Opinion
04-18-2022
Faina P., Plaintiff, v. Alexander S., Defendant.
Brian D. Perskin, Esq. Attorney for Plaintiff Alexander S., Esq. Defendant, pro se
Brian D. Perskin, Esq. Attorney for Plaintiff
Alexander S., Esq. Defendant, pro se
Jeffrey S. Sunshine, J.
Introduction
This Court is called upon to determine if, in a post judgment proceeding, the defendant-father, who is an attorney and seeks a downward modification of support contained in a recently executed stipulation should inter alia be held in contempt for failure to pay any direct basic child support for more than eighteen (18) months where those alleged arrears together with other add-on expenses total over $30,000. The Defendant alleges that because he has shared custody of the child he should be given credit for any payments he electively makes on behalf of the child, such as trips to Legoland while the child is in his care. Defendant contends that he cannot afford to pay any direct child support to Plaintiff, who earns less than half of his annual income, while representing that he pays more than $900 monthly in lease, gas and other expenses for his 2019 Audi. Defendant represented that he earned approximately $85,000 annually in 2019 when he signed the stipulation of settlement - current financial documents directed to be produced by this Court reveal that he reported income of $100,037 on his 2020 individual income tax returns. The Court, on the record, repeatedly told the Defendant of his right to seek independent counsel and Defendant declined to do so.
During oral argument Defendant asserted that if the Court held him in contempt and he lost his license to practice law he would be unable to pay child support. Defendant, who is clearly the monied spouse in this enforcement action against him for non-payment of child support filed an application seeking an award of counsel fees at a rate of $300 hourly to be paid by Plaintiff to him so that he could be paid for representing himself.
By order to show cause dated December 2, 2021, plaintiff moved seeking contempt and the following relief:
a) Adjudging and punishing Defendant for contempt of court for his contumacious misconduct and willful failure and refusal to pay child support pursuant to the Judgment of Divorce dated February 28, 2020 and entered in the Office of the Clerk of the County of Kings on March 3, 2020 in the amount of $27,255.00; b) Adjudging and punishing Defendant for contempt of court for his contumacious misconduct and willful failure and refusal to pay his share of health insurance costs for the parties' child in the amount of $561.35 pursuant to the Judgment of Divorce dated February 8, 2020 and entered in the Office of the Clerk of the County of Kings on March 3, 2020; c) Adjudging and punishing Defendant for contempt of court for his contumacious misconduct and willful failure and refusal to his share of add-on expenses in the amount of $2,365.42 pursuant to the Judgment of Divorce dated February 28, 2020 and entered in the Office of the Clerk of the County of Kings on March 3, 2020; d) Pursuant to DRL §244 granting a money judgment in favor of the Plaintiff and against the Defendant in the amount of $30,181.77, with interest, representing unpaid child support, the unpaid share of Defendant's contribution to the cost of health care for the parties' child, and Defendant's share of unpaid add-on expenses; e) For an Order pursuant to DRL §244-b directing the department of motor vehicles to suspend the Plaintiff's driving privileges as the amount due for support arrears is equivalent or greater than the amount of support due for a period of four (4) months; f) For an Order pursuant to DRL §244-c suspending the license of the Plaintiff to practice law in the State of New York as the amount due for support arrears is equivalent or greater that the amount of support due for four (4) months; g) Pursuant to DRL §244-a permitting Defendant to amend the papers in support of the application for enforcement to include any additional arrears which have accrued since the commencement of such enforcement proceeding at the time of a hearing upon or submission of the matter; h) Pursuant to CPLR §2201 staying the proceeding brought by the Defendant in the Family Court, Kings County for the termination of the Order of Support, until determination of the instant order to show cause; 3 i) Pursuant to CPLR §602 consolidating the proceeding brought by Plaintiff (sic) in the Family Court, Kings County for the termination of the Order of Support; i) Ordering that Defendant pay counsel fees to Plaintiff's attorneys in the amount of $15,500, representing the costs in connection with the bringing the within motion; and j) Awarding such other and further relief as this Court deems just and proper;"
The order to show cause was signed returnable via virtual appearance on December 22, 2021.
On December 20, 2021, Defendant filed an order to show cause seeking, inter alia, contempt against Plaintiff:
A. Adjudging and punishing Plaintiff for contempt of Court for her contumacious and wilful [ sic ] misconduct for violating the joint decision-making provisions regarding the child, per the Custody and Parenting Agreement;
B. enjoining and prohibiting Plaintiff from any further unilateral decision making regarding the child's educational and medical care without prior written approval from Defendant;
C. ordering that Plaintiff pay Defendant's legal fees and costs in the amount of $5,000 in connection with the bringing of this motion; and D. for such other and further relief as this Court may deem just and proper under the circumstances
The respective motions were fully briefed and the Court heard oral argument on March 2, 2022. Plaintiff was represented by privately-retained counsel. Defendant, an attorney himself, represented himself. The Court notified and extensively allocuted the defendant of his right to be represented by counsel on the record at each court appearance but defendant repeatedly declined to seek legal representation and represented on the record that he could represent himself. Clearly, Defendant's income and resources do not make him qualified for assignment of government paid counsel on the issue of contempt.
PROCEDURAL HISTORY
The parties entered into two stipulations on November 12, 2019 - one for custody [NYSCEF #6] and parenting time and the other resolving finances [NYSCEF #7] - these were duly executed and incorporated but not merged into a Judgment of Divorce signed on February 28, 2020 [NYSCEF #5] and entered in the Office of the Clerk of the County of Kings on March 3, 2020. There is one child of the marriage: a son, Z, who is (6) years old (DOB December 2015).
The parties represented in their Stipulation of Settlement of Financial Issues that their incomes as of November 2019 where as follows: Plaintiff-mother, $44,511; Defendant-father, $85,754. Plaintiff-mother waived any request for temporary or final maintenance. Pursuant to the parties' stipulation of settlement, Defendant-father consented to pay Plaintiff $1,500 monthly in basic child support; 50% of the cost of health insurance for the child; 50% of "[a]ny out of pocket expenses to cover the Child's medical expenses"; 50% of dental insurance for the child (to the extent either parent "is able to obtain dental insurance coverage for the Child"); 50% of unreimbursed medical expenses for "all non-cosmetic, necessary medical, dental and optical expenses incurred at in-network providers." Additionally, the parties agreed to "equally contribute to the cost of any [summer] camp the child attends, with the parties' summer access not to interfere with the Child's attendance at a Summer program."
The parties agreed to be financially responsible for their own child-care expenses.
The Court notes that the sum of child support agreed to by the parties is already a downward deviation of more than $500 from the CSSA presumptively correct child support as detailed in the parties' stipulation of settlement (NYSCEF #7, p. 29). Furthermore, despite the disparity in the parties' incomes that Plaintiff, who made only half of what the Defendant earns at the time the parties entered into the stipulation of settlement, agreed to pay 50% of add-on expenses which is substantially more than what her pro rata share would have been under the presumptively correct CSSA calculation.
Plaintiff is employed as a region sales administrator for a business company and Defendant is a practicing attorney admitted to practice law in the State of New York and he is employed by a private law firm. Plaintiff was represented by counsel in the underlying divorce action. Defendant, an attorney licensed to practice in the State of New York, represented himself in the underlying divorce action despite repeated opportunities to seek legal counsel.
MOTION SEQUENCE #3
Plaintiff contends that defendant has not complied with the financial support he agreed to in the Stipulation of Settlement, specially, his child support obligation. She alleges that in June 2020, during the pandemic, Defendant advised her that he was starting his own law practice and would no longer pay child support. Plaintiff annexed documentation supporting her claim that despite his refusal to pay support, she continued to remind him each month (NYSCEF #10; Exhibit F).
Plaintiff represents that her enforcement application was delayed due to a life-threatening accident involving the parties' son which resulted in a traumatic brain injury. This is not disputed by defendant. Plaintiff contends that defendant's alleged failure to comply with his financial obligations "exacerbated the difficulties" she faced due to the child's accident and, subsequently, her mother's battle with terminal cancer and death in April 2021. She contends that she was forced to postpone seeking to enforce defendant's obligations to focus on the parties' child's health and recovery.
