Lopez v Ajose

[*1] Lopez v Ajose 2005 NY Slip Op 50717(U) Decided on March 29, 2005 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2005
Supreme Court, Kings County

Stephanie Lopez, Plaintiff,

against

Simon Ajose, Defendant.



4863/01

Jeffrey S. Sunshine, J.

This post-judgment matrimonial application inter alia for contempt related to the nonpayment of child support and equitable distribution arrears presents this Court with the question of whether or not a hearing needs to be held to find a payor spouse (who is a law school graduate and passed the New York State Bar exam but refuses to seek admission to the bar), in contempt where there is clearly no adequate remedy at law and the debtor's actions appear to be willful. The defendant was advised of his right to seek counsel and an adjournment was granted for that purpose, irrespective of the fact that defendant is a law school graduate who passed the New York State Bar Examination (see Kissel v. Kissel, 59 AD2d 1036, 399 N.Y.S.2d 781 [4th Dept. 1977]).

Plaintiff moves by way of order to show cause for an order of contempt against defendant for his willful and deliberate violation of the judgment of divorce entered into on July 23, 2001. Plaintiff further moves for an order to compensate plaintiff in the amount of $6,750.00 as and for monies due and owing for unpaid distributive award and child support arrears and add ons in the [*2]amount of $40,861.16, for an order removing any pending actions in the Family Court, consolidating said actions pursuant to CPLR § 602, and for an order modifying the child support obligations, for an order calculating defendant's earning potential as a basis for an award of child support. Finally, plaintiff also moves for counsel and expert fees, together with the costs of any disbursements incurred in the action.

Plaintiff claims that for more than three years she has unsuccessfully tried to enforce the terms of the divorce settlement to no avail. Plaintiff alleges that defendant is "a highly educated attorney", having worked for a prestigious law firm, and had a career in the music recording business before graduating from an ivy league law school. Plaintiff claims defendant refuses to pay the balance of a distributive award in the amount of $6,750.00 and also refused to pay for child support due and owing in the sum of $40,861.66. Plaintiff further moves to consolidate an action pending Family Court in which he seeks to further modify his child support obligation. Plaintiff asks this Court to set child support in accordance with his earning potential.

Plaintiff and defendant were married for almost 10 years and there are two (2) children, now 11 and 8 years of age. It is not disputed that defendant graduated college and law school during the course of the marriage while plaintiff supported the family. At the time of the divorce in the year 2001, defendant was working for a well-known law firm in New York City as an associate. The stipulation of settlement was signed on October 5, 2000, and the divorce judgment is dated July 23, 2001.

A modification petition was brought in Family Court in June of 2002 by defendant, claiming that he was unemployed and despite the fact that his obligation was reduced, it is alleged defendant still refused to make regular payments. As of August 2004, he has failed to make any payments to the Child Support Enforcement Unit. A subsequent petition was made on October 19, 2004, by defendant to further modify the support obligation. Plaintiff avers that she cannot afford to litigate enforcement of the divorce judgment in two courts and the concomitant equitable distribution arrears, at the same time as litigating Family Court petitions to modify the agreement and continue her present employment. Plaintiff, in her supporting affidavit, states that in the past three years she has received only one payment of $250.00 towards the $7,000.00 obligation for defendant's proportionate share of marital debt.

It is uncontroverted that at the time the divorce stipulation was entered into the defendant was earning $100,000.00 per year as a first year associate and that he agreed to pay $875.00 a month for one year as child support and that in September 2001, child support would be recalculated according to his income at that time. It is alleged that the husband never complied with the support obligation and failed to pay any child support in 2001, except for two payments totaling $1,500.00. In February 2002, payments were ordered to be paid through the Child Support Enforcement Unit.

The stipulation also provided that defendant be responsible for fifty (50%) percent of the unreimbursed medical, dental and educational expenses. Plaintiff contends that defendant has also failed to meet this obligation.

