H.S.M. v J.T.M.

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[*1] H.S.M. v J.T.M. 2011 NY Slip Op 50069(U) [30 Misc 3d 1215(A)] Decided on January 18, 2011 Supreme Court, Nassau County Maron, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2011
Supreme Court, Nassau County

H.S.M., Plaintiff

against

J.T.M., Defendant.



202XXX-06



LAW OFFICE OF ALFRED REINHARZ, 2152 Grand Avenue, Baldwin, new York 11510 (516) 868-5030, counsel for Plaintiff;

Defendant, pro se

Edward A. Maron, J.



Plaintiff ("Wife") moves by Order to Show Cause dated November 9, 2010 seeking an Order a) holding Defendant ("Husband") in contempt of Court for his willful failure to comply with the Judgment of Divorce entered in this action and dated the 6th day of August, 2008, and for his willful refusal to comply with the Judgment of this Court dated the 3rd day of February, 2010, to pay the sum of $43,351.87, together with interest thereon in the sum of $6,394.40, and for the failure to comply with the terms of the So-Ordered Stipulation of the parties dated the 19th day of May, 2010; and b) fining and/or imprisoning Husband for such contempt.

Pursuant to the Order to Show Cause signed by this Court on November 9, 2010, it was ordered that "answering papers, if any shall be served upon the movant and filed with the Court so as to be received by October 18, 2010." Husband failed to serve or submit any opposition papers in accordance with the briefing schedule set forth. Moreover, Husband did not have any opposition prepared on November 9, 2010, the return date of the application. Accordingly, Wife's application was submitted without opposition.

Background

The parties were married on November 20, 1987, and there are three children of the marriage, X, born —/—/—, and Y, born —/—/— ; and Z, —/—/—. The parties' marriage was dissolved [*2]pursuant to the Judgment of Divorce, entered June 24, 2008, which incorporated but did not merge with a Stipulation of Settlement (the "Stipulation"), dated December 19, 2007.

The Stipulation states in pertinent part that:

The Husband shall pay to the Wife, as and for child support, the sum of One Thousand Seven Hundred Eighty-five ($1,785.00) Dollars per month ... The parties agree that the child support payments will be made through the Nassau County Support Collection Unit. [Article XXVI]

Pursuant to the Order of the Hon. Denise L. Sher, J.S.C., dated October 4, 2006, the Court ordered pendente lite relief awarding to the Wife the sum of One Thousand Four Hundred ($1,400.00) Dollars per month temporary maintenance, as well as child support in the sum of Two Thousand ($2,000.00) Dollars per month. The award was retroactive to the date of service, which was July 18, 2006. [Article XXVII]

The Husband agrees that arrears for child support and maintenance as of the date of execution of this Agreement amount to Thirty-Eight Thousand Two Hundred ($38,200.00) Dollars, and agrees to the entry of judgment for said arrears. Said arrears shall be liquidated by the Husband paying to the Wife the sum of Three Hundred ($300.00) Dollars per month until all arrears are paid. The Father further agrees that in order to liquidate arrears, the Father shall remit to the Mother his income tax return refunds that he receives commencing with the tax year 2007 and shall pay over to the Mother the entire refund by June 1, 2008, and by June 1st every year thereafter until such time as his arrears have been liquidated. [Article XXII]

The Husband shall pay to the Wife, as and for spousal maintenance, the sum of Four Hundred ($400.00) Dollars per month...through support collection. [Article XXXVI]

Pursuant to the "So-Ordered" Stipulation of the parties dated May 19, 2010, "Def[endant] agrees to pay to Pl[aintiff] as and for child support arrears the minimum sum of $1,000.00 (One Thousand and no/100) by May 26, 2010.

Wife claims that Husband has willfully failed to i) comply with the Judgment of Divorce dated August 6, 2008, which incorporates the Stipulation; ii) comply and pay the money judgment entered on February 3, 2010, in the sum of $49,746.27; and iii) comply with the "So-Ordered" Stipulation entered into by the parties on May 19, 2010.

Wife claims that subsequent to the entry of the money judgment, she contacted the Nassau County Office of Child Support Enforcement to seek payment of the child support obligation for the parties' three children, as well as maintenance for herself. She claims that notwithstanding the attempts of the Child Support Enforcement Bureau, no payments have been received from the Defendant or his employer.

She claims that the total sum now due and owing is $87,864.01, and that none of said sum has been paid. Wife submits an Obligation Summary, dated August 5, 2010 from the Nassau County Office of Child Support Enforcement, which shows that there have been no payments made by Defendant.

