J. K. C. v T. W. C.

[*1] J. K. C. v T. W. C. 2013 NY Slip Op 52319(U) Decided on May 8, 2013 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2013
Supreme Court, Monroe County

J. K. C., Plaintiff,

against

T. W. C., Defendant.



2006/14338



Maurice J. Verrillo, Esq.

Attorney for Plaintiff

One East Main Street, Suite 700

Rochester, New York 14614

Maureen Pineau, Esq.

Attorney for Defendant

70 Linden Oaks

Rochester, New York 14610
Richard A. Dollinger, J.

Sometimes, when tidying up a divorce judgment, one party is forced to abide by the old adage: "If at first you don't succeed then try, try again."[FN1] In this instance, the "trying" is over - after a trial. After a third contempt motion brought to Supreme Court, this court seeks to put an end to an interminable fight between a long-divorced couple over their obligations under a 73-page decision rendered more than four years ago.

In this case, the husband seeks a finding of civil contempt and other relief against his former spouse for violating their 2009 judgment of divorce and prior orders of the court. The judgment incorporates by reference a decision from a special matrimonial referee. In the 73-page decision, the [*2]referee set forth and resolved the competing claims of the spouses after a 13-day trial, spanning more than 15 months. See Decision and Order, Referee Phillip B. Datillo, Jr., November 5, 2009 ("the Referee's Decision").

On two prior occasions, the husband sought a contempt finding against his ex-wife because of her failure to abide by the judgment of divorce. In an order dated March 10, 2010, the court held the wife in contempt, fined her $1,000, and granted other relief. In May 2010, the court issued a second finding of contempt, requiring the wife to pay legal fees and imposing other terms. When the wife allegedly failed again to comply with the judgment of divorce, and the prior orders of this court, the husband filed a motion for contempt under the Judiciary Law.[FN2]

New York Judiciary Law § 753 permits this court upon a finding of a civil contempt to impose a series of remedies, up to and including incarceration, against a party who violates a court order. A finding of civil contempt requires a determination that a lawful order expressing an unequivocal mandate was in effect; that there is a reasonable certainty that the order was disobeyed; and that the alleged contemnor had knowledge of the order. McCormick v Axelrod, 59 NY2d 574 (1983). The maximum fine that may be imposed for a civil contempt is $ 250.00, plus costs and expenses. Judiciary Law § 773. Where multiple contumacious acts are engaged in, each violation is a separate contempt that warrants a separate fine. 317 West 87th Assoc, v Dannenberg, 170 AD2d 250 (1st Dept. 1991). The amount of any fine is payable to the opposite party. Matter of Platten v. New York State Div. of Parole, 2010 NY Slip Op 32663 U (Sup. Ct. Albany Cty. 2010).

In this case, the husband renews his motion for contempt and a money judgment based on the wife's alleged failure to pay as directed in the judgment of divorce, and the subsequent orders of this court. The petition focuses on a series of unpaid bills and invoices and the court resolves them in seriatim. The plaintiff and defendant were the only witnesses at trial.

COLLEGE EXPENSES

The referee ordered the plaintiff to pay 60% of the "costs" for the couple's older daughter's college, but did not specify what was covered. The referee made no reference to room and board as a component of the parental obligation, made no allowance for any contribution by the children, or any offset for scholarships, grants or loans. The referee did not grant the plaintiff any credit against child support for payment of room and board expenses. See Juhasz v Juhasz, 92 AD3d 1209 (4th Dept. 2012) (a credit against child support for college expenses is not mandatory, but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries); Rohrs v. Rohrs, 297 AD2d 317 (2nd Dept. 2002) (error not to reduce basic child support obligation by amount contributed by payor for room and board expenses while child is away at college). During their [*3]testimony, neither witness mentioned the meaning of the phrase "college costs" or what they understood regarding the referee's direction regarding college costs. (For example, neither witness discussed whether the term "college costs" would include off-campus lodging expenses.)

For these reasons, the court concludes that the referee did not intend his use of the phrase "costs" to include anything other than tuition and books or education costs which would be directly billed by the college. The court will not require the wife to contribute any sums for room and board or other incidental fees for the older daughter's college education unless billed and paid directly to the college. The husband's request that the wife contribute to fees for food, groceries, cable services, electric, rent, computer services, and other associated expenses is denied. This court does not interpret the referee's use of the phrase "costs" as requiring either party to contribute to the cost of the daughter's off-campus housing. While it would be appropriate for the husband and wife to have conversed and agreed to apply a pro rata contribution to these expenses, the referee's decision and the subsequent order do not expressly require it. This court will not alter the referee's conclusion.