In April of 2002, a Family Court hearing examiner modified the basic child support obligation and directed defendant to pay $376.92 bi-weekly and $263.00 bi-weekly to cover after school and camp expenses as well as $202.00 bi-weekly for a total of $841.92. Defendant was also ordered to pay one-hundred (100%) percent of plaintiff's unreimbursed medical expenses. At the proceeding in Family Court, the downward modification of the child support obligation was [*3]apparently predicated upon defendant's allegations that he lost his job. Plaintiff asserts that her basic child support arrears total $23,026.66 together with unreimbursed medical and dental expenses of fifty (50%) percent as well as fifty (50%) percent of educational expenses.[FN1] Plaintiff calculates defendant's share of children's add on expenses totals $17,835.50 as of October 2001. Thus, plaintiff moves before this Court for contempt and unpaid amounts of $40,861.16 representing defendant's unpaid child support and an additional $6,750.00 as and for unpaid distributive award.

Plaintiff is particularly disturbed that defendant is living in a house owned by his mother, drives a new car, has a cell phone and a separate phone line, is well-dressed and recently purchased the children expensive video games systems, scooters and other gifts. Plaintiff claims that the current child support of $150.00 is not in accordance with the stipulation and not fair to the children and requests that the Court enforce the stipulation and child support obligation according to defendant's earnings potential. Finally, plaintiff requests $5,000.00 in counsel fees for this enforcement motion and that she has paid her attorney the sum of $5,000.00.

Defendant opposed said application, indicating that amounts of monies that are requested of the defendant are "wildly inflated beyond the actual amount and that the Kings County Family Court is fully capable of continuing to handle the child support action". Defendant denies that he leads a comfortable lifestyle, states that he does not have his own car but borrows his mother's car and that his main form of transportation is subway and bus. Defendant states "and having a cell phone and a home phone is not an indicator of affluence in any sense". The defendant claims that he should not have to pay for summer camp because the plaintiff rebuffed his attempts to take care of the children while they were out of school. He alleges that the camp costs more than his weekly salary at the time and he was unable to pay for the camp. Defendant avers that he is not a lawyer and although he has a law degree he did work for 10 months at a law firm, he was terminated on June 14, 2002. According to defendant, his termination was as result of his failure to pass the New York State Bar Examination. Defendant alleges that he did take the bar examination four times, finally passing the February 2003, exam and procured employment through a temporary agency until February of 2004. Defendant alleges that his payments from his employment ended in August of 2004. Defendant has further revealed that he is now a full time student at a theological seminary in New York and a candidate for a master of divinity degree. At oral argument it was revealed that the defendant no longer wishes to be a lawyer and has failed to file the required documents necessary for admission to the bar with the appropriate judicial department, despite attending law school and the great effort and time he dedicated to taking the bar exam. Defendant claims he has no assets and has never been secretive about his finances and that he has suffered from periods of unemployment and as a result, does not have the necessary funds by which to pay court ordered support.

Plaintiff, in reply, indicates that none of the proof attached to the documents shows that there has been any payment made towards the distributive award nor has there been any payment made pursuant to the agreement that defendant pay the plaintiff the sum of $250.00 per month towards the distribution of debt. Plaintiff also states that there has been no proof attached to defendant's opposing affidavits that proves that he has made any child support payments except for the two payments after October of 2002, nor is there any proof that he made any payments towards add on [*4]expenses.

Plaintiff believes that defendant's contention that he cannot find employment is not credible nor does he provide any explanation for his return now to divinity school. Plaintiff also states that because she cannot seek enforcement of the distributive award in Family Court, it is not appropriate for her to have to litigate these issues in two separate courts and as such it is appropriate that the latest application for modification be consolidated with the within action.

Discussion

The stipulation of settlement provides for support as follows:

The HUSBAND, shall pay child support for the parties two minor children, namely: [J] . . . and [E] . . . in the sum of EIGHT HUNDRED AND SEVENTY-FIVE DOLLARS ($875.00) monthly, which shall become effective immediately. The obligation shall remain in effect until September, 2001. After that date the Husband's child support obligation will be determined according to the provisions of the Child Support Standards Act.

Domestic Relations Law § 245 authorizes enforcement by contempt where it appears presumptively to the satisfaction of the Court that payment cannot be enforced by any other remedies available to a payee spouse (see Farkas v. Farkas, 209 AD2d 316, 618 N.Y.S.2d 787 [1st Dept. 1994]).

