Opinion
Index No. 2023-50090
02-07-2023
Z.U., Plaintiff, v. F.U., Defendant.
Counsel for Defendant Law Offices of Joseph S. Hubicki By: Joseph Stanley Hubicki, Esq. Counsel for Plaintiff Brostowin & Associates, PC111 John Street, By: Terry Brostowin, Esq.
Unpublished Opinion
Counsel for Defendant Law Offices of Joseph S. Hubicki By: Joseph Stanley Hubicki, Esq.
Counsel for Plaintiff Brostowin & Associates, PC111 John Street, By: Terry Brostowin, Esq.
HON. ARIEL D. CHESLER, J.S.C.
INTRODUCTION
The duration of this divorce action and post-judgment proceedings is approaching the quarter century mark. But, neither that length of time nor the fact that this is the 50th motion sequence fully captures the Jarndyce-like history that has transpired between these parties and in this courthouse. Like that fictional case imagined by Dickens in "Bleak House," this litigation has seen "processions" of jurists and "great bundles of papers." It too is "so complicated that no [person] alive knows what it means," and the case "still drags its dreary length before the court, perennially hopeless."
Prior jurists who have handled this matter have described it as "long," "tortuous," "convoluted," involving "scores of motions," "endless," and "seemingly interminable." It has been noted that "much of the history involves the bad conduct of the parties, particularly that of defendant, which has created needless problems for the judges and staff of New York County Supreme Court and caused a constant and unconscionable drain on precious judicial resources." Indeed, Justice Saralee Evans (retired) presided over the case until she felt compelled to recuse herself.
This conduct has included that on October 25, 2012, the day on which a prior hearing was scheduled to begin before a Referee, Defendant was arrested for striking "her ex-husband with an open hand across the face while both were seated in the 6th Floor Lobby [at 60 Centre Street] awaiting their court appearance," according to the summons issued to her. This incident, coupled with prior incidents where Defendant had threatened to bring a gun to court, led to a decision by the prior jurist assigned to this matter that all proceedings needed to take place in a judge's courtroom where extra court officers could be assigned.
In prior proceedings before Justice Matthew F. Cooper (retired), Defendant did not deny but instead almost gleefully admitted, that she "forged plaintiff's signature, stole documents from him, and obtained copies of plaintiff's tax returns in violation of this court's directive." Ultimately, such behavior led Judge Cooper to direct that any of Plaintiff's tax returns only be examined by Defendant in the courtroom. Thereafter, as Justice Cooper set forth in a March 1, 2016 order, Plaintiff was to provide only redacted copies of his tax returns, leaving only the gross income reported visible. And, later, such returns were to be provided only to the Court for in camera inspection to prevent further harassing or illegal conduct from Defendant.
Before this Court, Defendant admitted on the record, to calling the CIA and FBI to locate Plaintiff because she did not know where he lived and needed assistance in serving him process in this litigation. This is yet another example of her misuse of Court and law enforcement resources in her quest to harm Plaintiff.
Beyond this outrageous behavior, Justice Cooper explained in a March 4, 2014 Order that, "a good part of the blame for why this case's interminability must be attributed to the penchant the parties have for side-deals, unwritten agreements and opaque private arrangements." He went on to explain that:
To this day, it remains totally unclear as to how the two apartments in which defendant lives came to be titled in her name alone, when the stipulation of settlement and the judgment of divorce required the parties to divide the units by January 1, 2007. Similarly, the court cannot fathom how defendant was able to refinance the apartments - despite a prohibition in the agreements against refinancing - resulting in astronomical monthly mortgage payments that defendant has been unable or unwilling to pay. Finally, there remains the question of what became of the money that defendant received as part of the refinances; there are suggestions that she took close to $200,000, yet there has never been an explanation given for where this money went.
As further explicated by Justice Cooper in his January 11, 2012 decision in a related plenary action concerning the enforceability of a purported amended stipulation:
it is extremely difficult to state with certainty almost anything as to the facts surrounding the parties' financial obligations towards one another. Not only have the parties been constantly litigating by making post-judgment motion after post-judgment motion ever since the entry of the judgment of divorce on May 4, 2004, but they have managed to complicate matters to the greatest extent possible by entering out-of-court arrangements and what might best be described as "side-deals." Thus, a history that is difficult to decipher to begin with because of the number of motions that have been partially decided or have had portions held in abeyance, because of the multiple appeals and remands, and because of the emotional volatility of the ex-wife, is made all that much more indecipherable by the parties' penchant for entering these private arrangements outside the purview of the court.
