Opinion
03-27-2024
C.S.G., Plaintiff, v. C.R.G., Defendant.
Ishelli L. Oliver, Esq. Law offices of Ishelli L. Oliver, Esq. PC Attorney for Plaintiff Shellon O. Washington, Esq. Washington Law Firm P.C. Attorney for Defendant
Unpublished Opinion
Ishelli L. Oliver, Esq.
Law offices of Ishelli L. Oliver, Esq. PC
Attorney for Plaintiff
Shellon O. Washington, Esq.
Washington Law Firm P.C.
Attorney for Defendant
HON. JEFFREY S. SUNSHINE JUDGE
Upon the foregoing papers, in this action by plaintiff, C.S.G, (plaintiff) against defendant C.R.G (defendant) for divorce and ancillary relief, plaintiff moves, postjudgment, by order to show cause, under motion sequence #4, for an order: (1) adjudging and punishing defendant for contempt, pursuant to Judiciary Law § 753 and CPLR 5104, as a result of his willful and contumacious failure to pay maintenance and child support to her as ordered by this court in the Judgment of Divorce dated April 20, 2021 in the total amount of $70,431.48, itemized as follows: (a) child support and maintenance arrears in the amount of $39,076.01 as of November 30, 2020, pursuant to the Decision After Trial dated December 1, 2020; (b) $21,869.77 in spousal maintenance for the period of 29 months from December 1, 2020 to May 1, 2023 at $754.13 per month; and (c) $9,485.70 for child support for seven months for the period from December 1, 2020 through June 1, 2021 at $1,355.10 per month; and providing that the failure to purge the contempt as directed will result in incarceration until defendant complies; (2) granting her a money judgment against defendant in the amount of $70,431.48 for arrears of spousal maintenance and child support; (3) punishing defendant for contempt for failure to pay counsel fees to her counsel in the amount of $17,164 and pendente lite counsel fees in the amount of $6,500 plus statutory interest for a total amount of $23,664 plus interest; (4) directing that she obtain a credit/offset against the amount owed to her for maintenance and child support of any amount owed by her to defendant for his equitable share of the former marital residence located at Brooklyn, NY; (5) granting her an order of enforcement directing defendant to pay her or that she shall obtain a credit for 40% of all mortgage payments, property taxes, insurance, and other carrying charges paid by her with regard to the former marital residence from December 1, 2020 to the present; (6) granting her an order of enforcement directing defendant to pay her for her marital share or give her a credit/offset equal to 60% of the current value of the marital property in Guyana against any amount owed to him by her for his equitable share of the former marital residence; (7) granting her an order of enforcement directing defendant to pay her or give her a credit/offset equal to the amount owed to her by him for marital debts for credit card balances; (8) directing defendant to pay her attorney's fees, costs, and disbursements, pursuant to Domestic Relations Law § 237 and/or Domestic Relations Law § 238, and for sanctions pursuant to Judiciary Law § 753, and a fine for costs and expenses, with attorney's fees being part of her expenses pursuant to law since she was required to resort to motion practice to seek to enforce the orders of this court; and (9) granting such other and further relief as the court may deem just and proper.
Defendant moves, by order to show cause, under motion sequence #5, for an order: (1) pursuant to Domestic Relations Law § 236 (B) (9) (b) (1), modifying that portion of the Judgment of Divorce granting spousal maintenance; (2) enforcing the Judgment of Divorce granted on April 20, 2021 by compelling plaintiff to place the former marital residence on the market for sale and to pay him the interest to which he is entitled, together with interest from the date of judgment until paid in full; (3) crediting him with 40% of the rental income, together with interest, paid by tenants residing in the former marital residence from the time that the judgment was granted until paid in full by plaintiff; (4) vacating that portion of the Judgment of Divorce disposing of property owned by one or both parties and located in Guyana on the basis that such division is void since this court has no jurisdiction to grant any interest in real property located in a foreign country; and (5) granting such other and further relief as this court may deem just and proper.
Although defendant's Memorandum of Law in support of his order to show cause (NYSCEF Doc No. 96) seeks an order vacating that portion of the Judgment of Divorce granting spousal maintenance and attorney's fees, pursuant to CPLR 5015 (a) (3), or alternatively, modifying the order for spousal maintenance, pursuant to Domestic Relations Law § 236 (B) (9) (b) (1), the order to show cause only seeks an order modifying the order for spousal maintenance, pursuant to Domestic Relations Law § 236 (B) (9) (b) (1) (NYSCEF Doc No. 95).
