[*1] DA v BA 2011 NY Slip Op 51145(U) Decided on June 10, 2011 Supreme Court, Nassau County Bruno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2011
Supreme Court, Nassau County

DA, Plaintiff,

against

BA, Defendant.



XXXXXX/XX

 

REPRESENTATION:

Kenneth J. Weinstein, P.C., Attorney for Plaintiff, 100 Garden City Plaza, Suite 408, Garden City, NY 11530

Robert W. Piken, Esq., Attorney for Defendant, 630 Third Avenue, New York, NY 10017

Robert A. Bruno, J.

DECISION AND ORDER AFTER HEARING

Plaintiff seeks an order (a) pursuant to Judiciary Law §753, adjudging BA to be in contempt of Court and punishing him by fine or imprisonment for his willful and deliberate failure to comply with the provisions of the Stipulation of Settlement dated September 19, 2007 ("Stipulation"), which was incorporated but not merged into the Judgment of Divorce ("Judgment") dated January 15, 2008 (Zimmerman, J.), that required defendant to maintain in full force and effect a policy of insurance, insuring his life in the minimum face value of $2,000,000.00 with the plaintiff/wife and unemancipated children as irrevocable beneficiaries thereof; (b) directing defendant BA to immediately comply with the provision of the Stipulation and Judgment of this Court dated January 15, 2008 and compelling defendant to immediately obtain a policy of life insurance, or provide proof that a current policy of life insurance is in effect insuring his life in the minimum face value of $2,000,000.00, naming plaintiff and the unemancipated children as irrevocable beneficiaries of said policy; and ( c) granting plaintiff an award of reasonable counsel fees incurred by plaintiff for the preparation and prosecution of the instant Order to Show Cause in the sum of $5,000.00 payable by defendant directly to plaintiff's counsel, together with leave to seek such other and further counsel fees as may be warranted. Defendant opposes said application.

On July 30, 2010 this Court issued an Order and Decision setting this matter down for a hearing to determine whether defendant's failure to obtain life insurance was due to his health or his [*2]willfulness not to comply with the terms of the Stipulation and Judgment. A hearing was conducted on June 3, 2011. The plaintiff and defendant testified. Plaintiff testified that the parties entered into Stipulation of Settlement dated September 19, 2007 which is titled, "Agreement between DA and BA dated 19, 2007' ("Stipulation") (Exhibit 1). The Stipulation provides in relevant part, at page 34 as follows:

Article XVII - Life Insurance

1.The husband agrees that he will maintain in full force and effect, and neither pledge, hypothecate nor encumber the existing policies insuring his life in the minimum face value of $2,000,000.00 with the wife and unemancipated children as the irrevocable beneficiaries thereof which may be terminated by the husband upon the earliest happening of the following occurrences:

a.death of wife; or

b.wife's remarriage and the emancipation of both children; or

c.termination of the obligations of the husband to the wife and the children under this Agreement.

2.Promptly after the execution of this Agreement, the husband shall deliver to the wife certificates or instrument, if any, evidencing such irrevocable designation of the wife as beneficiary under said insurance policies, and the husband further agrees that he will, at any time upon request, execute and deliver to the wife whatever instruments or documents or letter of authorization which may be required to enable the wife to document that the husband has complied with all of the provisions hereof. The husband shall sign an authorization allowing the wife to speak directly with an employee of the company and to receive all notices with regard to said insurance and the maintenance of same.

3.The husband agrees and undertakes to pay or cause to be paid, all premiums, dues and/or assessments which may become due and owing on said insurance policies, if any, at least fifteen (15) days prior to the expiration of the grace period thereof; and to deliver to the wife, on or before December 31st of each year, documentation of such payment. In the event, however, that the husband shall, for any reason whatsoever fail to make payment of the premiums due, he shall immediately upon his default notify the wife who shall have the option of making such payment for which she shall be reimbursed by the husband.

4.All dividends hereafter payable under said policies belong exclusively to the husband, who has the opinion of accepting payment or applying them in reduction of premiums. [*3]

5.Should the husband predecease the wife and should the policy hereinabove described not be in effect, then the husband's estate, shall be liable to the wife for the face amount of the policy, which distribution shall be make by the husband's estate, and the wife retains all other remedies with regard to the husband's breach thereof.

Plaintiff further testified that the parties obtained a Judgment of Divorce dated January 10, 2008 ("Judgment") (Exhibit 2) which incorporated the provisions of the Stipulation, which survived and did not merge therein.