It has been proved to the satisfaction of the Court herein and defendant has offered no justification for his failure to make the necessary payments herein other than the fact that he is voluntarily unemployed [see Judiciary Law § 753 (a)(3)]. While unemployment in and of itself may be a basis to defeat an action for contempt in appropriate circumstances as well as one for modification, here it is the voluntary acts of defendant alone which have prevented his obedience to the Court's mandates and the terms and conditions of the prior court orders and judgment.

At the time that defendant had failed the New York State Bar Examination and appeared in front of the hearing examiner there may have been good cause to relieve him of his obligations under the terms and conditions of the judgment and provide a level of support commensurate with his earnings capabilities at that time. The failure of the New York State Bar Examination a number of times and the concomitant loss of employment is a basis to modify one's child support obligation and certainly is a basis to direct that child support and necessary add on costs be made commensurate with the ability to earn monies. As an associate, the firm that he was employed by was under no obligation at that time to continue to employ him after he failed the bar examination.

The facts and circumstances though have changed dramatically since the original Family Court modification petition and this defendant now comes before the Court with the excuse that he is unemployed but having passed the New York State Bar Examination he has failed to exercise the requirements of putting forth the necessary documents for admission to the bar.[FN2] [*5]

Defendant's own actions, at this juncture, have defeated his ability to become a member of the bar and therefore, his own actions cannot be utilized to hide behind his support obligations and the necessary amount of support he should be paying should be commensurate with that of a first year associate at a law firm.

Defendant has chosen not to meet any of his support obligations and does not provide for any other adequate remedy of law for the purposes of enforcing his support obligations nor does he provide any reasonable excuse, at this juncture, for not filing the necessary papers for admission to the New York State Bar. Once admitted and once earning a living there would be nothing to stop him from going to night school to gain an additional degree in divinity while still meeting his obligations to support his two young children. Instead, plaintiff alone has been left with the burden of supporting the children while at the same time seeking enforcement of prior obligations.

It has been held that a payor spouse can be held in contempt where there is no other alternate remedy available would be ineffectual to enforce a judgment (see Domestic Relations Law § 245; see also Rosenblitt v. Rosenblitt, 121 AD2d 375, 502 N.Y.S.2d 803 [2nd Dept. 1986] and Haber v. Haber, 225 AD2d 664, 639 N.Y.S.2d 476 [2nd Dept. 1996]). Here, it is clear to this Court that there has been no showing that any less drastic enforcement remedy is available. In fact, defendant admits that he is not working because he now has decided he does not want to be a lawyer. The only remedy available to the Court is that of contempt (see Jackson v. Jackson, 7 AD3d 404, 776 N.Y.S.2d 477 [1st Dept. 2004]; MacKinnon v. MacKinnon, 277 AD2d 636, 716 N.Y.S.2d 449 [3rd Dept. 2000]).

This Court well recognizes that in order to hold a party in contempt one needs to show willfulness (see Rug v. Rug, 3 AD3d 527, 770 N.Y.S.2d 629 [2nd Dept. 2004]; see also Williams v. Williams, 91 AD2d 1044, 458 N.Y.S.2d 541 [2nd Dept. 1983]). Here, defendant has willfully determined that he will not file the papers necessary for the admission to the bar with the appropriate judicial department. He has also willfully determined that he now wishes to become a minister and not meet his support obligations that have been imposed upon him. Additionally, it is clear to the Court from the submissions provided, that defendant had knowledge of and disobeyed a clear, explicit and lawful order of the Court and that his offending conduct prejudiced the rights of plaintiff (see Rebecca O. V. Todd P., 309 AD2d 982, 766 N.Y.S.2d 144 [3rd Dept. 2003]).

The defendant does not have any assets, lives in a home owned by another, drives a car owned by another, is attending school and plaintiff has been successful in showing the Court that there are no other less drastic remedies available other than to hold this defendant in contempt (see Kayemba v. Kayemba, 309 AD2d 1045, 766 N.Y.S.2d 136 [3rd Dept. 2003]).