Also unexplained is why Defendant retained all the proceeds from the sale of the parties' Pennsylvania home, even though such proceeds were to have been equally shared by the parties under their 2002 stipulation (see Justice Cooper's October 1, 2015 Decision in Motion Seq No. 24, 26, 27, & 41). Nor is it clear how or why Plaintiff is obligated to pay $3,765.90 in monthly spousal support when the 2002 stipulation only obligated him to pay $3,100 per month.
Defendant's lack of respect for this Court is particularly stunning. Defendant's inappropriate behavior is showcased through her interactions with the Court. Predating this current motion and this jurist being assigned to the case, Defendant has continuously and repeatedly undermined the Court proving to make the resolution of this matter difficult. In the Court's Decision dated March 4, 2014, Justice Cooper stated:
"Rather than allow a judge to be a decision maker who sits above the fray, defendant has worked tirelessly to undermine the court's authority and destroy any sense of decorum in the courtroom. In addition to regularly speaking derogatorily of the court and its staff, and going on long diatribes where she turns to address the audience in the courtroom, defendant has threatened to bring guns to court and hurt or kill the plaintiff."
In this current proceeding, Defendant has been forcibly muted during virtual appearances because she would constantly interrupt the Court with outbursts and not stop after repeated warnings. She was similarly rude and abusive to court staff, and unnecessarily argumentative with the Court including regarding the Court's choice of words, selection of dates, and procedural and logistical directions. Defendant has even taken phone calls during the virtual proceedings and hearing and had to be directed to hang up the phone, again, showing no respect for this process or this Court which is reflected in the record. At other times, Defendant simply walked away from her computer screen with no announcement, and, when this Court declined to incarcerate Plaintiff, Defendant was seen and heard running out of her room screaming.
This last observation is perhaps most significant as it relates to Defendant's singular years-long goal of seeing Plaintiff incarcerated which was made clear in these recent proceedings and in the many that came before. However, unlike Defendant, courts do not lightly consider incarceration, particularly when it is related to a civil contempt involving private financial obligations.
In this motion sequence, as in many previous ones, Defendant seeks to hold Plaintiff in contempt for failing to make maintenance payments since January 2021. Additionally, Defendant seeks an upward modification on the current support amount. Plaintiff cross moves to terminate or in the alternative, for a downward modification of the spousal support obligation.
This branch of the motion is deemed abandoned as Plaintiff did not testify, put on any case whatsoever, and did not provide updated financial information to support this request.
In determining the motion and cross motion, this Court, particularly since it sits as a Court of equity, was obligated to review the dense and byzantine history of this litigation in order to uncover the twists and turns of this litigation, and with the hope of coming to some partial understanding of what it all means.
BACKGROUND
Thankfully, a comprehensive history of this litigation and the parties' agreements (through 2007) can be found in a 2007 decision from the Appellate Division, First Department (see 40 A.D.3d 201, 202-204 [1st Dept 2007]). The history as set forth there is as follows:
The parties, married in 1982, have three children. The husband commenced this divorce action in February 2001. On November 11, 2002, the parties, each represented by counsel, entered into a 55-page stipulation of settlement to be incorporated but not merged in any subsequent divorce decree. The stipulation provided that upon execution of the agreement, or as soon thereafter as practical, the parties would execute all documents necessary to transfer title of the two condominiums held by them as tenants by the entirety, one to each of them individually, subject to existing mortgages, with the wife to receive the condominium unit with the larger value. By January 1, 2007, the apartments were to be reconfigured into two separate units, with each party responsible for all costs and expenses related to his/her unit. Until the division of the apartments into separate units, the wife was entitled to exclusive use and occupancy and the husband, as part of his maintenance and support obligations, would "directly pay [certain] expenses" related to the apartments, including interest and amortization of both mortgages, real estate taxes, common charges and homeowner's insurance, as well as utility and fuel charges. The wife agreed that until that time she would be responsible for all other expenses related to the apartments. The husband also agreed to pay a car loan and car insurance until the loan note was satisfied.