Nonetheless, the wife is liable for 60% of the older daughter's college tuition and college-billed expenses. The court has reviewed in detail these expenses. Initially, the court notes that the husband claims $28,871.30 in expenses. His counsel, in a footnote to this amount, describes these "amounts billed after all credits for financial aid." The court has reviewed the college-billing statement, but in view of the credits and debits, the court cannot determine how the husband arrived at this suggested figure. The amount "billed" - as advocated by the husband's counsel in a post-trial brief - does not define the wife's obligation to pay under the divorce decree. The wife may owe sums to the university or there may be amounts unpaid for which the wife has some liability, but the husband, in this application, can only seek reimbursements for the wife's share of pro rata expenses that he has paid. According to the invoice from the state university, the following payments were made:

November 3, 2008$5,456.75

December 11, 2008$ 100.00

March 9, 2009$3,614.62

July 27, 2009$ 154.68

Total Payments on the university invoice =$9,326.05.

This court can find no other record of payments made directly to the university on behalf of the daughter. During his testimony, the father never identified any additional payments. The testimony established that the father made these payments, and this court finds that he has met his burden of proof to the extent that the university account ledger indicates payments were made. The husband is entitled to reimbursement by the wife for her 60% share of these expenses paid by the husband. However, the husband has failed to prove by the preponderance of the evidence that the "billed" amounts were paid by him and thus, to that extent, the court found he has not met his burden of proof with regard to the "billed expenses."

In reviewing the billing from the university, the court also notes that there are credits for "refunds" in the account, which total in excess of $2,000 but there was no explanation for these "refunds" and the court can not determine whether they were paid to husband and hence would reduce the amount owed by the wife. The court also notes that the account statement reveals a $1,066 "credit" at the end of the daughter's enrollment period, but there is no proof that this credit was reimbursed to the husband. While the wife may have been entitled to claim an offset for these "credits," she has failed to prove that the credits were paid to the husband or that they reduced his total payments to the university for the daughter's education.

Based on these conclusions, the mother owes her ex-husband 60% of the total he paid, which amounts to $5,595.63. There are also tuition bills for the older daughter at the local community college. These payments are direct tuition payments and are therefore, covered in the referee's decision as college costs, subject to payment by the wife of her share. The wife's share of these expenses is $624. The husband is awarded a judgment for $6,219.63 and pre-judgment interest, at the statutory rate, for the time from the date of payment by the husband until payment by the wife.

With respect to the younger child, the husband contends that the wife is obligated to pay the costs of a private high school. However, the evidence before this court fails to establish that the wife violated this aspect of the prior court order. There is no evidence of any payments by the father for high school that were not reimbursed by the mother. The husband contends that courses offered at Monroe Community College should be reimbursed, as they were taken while the younger child was a student in high school. This court declines to read the referee's determination as requiring payment for such courses, when the tuition was apparently paid directly to Monroe Community College. There is no evidence from a qualified witness that these expenses were paid directly to the high school and, therefore, they do not constitute "high school expenses" under the referee's decision. The request for reimbursement is denied. The request for reimbursement for the younger daughter's college applications and her extracurricular costs (DECCA dues, etc.) is similarly denied because the referee simply required the wife to "pay the costs of Mercy High School" and these extracurricular activities are not included within that command.

UNREIMBURSED MEDICAL COSTSWith respect to the proposed medical reimbursement costs, the referee's decision requires the wife to pay her pro rata share of any unreimbursed health care costs. The court has reviewed the demanded reimbursements and concludes that the costs advanced by the father total $2,488.47 and the wife's share is $1,553.08. The wife objects to the payment for contraceptive costs incurred by her daughter as she disapproves the use of contraceptives. The court declines to credit her objection. The husband is awarded that amount — $1,553.08 — with pre-judgment interest from October 31, 2010 through date of payment by the wife.

PAYMENTS FOR THE TIME SHARE WEEK

The husband also requests that the wife comply with the judgment regarding a time share owned by the couple. The husband argues that the wife is responsible, under the referee's decision, for the carrying costs related to one of the weeks at the time share ("the week five time share"). This court can find nothing in the referee's decision that made the wife exclusively responsible for the costs associated with "the week five time share." In the [*4]factual rendition of his decision, the referee found that the couple owned two time share weeks. He stated that during the course of the litigation, the parties "were assigned the obligation to pay for one week each of the time shares." Referee's Decision, ¶ 221. The wife was, during the pendency of the action, required by an earlier court order to pay expenses associated with week five. The referee also determined that one of the time share weeks was not marital property, but rather the husband's separate property because he had paid for it with his own credit card. The week five time share was marital property, according to the referee.