Plaintiff contends that Defendant's failure to pay agreed upon child support for the child left her constrained in paying for the child's basic daily expenses so she had to cover the deficit left by the Defendant's failure to pay in accordance with the court orders by borrowing money, while Defendant benefits by spending freely on discretionary costs for the child's amusement. She contends that her prior attorney sent a demand letter [NYSCEF #14] by certified mail, regular mail and e-mail to defendant on January 25, 2021 (the certified mail was returned because defendant allegedly refused to provide her with his apartment number); however, she alleges that Defendant received the regular mail demand letter because on January 25, 2021 he filed a Petition in Kings County Family Court (NYSCEF #15). The Court notes that pursuant to the terms of the parties' stipulation of settlement [NYSCEF #7, p. 45] the parties stipulated that "[a]ll notices or other communications by either party required under this Agreement, shall be in writing and sent to the other party by electronic mail "
Plaintiff contends that Defendant filed a lawsuit against her prior counsel which forced her to incur unnecessary counsel fees and to retain new counsel. On December 27, 2021, Defendant emailed Plaintiff's current counsel that he filed a Grievance against them allegedly for filing the instant enforcement application [NYSCEF #80].
In the Petition filed by Defendant, originally filed in Family Court, he contends that he has had a "significant reduction in income" and request that child "order of support be terminated" [NYSCEF #15]. In support, Defendant filed a Form 4-17a dated December 21, 2021 in which he disclosed gross income of $3,900 bi-weekly and listed only one item (a bank account) under "Asset" disclosure [NYSCEF #31]; however, Defendant's paystub from June 2020 lists "gross pay" of $4,791.67, not $3,900 [NYSCEF #29]. Defendant also included a paystub from July 2020 which he identifies as "part-time paystub" showing $3,344.95 in gross pay [NYSCEF #30]. The Form 4-17a includes disclosure of "Other assets: other real estate, car, etc." which Defendant left blank and did not include his car or his retirement assets although he does list expenses related to his 401k and car payment.
Plaintiff alleges that she was not served with that Petition until October 2021. She avers that defendant has steadfastly not paid "any of the child support, health insurance or add-ons as required".
She avers that during summer 2021, Defendant "agreed to bring [the child] to camp" if he was not financially responsible for it but even though she enrolled the child in camp the Defendant, during his parenting time on Mondays, Tuesdays and Wednesday took the child to "the beach or pool" so, she alleges, Defendant was not working or looking for work during half the week for a period of time.
In her affidavit dated November 30, 2021, in support of the order to show cause (NYSCEF #3), Plaintiff contends that, as of November 2021, Defendant was in arrears in of $30,181.77 for basic direct child support, health insurance contribution, summer camp and extracurricular add-on expenses as the parties stipulated to pay 50/50% in the stipulation of settlement [NYSCEF #7, pp 6-7]. In support, she included a chart detailing the alleged arrears [NYSCEF #10]. Defendant did not argue that he objected to any of these activities and documentation in support, including an e-mail from Defendant to Plaintiff showing that he consented to the Russian language lessons and even asked to host them. The Court notes that two expenses listed on the chart are excluded from the calculation inasmuch as they should on their face be payable from basic direct child support and to include them in the calculation of arrears would amount to a double-dip: $12.48 for "Children Tylenol & antibiotic oitment [ sic ]" and $12.80 for "Target 1st Grade School Supplies". As such, $25.28 will be deducted from Plaintiff-mother's request for arrears. This leaves a total of $30,156.49 ($30,181.77 - $25.28 = $30,156.49).
The Court notes that Defendant-father does not dispute any of the claimed expenses or allege that he did not consent to the $110 for soccer in Fall 2019 or the Russian language instruction from January 2020 thought August 2021.
Defendant, in his affidavit in opposition, avers that "[d]ue to the pandemic and his 50/50 custody of the infant-child, Defendant was forced to work-part time as of July 1, 2020. Defendant sent an email to Plaintiff on that date, requesting to resolve the child support issues in good faith" and that "[o]nce Defendant began working part-time, he lost his vacation days and paid holidays with only limited paid time off." In Exhibit A [NYSCEF #25] in support of his affidavit in opposition, Defendant annexed an e-mail dated July 2, 2020 from him to Plaintiff which reads, in full:
I am not wasting my time with you any more back and forth about what I already stated at least 10 times. Be advised that effective July 1, 2020, given covid-19, I have started working part-time with a 50% reduction in salary. Thus, I will NOT be in a position to pay any child support, given my child-related expenses and living costs. If you disagree and wish to spend more money and time on attorneys' fees, I will file papers for child support modification next week.
Defendant vehemently denies that he is in contempt or non-compliance with his child support obligations. He avers that he "continued to make all child-related payments from July 1, 2020 to the present." He contends that he has paid $66,835.60 on behalf of the child exceeding his child support obligation. In support of this representation, he lists the following monthly expenses which he contends should, in effect, be deemed "off-sets" for his basic child support obligation: "$1,500 rent ; $460 car lease; $200 car insurance; $100 car expenses; $25 cell phone". As part of these alleged "credits" Defendant believes should be "off-set" against his basic child support obligation he lists, (these are just a few): $500 for a "trip to Ocean City, MD"; $500 for "August trip"; $150 "child's various activities"; $300 "Halloween kids party"; $186 "child's life insurance"; $247.50 "[Plaintiff's] life insurance"; $1,000 "child's 5th birthday party"; $4.34 monthly "Nintendo subscription"; $500 "Florida trip"; at least four (4) separate $250 "Lego Land trips"; $200 "August trips"; $600 "Halloween kids party"; and $50 "Cirque du Soleil show". Defendant contends that because of his "significant child-related expenses that he already makes on behalf of the child" he "cannot afford to pay any child support" to Plaintiff. Plaintiff contends that "Defendant simply has lied to this court about the expenses included on behalf of our child while in his care." She argues that "[e]ven if the Defendant's recitation of expenses were accurate it does not change the child support calculus [ sic ] at issue here" and that Defendant's representations are self-serving and conclusory and that any restriction on his cash flow for payment of child support is based on his elective payment of discretionary expenses he voluntarily incurred during his time with the child.
The Court notes that Defendant listed his "rent" as $1,000 in his Form 4-17a [NYSCEF #31] in support of his Petition to "Terminate" Child Support filed in Kings County Family Court.
Plaintiff alleges that Defendant lists an expense for a life insurance policy as an "expense" for the child. She contends that pursuant to the parties' financial stipulation of settlement, she was to be the beneficiary of that policy. She alleges that in or about December 2019, the month after they entered into the financial stipulation, Defendant changed the beneficiary of that life insurance policy to his mother.
Defendant contends that "as a single father of an almost 6-year old boy" he cannot work full-time. In disputing Plaintiff's allegations, he alleges that it is Plaintiff who is in contempt of their Judgment of Divorce - not him - because, he alleges, "it is Plaintiff who breached the Custody Agreement from day one by failing to share custody of the parties' joint feline named "Kira." Per the Custody Agreement, the parties shared custody of the cat" He contends that "[s]o as to avoid traumatizing the cat" he has chosen not to enforce this custody provision during the last two years. Plaintiff contends that Defendant did not seek to exercise this "access time" with the cat from November 2019 until December 2020 immediately after she filed the instant enforcement application and that she immediately offered the cat to Defendant for pick-up. In support of her representation, she annexed an e-mail detailing specific dates and time for pick-up and drop-off of "Kira" the cat [NYSCEF #75].
Defendant also contends that while the parties agreed that the child would receive the COVID-19 vaccine he alleges that Plaintiff took the child for the vaccination earlier than the date the parties contemplated. The issue of the child receiving his second COVID-19 vaccination was resolved on consent by written stipulation dated January 14, 2022. The issue of the COVID-19 vaccination is now moot. The Court notes that Defendant by affidavit conceded that he "never" objected to the child receiving the vaccination merely that he wished the vaccination to happen in January 2022 and he objected to the child receiving it two (2) weeks earlier. Plaintiff asserted that due to the change to the NYC mandate that children 5 and older be vaccinated by December 27, 2021 to engage in public indoor events and activities the child receiving the vaccination two (2) weeks earlier than scheduled was merely a "routine" medical decision that, pursuant to the parties' Stipulation of Settlement she was permitted to do.