Plaintiff testified that she waived certain rights regarding the defendant's interest in his business in exchange for the defendant maintaining a $2,000,000.00 life insurance policy for her benefit as well as the parties' two (2) children and the defendant never complied with obtaining said policy.

The plaintiff also introduced a legal bill dated March 31, 2011 in the amount of $12,700.44. Counsel for both parties agreed that the plaintiff may submit additional legal bills for services rendered subsequent to March 31, 2011 on papers and the Court shall decide the issue of an award of legal fees without an additional hearing.

The defendant was served with the instant application to hold him in contempt, for his failure to obtain a $2,000,000.00 life insurance policy on his life for the benefit of the plaintiff and the parties' two (2) children, sometime in March 2010. When the defendant was asked if he submitted an affidavit in opposition to plaintiff's application he testified he didn't remember, but when confronted with his affidavit ("Affidavit") sworn to May 11, 2010 his memory was refreshed.

The defendant admits in his Affidavit, at paragraph 3, "While there is no dispute that the provision of the agreement provide for my obtaining a two million dollar life insurance policy, up until recently, I have been unable to do so."

A Contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto, 120AD2d 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). A court of record has the power to punish a party for civil contempt, upon a satisfactory showing by the movant that the party against whom the citation is sought had knowledge of a clear and unequivocal court order, which he/she violated, thereby prejudicing the rights of another party to the litigation. See, Judiciary Law §753(A)(3); Dalessio v. Kressler, 6 AD3d 57, 773 N.Y.S.2d 434 (2nd Dept. 2004); McCain v. Dinkins, 84 NY2d 216, 616 N.Y.S.2d 335 (1994). Criminal contempt, which is aimed to vindicate the authority of the court (see Ketchum v. Edwards), will be supported by the additional showing of wilful disobedience. McCain v. Dinkins, supra; Brinka v. Brinka, 321 AD2d 487, 753 N.Y.S.2d 135 (2nd Dept. 2003); Pantelidis v. Pantellidis, 297 AD2d 791, 747 N.Y.S.2d 809 (2nd Dept. 2002).

Therefore, based upon the foregoing, the defendant has admitted he was aware of his [*4]obligation to obtain the insurance provided for in the Stipulation (incorporated in the Judgment) and he failed to do so. Also based upon the testimony of the parties, this Court finds that other enforcement remedies would be ineffectual.

Defendant's Affidavit at paragraph 6 also provides in relevant part, " . . . it is impossible for me to afford additional life insurance coverage beyond what I am currently maintaining for her benefit." (Emphasis added.) However, notwithstanding defendant's sworn statement and testimony in Court that he could not afford to pay the insurance premiums for a two million dollar life insurance policy, a few months after he was served with the instant application for contempt he purchased a house in Atlantic Beach, in trust for XXXX, another woman that he fathered a child with (XXXX), for approximately $750,000.00 which included a mortgage of approximately $240,000.00. Therefore, the defendant chose to purchase a house, using over $500,000.00 in cash in lieu of complying with his prior obligation to obtain life insurance.

In response to this Court's questions to the defendant, the defendant admitted that notwithstanding the fact he had hepatitis (as indicated in his Affidavit) he was able to obtain the two million dollar life insurance coverage but could not afford to pay the premium which he testified was approximately $100,000.00. Surprisingly, the defendant offered no documentation to corroborate his testimony regarding the amount of the premium.

In addition to the foregoing, the defendant testified he took out a million dollar life insurance policy on behalf of his son, XXXX. The Application for Life Insurance dated April 3, 2008 (Exhibit 5) indicates the defendant is the president of XXXX, a container manufacture and distributor, and has a net worth of $1,300,000.00 and earned income of $500,000.00. Notwithstanding the information contained in said life insurance application the defendant testified he owns 47% of XXXX, which he values at approximately $5,000,000.00. The defendant was unable to explain why his net worth on his insurance application was inconsistent with his testimony.

Other than the defendant's testimony that he could not afford to pay a $100,000.00 life insurance premium, the defendant offered no evidence regarding his income or net worth. The only evidence regarding the defendant's financial condition was contained in his life insurance application (Exhibit 5) and his testimony that his shares of XXXX were worth approximately $5,000,000.00.

