, 1978 which dismissed defendant’s application for modification of the divorce decree and awarded plaintiff a judgment of $1,000 in arrearages for support payments. Plaintiff’s affidavit alleges the existence of the court order, dated December 20, 1978, failure of defendant to substantially comply with it and a further default by defendant since entry of the order. In his cross motion defendant requests suspension of alimony because of an interference with visitation rights; he further alleges a failure by plaintiff to show that the arrears against him could not be enforced pursuant to *720sections 243 and 244 of the Domestic Relations Law and asserts that his financial condition has worsened and that he is financially destitute and unable to pay the arrearages. The trial court, in a decision dated March 14, 1979, concluded that an adjudication of contempt was warranted because of a prior evidentiary hearing held in December, 1978 and the insufficiency of defendant’s response. Subdivision 3 of section 246 of the Domestic Relations Law provides that any person may assert his financial inability to comply with a court order as a defense in a proceeding instituted against him pursuant to section 245 of the Domestic Relations Law (Cappione v Cappione, 63 AD2d 757). Such a matter should not be decided on the basis of conflicting affidavits, but at a hearing. The affidavit of defendant was sufficient to raise the defense of inability to pay. The prior hearing did not satisfy the requirements of section 246 of the Domestic Relations Law. This defendant was denied due process of law (Ciaschi v Ciaschi, 49 AD2d 991). Additionally, there was neither a finding by the court nor a showing in the supporting affidavits that sequestration would be ineffectual against defendant before a contempt of court was resorted to as is required by sections 243 and 244 of the Domestic Relations Law. Finally, it was error to hold the defendant in contempt for payments due after the commencement of the contempt proceeding (Stroh v Stroh, 60 AD2d 599). The judgment should be reversed, and the matter remitted for an evidentiary hearing.