Defendant further contends that it is Plaintiff who is causing financial difficulties alleging, inter alia, that
During the prior divorce proceeding, Plaintiff has [ sic ] wasted over $40,000 in attorney's fees, money that could have gone to the child's college education. In their [ sic ] settlement agreement, Plaintiff agreed to pay $30,000, plus additional legal costs amounting to $10,000, while Defendant agreed to pay $10,000. Though she claims that she has no money, Plaintiff is now again wasting another $5,500 in attorney's fees
He also avers that "[i]t was Plaintiff who continued to spend unnecessary money on dental bills "
Defendant further disputes Plaintiff's financial claim that he has not paid basic child support with ad hominem personal attacks on Plaintiff's character surrounding allegations about her past romantic relationships.
He contends that in filing an order to show cause seeking contempt, Plaintiff "has threatened Defendant's law license. She does not realize that if Defendant loses his license, he then loses his job as an attorney, so he will have no money to pay for the child."
In her affidavit in reply, Plaintiff contends that when the parties entered into their financial stipulation resolving their divorce proceeding in November 2019 the Defendant represented that his adjusted gross annual income was $85,574 for the purpose of calculating child support. She alleges that based on Defendant's submission in connection with this application, Defendant concedes that his income is at least $89,712 in contradiction of his position that he is unable to pay any child support allegedly because his income decreased. In fact, Plaintiff points out that in the first half of 2020, Defendant earned $61,904 ($124,195 annualized) and that any decrease in income is a direct result of Defendant's choice to start working part-time beginning in June 2020.
Plaintiff notes discrepancies in the financial reporting from Defendant noting that he lists a monthly "expense" to Plaintiff of $433.50, which she classifies as "a fiction as he has failed to provide any support since July of 2020". She also notes that rather than pay any basic child support the Defendant concedes that he pays numerous discretionary expenses such as automobile-related costs totaling $798.36 and other elective costs. She also notes that Defendant "received the sum of approximately $60,000.00 from the sale of our marital residence."
She notes that the child is in school full-time and enrolled in an after-care program at the school until 6 p.m.. She contends that "[i]f I can work a full-time job, there is no reason by Defendant cannot do the same" especially when "our son is only in his care for 2 full workdays per week." She argues that Defendant's current salary "far exceed[s]" the income he reported when they entered into their financial stipulation of settlement in November 2019.
Defendant contends in his affidavit in reply dated January 12, 2022 that Plaintiff "wants someone else to raise her child" because she enrolled the child in after-care at school.
Plaintiff also contends that Defendant has elected to work part-time. She avers that during Summer 2021 she enrolled and paid for the child to attend summer camp, without contribution from Defendant, but contends that Defendant refused to bring the child to camp during weekday when he had parenting time with the child. She contends that Defendant should be working during this time when she was paying for him to have "free" childcare but that he instead chose to spend that time "in leisure."
Plaintiff notes that Defendant concedes that instead of paying any basic child support he has "gone on vacations, paid for unspecified activities for our son, taking our child to amusement parks, and hosted parties for thousands of dollars." She contends that Defendant's choice to pay these luxuries instead of pay child support to her were a "conscious choice" made without "consideration of the expenses which he foisted solely on me for our child"
Plaintiff contends that many of the alleged "expenses" Defendant lists that he pays on behalf of the child, such as "Russian lessons" are not accurate or, in other cases, she classifies some of the claimed payments as "lies" asserting that she, not he, has paid for the claimed expense.
Plaintiff disputes Defendant's allegation that he is unable to pay any child support because he is supporting his mother and stepbrother. She contends that "Defendant's family members have or should have jobs which provide for their expenses. Defendant's mother works full time and is self-supporting" and his younger brother, who is 25-year-old, is "a college graduate, and is able body [ sic ]." She argues that "[m]ore simply stated, the "needs" of Defendant's family members do not trump his obligations to our son."
Dental
Plaintiff alleges that Defendant's refusal to comply with his financial obligations is also jeopardizing their child's health care at risk by refusing to pay for and consent to necessary medical interventions: she contends that Defendant refused to allow our son's dental cavities to be filled, even though it was deemed necessary by two dental professionals and that he threatened to sue the dentist and screamed at her before the appointment and that due to his behavior the child's dentist declined to continue treatment. She contends that this happened with a second dentist, as well. She alleges that when Defendant demanded that the child be treated by his mother's adult dentist, that dentist concurred with the two prior pediatric dentists who recommended that the child's cavities needed fillings to avoid more extensive dental work. She alleges that defendant's behavior caused the parties' son's dental treatment to be "delayed for months" and resulted in the "cost us to go to four separate dentists" while ruining the child's ability to utilize two dental offices.
Consolidation
Plaintiff requests that the Defendant's Family Court Petition Seeking to "terminate" his child support obligation be consolidated to be heard by this Court to avoid litigating the related issues before two Courts. Defendant opposed consolidating the Family Court Petition asserting that Plaintiff's enforcement application was frivolous and warranted an award of sanctions against her.
CPLR §602 (a) and (b) provides that consolidation is appropriate where:
(a) When actions involving a common question of law or fact are before a court, the court, upon motion, may order a joint trial of any or all matters in issue, may order the actions consolidations, and may make such other orders, concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Cases pending in different courts. Where an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district or justice court in the county and consolidate it or have it tried together with that in the county court.
The Court heard oral argument on the issue of consolidation on January 13, 2022. Thereafter, the Court issued a written order dated January 20, 2022 [NYSCEF #88] ordering the matters consolidated before this Court on the basis that there "are common questions of law and fact, and in the interests of judicial economy" A separate consolidation order was issued [NYSCEF #85].
Based on the financial allegations the Court in written order dated January 20, 2022, ordered the parties to file, inter alia, affidavits of net worth [22 NYCRR 202.16 and 202.18] and affidavits of income.
Contempt
Plaintiff's counsel contends that Defendant is in violation of the clear mandates of the Judgment of Divorce for failing to pay child support, contribute to the child's health insurance and certain add-ons at all or merely sporadically since June 2020: he argues that Defendant should be held in civil contempt for such violation pursuant to the Judiciary Law §753 (A) (3). He contends that plaintiff's rights - and those of the child - have been "impeded, impaired, prejudiced and defeated" by Defendant's refusal to comply with his financial obligations.
Plaintiff's counsel argues that Defendant's decision to open his own law practice and his representation that he would have insufficient income to pay child support and other financial obligations is not a legally sufficient basis for him to unilaterally stop paying those obligations. He further contends that Defendant's Family Court Petition is procedurally defective inasmuch as Defendant "failed to provide the Family Court with proof of his financial condition, including the filing of a financial statement with requisite documentation."
Money Judgment
Plaintiff seeks a money judgment for $30,181.77 pursuant to DRL 244 which provides:
Where a spouse in an action for divorce... defaults in paying any sum of money as required by the judgment or order directing the payment thereof, or as required by the terms of an agreement or stipulation incorporated by reference in a judgment, such direction shall be enforceable pursuant to section fifty-two hundred forty-one or fifty-two hundred forty-two of the civil practice law and rules. Upon application the court shall make an order directing the entry of judgment for the arrears of child support together with costs and disbursements. The court shall make an order directing the entry of judgment for the amount of arrears of any other payments so directed, together with costs and disbursements, unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of arrears....Such judgment shall provide for the payment of interest on the amount of any arrears if the default was willful, in that the obligated spouse knowingly, consciously, and voluntarily disregarded the obligation under a lawful court order. Such interest shall be computed from the date on which the payment was due, at the prevailing rate of interest on judgments as provided in the civil practice law and rules.
Suspension of Licenses
Plaintiff's counsel requests in his affirmation dated November 30, 2021 that the Court suspend Defendant's driving license and law license based on his failure to pay his basic child support obligation since June 2020.
DRL §244-b Child support proceedings and enforcement of arrears; suspension of driving privileges.
