Dubin v Drescher

Dubin v Drescher 2012 NY Slip Op 01342 Decided on February 21, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 21, 2012
Andrias, J.P., Saxe, Acosta, Freedman, Richter, JJ.
6867 350528/04

[*1]Harry Dubin, Plaintiff-Appellant,

v

Aviva (Dubin) Drescher, Defendant-Respondent.




Law Offices of Pamela A. Phillips, New York (Pamela A.
Phillips of counsel), for appellant.
Chemtob Moss Forman & Talbert, LLP, New York (Susan M.
Moss of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Matthew F. Cooper, J.), entered April 18, 2011, to the extent appealed from, adjudging plaintiff guilty of contempt of court for having willfully disobeyed the settlement agreement and the judgment of divorce by failing to pay basic child support and additional expenses in the amount of $143,705 as directed, and ordering that he be incarcerated for a maximum of 90 days if he fails to make an initial payment of $80,000 to defendant within 30 days, and that he pay $10,000 per month, after the initial payment is made, until the balance is paid, unanimously modified, on the law, to reduce the payment owing from $143,705 to $99,955, and otherwise affirmed, without costs.

Plaintiff failed to establish his inability to pay the basic child support he owes (see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]). He did not show that he has suffered a diminution in his lifestyle (see id.). He did not show that he has made reasonable efforts to obtain gainful employment (see Matter of Maria T. v Kwame A., 35 AD3d 239 [2006]).

However, calculating plaintiff's support obligations based on his actual income, pursuant to the settlement agreement, we find that the amount due to defendant, including certain reimbursed expenses, is $99,955. The contract does not provide that plaintiff's support obligations will not be readjusted if he fails to provide defendant with the documentation necessary to determine his income, and we may not rewrite the contract so to provide (see Fiore v Fiore, 46 NY2d 971 [1979]. Moreover, our construction is consistent with the parties' conduct (see Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 47 [1956]).

As the record demonstrates that defendant has been prejudiced by plaintiff's failure to pay his support obligations for approximately three years and that she is otherwise without recourse [*2]to collect the amount owed, we find that the pay-off schedule directed by the court was reasonable.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 21, 2012

CLERK