Plaintiff moves, by order to show cause, under motion sequence #6, for: (1) a protective order, pursuant to CPLR 3103 (a), for the prevention of abuse by defendant by his conducting of postjudgment discovery in the form of nonparty subpoenas issued by counsel for defendant; (2) an order, pursuant to CPLR 2304, quashing, barring, and striking nonparty subpoenas issued by counsel for defendant seeking information from Capital One Bank, NA and Citibank, NA; (3) granting her counsel fees and the costs and disbursements incurred by her in filing this order to show cause; and (4) granting such other and further relief as this court deems just and proper.
Defendant moves, by order to show cause, under motion sequence #7, for an order: (1) issuing nonparty subpoenas against plaintiff's banks, Citibank, N.A. and Capital One, seeking all documents or information related to any certificates of deposit, savings accounts, checking accounts, money market accounts, or any other accounts of any nature whatsoever, safety deposit boxes, and trading accounts of any kind maintained at those financial institutions, from January 1, 2019 to January 1, 2023 in plaintiff's name, pursuant to CPLR 5101, 3102 (d), and 5223, and Domestic Relations Law § 236; (2) denying plaintiff's motion to quash his subpoenas; and (3) granting such other and further relief as to this court may seem just and proper.
Facts and Procedural Background
The parties were married in Georgetown, Guyana in 1994. On April 2, 2018, plaintiff filed this action for divorce and ancillary relief against defendant. Two children were born of the marriage. The son was 22 years old and emancipated at the time of the trial, and the daughter was 20 years old and unemancipated at the time of the trial. The parties appeared for trial on January 21, 2020 and January 22, 2020 on the issues of equitable distribution of the former marital residence, the parties' pensions and retirement accounts, equitable distribution of the marital debt, an award of maintenance, an award of child support, and an award of counsel fees.
A Decision After Trial was rendered by the court on December 1, 2020 (NYSCEF Doc No. 25). A Judgment of Divorce dated April 20, 2021 was entered by this court on April 27, 2021 (NYSCEF Doc No. 39).
Pursuant to the Decision After Trial, the Judgment of Divorce directed defendant to pay to plaintiff spousal maintenance in the amount of: (1) $4,809.74 for the year of 2018 (which is $534.42 per month for nine months in 2018); (2) $9,049.55 for the year 2019 (which is $754.13 per month for 12 months); (3) $8,295.43 for the months of January through November 2020 (which is $754.13 per month for 11 months); and (4) $754.13 per month for the period of 11 years commencing on December 1, 2020 and continuing until December 1, 2031. The Judgment of Divorce also directed defendant to pay child support for the unemancipated child in the amount of: (1) $1,355.10 per month, commencing on December 1, 2020 and continuing on the first day of each month up to and including June 1, 2021; (2) $1,229.42 per month for nine months, commencing on April 2, 2018 through December 31, 2018 for a total sum of $11,064.74; (3) $1,355.10 per month for the period of 12 months commencing on January 1, 2019 through December 31, 2019 for a total amount of $16,261.11; and (4) the sum of $1,355.10 per month for 11 months, commencing on January 1, 2020 through November 30, 2020. The Judgment of Divorce provided that defendant's combined maintenance and child support arrears obligation to plaintiff was $39,076.01, and directed defendant to pay $500 of retroactive arrears monthly, together with his basic monthly maintenance and child support obligation, until child support ended in July 2021. The Judgment of Divorce further provided that starting in July 2021, defendant was directed to pay $1,355.10 of retroactive arrears monthly, together with his basic monthly maintenance, until all arrears were paid in full, and defendant was to be credited for any prior maintenance or child support payment paid by him. The Judgment of Divorce further required defendant to pay his 62.93% pro rata share of the unemancipated child's extracurricular activities, unreimbursed medical expenses, future health care expenses, health insurance premiums, and educational and extraordinary expenses.
Any minor discrepancy in totals results from the necessity to round to the nearest whole cent.
The Judgment of Divorce awarded plaintiff exclusive occupancy of the former marital residence, together with its contents. Title to the former marital residence is held solely in plaintiff's name. The Judgment of Divorce provided that pursuant to the court's Decision After Trial, the equity in the former marital residence subject to equitable distribution was $76,752, and plaintiff was entitled to 60% and defendant was entitled to 40% of the equity in the former marital residence. The Judgment of Divorce further provided that pursuant to the court's Decision After Trial, the real property located in Guyana valued at approximately $17,500 USD, which was acquired during the marriage, was subject to equitable distribution and plaintiff was awarded 60% and defendant was awarded 40% in the net equity.