In any proceeding for enforcement of a direction or agreement, incorporated into a judgment or order, to pay any sum of money as child support or combined child and spousal support, if the court is satisfied by competent proof that they respondent has accumulated support arrears equivalent to or greater than the amount of support due pursuant to such judgment or order for a period of four months, the court may order the department of motor vehicles to suspend the respondent's driving privileges, and if such order issues, the respondent may apply to the department of motor vehicles for a restricted use license pursuant to section five hundred thirty of the vehicle and traffic law... For purposes of determining whether a support obligor has accumulated support arrears equivalent to or greater than the amount of support due for a period of four months, the amount of any retroactive support, other than periodic payments of retroactive support which are past due, shall not be included in the calculation of support arrears pursuant to this section.
DRL 244-c. child support proceedings and enforcement of arrears; suspensions of state professional, occupational and businesses licenses
In any proceeding for enforcement of a direction or agreement, incorporated in a judgment or order, to pay any sum of money as child support or combined child and spousal support, if the court is satisfied by competent proof that the respondent has accumulated support arrears equivalent to or greater that the amount of support due pursuant to such judgment or order for a period of four months and that the respondent is licensed, permitted or registered by or with a board, department, authority or office of this state to conduct a trade, business profession or occupation, the court may order such board, department, authority or office to commence proceedings as required by law regarding the suspension of such license, permit, registration, or authority to practice and to inform the court of the actions it has taken pursuant to such proceedings. For purposes of determining whether a respondent has accumulated support arrears equivalent to or greater than the amount of support due for a period of four months, the amount of any retroactive support, other than periodic payments of retroactive support which are past due, shall not be included in the calculation of support arrears pursuant to this section.
Counsel Fees
Plaintiff seeks an award of counsel fees in connection with the instant motion pursuant to DRL §§237 (c) and 238, which provide in pertinent part:
In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, ... or in any proceeding pursuant to section... two hundred forty-four, ... the court may in its discretion require either party to pay the expenses of the other in bringing, carrying on, or defending such action or proceeding.
Additionally, Plaintiff seeks counsel fees in connection with the instant motion pursuant to the parties' stipulation of settlement which provides in relevant part for the following:
In the event that either party defaults in discharging any of his or her obligations undertaken in this Agreement, then and in such event, after written notice by certified mail to the defaulting party providing him or her with fifteen (15) days to cure same, the aggrieved party shall have the right to sue for the amounts in default or for any other appropriate relief, and the successful party in any such suit or proceeding shall be entitled to receive from the other party and be reimbursed by said party for reasonable counsel fees, expenses and costs to be set by the Court in the same lawsuit.
Plaintiff's counsel avers that Defendant received proper notification of his default on or about January 15, 2021 but continued to default on his child support obligation thereafter. He argues that having defaulted in his obligations, having been notified of his default, and having caused the Plaintiff to incur counsel fees in connection with this default, the Defendant must be made to pay the Plaintiff's counsel fees in accordance with Article XII of the Parties' stipulation of settlement.
Plaintiff's counsel affirms that his firm spent approximately ten (10) hours in connection with the instant motion and that additional time will be spent reviewing Defendant's papers in opposition, preparing reply papers, preparing for oral argument and appearing in connection with this application and any hearing directing by the Court. He detailed that he was unable to estimate how many hours would be necessary at the time of filing the affirmation in support of the order to show cause to provide the Court with a good faith estimate of the total fees to be incurred but would do so once the matter was fully briefed.
Plaintiff entered into a retainer agreement with her counsel's firm on September 13, 2021 wherein attorney services are billed between $475.00 at $375.00 hourly depending on experience [NYSCEF #98].
Defendant contends that Plaintiff is not entitled to any counsel fee award inasmuch as, he alleges, she "has already wasted approximately $50,000 in litigation in the divorce case." He contends, in effect, that because Plaintiff has not acquiesced to his demands to "terminate" his child support obligation that Plaintiff should have to be solely responsible for any and all counsel fee costs she incurred seeking to enforce his existing obligations.
MOTION SEQUENCE #4: Defendant's Application to Hold Plaintiff in Contempt
Defendant contends that Plaintiff "has shown a pattern of disregard for the joint decision-making provisions of the Custody and Parenting Agreement by unilaterally making decisions without regard to Defendant."
Plaintiff, in her affidavit in opposition to the cross-motion, disputes Defendant's rendition of events. She alleges that when the parties disagree on an issue related to their child she has "engaged the necessary professions" whether it is "doctors, dentist, and educators" and then, she alleges, she has "acted with reason, in accordance with medical and education professionals" and that it is Defendant who has not complied with the protocol for disagreements in the parties' Stipulation of Settlement and that he has "threatened [professionals] with lawsuits and harassed them" when he did not like their professional opinions on questions related to the child on which the parties' opinions diverged.
Plaintiff contends that this is a course of conduct by Defendant inasmuch as she alleges that he unilaterally makes choices without consulting with her. She alleges that Defendant initially refused to contribute to Russian language classes for the child, subsequently agreed to share hosting the lesson and eventually "fired" the teacher without Plaintiff's consent or knowledge. Plaintiff alleges that Defendant still "claims" this expense on his asserted list of "off-set" expenses for the child despite, she alleges, him not paying it.
She contends that it is Defendant who "acts as though he has a veto power on every decision, functionally acting as though he is the sole decision maker for our son."
Kindergarten
Defendant-father concedes that on October 4, 2020, the parties' child was involved in a motor vehicle accident which resulted in him spending "approximately two weeks in an intensive rehabilitation facility". Defendant represents that in that on October 8, 2020 - four (4) days after the accident - Plaintiff notified a WhatsApp chat group of school parents that the child was being "pulled" from school due to the accident and asking that she be removed from the group chat.
Plaintiff concedes that initially she withdrew from a class-parent group chat because of the child's injuries from being hit by an automobile. She avers that "[the child] didn't speak a single word for 3 weeks and didn't recognize anyone. This was a very serious injury with brain damage that will never fully go away. There are black spots in his brain that will be with him for life. Those cells have died forever." As a result of the injury, the child has to be "fed by tube or spoon, was in diapers, and could not communicate" She contends that due to his condition for weeks following the accident she left the group chat to, in effect, focus on his recovery and because she did not know if he would be able to return to kindergarten. It is undisputed that the child received physical, speech and occupational therapy in an in-patient rehabilitation facility for weeks after the accident. She avers that "I never removed the child from school, never disenrolled him" but merely "ask[ed] to exit a WhatsApp Parent group for a short time, because it was painful for me to see parents discussing homework and day to day things, while our son lied in a hospital without saying a word and acting like [ sic ] 6-month-old baby in 4-year-old body."
When there was a disagreement between the parties as to whether the Child should continue in Kindergarten or repeat pre-Kindergarten due to concerns related to his brain injury the Plaintiff repeatedly requested that Defendant go to the Parenting Coordinator with her. The parties' stipulation of settlement of custody provides [NYSCEF #6, p. 9-10] that:
In the event the parties are unable to make decisions between themselves, and with respect to all Major Decisions, the Parties shall seek the assistance of a Parenting Coordinator, and shall cooperate with the suggestions of the Parental Coordinator in order to arrive at a mutual decision that is in the Children's best interest. The parties agree to the selection of Peter J. Favaro, Ph.D. with offices at 110 East 42nd Street, New York 17th Floor (516) 883-7157, as the Parenting Coordinator. If the Parenting Coordinator is unable to continue, the parties shall select an alternate within fifteen (15) days of the advisement that the Parenting Coordinator will not be continuing. In the event the Parties are unable to agree on a new Parental Coordinator, who shall be a licensed health professional/social worker, the prior Parenting Coordinator shall make the final decision. g. The cost of the parental coordinator shall be shared by the Parties with the Father paying 50% of such costs and the Mother paying 50% of such costs. The cost of all other professionals set forth in this Stipulation to resolve disputes as to Major Decisions shall be shared by the Parties pursuant to the same 50% I 50% ratio. h. If after meeting with the Parental Coordinator to discuss a disputed Major Decision, the Parties are unable to arrive at a mutual decision regarding a particular Major Decision, the Party whose opinion most closely reflects the opinion of the Parental Coordinator (or the replacement coordinator as selected in accordance with the procedure set forth above) shall make the final decision, subject to a Party's right to seek judicial intervention with respect to the Major Decision in dispute, which application shall be made within fifteen (15) days of a final decision.