As for the children, the husband agreed to pay $3,000 per month for child support, $1,600 of which was payable toward the common charges for one of the units. He also agreed to pay for certain "Child Related Activities" (after school activities, tutoring and organized summer activities) "[p]rovided he consents to same, such consent to be dependent upon [his] financial circumstances." He agreed to pay for private school tuition as well, "if his income is sufficient to cover the costs" thereof, but the agreement provided that commencing in the 2002/2003 school year, the children would not be enrolled in private school without his consent, such consent again dependent on his financial circumstances. Since the husband's income was then $120,000 per year, the stipulation qualified his obligation to pay college tuition and related expenses by requiring that each child apply for scholarships, loans, grants or fellowships and providing that the parties "jointly decide which college each child shall attend... bearing in mind... the [husband's] financial circumstances." Each party's consent to the choice of any college for the children was required, "such consent not to be unreasonably withheld and to be dependent on the [husband's] financial circumstances."
The stipulation provided that the parties intended it "to constitute an agreement pursuant to Domestic Relations Law Section 236, Part B 3" and "to be in lieu of each of their respective rights, pursuant to all aspects of" that statute. The stipulation further provided that it could not be amended or deemed amended "except by an agreement in writing duly subscribed and acknowledged with the same formality as this Agreement," in which each party's signature was duly notarized.
Not long after the agreement's execution, the wife sought to enforce the support provisions. In a September 12, 2003 order, Supreme Court directed the husband, now appearing pro se, to pay the condominium charges. When the wife moved to compel enforcement of the order, the husband conceded his failure to pay. Without producing any financial documentation, he argued that the wife's refusal to cooperate due to her mental instability was driving him into debt and causing his default. In an order dated January 13, 2004-not the order on appeal-the court, after finding that the husband had failed to make a preliminary showing of his financial inability, found him in civil contempt, which he could purge by paying the mortgage and real estate tax arrears. The court also awarded money judgments for child support arrears and add-ons, including tuition, and directed the husband to pay any spousal arrears and outstanding utility bills by January 30, 2004.
The judgment of divorce, accompanied by the stipulation, was filed on May 12, 2004. Thereafter, on June 16, 2004, the parties entered into what they have considered a modification of the stipulation, containing an affirmation signed by the husband, witnessed and notarized, asserting that he had neither income nor access to any income or assets, and in fact had a negative net worth. The modification did not contain the wife's signature and does not reflect that either side was represented by counsel. The modification provided, in relevant part, that the wife would refinance one if not both of the units for an amount up to $500,000 and that she would become sole owner of both, although the husband would continue to pay the "maintenance and taxes, mortgage, and electricity... indefinitely."
The action was actually commenced in February 2000.
The parties' 2002 stipulation had also provided that Plaintiff was solely responsible for debt incurred in connection with the marital property including but not limited to past due real estate taxes and past due common charges. As mentioned above, the stipulation contained a prohibition on either party causing any lien or encumbrance against the condominium apartments. Defendant also received all the artwork that remained in both apartments. Although Defendant was also entitled to half the proceeds of the sale of the parties' Pennsylvania property, as noted, somehow she retained all of the proceeds. Under the agreement, Defendant also received sole ownership of the parties 1999 Mercedes Benz ML 320, 40% of any receivables plaintiff previously applied for and an additional payout of $25,000 if the net funds received by husband exceed $150,000. Plaintiff was also to pay off a car loan and pay car insurance for Defendant.
Further, Defendant was to receive $3,100 per month in spousal support (until her remarriage or the death of either party) which, inexplicably, but according to the record, was raised to $3,765.90 per month at some point during this lengthy case. Plaintiff was also to pay for Defendant's health insurance coverage until she qualified for Medicare. Initially, the bulk of the basic spousal support was to be made in direct payments related to the condominium units, including mortgage, insurance, and real estate taxes. However, upon the division of the apartments, all basic spousal support was to be paid to the Defendant monthly. As noted, the apartments were never divided, Defendant took ownership of both units, and also refinanced them in violation of the 2002 stipulation.
Separately, in addition to the basic spousal support payments, in any years that Plaintiff's gross income as reported on his tax returns exceeded $250,000, he was to pay Defendant 25% of such additional income. It was this additional obligation that led to further disputes about the disclosure of Plaintiff's annual tax filings.