In addition, the Judgment of Divorce provided that plaintiff shall have the right to buy out defendant's equitable share in the former marital residence, and defendant shall have the right to buy out plaintiff's equitable share in the Guyana property. It also provided that if plaintiff was unable to buy out or in the event plaintiff elected not to buy out defendant's share of the marital residence within 120 days from the date of service of the Judgment of Divorce with notice of entry on defendant, the former marital residence would be placed on the market for sale, and if defendant was unable to buy out or in the event the defendant elected not to buy out plaintiff's equitable share in the Guyana property within 120 days from the date of service of the Judgment of Divorce with notice of entry on plaintiff, the Guyana property would be placed on the market for sale. It set forth that in the event that the parties were unable to agree on a listing price, the court retained jurisdiction to order an updated appraisal.
The Judgment of Divorce set forth that a separate Qualified Medical Child Support Order shall be issued simultaneously therewith. The Judgment of Divorce provided that pursuant to the court's Decision After Trial, the parties' credit card balances shall be deemed marital debt subject to equitable distribution and that each party shall be equally financially responsible for 50% of the credit card balances.
The Judgment of Divorce directed defendant to pay the sum of $17,164 directly to plaintiff's counsel, Ishelli Oliver, Esq. It also provided that the court awarded statutory interest on the previously ordered counsel fees of $6,500 for the reasons set forth in the court's Decision After Trial.
Notice of entry of the Judgment of Divorce was served on defendant's then counsel Gerald Gray, Esq. and filed with this court on June 28, 2021 (NYSCEF Doc Nos. 42, 44). Defendant did not appeal the court's Judgment of Divorce. The time for defendant to appeal the Judgment of Divorce expired on July 28, 2021 (over two years ago), which was 30 days after the notice of entry of the Judgment of Divorce was filed in this action on June 28, 2021.
Defendant did not pay plaintiff any maintenance or child support as required by the Judgment of Divorce. Consequently, on November 8, 2021, plaintiff filed a petition, pursuant to article 4 of the Family Court Act, in the Family Court, Kings County (NYSCEF Doc No. 77). The petition sought a total of $58,365.50 in arrears from December 1, 2020 through November 1, 2021 (id.). The Family Court issued an interim order of enforcement dated December 5, 2022 directing defendant to pay plaintiff the child support arrears and maintenance in the monthly amount of $2,109.23 (NYSCEF Doc No. 100). Plaintiff attests that defendant has failed to comply with the Family Court order and that she has not received any payments from him. Plaintiff did not buy out defendant's 40% interest in the former marital residence, and defendant did not buy out plaintiff's 60% interest in the Guyana property.
Qualified Domestic Relations Orders (QDROs) were signed and filed on November 18, 2022 pursuant to the Decision After Trial and the Judgment of Divorce (NYSCEF Doc Nos. 49, 50). By a Consent to Change Attorney dated April 11, 2022, defendant changed his counsel to Shellon O. Washington, Esq. of the Washington Law Firm. P.C. (NYSCEF Doc No. 54).
On April 12, 2023, defendant filed an order to show cause seeking an order: (1) modifying spousal maintenance; (2) consolidating plaintiff's application for an order to enforce child support and spousal maintenance pending in the Family Court, pursuant to CPLR 602, with this action; (3) compelling plaintiff to place the former marital residence on the market for sale and pay him his 40% equitable interest in it plus interest from the time of the Judgment of Divorce until paid in full; (4) crediting him with 40% of the rental income paid by tenants of the former marital residence from the time that the Judgment of Divorce was granted until paid in full; and (5) vacating the Judgment of Divorce insofar as it awarded plaintiff an equitable interest in the Guyana property.
On May 13, 2023, plaintiff filed her order to show cause, under motion sequence number four, which was signed by the court on May 18, 2023 (NYSCEF Doc No. 93). On May 26, 2023, defendant filed his order to show cause, under motion sequence number five (NYSCEF Doc No. 95), which was signed by the court on June 2, 2023 (NYSCEF Doc No. 114), and he withdrew his April 12, 2023 order to show cause. Defendant's order to show cause sought the same relief as his previous April 12, 2023 order to show cause except that he no longer sought consolidation with the Family Court proceeding pursuant to CPLR 602.
Defendant, in his Memorandum of Law (NYSCEF Doc No. 96 at 1-2), states that he is withdrawing his request to consolidate pursuant to CPLR 602 and that, on this basis, he is seeking to dismiss plaintiff's order to show cause insofar as she seeks an order of contempt against him.
