Cruz v Cruz
Annotate this CaseDecided on September 7, 2017
Supreme Court, Orange County
Jennifer Cruz, Plaintiff,
against
Juan Cruz, Defendant.
6940/2013
Jennifer Cruz
Pro Se Plaintiff
[redacted]
Modena, New York 12548
Reisman, Rubeo, McClure & Altman, LLP
Attorneys for Defendant
151 Broadway
Hawthorne, New York 10532
Maria S. Vazquez-Doles, J.
The following papers numbered 1 - 23 were read on plaintiff's pro-se motion to punish the other for contempt and counsel fees:
OTSC/Plaintiff Affidavit/Exhibits A - L 1-14
Affirmation in Opposition/ Defendant Affidavit/ Exhibits A - F 15-22
Reply Affirmation 23
Plaintiff moves, pro se, to adjudicate the other in civil contempt for violating provisions contained in the Judgment of Divorce. In order to establish civil contempt under New York law, [*2]a movant must prove: (1) that there was a lawful court order in effect which clearly expressed an unequivocal mandate, (2) that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the order and (4) the movant was prejudiced (El-Dehdan v El-Dehdan 26 NY3d 19 [2015]). The party moving for civil contempt bears the burden of establishing the contempt with clear and convincing evidence and once established, the burden shifts to the alleged contemnor to refute the movant's showing or to offer evidence of a defense (Lundgren v Lundgren, 127 AD3d 938 [2d Dept 2015]).
Plaintiff avers that defendant is in violation of the Judgment of Divorce by 1) failing to remove plaintiff's name from the mortgages on the marital residence and 2) preventing her eligibility for the Post 9/11 GI Bill which caused her to be indebted to the Veteran's Administration in the amount of $80,607.00. Plaintiff also avers that she was forced to take out student loans to earn her degree.
"A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence" (Matter of Hughes v. Kameneva, 96 AD3d 845, 846 [2d Dept. 2012]). "To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order which clearly expressed an unequivocal mandate, and that, as a result of the violation, a right or remedy of a party to the litigation was prejudiced" (Matter of Philie v. Singer, 79 AD3d 1041, 1042 [2d Dept. 2010]). "It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party" (id. at 1042; see El—Dehdan v. El—Dehdan, 26 NY3d 19, 35 [2d Dept. 2013]). " Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" (El—Dehdan v. El—Dehdan, 114 AD3d at 17). "A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense" (id. at 17; see Goldsmith v. Goldsmith, 261 AD2d 576, 577 [2d Dept. 1999]; Muller v. Muller, 233 AD2d 486, 487 [2d Dept. 1996] ; Metzger v. Metzger, 206 AD2d 352, 353 [2d Dept. 1994]).
It is undisputed that Article 32 of the parties' Separation Agreement, dated March 15, 2015, states that the plaintiff transferred all right, title and interest in the marital property located at 1 Selena Court, Walden, New York and that the property was in foreclosure. The defendant was to promptly engage in all actions necessary to refinance the property to remove the plaintiff from any liability on said property. Plaintiff argues that defendant failed to refinance the mortgages and that she remains a debtor on the first and second mortgages on the property. A copy of the Loan Modification Agreement dated July 15, 2015, submitted as Exhibit G to plaintiffs' papers and Exhibit C to defendant's opposition, clearly indicates that defendant is the sole obligor on the first mortgage held by JPMorgan Chase Bank. Concerning the home equity line of credit with Ditech, defendant avers that he was unable to refinance the first mortgage to absorb the second mortgage. Defendant states that Chase advised that since the Ditech loan was charged off on February 28, 2014, he had to wait three years before applying for a refinance and that he will make every effort to remove plaintiff's name from the Ditech obligation after the requisite time period.
Article 35 of the Separation Agreement states: "The parties agree that the Wife shall be entitled to receive the benefits of the GI Bill at all times that she is entitled to receive said benefits and the Husband will cooperate with same to ensure that the Wife receives said benefits." Although not a very clear provision, the parties did agree that defendant was to transfer his unused Post 9/11 GI Bill benefits to plaintiff which was accomplished on March 26, 2013. The letter addressed to defendant from the Department of Defense indicates that the transfer was approved with a status date of March 20, 2013 and an obligation end date of March 18, 2017. There is nothing in the letter which defines an obligation end date.
Defendant retired from the Army Reserve on December 15, 2015. By letter dated January 7, 2016, plaintiff was informed by the Department of Veterans Affairs that because defendant did not meet the service date established when the transfer of benefits was approved (March 18, 2017) she is now responsible to pay back all payments made to plaintiff or on her behalf totaling $80,607.00.
Defendant argues that there was no requirement negotiated or contemplated in the Settlement Agreement regarding either giving plaintiff notice of when defendant was submitting his military retirement papers or any limitation as to when he was permitted to retire from military service. He recalls specifically discussing that he wanted to retire at 20 years but held off so that plaintiff would continue to be eligible to receive benefits and complete her education by the end of December 2015. His understanding was that plaintiff would no longer be eligible for benefits upon the issuance of the Judgment of Divorce. Accordingly he agreed to not submit the proposed judgment until the end of December, 2015. Defendant was not made aware of any issue pertaining to the GI Bill benefits until receipt of the instant application.
Here, defendant's opposition contains sufficiently detailed averments so as to raise a factual dispute as to the existence of a defense which shall be resolved at a hearing (Savas v Bruen, 139 AD3d 736 [2d Dept. 2016]).
All other relief requested in plaintiff's application (paragraphs 11 - 22 of the Order to Show Cause) is not appropriate for a post-judgment motion and shall not considered. In such provisions plaintiff is not alleging defendant's failure to comply with the separation agreement but is, in essence, challenging certain provisions of the separation agreement and asking that it be modified. The proper vehicle to challenge provisions of a separation agreement incorporated but not merged into a divorce judgment is by commencing a separate plenary action. (Barany v Barany, 71 AD3d 613 [2d Dept 2010]).
Plaintiff's request for attorney's fees is denied as she has submitted this application pro se.
Accordingly, it is hereby
ORDERED that plaintiff's motion for contempt is GRANTED to the extent that a hearing shall be held on October 23, 2017 at 2:00p.m. to determine if defendant has violated Article 32 and/or Article 35 of the parties' Separation Agreement dated March 15, 2015 which was incorporated by reference into the Judgment of Divorce dated April 12, 2016; and it is further
ORDERED that plaintiff's request for attorney's fees is denied; and it is further
ORDERED that all other relief requested in this application is denied.
The foregoing constitutes the Decision and Order of the Court.
Dated: September 7, 2017
Goshen, New York
HON. MARIA S. VAZQUEZ-DOLES, J.S.C.
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