According to Justice Cooper's October 2, 2015 Decision and Order relating to a prior contempt proceeding, there was only one year - 2008 - in which Plaintiff earned more than $250,000. Based on the excess income earned in that year Plaintiff was ordered to pay an additional $12,762.50 in spousal support for 2008.
Critically, in the aforementioned First Department decision, the Court found that the parties' purported June 2004 modification agreement, "was invalid because it was never judicially authorized" (40 A.D.3d at 206). Justice Evans subsequently ruled that although the purported agreement had been found by the Appellate Division not to be an enforceable marital agreement, there still existed the question as to whether it might nevertheless be enforced as a simple contract between the parties (See Order dated November 11, 2009, in this action).
This spawned a 2008 plenary action, referred to above, in which the Defendant sought to enforce the 2004 agreement as a simple contract between the parties. Justice Cooper conducted a hearing in the plenary action and, in a January 11, 2012 Decision and Order, determined that the purported agreement was unenforceable as either a marital agreement or a contract. Among other things, Justice Cooper found that the agreement had never been signed by the Defendant until years later, that no proper consideration was provided, that the agreement lacked the requisite certainty, and that Plaintiff had not signed the agreement knowingly or intelligently or with the advice of counsel. The Court further remarked that "[r]ather than being the product of a decision made with the appropriate degree of reflection and contemplation, the Amended Stipulation must be seen as the product of duress or at the very least of a lack of a voluntary, willing acquiescence to the significant, almost draconian, terms contained therein."
This order was affirmed by the First Department in (100 A.D.3d 482 [1st Dept 2012]).
Yet, despite the invalidity of the purported agreement, there is no indication that Defendant ever returned monies paid thereunder, nor that she ever transferred one of the condo units to the Plaintiff as required under the valid 2002 stipulation. For that matter, there is no answer as to what happened to the monies Defendant obtained from improperly refinancing the units, or to the proceeds from the Pennsylvania property which were to be equally shared by the parties. To the contrary, all records and Court orders indicate that Defendant simply retained these various properties and monies despite whatever orders were issued by courts.
Inasmuch as Defendant complains in the current motion sequence that she is in desperate financial condition, it is important to note that multiple orders have found that Plaintiff ultimately met all his financial obligations under the 2002 stipulation, including monies that were to cover all mortgage, maintenance and taxes for the condominium apartments but it is unclear where all that money went. As Justice Cooper noted in his January 11, 2012 order, although Defendant was essentially living rent and obligation free in both apartments, by 2007 she was in arrears both to the lender on the mortgages for the units and to the condominium association on the common and carrying charges.
In her written submission, Defendant states that she lost both apartments in foreclosure auction but remains in the apartment and was paying rent to a new owner.
At the same time, Defendant had refinanced the apartments in 2004 and received $200,000 from the refinance, and had apparently surreptitiously refinanced again in 2006, increasing the mortgage payments by close to 300 percent, from $6,000 to $15,000 per month. At the time of the 2012 order, Defendant was found to "fail or be unable to pay the mortgages or the common charges," the arrears continued to mount, and both units were being foreclosed against by both the lender and the condominium association.
In his September 12, 2014 order in this action, Justice Cooper found that Defendant had failed to account for the money she received from refinancing of these apartments, and "that she receives $3,100 in monthly maintenance payments from plaintiff... and has, in effect, lived rent-free by not making payments toward either of the two mortgages or any of the condominium common charges since at least 2008."
Justice Cooper further explained in his September 12, 2014 order that:
Defendant compounded the financial problems associated with the apartments by failing to pay down both the mortgage or condominium common charges with any of the lump sum payments that plaintiff was ordered to make to her by Judge Evans. Those payments were specifically intended to satisfy the arrears that had accrued with regard to the units; instead, defendant admitted that she used the money for other purposes. Thus, defendant's own conduct must [be] viewed as a factor contributing to the financial problems of which she now complains.
It is also notable that at another point in this never-ending litigation, the Court had appointed a neutral appraiser to value the apartments, and the appraiser determined that the value of the units if sold together would be $3,200,000 (see Order in this action dated March 4, 2014). At various times, it was indicated by Justice Cooper that Defendant needed to sell the apartments. Such direction was never followed by her.
Also significant in this labyrinth-like history is the significant evidence, including admissions by Defendant, and numerous findings in prior orders, regarding Defendant's horrendous behavior and inappropriate, and malicious communications with Plaintiff's employers. Given the overwhelming and undisputed evidence in this area, it is almost laughable that Defendant agreed in the parties' 2002 stipulation not to communicate at all with Plaintiff's employers or potential employers.