On June 28, 2023, defendant's counsel signed two nonparty subpoenas directed to Citibank, NA and Capital One Bank NA, seeking bank records for any accounts held in plaintiff's name at Citibank, NA and Capital One Bank NA during the period from January 1, 2019 through January 1, 2021, and submitted these subpoenas to the court to be so-ordered (NYSCEF Doc Nos. 116, 118). The documents sought in defendant's subpoenas included a time period that was prior to the trial on January 21 and 22, 2020 and were for a time period prior to the entry of the April 20, 2021 Judgment of Divorce. The Citibank account referenced by defendant was opened by plaintiff after the trial was completed. The Capital One account was opened by plaintiff prior to the filing of this divorce action, and account statements had been provided to defendant through counsel with regard to that account, which had been listed on plaintiff's statement of net worth as part of discovery. The subpoenas did not contain and were not accompanied by a notice stating the circumstances or reasons that the disclosure was required, as mandated by CPLR 3101 (a) (4).
On July 13, 2023, plaintiff filed her order to show cause, under motion sequence number six, for a protective order and to quash the subpoenas (NYSCEF Doc No. 135). Plaintiff's order to show cause was signed by the court on July 17, 2023 (NYSCEF Doc No. 136). On July 20, 2023, defendant filed his order to show cause (NYSCEF Doc No. 137), under motion sequence number seven, which was signed by the court on July 20, 2023 (NYSCEF Doc No. 146), seeking the issuance of the nonparty subpoenas on Citibank and Capital One. The subpoenas were revised so as to contain the notice that: "This Subpoena seeks information to enforce a Judgment granted on April 20, 2021, before Hon. Jeffrey S. Sunshine in the Kings County Supreme Court, awarding the amount of $30,700.80, representing 40% of the equity in the marital residence valued at $76,752 to the defendant" (NYSCEF Doc No. 145). The court has not signed the subpoenas.
Oral argument of all four motions was held on July 26, 2023 (NYSCEF Doc No. 153).
The Guyana Property
The Parties' Contentions
Defendant argues that the Judgment of Divorce must be vacated, pursuant to CPLR 5015 (a) (4), insofar as it provided that plaintiff is entitled to 60% of the value of real property located in Guyana and that he is entitled to 40% of such value. CPLR 5015 (a) (4) provides that "the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of... lack of jurisdiction to render the judgment or order." Defendant contends that this court lacked jurisdiction to render any judgment or order affecting the Guyana property. Defendant asserts that this is because the court lacks jurisdiction to render any judgment or order affecting land in a foreign country.
Defendant argues that the law of the situs, namely, Guyana, is controlling. Defendant sets forth that the Married Person's Property Act, Laws of Guyana Ch. 45.04, section 4 provides that there is no community of goods or property in Guyana, and, therefore, any immovable or real property purchased by the husband during the marriage belongs to the husband to the exclusion of the wife. Defendant contends that this court should have deferred to the laws in Guyana, and had no jurisdiction to make any ruling on real property located in Guyana, especially where the laws of Guyana are vastly different from the laws which were applied by this court. Defendant argues that he is, therefore, entitled to an order vacating the Judgment of Divorce, insofar as it ordered equitable distribution of property located in Guyana, a South American country, based on the laws in New York, on the basis that the Judgment of Divorce is void in this respect.
Plaintiff contends that the property located in Guyana was paid for using marital funds and is marital property subject to equitable distribution. Plaintiff maintains that she is entitled to an interest in the Guyana property, both under the laws of the Cooperative Republic of Guyana and under the laws of the State of New York. Plaintiff argues that the courts in Guyana can give full faith and credit to the decision and judgment of this court with regard to equitable distribution of the marital property. Plaintiff also argues that the court had jurisdiction to render its determination regarding the Guyana property since it had personal jurisdiction over defendant.
Discussion
A trial court in a divorce action is required to determine the respective rights of the parties to real property located outside of the state, even if it has no in rem jurisdiction over the out-of-state real property (see Johnson v Johnson, 68 A.D.3d 1685, 1686 [4th Dept 2009]). A court of equity, acting pursuant to its personal jurisdiction over a party, may order the party to perform such acts as executing conveyances with respect to foreign real property (see Brevilus v Brevilus, 72 A.D.3d 999, 1001 [2d Dept 2010]).