In an e-mail annexed by Defendant, Defendant refused to consult with the Parenting Coordinator stating "[t]here is no need to pay $250 per hour for some parenting coordinator who has no clue about our child and never met him" [NYSCEF #38] despite the clear and unequivocal terms of the parties' stipulation of settlement related to that very issue.
It is undisputed that the child thankfully was ultimately able to return to and complete kindergarten in June 2021.
Dental Treatment
Defendant contends that Plaintiff "unilaterally scheduled general anesthesia for the child for a dental procedure" which he contends "was unnecessary." In support of this proposition, he annexes records from one of the dentists indicating that the dental treatment could not be completed because the child became "uncooperative" and that the Plaintiff wished to schedule sedation because the treatment had been "tried 3 times unsuccessfully". Defendant contends that Plaintiff did not inform him of this dental appointment or the planned sedation dental appointment until the day the child was scheduled for sedation. He concedes he notified the dental office that he did not consent to the child receiving sedation to complete the dental work. In Defendant's own affirmation he inserts an e-mail he concedes he sent to the Plaintiff stating that he did not believe further dental work was really necessary to address the child's cavities in his molars inasmuch as, he alleges, the child's "does not have any pain in the teeth" and that he did "not consent to any further dental work for my child" [NYSCEF #25].
Defendant also addressed an alleged issue related to timing of the child's COVD-19 vaccination; however, it is undisputed that the parties subsequently resolved that issue by written stipulation, on consent, dated January 14, 2022 which was so-ordered by the Court [NYSCEF #87].
Plaintiff contends that she only consented to use anesthesia for the child's dental work because "[w]e had tried 3 times to get the fillings/crown down, with preparation beforehand of watching videos as a distraction, having cartoons as a distraction, and bring our son's game boy during the procedure. I also tried having [the child] wear headphones during the procedure to drown out the sound of drilling, and providing our son with laughing gas to relax him and allow the dentist to work. Every time, [the child] would kick, scream, and jump out of the chair." She avers that the child's dentist recommended a pediatric dentist who worked with a pediatric anesthesiologist given the child's fear level. She avers that Defendant was present when the child's dentist made this recommendation and that the Defendant responded so threateningly to the dentist that he was asked to leave and ultimately was escorted out of the office. She contends that since that incident the dentist has "refused to continue having us in her practice."
Plaintiff contends that "[f]our independent dentists, (names omitted), deemed it necessary to fill the cavities. All four dentist also explained that if the teeth were to fall out, it could upset the whole mouth structure and have it collapse, and delay the grown (sic)of permanent teeth." She avers that she scheduled an appointment for the child to have sedation dentistry for September 8, 2021 and informed Defendant by e-mail dated August 23, 2021. She avers that on September 6, 2021, in front of the child during a parenting time exchange, Defendant "started screaming at me, stating that [the child] was not going to get his cavities filled." She contends that "Defendant is impossible to reason with, and refuses to abide by our custody agreement. He changes his mind, day to day, and acts on pure emotion, not logic and not based on our child's best interest. It is hard to come to any consensus with [Defendant]. He acts as a sole decision maker and doesn't (sic) my opinion, or that of medical experts, into account." She avers that even when she took the child to the dentist selected by the Defendant he refused the professional advice of that dentist when it did not support his opinion. Plaintiff notes that in the parties' Stipulation of Settlement the parties explicitly selected a dentist to seek "input and recommendation" if the parties were unable to reach an agreement on dental issues [NYSCEF #6, p. 7]. She details that Defendant refused to use the agreed upon dentist in their agreement when he did not agree with the recommendation from that dentist and insisted on selecting a second dentist who he then rejected as well once that dentist recommended the same course of treatment as the dentist provided for in the stipulation of settlement. The parties' stipulation of settlement specifically provided that the "parties shall seek the input and recommendation from the Child's dentist (or his/her successor)" and provided the name of the Child's dentist. Plaintiff annexed e-mails from Defendant in support of this representation, which does not appear to be in dispute. Defendant did not dispute that he refused to allow the child to be treated by the dentist the parties selected in their stipulation of settlement.
Defendant alleges that the parties initially agreed to the child receiving the COVID-19 vaccination in January 2022 but contends that Plaintiff violated that agreement when she took the child for the vaccine on December 18, 2021. It is not disputed that Plaintiff notified Defendant of this appointment on December 6, 2021. Plaintiff alleges that inasmuch as the parties had agreed that the child would receive the vaccine and the intervening NYC mandate that went into effect on December 14, 2021 that children aged 5 and over must be vaccinated under the Key to NYC protocols that getting the vaccine approximately two (2) weeks "early" was merely routine medical care which both parties are authorized to do under the Stipulation of Custody and Parenting Time. It is undisputed that Defendant subsequently notified the pediatrician where the child was vaccinated that the second dose should not be administered until after his pending application before this Court was adjudicated. The Court directed the parties to each speak to the child's pediatrician regarding the second dose of the vaccine. Thereafter, the parties resolved the issue by stipulation on consent [NYSCEF #87] and the child received his second COVID-19 vaccination in a timely manner.
Defendant's Application for Counsel Fees
Defendant contends that he is entitled to an award of counsel fees because he is an attorney and representing himself. He avers that his hourly rate is $300 and that he "estimates his legal expenses at $5,000." Defendant cites to no legal support for his application for legal services rendered by himself on his own behalf.
Plaintiff asks the Court to deny Defendant's application for counsel fees.
Financial Documentation
Pursuant to this Court's written order dated January 20, 2022, Defendant provided his 2020 tax return [NYSCEF #92]; his 2021 W-2 Form and Pay Statements [NYSCEF #93]; and an affirmation of income [NYSCEF #94].
The Court notes that Defendant attempted to use his affidavit of income to, in effect, submit a sur-reply by adding arguments and case law not previously raised. The Court notes that the case cited by Defendant is distinguishable from the matter before the Court inasmuch as that case relates to factors the Court may consider in awarding child support. Here, the issue before the Court is whether Defendant has violated the terms of the parties' stipulation of settlement related to payment of direct basic child support. Defendant cannot by way of opposition to a post-judgment enforcement application seek to, in effect, rewrite the terms of the parties' financial agreement (see generally Hallock v Sate of New York, 64 N.Y.2d 224 [1985]). Furthermore, the affidavit of income submitted after the motions were fully briefed is another an opportunity for a "last bite" at the apple or opportunity to submit, in effect, a sur-reply without Court permission.
On his 2020 Individual Income tax return Defendant reported income of $100,037. He claimed the child as a dependent. Defendant's 2021 W-2 reports $90,025.19.
On her 2020 individual income tax return Plaintiff reported income of $52,786. Plaintiff's 2021 W-2 reports $55,508.49.
THE LAW
The Court categorically reject's Defendant's contention that Plaintiff is, in effect, a "bad mother" because she enrolled the parties' child in after-school at his school while she is working full-time. Defendant's assertion that engaging child-care help so that she can earn an income somehow demonstrates that she wants someone else to "raise" the child is entirely disconnected from the financial reality of many - if not most - parents raising children in New York City. This is especially so where a parent raising a child and the parent financially responsible for providing child support has unilaterally refused to provide any direct basic child support in more than a year.
Defendant's Attempts to Demean Plaintiff
In this post-judgment litigation for enforcement of his financial obligations, this Court wholly refuses to give any weight to Defendant's attempts to raise allegations about alleged extramarital conduct during the marriage to, in effect, demean the Plaintiff. The parties are divorced. Any issues of "marital fault" - if relevant at all - were disposed of when the parties entered into their stipulations of settlement and the Judgment of Divorce was signed and entered. Defendant's attempts to sully the personal or moral character of Plaintiff for alleged conduct that took place years ago prior to the parties entering into their Stipulations of Settlement have no place before this Court in this post-judgment application to enforce his unilateral refusal to pay any direct child support. The alleged dynamics of the parties' personal relationship during the marriage prior to the judgment of divorce has no bearing on this post-judgment enforcement application. Defendant's attempt to conflate the issues is rejected.