The defendant also admitted in Court that he was denied life insurance from Mass Mutual because he tried cocaine sometime in 2007 and his inability to obtain life insurance had nothing to do with his hepatitis but with his drug use. More to the point, the defendant admitted notwithstanding his contracting hepatitis which he had prior to his marriage, he was able to obtain a $3,000,000.00 life insurance policy at a different time. Therefore, it appears to this Court that the defendant was able to obtain the required life insurance that he agreed to in the Stipulation, but decided not to because it would cost $100,000.00 per year, which is a situation he created when he decided to use drugs.

After the lunch recess the defendant resumed testifying and advised the Court that during [*5]lunch he remembered that he also had open heart surgery on October 27, 2010 and that was the reason he could not get life insurance. Not surprisingly, the defendant offered no proof regarding his alleged heart condition nor did he offer any declination documents from any insurance companies denying him coverage for a heart condition.

After hearing the testimony of the defendant, watching and listening to his demeanor, his inability to remember important recent events and facts, this Court finds the defendant's testimony simply not believable or credible. "The trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" (Peritore v. Peritore, 66 AD3d 750, 888 NYS2d 72 [2 Dept., 2009]; see Varga v. Varga, 288 AD2d 210, 732 NYS2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 AD2d 358, 717 NYS2d 635 [2 Dept., 2000] ["Evaluating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court"]; Ferraro v. Ferraro, 257 AD2d 596, 257 AD2d 596. 684 NYS2d 274 [2 Dept., 1999]). The court's assessment of the credibility of witnesses is entitled to great weight (see generally Wortman v. Wortman, 11 AD3d 604, 783 NYS2d 631 [2 Dept., 2004]). "In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Ivani v. Ivani, 303 AD2d 639, 303 AD2d 639, 757 NYS2d 89 [2 Dept., 2003],citing L'Esperance v. L'Esperance, 243 AD2d 446, 663 NYS2d 96 [2 Dept., 1997]; accord Krutyansky v. Krutyansky, 289 AD2d 299, 733 NYS2d 920 [2 Dept., 2001; see Schwartz v. Schwartz, 67 AD3d 989, 890 NYS2d 71 [2 Dept., 2009]). The trial court's ". . . assessment of the credibility of witnesses and evidence is afforded great weight on appeal" (Schwartz v. Schwartz, 67 AD3d 989, 890 NYS2d 71 [2 Dept., 2009]).

Accordingly, based upon the foregoing, this Court finds that the Defendant has willfully failed and refused to obey those provisions of the Stipulation and Judgment, beyond a reasonable doubt, which required him to obtain life insurance in the amount of $2,000,000.00 for the benefit of plaintiff and the parties' two (2) children as enumerated in the Stipulation and Judgment and that such refusal was intended to and did in fact defeat, impair, impede and prejudice the rights of the Plaintiff and the children.

Accordingly, it is

ORDERED that the Defendant, BA, shall pay Plaintiff an award of reasonable counsel fees incurred by Plaintiff for the preparation and prosecution of the instant action through June 3, 2011 in the sum of $16,442.62 [FN1] payable by Defendant directly to Plaintiff's counsel, The Law Offices of Kenneth J. Weinstein, P.C., within ten (10) days of this Decision and Order and it is further ordered that if payment of the aforementioned legal fees are not paid as directed herein, the Clerk of the County of Nassau, upon payment of all appropriate fees, shall enter judgment in favor of The Law Offices of Kenneth J. Weinstein, P.C., as against Defendant, BA upon presentation of this order together with an affirmation of non-compliance; and it is further [*6]

ORDERED that Defendant, BA, is sentenced to incarceration in the Nassau County Correctional Facility for a period of six months. The contemnor may purge his contempt by obtaining a life insurance policy in the amount of $2,000,000.00 naming, plaintiff, DA as irrevocable beneficiary thereof and provide proof of payment and proof that the policy is in full force and effect prior to July 1, 2011;and it is further

ORDERED, that the parties and their counsel shall appear in Part 24 of the Nassau County Supreme Court, 400 County Seat Drive, Mineola, NY 11501 for sentencing on, July 5 , 2011 at 9:30 a.m. which date shall not be adjourned without the consent of this Court.

ORDERED, that counsel for the Plaintiff shall serve a copy of this order upon the Defendant, by personal service pursuant to CPLR § 308 (1), on or before June 17, 2011, and shall provide the Court with proof of such service.

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

This constitutes the decision and order of this court.

Dated: June 10, 2011

Mineola, New YorkE N T E R:

______________________________

Hon. Robert A. Bruno, J.S.C. C:\HTFormat\f5114510.txt

Footnotes

Footnote 1: The Court has considered plaintiff's post-hearing Supplemental Affirmation In Support of Legal Fees.