Since the court "had in personam jurisdiction over the parties [in this divorce action], it also had 'equity jurisdiction over their rights with respect to foreign realty'" (Isaly v Devlin, 139 A.D.3d 470, 470 [1st Dept 2016], quoting Ralske v Ralske, 85 A.D.2d 598, 599 [2d Dept 1981], appeal dismissed 56 N.Y.2d 644 [1982]; see also Brevilus, 72 A.D.3d at 1001; Tobjy v Tobjy, 163 A.D.2d 303, 303 [2d Dept 1990], lv dismissed and denied 77 N.Y.2d 937 [1991]; Johnson v Dunbar, 114 N.Y.S.2d 845, 849-850 [Sup Ct, Kings County 1952], affd 282 A.D. 720 [2d Dept 1953], affd 306 NY 697 [1954]). The court's personal jurisdiction over defendant and plaintiff gives it equity jurisdiction over defendant and plaintiff's rights to the Guyana property (see Isaly, 139 A.D.3d at 470; Ralske, 85 A.D.2d at 599).
Thus, contrary to defendant's contention, the court had jurisdiction to equitably distribute the Guyana real property by determining the parties' respective interests therein and ordering defendant to buy out plaintiff's 60% interest in it (see Isaly, 139 A.D.3d at 470; Brevilus, 72 A.D.3d at 1001; Riechers v Riechers, 267 A.D.2d 445, 446 [2d Dept 1999], lv denied 95 N.Y.2d 757 [2000]). Consequently, defendant's motion, insofar as he seeks an order vacating the portion of the Judgment of Divorce that orders the distribution of the Guyana property, is wholly devoid of merit and must be denied (see Isaly, 139 A.D.3d at 470; Brevilus, 72 A.D.3d at 1001; Johnson, 68 A.D.3d at 1686; Riechers, 267 A.D.2d at 446; Tobjy, 163 A.D.2d at 303).
Defendant's attorney's contention in this regard and motion to vacate the court's determination with respect to the Guyana property on this basis, without being able to provide any case law in support of this contention (since there is none), and merely claiming that it is "trite law" (NYSCEF Doc No. 153 at 37, lines 8-20), borders on frivolous conduct due to its lack of merit in the face of well-established precedent.
Termination of Maintenance
The Parties' Contentions
Defendant contends that he is entitled to a vacatur of the Judgment of Divorce insofar as it awarded maintenance to plaintiff based on the ground of fraud, pursuant to CPLR 5015 (a) (3), or in the interests of substantial justice. Defendant argues that the weight of the testimony during the divorce trial did not support a finding that plaintiff was ever entitled to spousal maintenance. Defendant claims that plaintiff is financially self-supporting and points to plaintiff's testimony at the trial, that she paid the mortgage on the former marital residence almost exclusively. Defendant states that during the trial, plaintiff testified that she was mostly running the former marital residence on her own with very little contributions from him.
Defendant further notes that plaintiff's father sold his home in October 2019 and her father died in November 2019 during the pendency of this action for divorce and prior to the trial that commenced on January 21, 2020. Defendant states that he believes that plaintiff inherited money from her deceased father's estate and used it to pay her attorney's fees and to support her lifestyle. Defendant argues that plaintiff willfully failed to disclose that she received an inheritance from her father and that this constitutes evidence of fraud because this impacted her ability to be self-supporting. Defendant claims that at the time that the Judgment of Divorce was granted, no evidence was established showing that plaintiff's income might increase, that she was receiving additional rental income from tenants who occupied a floor in the former marital residence, or that she received an inheritance from her father's estate and may have substantial investments in a financial institution.
Defendant seeks, pursuant to Domestic Relations Law § 236 (B) (9) (b) (1), a downward modification terminating the final award of maintenance made to plaintiff in the Judgment of Divorce which directed him to pay $754.13 per month for the period of 11 years commencing on December 1, 2020 and continuing until December 1, 2031. Defendant states that he believes that the amount that the court ordered him to pay is excessive. Defendant claims that he is currently not in a position to meet his monthly obligations because his net pay per week is usually less than $1,000. Defendant, who is an electrician through the Local 3 Union and has been so since 2004, further states that work is not guaranteed since he is part of such electrical union, and is likely to work only six months out of the year.
Defendant contends that there has been a substantial change in plaintiff's financial position and her ability to be self-sufficient. Defendant claims that plaintiff has achieved financial independence, thereby requiring that this court modify the previous order awarding her maintenance since it is no longer necessary for a maintenance order to remain in place. Defendant argues that plaintiff's income has significantly increased since the time of the order, from $38,527 in 2017 to $47,124.25 plus rental income of $14,400 per year ($1,200 per month) from the unit at the former marital residence in 2021, equaling a total income of $61,524.25 in 2021. Defendant claims that in 2020, he earned $64,631, and in 2021, he earned $66,587, and that, therefore, his income is not vastly different from plaintiff's income. Defendant further claims that he believes that plaintiff earned a total income of $64,000 in 2022.