The details of Defendant's behavior and its impact on Plaintiff's career and finances has been explored in numerous proceedings and decisions. In the October 2, 2015 decision, Justice Cooper, following a hearing, made determinations about payments, obligations and misconduct from 2002 through 2015. He found:
The evidence revealed numerous instances of wrongdoing on defendant's part that at the very least compromises her claim for arrears and her ability to seek to have plaintiff held in contempt. These instances include defendant's steadfast denial of having had access to a bank account set up in plaintiff's sister's name, when the evidence clearly revealed that not only did defendant have power of attorney from the sister, but that she utilized the account for her own purposes on numerous occasions. Also relevant to her claim, and of concern to the court, is what became of the proceeds following the disposition of the parties' Pennsylvania vacation home. Although defendant attempted to deflect the issue, the credible evidence establishes that she improperly retained plaintiff's share of the proceeds. Finally, as she herself freely acknowledged, defendant has taken an active role from the time the divorce began until the present in undermining plaintiff's ability to earn a living. She has done this by doing everything from going to plaintiff's place of business and disrobing in the middle of the office to continuously contacting his employers and coworkers to say scurrilous things about him.
Justice Cooper further concluded that "[i]n a very concrete way, defendant's own malicious actions... to some extent, sabotaged plaintiff's livelihood." Similarly, in the 2012 decision issued in the plenary action, Justice Cooper found that Defendant "was exuberantly candid about certain aspects of her past behavior, particularly her penchant for interfering with her ex-husband's social and business relationships."
In addition, although Justice Cooper found Plaintiff had at times failed to timely pay support, which he then rectified later with lump sum payments and the like, he determined that "the evidence establishes that [such failures] were the result of plaintiff being out of work or having reduced earnings, something that defendant's own actions - in intentionally interfering with plaintiff's employment and business relationships - played a large role in bringing about." Further, Justice Cooper determined that Plaintiff had paid $634,201 to Defendant to cover the period between December 1, 2002 up until and including March 6, 2015, and that this sum was "an amount equal to or in excess of the amount due for maintenance and child support."
HEARING
At the hearing before this Court, only the Plaintiff testified. I find that he was credible and forthcoming, including regarding his failures to pay spousal support during the entirety of 2021, and the reasons why that occurred, his inability to obtain employment in his field, and the terrible history of damage that Defendant has done to his career and ability to earn. It is notable that Plaintiff's credible testimony was unrefuted at the hearing.
Plaintiff explained that the parties' settlement agreement in 2002 was based on his salary of approximately $120,000 in 2001 and $50,000 in 2002. He had also just received $1.6 million from an employment lawsuit, which was also taken into consideration at the time of the signing of the agreement. Prior to the parties entering into the agreement Plaintiff was making between $130,000 and $250,000 working for small money managers who are Commodity Trading Advisors and/or Commodity Pool Operators. He had expected to continue earning at least $125,000 each year, but also used his proceeds from the lawsuit to pay his obligations under the agreement. He did admit that at some time in 2004 he was also unemployed and had no assets, and explained that his assets were greatly reduced between 2002 and 2004.
Plaintiff admitted that when the apartments were financed in or around 2004 each party received approximately $50,000 from the refinance at that time.
On September 30, 2020, Plaintiff lost his employment with D.A. LLC after approximately fifteen (15) years working with the company. Specifically, that company ceased operation at the time, and his boss - B.D. - found work elsewhere. In 2020, he earned $115,000, which included $70,000 in income and around $40,000 in connection with the "wind down" of B.D.'s hedge fund.
The Court reviewed a copy of Plaintiff's 2020 tax filing in camera, which demonstrated his income in that year was $115,323.
Since that time, Plaintiff has been unable to attain secure employment. Between September 2020 and April 2022, the only work the plaintiff did was four (4) days at a restaurant, one shift at a liquor store and some consulting for approximately $4,000. The loss of his employment and inability to obtain work with similar compensation was the reason he was unable to make any spousal support payments in 2021; he did not realize until he was given assigned counsel that he could ask to reduce or terminate his obligation.