In February of 2010, Husband testified before this Court that he has no assets nor property which could be sequestered. In support of her application, Wife claims that nothing less than a fine and incarceration will persuade the Husband to comply with the Court orders and [*3]judgments. She argues that other enforcement devices, including income deduction orders, income executions or sequestration will be unsuccessful in view of Husband having made himself judgment proof; moving out of the State of New York; and failing to comply with any judgment or stipulation entered into by the parties.

Wife claims that she is attending graduate school in order to obtain a teaching position but that in the interim, she is completely dependent on her family for her support and the support of the parties' three children. She claims that the last time she received any funds from Husband was in March of 2010, and that since that time she has received no support payments or maintenance.

She argues that based upon the foregoing, Husband's intentional non-compliance with the judgment, orders and "So-Ordered" Stipulation has defeated, impaired and prejudiced her rights.

Decision and Order

A contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto, 120 AD2d 337, 501 N.Y.S.2d 835 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Company Limited, 174 AD2d 487, 571 N.Y.S.2d 264 (1st Dept. 1991).

To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. See Rubin v. Rubin, 78 AD3d 812 (2nd Dept. 2010); McCain v. Dinkins, 84 NY2d 216, 225-226 (1994); Matter of McCormick v. Axelrod, 59 NY2d 574, 583 (1993); Katz v. Katz, 73 AD3d 1134 (2nd Dept. 2010); Judiciary Law § 753[A).

Criminal contempt, which is aimed to vindicate the authority of the court see, Ketchum v. Edwards, 7 E.H. Smith 534, 47 N.E. 918 (1897), will be supported by the additional showing of willful disobedience. McCain v. Dinkins, supra; Brinka v. Brinka, 321 AD2d 487, 753 N.Y.S.2d 135 (2nd Dept. 2003); Pantelidis v. Pantelidis, 297 AD2d 791, 747 N.Y.S.2d 809 (2nd Dept. 2002).

Further, pursuant to Domestic Relations Law § 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 the movant exhausted the less drastic enforcement remedies available under Domestic Relations Law §§ 243, 244 and 245, CPLR §§ 5241 and 5242, or such other enforcement mechanisms that would be ineffectual. See Higbee v. Higbee, 260 AD2d 603, 688 N.Y.S.2d 669 (2nd Dept. 1999); Snow v. Snow, 209 AD2d 399, 618 N.Y.S.2d 442 (2nd Dept. 1994); Wiggins v. Wiggins, 121 AD2d 534, 503 N.Y.S.2d 843 (2nd Dept. 1986).

Once the movant has made a prima facie showing that the party against whom a contempt citation is sought has failed to pay a sum of money as ordered, the burden then shifts to the obligor to adduce some competent, credible evidence of his inability to make the required payments, in order to show that the failure to pay was not willful. See Christine L.M. v. Wlodek K., 45 AD3d 1452, 846 N.Y.S.2d 849 (4th Dept. 2007).

Wife has satisfactorily demonstrated the existence of a clear and unequivocal mandate of the Court, and that Husband has knowingly violated the order's terms, thereby prejudicing her rights. It is also clear to this Court that other methods of enforcement would prove ineffective in light of Husband having made himself judgment proof. The Court, however, must conduct a [*4]hearing to determine Husband's willfulness in violating the subject orders.

"Due process requires that, in contempt proceedings, the contemnor be afforded an opportunity to be heard at a meaningful time and in a meaningful manner.'" Mosso v. Mosso, 6 AD3d 827, 829 (quoting 16D CJS, Constitutional Law §1425), see Chamberlain v. Chamberlain, 24 AD3d 589, 595, Janczuk v. Janczuk, 305 AD2d 680, 681(2nd Dept. 2003). Certainly where, as here, the movant seeks that the non-compliant party be incarcerated for his willful violation of the court's mandates, the movant must prove such willfulness beyond a reasonable doubt. See Rubackin v. Rubackin, 62 AD3d 11 (2nd Dept. 2009). In consideration of the foregoing, the instant application is set down for a HEARING to make findings of fact necessary for a final determination as to the issue of whether Husband's failure to comply with the orders at issue in this application was "willful."

Accordingly, it is hereby

ORDERED that the parties and their counsel, if any, shall appear before this Court on January XX, 2011 at 9:30 a.m., for a PRE-HEARING CONFERENCE, which date shall not be adjourned without prior consent of this Court, in accordance with the Part 22 Rules and Procedures.

All matters not decided or requests for relief not granted herein are hereby DENIED.

This constitutes the decision and order of this Court.

Dated:January 18, 2011

Mineola, New York

ENTER:

_______________________

Edward A. Maron, J.S.C.