Defendant additionally points to the fact that pursuant to the Decision After Trial and the QDROs, plaintiff received her share of the money to which she was entitled under his Annuity Fund, which was in the amount of $29,029.20, a 60% interest in his Deferred Salary Plan in the amount of $84,064.80, and her rightful portion of his Pension, Hospitalization and Benefit Plan of the Electrical Industry Pension Trust Fund. Defendant argues that plaintiff is financially independent, and, therefore, no longer requires any support from him.
Plaintiff argues that there has been no fraud by her. Plaintiff asserts that she did not conceal any facts during this divorce action. Plaintiff denies that she received an inheritance from her father prior to the trial of this action. Plaintiff specifies that her father died in November 2019, and defendant attended his funeral and was fully aware of her father's death prior to the trial, which began on January 21, 2020. Plaintiff attests that she was the attorney-in-fact (power of attorney) for her father prior to his death, and that her father's house was sold in 2019 prior to his death and she signed the deed at the time of the sale only in the capacity as his agent. Plaintiff attests that she did not receive any proceeds of the sale prior to the trial in this divorce action as alleged by defendant's counsel, nor any inheritance from her father prior to the trial of this action for divorce (NYSCEF Doc No. 110).
Plaintiff also states that even if the issue of an inheritance was raised in the trial of this action, it would not have produced a different result due to the great disparity of her income and defendant's income at the time of trial and at present. Indeed, the court noted in the Decision After Trial that defendant earned almost double what plaintiff earned (NYSCEF Doc No. 25 at 51).
Plaintiff further contends since the entry of the Judgment of Divorce, her financial situation has not changed substantially. Plaintiff has submitted her statement of net worth dated as of May 11, 2023 and her 2022 income tax return (NYSCEF Doc No. 80). Plaintiff's 2022 Form 1040 reflects annual wages of $43,383. Plaintiff's W-2 form from the City of New York shows that her Social Security annual wages in 2022 was $45,502.14 (id.). Plaintiff states that her 2022 income was $43,383 from her wages and $14,400 from rental income. Plaintiff states that her monthly income (inclusive of the rent received from the former marital residence) available to pay her expenses is approximately $4,439.38.
Plaintiff further states that her total monthly expenses are $6,573.63 per month. Plaintiff claims that she is behind on all of her bills, and that she has had to borrow money from her sister and family members to assist her with her expenses while the defendant travels to Guyana and other foreign countries since the time that the Judgment of Divorce was entered, and refuses to pay her the maintenance arrears and child support arrears. Plaintiff has submitted copies of her credit card statements (NYSCEF Doc No. 89).
Plaintiff notes that in determining the duration and amount of postjudgment maintenance, the court assessed her annual income reported in her income tax returns as of the date of commencement (April 2, 2018) as follows: $46,593 (gross income of $38,636 less FICA taxes of $2,956 and local NYC taxes of $1,087 plus rental income of $12,000) (NYSCEF Doc No. 25 at 30). Plaintiff sets forth that her current income as reported in her most recent tax returns filed in 2022 is as follows: $53,272.67 (gross income of $43,383 less FICA taxes of $3,318.80, and local NYC taxes of $1,191.53 plus rental income of $14,400).
Plaintiff requests that the court deny defendant's application for a downward modification of maintenance. Plaintiff maintains that since the time that her income at the time of trial was determined to be $46,593 (NYSCEF Doc No. 25 at 41), there has been no substantial change in her income.
Plaintiff further notes that defendant, throughout this divorce action and after the entry of the Judgment of Divorce, has failed to be consistent in paying court-ordered support and pendente lite expenses. Plaintiff points to the fact that during this divorce action, there were two contempt motions filed by her to enforce the court's orders for defendant to make pendente lite payments towards the monthly mortgage for the former marital residence (NYSCEF Doc No. 22).
Plaintiff points out that defendant, in filing his application for a downward modification, has failed to provide the court with his most recent tax returns and W-2 forms for 2022 showing his current income. Plaintiff states that her attorney served a subpoena on the Joint Industry Board of the Electrical Industry/Local 3 Union with regard to obtaining information about defendant's earnings in connection with the Family Court proceeding, and the response to the subpoena received from the union shows that the defendant worked for 1,132.5 hours in 2020, 1,410 hours in 2021 and 1,697 hours in 2022 (NYSCEF Doc No. 82). Plaintiff notes that defendant testified, during the divorce trial, that he earned $56 per hour (NYSCEF Doc No. 25 at 8). Plaintiff calculates, based upon the hourly wages earned by defendant, that his income for 2022 was no less than $95,032 ($1,697 x 56). The Joint Industry Board of the Electrical Industry/Local 3 Union, in its response to the subpoena, also indicated that defendant received supplementary funds that were not reported as income during times of furlough, unemployment, and vacation in the total amount of $33,000 for the period from 2020 to 2023 (id.).
