Opinion
06-200934.
Decided March 3, 2011.
In this post-judgment proceeding, plaintiff wife (hereinafter referred to as the "wife") moves by order to show cause for an order finding the defendant husband (hereinafter referred to as the "husband") in contempt of court for his willful refusal to release the escrow funds held at Citibank, in account No.******3108, pursuant to the terms of the Judgment of Divorce, entered July 19, 2010 (Shifrin, Ref.), directing the husband and his attorney to pay sanctions to the wife in the sum of $5,000.00, directing counsel fees of $3,500.00 on the motion, directing counsel for the husband to immediately execute all documents necessary to withdraw said escrow funds to be paid over to the wife's attorney or, in the alternative, empowering the wife's attorney to execute the necessary documents for withdrawal of the escrow funds, in accordance with the Judgment of Divorce. In a subsequent order to show cause, the wife seeks to hold the husband in contempt of court for his willful refusal to pay the plaintiff the sum of $10,208.62 on or before August 10, 2010, pursuant to the terms of the Judgment of Divorce and for an award of counsel fees of $3,500.00 on the motion. The husband opposes the motions and by cross-motions seeks an order dismissing the wife's orders to show cause, without prejudice, based upon the Stipulation of the parties placed on the record in open court, on May 14, 2008, and upholding said agreement which he claims stays enforcement of any judgment pending an appeal and determination thereon.
Background
The trial of this matter was had before Hon. Eugene H. Shifrin, Court Attorney Referee, who was designated by the parties to hear and determine the matter. On May 14, 2008, the parties appeared before Referee Shifrin and, on the record, stipulated to the resolution of certain issues, inter alia, that the wife would purchase the husband's one-half interest in the marital residence, valued at $950,000.00, subject to the offsets of the first mortgage, equity line of credit, 4% broker's fee and any other offsets determined by the court as to support arrears. The Stipulation further provided that the wife required two (2) weeks to obtain the 10% down payment ($95,000.00,) and then a contract of sale would be entered giving the wife an additional forty-five (45) days to obtain the balance of her financing. In pertinent part, the parties agreed as follows:
MS. PRIZER: . . . however, out of the purchase price, $50,000 will be held in a joint escrow account between [counsel for both parties] requiring two signatures for withdrawal. That $50,000 will be for any arrears that are found by the Court that Mr. R. may owe to Miss R.which will be subtracted.
REFEREE SHIFRIN: You mean from the temporary awards?
MS. PRIZER: Yes, and other offsets, separate property contributions, anything found by the Court that is a credit to Miss R. will come out of the $50,000 that she would otherwise owe to Mr. R. for his half of the house.
That escrow fund will be maintained until a final judgment is signed and either the time to appeal the judgment has run or that there has been an appeal and a determination of an appeal.
(Minutes of Inquest and Stipulation, May 14, 2008, p 15-17, Exhibit "C" to Notice of Cross-Motion, emphasis supplied). It appears that, by further Stipulation, the amount to be held in escrow was reduced from $50,000.00 to $25,000.00
Thereafter, on February 4, 2010, Referee Shifrin issued his Memorandum Decision after trial, which resulted in the Judgment of Divorce, dated July 8, 2010 and entered July 19, 2010, which incorporated but did not merge the May 14, 2008 Stipulation of the parties and, after calculating the various debits and credits due the parties, directed, inter alia, as follows:
ORDERED AND ADJUDGED, that pursuant to the Decision and Order of Hon. Eugene H. Shifrin, Special Referee dated February 4, 2010, the total sum of $35,208.62 presently due and owing to plaintiff from defendant for the foregoing and shall be paid as follows: within (10) days from the service of a copy of the Judgment of Divorce to (sic) entered herein, the defendant's attorney, Alfred DiGirolomo, Esq. Shall remit to plaintiff's attorney, Linda A. Prizer, Esq., the sum of $25,000.00 being held in escrow, plus accrued interest thereon. The balance of $10,208.62 shall be paid on the 10th day of the month following the month in which the Judgment of Divorce was entered.
In the event of any default in the aforesaid payments, the remaining payments are accelerated and upon presentation of an Affirmation by plaintiff's attorney as to said default and the computation of the remaining balance(giving credit for the escrow remittance and any payments made hereunder), the Clerk is directed to enter a money judgment in favor of the plaintiff and against the defendant for amount due and owing . . .
(Judgment of Divorce, p. 4, Exhibit "C" to the moving papers).