Defendant's Application for Contempt for Plaintiff's Alleged Non-Compliance with Cat Access
The Court also reject's Defendant's assertion that Plaintiff should be held in contempt based on an alleged interference with his alternating week "access" time with the cat "Kira" Defendant provided no proof or even a sworn representation by affidavit that he sought to enforce that provision of the parties' Stipulation of Settlement. In fact, Defendant concedes in his affidavit that he did not seek to exercise that provision because he did not want to "traumatize" the cat. It appears from the record before this Court that the first time Defendant ever sought to exercise his "access" time with Kira the cat was in December 2020 immediately after Plaintiff filed the enforcement application for child support. Plaintiff averred that she immediately offered Kira to Defendant. Defendant does not dispute that this was the first time he requested Kira from Plaintiff. There is no indication if Defendant has continued to exercise his cat access since December 2020. There is no basis before the Court under these facts and circumstances to find Plaintiff in contempt for alleged interference with cat access.
Defendant's Application for Contempt for Plaintiff Seeking Dental Care
The Court does not find that Plaintiff's efforts to have the child's molar cavities filled over Defendant's objection rises to the level of contempt. The parties' stipulation of custody and parenting time provides that either parent may make routine medical decisions on behalf of the child. It is undisputed that numerous dentists - including the dentist the parties specifically named in their stipulation related to dental decisions for the child - and a subsequent dentist chosen by the Defendant all recommended having the molar cavities filled to avoid more extensive dental disruptions. Under the facts and circumstances presented here, the Court does not find - as Defendant apparently seeks to argue - that having a child's cavities filled after at least three (3) dentist have recommended the same treatment - rises to the level of the parties being required to consult and agree on major medical issues. It is undisputed that Plaintiff notified the Defendant of the appointments, Defendant attended the appointments and Plaintiff even sought a further professional opinion using yet another dentist selected by the Defendant himself. There are routine decisions that must be made for children. Plaintiff went to great lengths attempting to accommodate the Defendant who rejected the child's pediatric dentist and then rejected the advice of the dentist he himself selected and ultimately took the position that, despite at least three (3) dental professional opinions that the child's molar cavities needed to be filled, the child should have no further dental work because he did not believe the child's teeth "hurt" is clearly not in the child's best interest. The Court denies the Defendant's application to hold the Plaintiff in contempt for her efforts - despite his interference - to obtain appropriate dental care for the child. The Court finds that the Plaintiff acted reasonably, and the positions argued by Defendant are not persuasive or reasonable. It is disingenuous for Defendant to seek contempt against Plaintiff for her diligent attempts to obtain the necessary dental work for the Child when it is not in dispute that he refused Plaintiff's request to engage the Parent Coordinator pursuant to the express provision of the parties' stipulation of settlement on the basis that he claimed it was a "waste" of money to use the Parent Coordinator. The parties' stipulation of settlement explicitly provided that if the parties could not reach an agreement on an issue, they would engage the Parenting Coordinator. Here, it appears that Plaintiff made exceptional efforts to work with Defendant to resolve the disagreement and it was Defendant who refused to abide by the express provisions of the parties' stipulation of settlement related to how to resolve disagreements.
Defendant's Pro Se Application for Counsel Fee's
There is no legal basis to award Defendant counsel fees to, in effect, pay himself for choosing to represent himself. Defendant's application for an award of counsel fees is denied.
Defendant's Petition to "Terminate" Child Support
The parties entered into a stipulation as to custody and a stipulation resolving financial issues between them in the underlying divorce action in November 2019. Defendant now seek, in effect, to vacate the parties' financial stipulation of settlement and "terminate" his child support obligation. The Court notes that Defendant concedes that he only made child support payments under the terms of the Stipulation of Settlement for six (6) months before he notified the Plaintiff by e-mail that he was no longer going to pay child support.
Defendant's contention that his voluntarily incurred expenses are a basis for this Court to "terminate" the child support obligation he stipulated to in December 2019 is not supported by the facts or the law. It is well-established that "[s]tipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v. State, 64 N.Y.2d 224 [1985]). The Court notes that any subsequent financial obligations the Defendant undertook following the Judgment of Divorce were made knowing the terms of the Stipulation of Settlement and his financial obligations thereunder and his parenting access schedule. The Court notes that in his affidavit of net worth dated February 3, 2022 [NYSCEF #91], Defendant lists combined monthly automotive expenses (lease of a 2019 Audi automobile, gas, auto insurance, etc.) of $965.00 monthly. It defies credibility for Defendant to represent that he is financially unable to pay any child support while electing to assume and continue such discretionary expenses. The Court also notes that it is well-established that a parties' voluntary payments [here, Defendant alleges, inter alia, his voluntary payment of $1,000 for a 5th birthday party he hosted for the child; a $500 Halloween party for the child; numerous $250 trips to Legoland, frequent vacations; Nintendo accounts, etc.] do not relive a party of court-ordered support obligations. It is well-established that a party cannot elect to engage in self-help to "off-set" a basic child support obligation by making voluntary payments on behalf of a child (see generally LiGreci v LiGreci, 87 A.D.3d 722 [2 Dept., 2011]). Discretionary trips to Legoland do not "off set" against basic direct child support which is intended to feed and shelter a child and provide for their daily needs. Simply put, these "fun" experiences Defendant is paying for the child to enjoy while he has parenting time with him are being subsidized by the Plaintiff. Defendant's prioritization of his financial situation over the child's overall standard of living, including when enjoying parenting time with Plaintiff, places the child in the position of associating "fun" experiences with the Defendant and places on the financial hardship on Plaintiff who makes half the income the Defendant does. Plaintiff is left trying to make ends meet without any financial assistance from Defendant. In doing so, Defendant not only financially undermines the child's standard of living while in Plaintiff's home but effectively manufacturers a situation that - through the eyes of a 6-year-old child - potentially strains the relationship of the child to his mother who is not developmentally astute at that age to understand why he is not also enjoying all the "fun" times when in Plaintiff's care. The Defendant entered into an agreement. He now seeks to relitigate that agreement because what he currently spends on the child must of which is discretionary in nature.
The Court also notes that in his affidavit Defendant represents that he pays $1,500 for his rent and alleges that the Court should credit this payment of rent against his basic direct child support obligation. Yet in his affidavit of net worth, Defendant lists his monthly rent as $1,000. Defendant's representations as to his expenses does not appear credible.
The Court has notified the Defendant on the record at each court appearance of his right to be represented by counsel; however, Defendant has steadfastly maintained that he will represent himself. Defendant repeatedly "chastised" Plaintiff in his affidavits filed in this application for her "wasting" money to hire attorneys to represent her in the divorce and in this post-judgment enforcement proceeding. He implies that Plaintiff should not have a lawyer, yet he himself is a lawyer. He has represented on the record that he is fully aware that if he is held in contempt of Court there could be extensive ramifications on his professional career as an attorney. In response, Defendant asserted that if he is held in contempt, he will lose his employment as an attorney and will no longer be able to pay any child support. The Court rejects the Defendant's argument that this Court must, under these facts and circumstances, consider that if he is held in contempt of Court and as a result his employment as an attorney is terminated. The Court notes that Defendant has been employed as an attorney throughout the year he has failed to pay any child support. His employment as an attorney does not appear to have any correlation to his payment of child support inasmuch as he is working and yet he is still refusing to pay any child support. Furthermore, Defendant's attempt to threaten Plaintiff, in effect, that if she sought to enforce child support and it interfered with his ability to practice law that she would be in economical peril is wholly misplaced.
Defendant has failed to allege - mush less establish - any change in his financial circumstances that would warrant a modification of his child support obligation. The Court notes that Defendant currently earns more than $15,000 in income than he represented he earned when he entered into the financial stipulation of settlement in November 2019. The financial documentation belies Defendant's conclusory statements in his petition for downward modification that he cannot pay any child support because he makes less money now than he did in 2019 or that his income decreased due to the pandemic situation in New York City. It is also well-established that an obligor is not entitled to a downward modification of a child support obligation where any decrease in income was caused by that party's own actions and/or choices (see generally Marrale v. Marrale, 44 A.D.3d 773 [2 Dept., 2007]). The fact is, in this case, Defendant's income is more than it was at the time the parties entered into the stipulation of settlement on financial issues.