The referee's decision did not make the wife entirely responsible for this particular time share's expenses after the entry of judgment. The judgment simply provides that the husband or wife may buy out the other's interest and/or the property will be sold and the profits divided after the wife pays certain "obligations" previously ordered. The inescapable conclusion is that both parties were equally liable for the expenses after the referee's decision, just as they would both share in the proceeds if the property was sold. This is entirely consistent with the referee's decision: he held that one of the time shares was the separate property of the husband, and hence, the wife had no obligation to pay any of the costs associated with that time share. The marital time share - week five - was marital property and the expenses in the future would be shared. As further evidence of this conclusion, the invoice for the week five time share is addressed to both husband and wife. The referee's decision says nothing about paying future expenses for the time share and neither party was, under the terms of the judgment, required to make any payments for expenses related to the week five time share after the November 2009 decision. The only obligation under the agreement was that if neither party wanted to buy out the other's interest, the time share should be sold. There is no evidence that either party exercised their buy-out right, and no evidence the time share was sold. The husband, in his request for relief before this court, does not seek an order to sell the time share and he admitted that he had never any attempt to sell the property.[FN3]

Under these circumstances, the husband's claim for full reimbursement of expenses to avoid foreclosure of the week five time share has no foundation in the referee's decision before the court. This court declines to award him a judgment for those expenses as he demands.[FN4] Instead, the court orders the time share sold immediately. The parties shall agree on a realtor within seven days of this order, sign a listing agreement, the realtor shall set the offering price, the parties will agree to accept any offer within 97% of the realtor-established offering price, and the price shall be reduced 3% every two weeks until sold. [*5]Because the property is marital property, the husband shall be reimbursed one half for any expenses that he paid after the divorce, including his advance of any maintenance fees or other expenses, before the proceeds are divided between the two parties.

The husband has presented evidence of expenses that he paid $3,350.75 in expenses for the week five time share. The first payment, evidenced by a check for $250, was made in April 2009. The check memo states: "on account for April, May, June" but does not specify the year encompassed by the check. A letter, included among the exhibits before the court, states that the year for which the check was written is 2009, but the husband never testified regarding the letter and never acknowledged its authorship. In the absence of such foundational testimony, this court declines to credit the letter. Based on the evidence admitted, this court cannot determine whether this check, issued six months before the referee's decision, was included within its requirements. The claim for reimbursement of this check is denied.

The trial proof did establish that the husband paid $3,093.86 in time share fees for week five in June 2010, after the referee's decision. In her post-trial brief, husband's counsel argues that these fees accrued since the last order in May 2010. However, a review of the invoices indicates that most of the fees accrued before the May 2010 order. The June 2010 invoice shows that the fees totaled more than $3,000 on that date.

The evidence does not permit this court to determine how much of this payment in June 2010 was paid for maintenance, and other carrying costs, prior to the referee's decision. In his testimony at trial, the husband stated that the check, issued in June 2010, covered maintenance fees for the week five time share for 2007 - 2010. However, the husband never testified as to the amount of fees that existed at the time of the referee's decision and never differentiated the fees that accrued before the decision and fees that accrued afterward. This differentiation is critical because the referee had determined that the wife was exclusively liable for the carrying costs prior to his decision, but was silent on the payment of the carrying costs after his decision.

As noted above, after entry of the decision the wife was not required to pay the carrying costs for the week five time share. The time share was marital property and both parties would have been required, under equitable distribution, to pay half of the carrying costs, just as they would share half of the proceeds when sold. Under this interpretation of the referee's decision, the husband gets credit for only one-half of this payment as an offset against the wife's share of the value in the time share. One-half of $3,093.86 or $1,546.93 should be paid from the wife's share of any proceeds at the time of the sale, and if there are insufficient proceeds to reimburse the wife's share of these costs, then she shall reimburse the husband for any deficiency. If, for any reason, the time share remains unsold or the proceeds are not distributed by July 31, 2013, the husband is awarded a judgment against the wife for $1,546.93 (together with interest at the statutory rate from May 11, 2010, to the date of payment).