Plaintiff provided documentation to the Court showing the number of jobs he has applied to through LinkedIn, Indeed, ZipRecruiter, Glassdoor and others over the past 2 years. Plaintiff states he has applied to at least 200 positions since 2020 and has not had a single call back for an interview. Plaintiff also submitted his most recent tax returns and an updated Statement of Net Worth to the Court.
Plaintiff claims that defendant has had a hand in his inability to secure employment. It is undisputed that Defendant has a long history of harassing plaintiff's professional contacts including his former boss and interfering with his employment. It is undisputed, although unclear what the precipitating events were, that in 1998 when the parties were in Bahrain and plaintiff's employer owned S.F.A., Defendant got the parties deported under armed escort.
Defendant has harassed D.A. LLC as well as broken into the office more than once and stolen bank statements of the firm and the fund. Defendant has also posted public blogs claiming plaintiff has stolen money from her. She has also taken his phone registries and called all of his contacts in attempts to defame him.
Plaintiff claims this behavior from the defendant started before his employment with D.A. LLC and continued until his unemployment. Plaintiff claims that he spoke with his boss B.D. approximately twenty (20) times regarding the defendant's behavior.
Most recently around the fall of 2021 Defendant went to B.D.'s house in New Jersey, left some papers on his doorstep and then went to the neighbors' home and harassed them; subsequently the police were called, and she received a summons. This apparently took place twice. Plaintiff also states that on numerous instances people within his professional network and those he was interested in working with have told him Defendant had reached out to contact and harass them and tell them that Plaintiff stole money from her. Although most of the damage done by Defendant occurred some time ago it still impacted his career options today.
The behavior had become so out of hand that this Court had previously ordered the defendant to refrain from contacting anyone associated with plaintiff's employment and that plaintiff be allowed to redact his tax forms so defendant would not have his personal information in fear she may do something harmful with it. Defendant has not refuted any of the claims regarding her behavior except for clarifying the years of occurrence.
Plaintiff further testified and demonstrated through his updated Statement of Net Worth and other documents that he has no assets, retirement accounts or real estate and currently has approximately $2,283 in his bank account as of 2021. Specifically, his retirement accounts were liquidated to pay for his children's schooling. He is 64 and not yet eligible for social security; he speculated he might receive between $1,500 and $1,700 per month in social security in the future.
He also does not pay for medical insurance because the cost is too burdensome. He can no longer afford to pay the insurance premiums while having a cataract in his left eye rendering him unable to fully see out of it. Plaintiff has inquired about financial assistance from the government, but he was not eligible for unemployment because he had been self-employed as an independent contractor. As of the last day the hearing in June 2022, Plaintiff was working at a gift shop making $16.00 an hour working approximately forty (40) hours a week while still trying to secure better employment.
Plaintiff was also behind in his rent payments. Specifically, at one point during the hearing he was staying with a friend who to whom he paid rent. The friend he lives with pays for his food and his son pays for his cell phone. He also had to borrow 1,000 English pounds from his brother. Plaintiff claimed he only spent $20-$30 per week at the time of the hearing.
DISCUSSION
I. Contempt
Once again Defendant is singularly focused on having Plaintiff found to be in contempt of court and she has once again vociferously demanded that he be jailed. But, contempt is not something to be taken lightly; it is truly the remedy of last resort. And where, as here, the party seeking contempt urges the court to put the other person in jail, it is incumbent on the Court to closely scrutinize the case.
It was undisputed at the hearing that Plaintiff did not pay spousal support during all of 2021 and he was honest about his inability to do so given his loss of employment and inability to gain new employment during the pandemic, and particularly given the damage Defendant had done to his career over many years. At no time did Defendant refute the evidence regarding wrongdoing on her part that at the very least compromises her ability to seek to have Plaintiff held in contempt. Nor did she present any evidence whatsoever at the hearing.
In Matter of McCormick v. Axelrod (59 N.Y.2d 574, 583 [1983]), the Court of Appeals set forth the elements for civil contempt under Judiciary Law §753:
"In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Finally, prejudice to the right of a party to the litigation must be demonstrated"
While willfulness is not an element of civil contempt, "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 A.D.3d 4, 17 [2d Dept 2013]). Moreover, a motion to punish a party for civil contempt is addressed to the sound discretion of the court.
