Opinion
2020–01779, 2020–02774 Index No. 202566/08
08-17-2022
Dorothy BAUMAN, respondent, v. Stephen BAUMAN, appellant.
Alexander Potruch, LLC, Garden City, NY, for appellant. Dorothy Bauman, Jericho, NY, respondent pro se.
Alexander Potruch, LLC, Garden City, NY, for appellant.
Dorothy Bauman, Jericho, NY, respondent pro se.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In a matrimonial action in which the parties were divorced by judgment entered September 25, 2013, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated January 3, 2020, and (2) an order of the same court dated March 3, 2020. The order dated January 3, 2020, after a hearing, inter alia, granted the plaintiff's motion to hold the defendant in civil contempt, in effect, for failure to pay arrears and counsel fees pursuant to certain provisions of the parties’ judgment of divorce, and to pay counsel fees pursuant to two money judgments of the same court entered August 19, 2013, and April 10, 2017, respectively, and for an award of counsel fees, and awarded the plaintiff counsel fees in the sum of $17,000. The order dated March 3, 2020, insofar as appealed from, denied the defendant's motion pursuant to CPLR 4404(b) to vacate and set aside the order dated January 3, 2020.
ORDERED that the order dated January 3, 2020, is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for an award of counsel fees and awarding the plaintiff counsel fees in the sum of $17,000, and substituting therefor a provision denying that branch of the motion; as so modified, the order dated January 3, 2020, is affirmed, without costs or disbursements; and it is further,
ORDERED that the order dated March 3, 2020, is affirmed insofar as appealed from, without costs or disbursements.
The parties’ judgment of divorce entered September 25, 2013, upon an order of fact-finding dated March 10, 2013, inter alia, directed the defendant to pay the plaintiff the sum of $420,189 in arrears for the carrying charges on the marital residence, and awarded the plaintiff counsel fees in the sum of $30,000. Prior to entry of the judgment of divorce, the $30,000 award of counsel fees was reduced to a money judgment in favor of the plaintiff's counsel in the principal sum of $30,525, which was entered on August 19, 2013. By decision and order dated October 21, 2015, this Court, inter alia, modified the judgment of divorce by reducing the arrears owed by the defendant for the carrying charges on the marital residence from $420,189 to $206,094.50, and affirmed the $30,000 award of counsel fees (see Bauman v. Bauman, 132 A.D.3d 791, 19 N.Y.S.3d 58 ). As a result of a postjudgment motion by the plaintiff, by order dated January 20, 2017, the plaintiff was awarded additional counsel fees in the sum of $9,500. The additional $9,500 award of counsel fees was subsequently reduced to a money judgment in favor of the plaintiff's counsel in the principal sum of $9,675.41, which was entered on April 10, 2017.
In May 2018, the plaintiff moved pursuant to Domestic Relations Law § 245 to hold the defendant in civil contempt based upon his failure to pay the sum of $206,094.50 in arrears for the carrying charges on the marital residence or the counsel fees totaling $40,500.10, and for an award of counsel fees. In an order dated January 3, 2020, the Supreme Court, after a hearing, inter alia, granted the plaintiff's motion, and awarded the plaintiff additional counsel fees in the sum of $17,000. The defendant subsequently moved pursuant to CPLR 4404(b) to vacate and set aside the order dated January 3, 2020. In an order dated March 3, 2020, the court, among other things, denied the defendant's motion. The defendant appeals.
"A motion to punish a party for civil contempt is addressed to the sound discretion of the court" ( Matter of Weiss v. Rosenthal, 195 A.D.3d 730, 731, 150 N.Y.S.3d 284 [internal quotation marks omitted]; see Lugo v. Torres, 174 A.D.3d 595, 596, 101 N.Y.S.3d 891 ). "To prevail on a motion to hold a party in civil contempt, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court's order, and (4) prejudice to the right of a party to the litigation" ( Matter of Binong Xu v. Sullivan, 155 A.D.3d 1031, 1032, 65 N.Y.S.3d 204 ; see Domestic Relations Law § 245 ; El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Lugo v. Torres, 174 A.D.3d at 596, 101 N.Y.S.3d 891 ). Wilfulness is not an element of civil contempt, however, the party alleged to be in contempt may offer as a defense evidence of his or her inability to comply with the order or judgment (see El–Dehdan v. El–Dehdan, 26 N.Y.3d at 35, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Shemtov v. Shemtov, 153 A.D.3d 1295, 1296, 61 N.Y.S.3d 278 ; Cassarino v. Cassarino, 149 A.D.3d 689, 691, 50 N.Y.S.3d 558 ).
Here, the plaintiff met her burden of establishing, by clear and convincing evidence, that the judgment of divorce, as modified by this Court, included an unequivocal mandate directing the defendant to pay the plaintiff the sum of $206,094.50 in arrears for the carrying charges on the marital residence, which mandate was disobeyed by the defendant who had knowledge thereof, and that the plaintiff was prejudiced thereby (see El–Dehdan v. El–Dehdan, 26 N.Y.3d at 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ). Similarly, the plaintiff met her burden of establishing, by clear and convincing evidence, that the money judgments entered August 19, 2013, and April 10, 2017, included unequivocal mandates directing the defendant to pay counsel fees to the plaintiff's counsel in the sums of $30,525 and $9,975.10, respectively, which were disobeyed by the defendant who had knowledge thereof, and that the plaintiff was prejudiced thereby (see id.; Matter of Weiss v. Rosenthal, 195 A.D.3d at 732, 150 N.Y.S.3d 284 ). Moreover, giving deference to the hearing court's determinations with regard to credibility (see Matter of Ferrer v. Brown, 165 A.D.3d 929, 930, 86 N.Y.S.3d 208 ), the defendant failed to establish as a defense that he was unable to pay the amounts directed (see El–Dehdan v. El–Dehdan, 26 N.Y.3d at 35, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Matter of Weiss v. Rosenthal, 195 A.D.3d at 732, 150 N.Y.S.3d 284 ). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to hold the defendant in civil contempt.
However, the Supreme Court erred in granting that branch of the plaintiff's motion which was for an award of counsel fees. A party moving for counsel fees in a domestic relations matter must make a prima facie showing of substantial compliance with, inter alia, 22 NYCRR 1400.3 (see Gottlieb v. Gottlieb, 101 A.D.3d 678, 679, 957 N.Y.S.2d 132 ). Here, the plaintiff failed to establish, prima facie, substantial compliance with 22 NYCRR 1400.3 (see Matter of Silver v. Green, 119 A.D.3d 806, 808, 990 N.Y.S.2d 238 ; Gottlieb v. Gottlieb, 101 A.D.3d at 679, 957 N.Y.S.2d 132 ; Sherman v. Sherman, 34 A.D.3d 670, 671, 824 N.Y.S.2d 656 ). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for an award of counsel fees.
The defendant's remaining contentions are without merit.
BARROS, J.P., CHAMBERS, ZAYAS and DOWLING, JJ., concur.