A prior court order required the wife to "bring current" the maintenance fees for the time share as of May 11, 2010. The husband has introduced evidence that the amount required to do that at that time totaled $984.72. The husband claimed that he paid this amount, but based on the proof before this court, there is no evidence that the sum was paid. There is no check or other evidence of payment. This court also cannot determine whether the amount paid by the husband in the paragraph above - the $3,093.86 paid in [*6]June 2010 - includes this amount or not. Given the lack of proof, the court declines to award any separate sums for this alleged payment of $984.72.

PERSONAL PROPERTY — SEPARATE AND MARITALThe husband also seeks a finding of contempt for the wife's failure to deliver personal property. The prior judgment from the referee required the wife to return certain items that have yet to be returned.[FN5] The order to return the property was clear and unequivocal. There is photographic evidence in the record establishing that the wife had possession of these items at some point, even though she denied having the items during trial. In evaluating the credibility of the wife on this issue, the court declines to credit her testimony, and concludes that she did have the requested items. She could have returned them to her husband, and if she no longer possesses them, she is accountable for their absence. The wife has failed to return these items and, as such, she is in contempt. The court imposes a fine of $250 and pursuant to New York Judiciary Law § 753, the fine shall be paid to the husband within seven days of this order and the wife shall file a receipt for such payment to this court. If the wife fails to produce such receipt, this court will consider, sua sponte, other relief against the wife without further application by either party.

The finding of contempt against the wife may be further purged — except for the payment of the fine - by undertaking the following steps. The wife shall return all of those items of property set forth in paragraphs 31-33 on pages 66-67 of the referee's decision no later than May 24, 2013. In the event that she does not have these items, she shall retain the services of a certified appraiser, selected by the husband, at her sole cost who shall meet with husband to appraise the items that are not returned by May 24, 2013. The appraiser shall rely on the description of the items as set forth in the referee's decision, the photographs admitted at trial, and any other facts obtained after discussion with the husband. In this court's judgment, the wife's extended failure to return these items, as directed by the court in a prior judgment, constitutes a waiver of any right to contest the value of these items. Thereafter, the appraiser shall, within 14 days, present a certified appraisal report to the court. The court shall then:

(A)For the items listed in paragraph 33, page 67, of the referee's decision, which were determined to be the husband's separate property, award the husband the value of the property as certified by the appraiser. The wife shall pay that amount directed by the court within 10 days of the court order; and,

(B)For the items listed in paragraphs 31 and 32, pages 66 and 67 of the referee's decision, which were determined to be marital property removed from the marital residence without the husband's consent, award the husband one-half the value of the property as certified by the appraiser. The wife shall pay that amount directed by the court [*7]within 10 days of the court order.

If the wife fails to take any of the ordered steps to purge this contempt, this court will consider, sua sponte, other relief against the wife without further application by either party.

VEHICLE REGISTRATIONS AND TITLES

The husband argues that the wife has failed to turn over titles to certain vehicles owned by the husband. In the referee's decision the wife was ordered to return the titles and registrations to these vehicles to the husband. The court finds that the wife is in contempt of court for failing to do so. The court imposes a fine of $250 and pursuant to New York Judiciary Law § 753, the fine shall be paid to the husband within seven days of this order and the wife shall file a receipt for such payment to this court. If the wife fails to produce such receipt consistent with this order, this court will consider, sua sponte, other relief against the wife without further application by either party.

The wife may also purge her contempt for violation of this portion of the prior court order - except for the payment of the fine - by taking the following steps. The wife shall, within five days of this order, provide the husband with the registrations and titles to all vehicles referenced in the referee's decision. If unable to provide such registrations and titles, the wife shall, within 10 days of this order, obtain the vehicle identification numbers and any other pertinent data from the husband and thereafter, no later than 15 days from the date of this order, apply to the New York State Department of Motor Vehicles for the issuance of new titles and registration for these vehicles. The wife will take all necessary steps to obtain these title and registration documents as soon as possible and the husband shall make all reasonable efforts to cooperate in obtaining these documents. The wife shall provide to this court a report on the status of the obtaining of the required vehicle registrations and titles no later than May 24, 2013 and every 30 days thereafter until the registrations and titles are obtained and delivered to the husband. The wife shall pay all costs associated with the new titles and registrations without contribution from the husband. In the event that the wife cannot obtain these title and registrations from Department of Motor Vehicles after 90 days, the wife will pay the husband $25 for each day thereafter that he waits for the delivery of the titles and registration and he may, ex parte, seek a judgment for any sums which accumulate to him under the terms of this order. The wife may seek relief from this aspect of the order solely upon good cause shown. If the wife defaults on this aspect of this order, this court will consider, sua sponte, other relief against the wife without further application by either party.