The Instant Motions
In support of the instant orders to show cause, the wife alleges as follows: that a copy of the Judgment of Divorce was duly served on Mr. DiGirolomo and, despite his repeated promises to go to Citibank to execute the necessary withdrawal documents, the escrow funds of $25,000.00 remain in Citibank as Mr. DiGirolomo has failed to sign the necessary withdrawal slip to effect the terms of the Judgment of Divorce; that the husband has also failed to timely pay the additional $10,208.62 sum pursuant to the terms of the Judgment of Divorce; that the wife's rights and remedies have been severely prejudiced; that no stay of the Judgment of Divorce has been issued by the Appellate Division, Second Department, that contempt is her only remedy and that counsel fees for the necessity of her motions are warranted.
In opposition to the orders to show cause and in support of the cross-motions, the husband alleges as follows: that the wife's attempts to enforce the Judgment of Divorce are premature and in violation of the parties' Stipulation, dictated by the wife's counsel on May 14, 2008 and agreed to by both parties and their respective counsel, that the escrow fund would be maintained until there has been an appeal and a determination of an appeal on the Judgment; that a Notice of Appeal was filed by the husband on August 9, 2010, and is based upon alleged errors with respect to the sums directed to be paid to the wife for college tuition and child support; that no determination has yet been made on the appeal; that the Special Referee meticulously ascertained the parties consent, understanding and assistance of counsel with respect to the Stipulation and there is no basis to set it aside.
The Law and Analysis
To sustain a finding of civil contempt based upon a violation of a court order, a movant must demonstrate the existence of an unequivocal mandate (see, Kawar v Kawar, 231 AD2d 681, 649 NYS2d 846 [2nd Dept. 1996]; Graham v Graham, 152 AD2d 653,654, 543 NYS2d 735 [2nd Dept. 1989]), and must establish a violation thereof by clear and convincing proof (see, Bickwid v Deutsch, 229 AD2d 533, 645 NYS2d 539 [2nd Dept. 1996]; Bulow v Bulow, 121 AD2d 423, 503 NYS2d 121 [2nd Dept. 1986]). There also must be a finding that the conduct complained of was calculated to or actually did defeat, impair or prejudice the rights or remedies of a party to a civil proceeding.(see, Barkan v Barkan, 271 AD2d 466, 706 NYS2d 902 [2nd Dept. 2000]; Farkas v Farkas, 209 AD2d 316, 618 NYS2d 787 [1st Dept. 1994, appeal dismissed 81 NY2d 783).
Further, pursuant to DRL § 245, before a defaulting party can be held in contempt for the non-payment of a sum of money, it must appear "presumptively, to the satisfaction of the Court", that payment cannot be enforced pursuant to DRL 243 (sequestration), DRL § 244 (money judgment), CPLR § 5241 (income execution) or CPLR § 5242 (income deduction) ( see, Higbie v Higbie, 260 AD2d 603, 688 NYS2d 669 [2nd Dept. 1999]; Snow v Snow, 209 AD2d 399, 618 NYS2d 442 [2nd Dept. 1994]; Wiggins v Wiggins, 121 AD2d 534, 503 NYS2d 843 [2nd Dept. 1986]).
In the case at bar, there can be no willful default of an unequivocal mandate when the parties, themselves, have stipulated to defer the effectuation of the court order directing distribution of the escrow account until the appellate process is completed.
A stipulation entered into by spouses in contemplation of divorce is a contract subject to general principles of contract construction ( see Matter of Meccico v. Meccico, 76 NY2d 822, Malleolo v. Malleolo, 287 AD2d 603; Matter of Jenkins v. Jenkins, 260 AD2d 380; Iacobacci v. McAleavy, 222 AD2d 406). Where possible, a contract should be interpreted to avoid inconsistencies and to give meaning to all of its provisions, giving a practical and reasonable interpretation to the language employed and the parties' reasonable expectations with respect thereto ( see W.W.W. Assoc. V. Giancontieri, 77 NY2d 157, 162; see also Slamow v. Del Col, 174, AD2d 725, affd 79 NY2d 1016). The stipulation should be read as a whole to determine its purpose and intent ( see Gomes v. Gomes 303 AD2d 454. 455).
Girgenti v. Girgenti, ___ AD2d ___. 2011 NY Slip Op 01434 (2nd Dept. 2011).
It is the judgment of the court that the terms of the parties' Stipulation are clear and unequivocal and that the husband may rightfully defer distribution of the escrow funds until a determination of his appeal. This does not prevent the wife from effectuating a money judgment or any other remedy that she may have, however, contempt is not an appropriate remedy. Therefore, under the circumstances presented herein, it is hereby
ORDERED, that the wife's orders to show cause to find the husband in contempt and for related relief are denied in all respects; and it is further
ORDERED, that the husband's cross-motions to dismiss the wife's orders to show cause, without prejudice, and to uphold the parties' in court Stipulation, dated May 14, 2008, are granted.
This constitutes the decision and order of the Court. All further requested relief not specifically granted is denied.