Opinion
No. 2020-00793 Index No. 201553/10
03-29-2023
Robert Greco, respondent, v. Susan Greco, appellant.
Susan Greco, Oyster Bay, NY, appellant pro se. Esposito Partners, PLLC, New York, NY (Melissa Ringel of counsel), for respondent.
Susan Greco, Oyster Bay, NY, appellant pro se.
Esposito Partners, PLLC, New York, NY (Melissa Ringel of counsel), for respondent.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.
DECISION & ORDER
In a matrimonial action in which the parties were divorced by a judgment of divorce entered April 22, 2015, the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated October 25, 2019. The order, insofar as appealed from, denied that branch of the defendant's motion which was to hold the plaintiff in civil contempt for violating the judgment of divorce, as modified by a decision and order of this Court dated May 16, 2018.
ORDERED that the order dated October 25, 2019, is affirmed insofar as appealed from, with costs.
The parties were divorced by a judgment of divorce entered April 22, 2015. In a decision and order dated May 16, 2018 (hereinafter the May 2018 order), this Court modified the judgment of divorce by, among other things, adding thereto a provision "directing the plaintiff to pay the defendant's health insurance premiums until the earliest of such time as the defendant is eligible for Medicaid or Medicare, or she obtains health insurance through employment or remarriage or cohabitation" (Greco v Greco, 161 A.D.3d 952, 953). In June 2019, the defendant moved, inter alia, to hold the plaintiff in civil contempt, alleging that the plaintiff failed to comply with his obligation under the judgment of divorce, as modified by the May 2018 order, to pay the defendant's health insurance premiums. In an order dated October 25, 2019 (hereinafter the October 2019 order), the Supreme Court, among other things, denied that branch of the defendant's motion which was to hold the plaintiff in civil contempt. The defendant appeals.
"In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court's order... Finally, prejudice to the right of a party to the litigation must be demonstrated" (Massimi v Massimi, 56 A.D.3d 624, 624 [internal quotation marks omitted]; see Judiciary Law § 753[A]; Abizadeh v Abizadeh, 190 A.D.3d 797, 798). "The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence" (Abizadeh v Abizadeh, 190 A.D.3d at 798-799).
Contrary to the defendant's contention, the Supreme Court properly declined to find the plaintiff in contempt of the provision in the judgment of divorce, as modified by the May 2018 order, directing the plaintiff to pay the defendant's health insurance premiums. The defendant did not meet her burden of proving the defendant's alleged contempt by clear and convincing evidence (see Abizadeh v Abizadeh, 190 A.D.3d at 799; Matter of Kraemer v Strand-O'Shea, 66 A.D.3d 901, 901).
The plaintiff's request for certain affirmative relief is not properly before this Court, since he did not cross-appeal from the October 2019 order (see Dhar v City of New York, 204 A.D.3d 976, 977; Prand Corp. v Gardiner, 176 A.D.3d 1127, 1130).
DUFFY, J.P., CHAMBERS, MALTESE and WOOTEN, JJ., concur.