Here, it was undisputed that Plaintiff failed to comply with a clear and unequivocal mandate and that he had knowledge of the court's order. However, Plaintiff credibly and convincingly established his inability to pay due to his loss of employment at the end of 2020, as well as the damage done to his career by Defendant over many years, which continued through 2021 and permanently limited and harmed his career. He also established his lack of assets, other income, or other means by which he could pay the support he had been paying.
Moreover, as the long history of the case demonstrates, there are numerous instances of wrongdoing on the part of Defendant, including criminal acts, failures to follow court orders, failures to account for various assets and proceeds that should have been transferred to Plaintiff, and pervasive interference and damage caused by her to Plaintiff's career.
Justice Cooper's words in his October 2, 2015 order are just as relevant here. He wrote:
In a very concrete way, defendant's own malicious actions - which to some extent, sabotaged plaintiff's livelihood - contributed to plaintiff's inability to timely meet his obligations under the Stipulation and the judgment with regard to condominium units. Even if this had not been the case, plaintiff's financial straits, which were fully established by the credible evidence at trial, would be a bar from holding him in contempt of court. DRL § 246 provides that if a party demonstrates that he is "financially unable to comply with the order or judgment to make... payment," the court shall "relieve him from contempt." Thus, contempt would not be appropriate here because plaintiff's failure to make timely payments were the result of him being "financially unable" to do so.
Accordingly, as the Court stated on the record, these are not appropriate circumstances in which to hold Plaintiff in contempt or to incarcerate him. Indeed, civil contempt is "not inflicted as a punishment" (see Gompers v Buck's Stove & Range Company, 221 U.S. 418 [1911]).
Defendant also argues that Plaintiff should be held in contempt because she has not had access to plaintiff's tax returns and according to the 2002 stipulation Plaintiff is to provide her with a copy of his tax returns each year so she can have notice of his gross income any given year. However, as detailed above, various court orders and directives have been issued that have modified and limited this obligation. Ultimately, pursuant to the orders of the Court, Defendant had no right to direct receipt of the tax returns, and thus no order was in fact disobeyed.
It is undisputed that Plaintiff owes defendant a sum of $45,190.80 in arrears from the period of January 2021 until the filing of his cross motion for a downward modification or termination of support in December 2021. A contempt finding and incarceration is an extreme remedy and should be a last resort and is not appropriate given the circumstances. Accordingly, the court is now directing that a money Judgement in favor of the Defendant in the amount of $45,190.80 be entered.
II. Modification of Spousal Support
It is well established that the party moving to modify an order or judgment incorporating the terms of a stipulation regarding spousal maintenance bears the burden of establishing that the continued enforcement of his maintenance obligation would create an extreme hardship (Dom. Rel. Law § 236(B)(9)(b)(1); see Sheila C. v Donald C., 5 A.D.3d 123, 123-124 [1st Dept 2004]). Further, "Marital settlement agreements are judicially favored and are not to be easily set aside" (Simkin v Blank, 19 N.Y.3d 46, 52 [2012]).
In Palmer v. Spadone-Palmer (190 A.D.3d 495 [1st Dept 2021]), the First Department affirmed the termination of the husband's maintenance obligation, finding that the husband was entitled to an extreme hardship determination where his overall financial situation had "considerably worsened from where it had been at the time of the settlement agreement" and that such adversity was not voluntary. In Kaplan v. Kaplan (130 A.D.3d 576, 577 [2d Dept 2015]). the Court granted a downward modification of the maintenance obligation where "the plaintiff demonstrated that his loss of employment was unavoidable, that he made a good-faith effort to obtain employment commensurate with his qualifications and experience, and that continued enforcement of the maintenance obligation as set forth in the parties' separation agreement would create an 'extreme hardship.'"
Here, Plaintiff established that he lost his employment involuntarily, that he had made significant efforts to find new employment, that he had no assets and that his assets had been used up over the years in order to satisfy his obligations under the parties' agreement, including paying child support and maintenance, as well as for his children's schooling. The funds he received from a lawsuit were long gone, as were the years in which he earned more than $200,000 or anything close to that sum. In other words, his financial situation had considerably worsened since 2002. Indeed, in 2020, before he lost his position, his base salary was approximately $70,000.
His unrefuted testimony also established that over many years Defendant had inflicted such tremendous damage to his career and professional contacts in his field that he was permanently limited in his career and ability to obtain new employment in the same field or at his desire salary level. In combination, all of these factors leads this Court to conclude that enforcement of the maintenance obligation Plaintiff has been paying would create an extreme hardship.
