Garcia v Garcia

[*1] Garcia v Garcia 2008 NY Slip Op 51759(U) [20 Misc 3d 1136(A)] Decided on August 12, 2008 Supreme Court, Westchester County Jamieson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2008
Supreme Court, Westchester County

Analida Gonzalez Garcia, Plaintiff,

against

Alvardo Garcia, Defendant.



11575/2006



Counsel: Castro & Remer. P.C., Attorneys for Plaintiff; Geller & Rivera, P.C., Attorneys for Defendant

Linda S. Jamieson, J.

The following papers numbered 1 to 2 [FN1] were read on [*2]defendant's motion to transfer title, and plaintiff's cross-motion for a civil contempt adjudication and other relief:

PAPERSNUMBERED

Notice of Motion, Affidavit, Affirmation and Exhibits1

Notice of Cross-Motion, Affidavit, Affirmation and Exhibits2

Yet again, the parties are before this Court because they have both (this time) failed to comply with their obligations under their Stipulation of Settlement (the "Agreement") and Judgment of Divorce. In his motion, defendant seeks an order directing plaintiff to transfer title to two premises, one in Ossining and one in Hartsdale, as well as costs of the motion. In her cross-motion, plaintiff seeks to hold defendant in contempt for failing to comply with the Judgment of Divorce and Agreement; for him to pay his portion of the marital debts and school fees; for him to obtain life insurance; for him to execute certain documents and pay counsel fees of $2,500 for her motion.

The Deeds

Plaintiff says that she has executed the deeds, but that her former counsel has them in escrow. She also states that she will re-execute the deeds, and let her present counsel hold them in escrow until defendant does what he is supposed to do under the Judgment of Divorce and Agreement. However, nowhere in either document does it give plaintiff the right to withhold these deeds until such time as defendant complies with his obligations.

Accordingly, plaintiff must re-execute the deeds (or obtain them from prior counsel) and turn them over to defendant within 20 days of the date of this Decision and Order. Thereafter, in strict compliance with the Agreement, defendant must remove plaintiff's name from the mortgage within 90 days. The parties must comply with all other provisions of the Agreement.

Contempt and Missing Payments

As the party seeking a contempt adjudication, plaintiff must establish that defendant violated a clear and unequivocal court order, thereby prejudicing her rights in this litigation. Goldsmith v. Goldsmith, 261 AD2d 576, 577 (2d Dept. 1999). Further, she must also demonstrate that a less drastic means of enforcement would be ineffectual. De Meo v. De Meo, 281 AD2d 662 (3d Dept. 2001). Here, although the Agreement is clear, and plaintiff has been harmed by defendant's failure to comply with the Agreement, there are other means available (as was pointed out in the Decision and Order of this Court dated October 19, 2007).

That being said, the Court notes that in the prior contempt [*3]motion, defendant said that he had thought that he was allowed to pay the children's expenses directly, and would not do it anymore. He offers the same excuse on this motion. This is simply unacceptable. Defendant who is represented by counsel must sit down and read the Agreement (as must his counsel) so that he fully understands what his obligations are thereunder. Should plaintiff come to Court yet again because defendant has not been making the payments for which he is obligated (or is failing to comply with the Agreement in any other way), the Court will not hesitate to find defendant in contempt or take any other steps that it finds appropriate.

Defendant is directed to pay his 41% share of the children's college expenses as per the Agreement within 20 days of the date hereof. He must also sign the tax refund checks within 5 days of the date hereof. There is no excuse for letting this money sit idle. If the checks are stale and need to be reissued, defendant shall bear the burden of making sure that the checks are reissued. This must be done within 20 days of learning that the checks are stale.

Additionally, defendant must obtain life insurance within 30 days of the date hereof in accordance with the Agreement. Defendant must also sign any documents required to take him off the mortgages, or any other document required to effectuate any other terms of the Agreement, within 20 days of the date hereof.

With respect to the marital debts, the Agreement is quite clear that "upon the transfer of their respective title and interest in the marital real estate as specified in Article X entitled equitable distribution to this agreement [sic], that such debt will be shared equally and paid at the closing date of the real estate transfer transactions." It does not appear that there was ever a closing date of the real estate transactions. Indeed, as discussed above, plaintiff has still to transfer her properties to defendant. Therefore, defendant is not yet in default on this provision. However, in 20 days, once plaintiff has sent the deeds to defendant, defendant must pay his half of the marital debt (including all interest that has accrued on defendant's share. Since plaintiff has already made all but $10,000 of her payments, she should not be charged with the interest on defendant's share.)

Counsel Fees

Each party must bear his or her own counsel fees. Neither has complied fully with the Agreement, and is not, therefore, entitled to any fees for having to bring a motion. Moreover, neither attorney submitted to the Court any evidence of the fees, despite having been warned previously about this in the Decision and Order of this Court dated October 19, 2007.

The foregoing shall constitute the decision and order of the Court. [*4]

Dated: White Plains, New York

August _, 2008

HON. LINDA S. JAMIESON, J.S.C.

TO:Castro & Remer. P.C.

Attorneys for Plaintiff

30 State Street, Suite 100

Ossining, NY 10562

Geller & Rivera, P.C.

Attorneys for Defendant

175 Main Street, Suite 511

White Plains, NY 10601 Footnotes

Footnote 1:On the return date of the cross-motion, August 8, 2008, the Court received what purported to be a "Reply and Affirmation in Opposition of Cross Motion". These papers are untimely and are thus rejected. However, the Court did read them, and notes that nothing contained therein changes the outcome of these motions.