ATTORNEYS FEES

In a prior court order, the wife was ordered to pay $2,799.50 in legal fees. The fees were never paid. The husband is awarded a money judgment for $2,799.50 together with interest at the statutory rate from June 21, 2010 until the date of payment. The husband did not specifically seek a finding of contempt for this non-payment and the court makes no finding of contempt on this aspect of the application.

The court, in considering an attorneys fees request for this motion and contempt proceeding, notes that the attorney billing includes services for a qualified domestic relations order and appearances before the referee and another judge. The court declines to award fees for these services. There is no dispute that the husband's counsel, is an [*8]experienced professional, and there is no specific objection to her fees or the rates charged. The attorneys fees arise solely because of the wife's failure to comply with prior court orders. The court concludes that legal fees awarded on this motion and the resultant hearing should be $6,000 plus $378.92 for costs and disbursements. The husband is awarded a money judgment for a total of $6,378.92 - in addition to the prior attorney's fee award - which must be paid within 20 days of this order or the statutory interest shall apply to any payments thereafter.[FN6]

Unlike the persistent but patient party in the age-old maxim, the husband, in this case, will not have to "try, try" again to obtain his wife's compliance with the prior orders of this court. By this order, he has "succeeded." Simply put, if his ex-wife fails to comply, as she has in the past, more punitive measures loom.

This decision constitutes the decision of the court and counsel shall submit an order on notice.

Dated:May 8, 2013______________________

Richard A. Dollinger, AJSC Footnotes

Footnote 1:The maxim has a worthy legal pedigree in both the federal and state courts. See In re Moncier, 488 Fed. Appx. 57 (6th Cir. 2012)("If at first you don't succeed, try, try, again" might make a memorable maxim, but it is ill-suited as a principle for case management); United States v. Smith, 562 F.3d 866 (7th Cir. 2009); Klein v. Murtagh, 44 AD2d 465 (2nd Dept. 1974)(the great power of the State and Federal Governments, respectively, to compel an individual to defend himself before the bar of criminal justice does not legitimize the old adage: If at first you don't succeed, try, try again); New York City Hous. Authority-Taylor Wythe Houses v. Spitzer, 12 Misc 3d 1166 (A)(Civ. Ct. Kings Cty. 2008) (clearly, by way of the instant OSC the respondent is attempting to apply the age old maxim: "If at first you don't succeed, try, try again").

Footnote 2:In her opposition to the contempt motion, the wife's counsel argued at trial that his client was not served with the order to show cause. However, the wife simply testified that she could not recall being served and the husband produced an affidavit of service. The process server's affidavit constitutes prima facie proof of service and the wife's uncertain response — "I can not recall" — is insufficient to rebut the presumption of proper and timely service. Rox Riv 83 Partners v. Ettinger, 276 AD2d 782 (2nd Dept. 2000); 104 Realty, LLC v Johnson, 35 Misc 3d 148 A (2012).

Footnote 3:In her testimony, the wife stated that she had paid $1,250 on one occasions for the time share and $500 on another. There was no documentary evidence to support these statements, and the wife does not seek any relief from this court to apportion any expenses she paid on the time share.

Footnote 4:Any claim by the husband for a finding of contempt occasioned by the wife's failure to pay the week five time share expenses after the referee's decision fails to meet the standards for a finding of contempt. The referee's decision on this aspect of the divorce is not, in this court's judgment, an "unequivocal order or mandate" sufficient to support a finding of contempt. Simens v Darwish, __ AD3d __, 960 N.Y.S.2d 120 (1st Dep't 2013); Sutton v Sutton, 93 AD3d 779 (2d Dep't 2012).

Footnote 5:The items included in the order: a foot trunk, linens, table clothes, pot and pans, a picture, a lawnmower, a dining room set, and a family quilt. The husband testified, without challenge, that these items had not been returned although ordered to be returned by the prior court order. The husband described these items in his testimony, which the court credits. The items are specified on page 3 of the Report of Referee Phillip B. Datillo, Jr., dated February 23, 2010.

Footnote 6:In the testimony before this court, the wife admitted that she had not paid a $1,000 to the New York State Department of Taxation and Finance. The husband has not sought to enforce this aspect of the prior order.