This case is very much in contrast to Weinig v. Weinig (198 A.D.3d 470 [1st Dept 2021]). There, the court found that the husband's assertion that he had applied to, and interviewed for, just one position after a hedge fund collapsed did not show that he was diligently seeking commensurate employment or indeed, any employment. Plaintiff here has provided a reasonable log of completed job applications, recent tax returns and an updated Statement of Net Worth. And, while the Court acknowledges the Plaintiff does carry the responsibility of securing new employment, it is clear that Defendant has engaged in such pervasive inappropriate behavior with plaintiff's professional contacts prior to entering into the Settlement Agreement and as recently as fall 2021, which has severely impacted Plaintiff's ability to secure a job in his field of work. This grievous misconduct by Defendant which has been discussed and analyzed in numerous judicial opinions as a major factor in Plaintiff's finances, truly sets this case apart.
The Defendant's position is that the Plaintiff's claims of extreme hardship were undermined by the fact that at the time the Judgement of Divorce was entered in 2004, he was unemployed much like he is now. However, this neglects to consider the many years of "side deals," misconduct on Defendant's part, the depletion of marital and separate assets, and Defendant's destruction of Plaintiff's career over the length of this litigation.
It seems important to note that Plaintiff's financial condition would also be less poor had Defendant not violated the parties' agreement in various other ways, including by retaining both condominium apartments, improperly refinancing the apartments and not accounting for the monies received from the refinance, and by keeping all the proceeds from the sale of the parties' Pennsylvania property. This is particularly outrageous given the various trial and appellate court rulings regarding the invalid 2004 modification agreement. In addition to Defendant's history of outrageous behavior the Court also notes that since the beginning of this action the Defendant has received an incredible amount of support and assets, and has by now received spousal support for longer than the length of the marriage.
Although the equities seem to dictate outright termination of the support obligation, the Court is unaware of authorities permitting the same where the parties have contracted for lifetime maintenance, and without other circumstances not present here such as a permanent disability. Indeed, Plaintiff did not establish that he could never again find employment and in fact had found a low-paying position by the end of the hearing.
On the other hand, a downward modification of support is warranted. In considering what level to set support at, the Court could certainly impute income to Defendant, but there was no record evidence presented on this issue. It is unclear to the Court whether Defendant has a job or income of any sort. The only indication given was when Defendant stated on the record that she had to work and went to bed at 7:00 in the morning as a result but did not specify the type of work or compensation, and for purposes of calculating maintenance her income shall be set at $0.
As for Plaintiff's current income, the Court credits his testimony that he makes $16.00 an hour for 40 hours a week, which establishes an annual income of $33,280 for the plaintiff. Therefore, based on his current salary, and calculating support using the maintenance guidelines, Plaintiff is directed to pay $748.21 per month as spousal support retroactive to December 21, 2021, the date of the application.
III. Tax Returns
In various orders discussed above, the Court directed Plaintiff to turn over his tax returns annually, but based on Defendant's improper and perhaps unlawful behavior over the years ultimately directed that such returns be given to the Court in camera for review to determine if Plaintiff has income in excess of $250,000. However, it was also found that over all the years only once did Plaintiff actually earn above $250,000.
Given Plaintiff's current financial condition and employment, and given the serious damage Defendant has done to his career and ability to earn higher income, the Court is vacating any obligation to turn over tax returns. It is clear that Plaintiff is not in any financial position which necessitates an exchange of tax documents. Additionally, given the newly modified Order for maintenance in this decision, an exchange of tax information is unwarranted. It only invites further harassment, litigation and unnecessary Court involvement.
CONCLUSION
Accordingly, it is
ORDERED, as stated on record, the Clerk of the Court is directed to enter a money judgement in favor of Defendant against and upon consent of Plaintiff in the amount of $45,190.80 for unpaid spousal support from January 2021 to December 2021; and it is further
ORDERED, Plaintiff's application for a downward modification of his spousal support obligation is granted; and it is further
ORDERED, that on the 1st of each month plaintiff shall pay to Defendant spousal support in the amount of $748.21 per month retroactive to December 21, 2021, the date of the application; and it is further
ORDERED, that the directive requiring Plaintiff to provide his redated tax returns to the Court for review is now vacated.
This constitutes the Decision and Order of the Court.