Plaintiff acknowledges that the court issued a QDRO, which provided that she should receive 60% of defendant's retirement and pension accounts, which was served on the Joint Industry Board of the Electrical Industry, and that she has received the amounts ordered by the court pursuant to the QDRO which was rolled over into a separate account under her name. Plaintiff also acknowledges that she receives rental income from the former marital residence. Plaintiff notes, however, that in calculating and issuing the final order of maintenance, the court contemplated that she would be receiving her share of defendant's retirement and pension accounts in equitable distribution and rental income from the former marital residence. Plaintiff contends that it is disingenuous of defendant's counsel to represent to the court that she has become self-supporting because she received the equitable distribution from defendant's retirement and pension accounts awarded to her pursuant to the court's Decision After Trial. Plaintiff also points out that the Decision After Trial expressly referred to the rental income that she received, and defendant's assertion that she did not disclose this income to the court is patently false (NYSCEF Doc No. 25 at 29, 40). Plaintiff asserts that she is not self-supporting and her income for 2022 is not the amount alleged by defendant and his attorney.
Plaintiff points to the fact that defendant's tax returns for 2021 show his wages to be $70,966 for 2021, not $66,587 as he alleged in paragraph 12 of his affidavit. Plaintiff further asserts that as set forth in the subpoenaed response from the Joint Industry Board of the Electrical Industry/Local 3 Union, defendant, in addition to his reported wages, received the following payments from his union during the period from 2020 through 2023 which was not reported as part of his income: $7,000 for vacation pay in 2020; $7,200 in unemployment benefits for 2021; $7,000 in vacation pay in 2021; $3,200 in Furlough benefits for 2022; $7,000 in vacation pay in 2022; and $1,600 in Furlough benefits as of February 7, 2023 (NYSCEF Doc No. 82). Plaintiff notes that defendant's pay statements show that as of December 5, 2022, defendant's year-to-date earnings were $107,202.40 (NYSCEF Doc No. 102). Plaintiff contends that defendant's gross income for the purpose of determination of his application for modification of maintenance should be determined by this court to be no less than $117,402 ($107,202 wages plus $3,200 in Furlough benefits and $7,000 in vacation pay for 2022). Plaintiff points out that defendant's income as determined by the court in the Decision After Trial was $114,223 at the time of commencement of this divorce action and based upon defendant's weekly earnings at the time of trial, his annualized income for 2020 was $116,480 (NYSCEF Doc No. 25 at 25-26). Plaintiff contends that there has been no substantial change in circumstances which would warrant a modification of maintenance.
Discussion
Where a party fails to establish that the newly discovered evidence would have probably produced a different result, a motion to vacate a judgment or order should be denied (see Meltzer v Meltzer, 140 A.D.3d 716, 717 [2d Dept 2016]; Sicurelli v Sicurelli, 73 A.D.3d 735, 735 [2d Dept 2010]; Jonas v Jonas, 4 A.D.3d 336, 336 [2d Dept 2004]). Furthermore, where a party moving to vacate the judgment fails to establish that the adverse party engaged in any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment pursuant to CPLR 5015 (a) (3), the motion must be denied (see M&T Bank v Crespo, 181 A.D.3d 667, 668 [2d Dept 2020]; Deutsche Bank Natl. Trust Co. v Conway, 169 A.D.3d 641, 642 [2d Dept 2019]; Kondaur Capital Corp v Stewart, 166 A.D.3d 748, 750 [2d Dept 2018]; Bank of NY Mellon Trust Co., N.A. v Sukhu, 163 A.D.3d 748, 751 [2d Dept 2018]; Sicurelli, 73 A.D.3d at 735; Sieger v Sieger, 51 A.D.3d 1004, 1006 [2d Dept 2008], appeal dismissed 14 N.Y.3d 750 [2010], lv denied 14 N.Y.3d 711 [2010]; Mohrmann v Lynch-Mohrmann, 24 A.D.3d 735, 736 [2d Dept 2005]; Badgett v Badgett, 2 A.D.3d 379, 379 [2d Dept 2003]).