Moreover, if the Court finds that a decrease in income is a result of a party's own action the Court may impute income to that party (see generally DRL 240[1-b][b][5][iv] & [v]; see also generally Tuchman v. Tuchman, 201 A.D.3d 986 [2 Dept., 2022]; Bittner v. Bittner, 296 A.D.2d 516 [2 Dept., 2002]) Certainly, if the Court were to adopt the position asserted by Defendant it would have a chilling effect on the payment of child support in any case where the payor was willing to decrease their income in order to avoid a child support obligation.
Nor is the amount of parenting time the Defendant has with the child a basis for a modification of his child support obligation; the Defendant knew his parenting access time when he entered into the stipulation related to child support and he was fully allocated on the record for both stipulations.
Defendant's application for a downward modification - or a "termination of child support" as he calls it - is denied.
Child Support Arrears
It is well-established that "[a] hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Wood v Wood, 134 A.D.3d 1028, 1029 [2 Dept., 2015]). Defendant does not dispute the child support arrears accounting proffered by Plaintiff and he offered no triable issue of fact related to his non-payment of direct basic child support from July 2020 to date. His excuse that he "has costs too" is not a defense to non-payment of agreed upon support particularly where many of those "costs" are elective in nature.
During oral argument on March 2, 2022, Plaintiff's counsel represented on the record that Defendant's attorney registration was due for renewing and she requested that "he provide a copy of whatever statement he makes to the Bar Association about whether or not he's made payments" for child support. Defendant objected and requested to make a statement. The Court, prior to allowing Defendant to make his statement made the following record:
THE COURT: [Defendant], I must strongly caution you to seek legal counsel and if you're not seeking legal counsel to seek ethics counsel, that separate and apart from legal counsel in the present proceeding. My cautioning you in doing so is me fulfilling my obligations as a judge. I do not render any decision on what may or may not be collateral issues. It is the Court's position on collateral issues that the Court may, under certain circumstances, have an obligation of reporting on collateral issues. But attorney discipline and statements made to the Office of Court Administration that could or could not lead to attorney discipline are collateral issues under the purview of the Appellate Divisions.
DEFENDANT: Can I just make a statement?
THE COURT: If you believe under oath that you wish to make a statement relating to this you may do so, but you do so at your own risk.
DEFENDANT (Name omitted): I just want to make a statement that any threats regarding my license as an attorney and things of that nature are directly related to my job. If I do lose my job and I do lose my license, that's an issue for child support. I won't be able to be an attorney. I won't be able to pay for my child.
THE COURT: Thank you.
It is well established that if a loss of income is due to the fault of a party that is not a basis to modify child support obligations (see Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 799 [2d Dept 2014] [The court held that the father was not entitled to downward modification of his child support obligation because the father failed to adduce sufficient credible evidence to satisfy his burden of establishing that he lost his employment through no fault of his own and that he diligently sought re-employment commensurate with his earning capacity]).
Furthermore, the Court also does not have the authority to vacate arrears of child support (see Dembitzer v. Rindenow, 35 A.D.3d 791 [2 Dept., 2006]). The Court of Appeals in Dox v. Tynon made it explicitly clear that this prohibition on "forgiveness" of arrears is absolute in the case of child support arrears (90 N.Y.2d 166 [1997]).
The purpose of the recent revisions was to "preclude [ ] 'forgiveness' of child support arrears to ensure that respondents are not financially rewarded for failing either to pay the order or to seek its modification" (Governor's Mem Approving L 1986, ch. 892, 1986 NY Legis. Ann., at 361). Under the present enforcement scheme, then, "[n]o excuses at all are tolerated with respect to child support" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of NY, Book 14, Domestic Relations Law § 244, at 752). Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation (see, Besharov, 1986 Supp. Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A, Family Ct. Act § 451, 1997 Pocket Part, at 133; Gallet and Finn, Spouse and Child Support in New York § 16:2). "If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of NY, Book 14, Domestic Relations Law § 244, at 752) (90 N.Y.2d at 173-174).
The Court notes that it is well-established that even had Defendant been successful in his modification application, such modification would only be retroactive to the date of first application. Here, Defendant first moved for "termination of child support" in January 2021. As such, any modification would only have applied to the date of first application (see generally Rosenberg v. Rosenberg, 215 A.D.2d 365 [2 Dept., 1995]). The Court notes that there was no stay of child support obligations while a modification application is pending.
Plaintiff avers that she was not served with the Petition until October 2021.
Inasmuch as there is no factual dispute and no triable issue of fact presented by Defendant, the Plaintiff's application for a judgment of child support arrears is granted in the sum requested of $30,156.49 together with statutory cost and interest with leave to provide a DRL 244-a statement for accrual of arrears during setting of purge condition (see DRL 244-a). The Court notes that this sum is comprised as follows: basic direct child support, $27,255 ($1,500 x 18 months no-payment + $255 non-payment in June 2020); unreimbursed medical/dental expenses, $525.14; summer camp, $950; extracurricular expenses, $865; Defendant's 50% share of medical insurance, $561.35 = $30,156.49.
Suspension of Driver's License
The Plaintiff's application to suspend the Defendant's driver's license is denied without prejudice at this time. Plaintiff may elect to open an account with SCU to collect future child support who may seek and other available child support enforcement services as appropriate.
Contempt Finding: Defendant
In El-Dehdan v. El-Dehdan, the New York State Court of Appeals detailed the elements of a finding of civil contempt:
"[a] court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced" (Judiciary Law § 753[A]; see generally People v. Sweat, 24 N.Y.3d 348, 353-354, 998 N.Y.S.2d 688, 23 N.E.3d 955 [2014] [discussing Judiciary Law § 753]).
In Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279, 453 N.E.2d 508 (1983), this Court described the elements necessary to support a finding of civil contempt. First, "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect" (id. at 583, 466 N.Y.S.2d 279, 453 N.E.2d 508). Second, "[i]t must appear, with reasonable certainty, that the order has been disobeyed" (id.). Third, "the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party" (id.). Fourth, "prejudice to the right of a party to the litigation must be demonstrated" (id.; see Karg v. Kern, 125 A.D.3d 527, 528-529, 4 N.Y.S.3d 184 [1st Dept.2015] [contempt requires a showing of a violation of a clear and unequivocal court mandate and that the movant was thereby prejudiced]; Matter of Vernon D. [Tarah F.], 119 A.D.3d 784, 784, 989 N.Y.S.2d 334 [2d Dept.2014] [civil contempt was properly found where the contemnor did not obey a clear and unequivocal order]; Matter of North Tonawanda First v. City of N. Tonawanda, 94 A.D.3d 1537, 1538, 943 N.Y.S.2d 357 [4th Dept.2012] [order violated must be an unequivocal mandate]; Conners v. Pallozzi, 241 A.D.2d 719, 719, 660 N.Y.S.2d 189 [3d Dept.1997] [evidence proving with a reasonable certainty that a prior court order has been violated will support a finding of civil contempt]; N.A. Dev. Co. v. Jones, 99 A.D.2d 238, 242, 472 N.Y.S.2d 363 [1st Dept.1984] [movant must establish a reasonable certainty]; Power Auth. of State of NY v. Moeller, 57 A.D.2d 380, 382, 395 N.Y.S.2d 497 [3d Dept.1977] [personal service is not necessary if the party has actual knowledge of the order], lv. denied 42 N.Y.2d 806, 398 N.Y.S.2d 1027, 367 N.E.2d 660 [1977])[ emphasis added ].
It is well-established that "[a] hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Wood v. Wood, 134 A.D.3d 1028, 1029 [2 Dept., 2015]; see also Lopez v. Ajose, 33 A.D.3d 976 [2 Dept., 2006]).
For civil contempt, willfulness is not a factor nor is the motivation material. What matters is that the non-compliance or disobedience of a court order defeated, impaired or prejudiced the rights of a party.