Under these circumstances where defendant admits his acts, which are clearly voluntary and willful, there is no need for an evidentiary hearing on the issue as to whether or not defendant is financially unable to comply with the terms and conditions of the divorce agreement and subsequent judgment and orders granted thereon (see Cappione v. Cappione, 63 AD2d 757, 404 N.Y.S.2d 723 [3rd Dept. 1978]; see also Hough v. Hough, 509 NYS2d 897, 125 AD2d 791[3rd Dept 1986]). In the matter at bar, there are no conflicting factual allegations. The only need for an evidentiary hearing would be to determine the minor discrepancy in calculations, as to what is actually owed. Defendant offers no defense as to this financial inability other than the fact that he is unemployed and has [*6]admitted at oral argument of the within motion, that he does not want to be a lawyer and therefore has not filed the necessary forms to enable him to practice law. Nor does he dispute the factual allegations raised as they relate to his default in payments. Thus, an evidentiary hearing on the contempt itself is not required (see Metzger v.Metzger, 206 AD2d 352, 614 N.Y.S.2d 326 [2nd Dept. 1994]; see also Bell v. Bell, 181 AD2d 978, 581 N.Y.S.2d 470 [3rd Dept. 1992]).

The Court finds defendant is in contempt of court, and stays enforcement of a contempt citation pending an evidentiary hearing on the calculation of the exact amount of monies due and owing. That portion of plaintiff's motion to set child support in accordance with defendant's ability to pay, taking into account any income imputed to him, is granted. The prior failure of the bar examination as a basis of downward modification is now a moot argument. Support shall be set based upon what defendant's potential is, not his voluntary seeking of another degree (see Parise v. Parise, AD3d , citing Rohrs v. Rohrs, 297 AD2d 817, 318; Peri v. Peri, 2 AD3d 425, 426; Gleicher v. Gleicher, 303 AD2d 549, 549-550; Matter of Thomas v. DeFalco, 270 AD2d 277, 278). The Court directs an evidentiary hearing to set the appropriate amount of support commensurate with defendant's earning ability.

There is no reason why plaintiff should have to litigate these issues in two separate courts and the application to consolidate is granted pursuant to CPLR § 602. Defendant's application for further downward modification is denied. There appears to be absolutely no basis to grant defendant further downward modification. Any change of circumstances is as a result of defendant's own voluntary actions. He has not established any unanticipated or unreasonable change in circumstances (see Byrnes v. Byrnes, 5 AD3d 714, 773 N.Y.S.2d 606 [2nd Dept. 2004]; see also Stempler v. Stempler, 200 AD2d 733, 607 N.Y.S.2d 111 [2nd Dept. 1994]; see also Matter of Sutphin v. Derey, 233 AD2d 698, 650 N.Y.S.2d 55 [3rd Dept. 1996]) (the decision to attend community college not a basis for downward modification).

Inasmuch as this is an application for enforcement is not fully adjudicated, the issue of counsel fees pursuant to DRL § 238 will be addressed by the Court at the time of sentencing. Defendant will then be given an opportunity to purge his contempt of court once he is given a clear mandate as to the amounts of monies that are due and owing (see Judiciary Law § 772).

The parties' agreement and subsequent judgment require that child support be fixed pursuant to Domestic Relations Law §§ 236B(7) and 240 (The Child Support Standards Act). Now that plaintiff has established that defendant's lack of employment is by his own choice, it is proper to grant plaintiff's application for a modification and set the issue down for a hearing on appropriate support based upon imputed income, or what defendant should be earning.

The matter is referred to a Judicial Hearing Office to hear and report on the calculation of the amount due and owing, and to hear and determine on the issue of upward modification, if such hearing is on consent. If not on consent, then that issue too shall be referred to hear and report, within 60 days. All parties are directed to appear for a hearing before JHO Milton Platt on April 20, 2005, at 9:30 a.m at 15 Willoughby Street, Room 102, Brooklyn, New York.

This shall constitute the decision and order of the Court.

E N T E R

Hon. Jeffrey S. Sunshine [*7]

J. S. C. Footnotes

Footnote 1:Apparently, the children no longer attend private school due to the defendant's non-payment and are enrolled in public school.

Footnote 2:The Court is cognizant of the provisions o Judiciary Law § 90 as it relates to obligations of admitted attorneys to pay child support. The defendant's own voluntary actions have potentially placed him in a precarious position. Defendant's voluntary failure to pay child support may very well affect his ability to be admitted to the New York State Bar. However, this Court will not allow defendant to avoid his child support obligation by his own acts of potentially affecting his ability to earn income as an attorney, for that would unfair and inequitable.