Domestic Relations Law § 245 (Enforcement by contempt proceedings of judgment or order in action for divorce, separation or annulment) provides:
Where a spouse, in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or for the enforcement in this state of a judgment for divorce, separation, annulment or declaration of nullity of a void marriage rendered in another state, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the aggrieved spouse may make application pursuant to the provisions of section seven hundred fifty-six of the judiciary law to punish the defaulting spouse for contempt, and where the judgment or order directs the payment to be made in installments, or at stated intervals, failure to make such single payment or installment may be punished as therein provided, and such punishment, either by fine or commitment, shall not be a bar to a subsequent proceeding to punish the defaulting spouse as for a contempt for failure to pay subsequent installments, but for such purpose such spouse may be proceeded against under the said order in the same manner and with the same effect as though such installment payment was directed to be paid by a separate and distinct order, and the provisions of the civil rights law are hereby superseded so far as they are in conflict therewith. Such application may also be made without any previous sequestration or direction to give security or any application for enforcement by any other means. No demand of any kind upon the defaulting spouse shall be necessary in order that he or she be proceeded against and punished for failure to make any such payment or to pay any such installment; personal service upon the defaulting spouse of an uncertified copy of the judgment or order under which the default has occurred shall be sufficient.
Notably, pursuant to the amendment in 2016, DRL 245 no longer requires that a party demonstrate that there is no other adequate remedy at law prior to seeking contempt (see Cassarino v. Cassarino, 149 A.D.3d 689 [2 Dept., 2017]; see also Olson v Olson, 177 A.D.3d 567 [1 Dept., 2019].
(L.2016, c. 365 section 1, eff. September 29, 2016).
Factors of Contempt
First, "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect" (Matter of McCormick v. Axelrod, 59 N.Y.2d 574 at 583). Here, it is undisputed that pursuant to the terms of the Judgment of Divorce, Defendant was to pay $1,500 monthly in child support and 50% contribution to medical insurance and unreimbursed medical expenses.
Second, "[i]t must appear, with reasonable certainty, that the order has been disobeyed": here, that is not disputed. Defendant does not dispute that he has made no direct child support payments for more than a year to Plaintiff.
Third, "the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party": here, Defendant does not dispute that he knew he was required to pay $1,500 monthly in direct basic child support and other payments and in fact he did pay that amount for some months after the Judgment of Divorce was signed and entered but later he unilaterally stopped paying any direct child support.
Fourth, "prejudice to the right of a party to the litigation must be demonstrated": the Court finds that Defendant's failure to pay any direct child support to Plaintiff in direct violation of the Judgment of Divorce did "defeat, impair, impede and prejudice" the rights of Plaintiff and the child's right to financial support (see generally Stone v. Weinberg, 201 A.D.3d 939 [2 Dept., 2022]).
Under the unique facts and circumstances presented herein - including that Defendant does not dispute any of the facts and accountings presented by Plaintiff related to the issue of child support arrears - and based on the financial documentation provided by Defendant there is no need for the Court to extend additional judicial resources or for plaintiff to pay additional counsel fees to hold an evidentiary hearing inasmuch as there does not appear to be any factual dispute: Defendant concedes that he did not pay any direct basic child support in compliance with the clear and unequivocal terms of the parties' Stipulation of Settlement that was incorporated but not merged into the Judgment of Divorce. Defendant, who is an attorney licensed to practice law in the State of New York and who is employed as a practicing attorney, did not dispute any of the sums Plaintiff averred were unpaid. This Court painstakingly and in detail went through Defendant's right to counsel and the risks of self-representation on the issue of contempt but Defendant insisted that he would proceed to represent himself (see Lopez v. Ajose, 33 A.D.3d 976 [2 Dept., 2006][former husband who was an attorney was not entitled to appointment of an attorney to represent him on issue of contempt for non-payment of support under judgment of divorce where he waived that right and chose to represent himself]). The Court offered the Defendant, on the record, the opportunity to adjourn the matter for him to obtain legal counsel and noted that there could be collateral consequences in a finding of contempt, and even offered the right to seek ethics counsel separate and apart from the legal issues presented. Defendant steadfastly refused. Furthermore, none of the positions raised by Defendant raise a triable issue of fact as to the amount of legitimacy of the arrears demanded (see Poirier v. Demasi, 201 A.D.3d 977 [2 Dept., 2022]; see also Lopez v. Ajose, 33 A.D.3d 976 [2 Dept., 2006][former husband who was an attorney was not entitled to appointment of an attorney to represent him on issue of contempt for non-payment of support under judgment of divorce where he waived that right and chose to represent himself]). Nor, given Defendant's income is he eligible for the assignment of government paid counsel.
Given the circumstances, the Court by decision, without the need for a hearing, finds Defendant in civil contempt pursuant to Judiciary Law 753.
Plaintiff shall settle an order of contempt against Defendant together with a copy of this decision on notice to Defendant and the Court will therein set purge conditions.
Counsel Fees
Pursuant to DRL 238, the Court may award counsel fees in enforcement applications for support arrears (DRL 244). Here, there is no dispute that Defendant unilaterally and without any legal justification refused to pay his basic child support obligation to Plaintiff which forced Plaintiff to incur counsel fees to making and defending her enforcement application.
The Court also notes that Plaintiff would be entitled to an award of counsel fees pursuant to DRL 237 related to her application to revoke Defendant's driver's license (DRL244-b) and professional license (DRL244-c).
Pursuant to DRL 238, which provides in pertinent part:
In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, ... or in any proceeding pursuant to section... two hundred forty-four, ... the court may in its discretion require either party to pay the expenses of the other in bringing, carrying on, or defending such action or proceeding.
The Court further notes that the parties' stipulation of settlement also provides for an award of counsel fees where a party is in default:
In the event that either party defaults in discharging any of his or her obligations undertaken in this Agreement, then and in such event, after written notice by certified mail to the defaulting party providing him or her with fifteen (15) days to cure same, the aggrieved party shall have the right to sue for the amounts in default or for any other appropriate relief, and the successful party in any such suit or proceeding shall be entitled to receive from the other party and be reimbursed by said party for reasonable counsel fees, expenses and costs to be set by the Court in the same lawsuit.
The Court notes that under DRL 238, an award of counsel fees is discretionary; however, under DRL 237(c) mandates that the court award counsel fees where it finds that a default in paying support, maintenance or distributive award was willful (see also Uttamchandani v. Uttamchandani, 175 A.D.3d 1460 [2 Dept., 2019] [find that the Supreme Court erred in not awarding counsel fees where party established arrears were due and unpaid]). Here, it is clear that Defendant willfully defaulted on his child support obligation. As such, this Court is mandated to award counsel fees to Plaintiff. Furthermore, it is well-established that where the parties' agreement provides for an award of counsel fees in event of default the Court must enforce the terms of the settlement agreement (see Rubio v. Rubio, 70 A.D.3d 805 [2 Dept., 2010)].
Here, Plaintiff sought an award of counsel fees for enforcement in the sum of $15,500. Plaintiff annexed bills for services rendered as of September 30, 2021 showing $3,095 and a retainer paid in the sum of $5,500. Plaintiff has not filed updated bills for services rendered since September 2021. The hourly rate of Plaintiff's counsel appears reasonable given his experience.
Defendant shall pay Plaintiff counsel fees in the sum of $3,095, with right to renew the request for additional counsel fees incurred in this application upon proper proof, within thirty (30) days. If Defendant fails to pay this award of counsel fees as detailed herein, Plaintiff may enter judgment with the Office of the County Clerk against him together with costs and statutory interested from the date of non-payment without need for further Court order. If payment is not made within thirty (30) days by filing a judgment, together with costs and interest, together with an affirmation of non-payment on ten (10) days notice by overnight mail.
Conclusion
Plaintiff's motion sequence # 3 is granted to the extent.
Defendant's motion sequence # 4 is denied.
All relief not granted herein is denied.
Settle an order on notice together with a copy of this decision.
The Court will set in the Order the conditions of purge and assign a date for fines and/or sentencing in-person at the Supreme Court, Kings County, 360 Adams Street, Brooklyn, NY 11201.