Defendant's own affidavit contains no assertions by him with respect to his claim of fraud, which is asserted only by his counsel (NYSCEF Doc No. 97). Defendant also does not state when he discovered that plaintiff may have received an inheritance from her father's estate. Although defendant was aware of plaintiff's father's death, he waited for almost two years from the time of the Judgment of Divorce dated April 20, 2021 to May 26, 2023 to file his order to show cause seeking to vacate the Judgment of Divorce on the basis of fraud (see Kondaur Capital Corp., 166 A.D.3d at 749 [holding that "[a] party seeking to vacate a judgment pursuant to CPLR 5015 (a) (3) must make the motion within a reasonable time"]; Sieger, 51 A.D.3d at 1006 [same]). Defendant was aware of this claimed newly discovered evidence allegedly concealed from him before the Judgment of Divorce was issued (see McGovern v Getz, 193 A.D.2d 655, 657 [2d Dept 1993], lv dismissed 82 N.Y.2d 741 [1993] [affirming denial of vacatur where "[t]he defendant was aware of the so-called newly-discovered evidence allegedly concealed from her before the divorce judgment was issued"]). Defendant fails to show anything that plaintiff did that was fraudulent (see e.g. Porter v Porter, 137 A.D.3d 992, 993 [2d Dept 2016] [holding that the defendant's failure to list certain property on her net worth statement "does not constitute fraud or misrepresentation sufficient to entitle the plaintiff to vacate the judgment of divorce"]).
Property acquired before the marriage or during the marriage by gift or inheritance is separate property (see Domestic Relations Law § 236 [B] [1] [d]; Any inheritance that plaintiff received from her father could not be considered as a reliable source of income as it is limited and non-recurring (see Matter of Scomello v Scomello, 260 A.D.2d 483, 484 [2d Dept 1999]). Furthermore, New York does not consider inheritances to fall within the statutory definition of gross income. Rather, Domestic Relations Law § 240 (1-b) (e) (4) simply treats the entire amount of the inheritance as an available resource where additional child support is warranted. Here, there was no issue concerning the need for additional child support.
Defendant has failed to show that any evidence regarding plaintiff's inheritance would have produced a different result regarding his maintenance obligation (see Sicurelli, 73 A.D.3d at 735; Jonas, 4 A.D.3d at 336). Moreover, defendant failed to establish the existence of fraud on the part of plaintiff sufficient to entitle him to vacatur pursuant to CPLR 5015 (a) (3) (see Meltzer, 140 A.D.3d at 717; Porter, 137 A.D.3d at 993; Sicurelli, 73 A.D.3d at 735; Sieger, 51 A.D.3d at 1006; Mohrmann, 24 A.D.3d at 736; Badgett, 2 A.D.3d at 379). In addition, defendant has failed to show that maintenance provision of the Judgment of Divorce should be vacated in the interests of substantial justice (see Deutsche Bank Natl. Tr. Co., 169 A.D.3d at 642; 40 BP, LLC v Katatikarn, 147 A.D.3d 710, 711 [2d Dept 2017]).
In addition, the doctrine of unclean hands is an equitable defense and is applicable to the equitable relief sought by defendant, i.e., vacatur of the award of maintenance in the Judgment of Divorce pursuant to CPLR 5015 (a) (3), since he has failed to make any maintenance payments as required pursuant to the Judgment of Divorce (see Sui-Hsu Hsieh v Yen-Tung Teng, 156 A.D.3d 1424, 1425 [4th Dept 2017] [refusing to vacate the Judgment of Divorce based on wife's failure to disclose property on her statement of net worth because of the husband's unclean hands due to his failure to make any payments to the wife]).
"A court may modify a prior order or judgment awarding maintenance upon a showing of a 'substantial change in circumstance[s]'" (Maria v Ramadan, 219 A.D.3d 874, 875 [2d Dept 2023], quoting Domestic Relations Law § 236 [B] [9] [b] [1]; see also Matter of Ceballos v Castillo, 85 A.D.3d 1161, 1162 [2d Dept 2011]; Matter of Kasun v Peluso, 82 A.D.3d 769, 771 [2d Dept 2011]; Klapper v Klapper, 204 A.D.2d 518, 519 [2d Dept 1994]). "The party seeking the modification has the burden of establishing the existence of a change in circumstances warranting the modification" (Maria, 219 A.D.3d at 875-876 [2d Dept 2023]; see also Matter of Kasun, 82 A.D.3d at 771; Klapper, 204 A.D.2d at 519). "In determining if there is a substantial change in circumstances to justify a downward modification, the change is measured by comparing the payor's financial circumstances at the time of the motion for a downward modification, and his or her circumstances at the time of the divorce or when the order sought to be modified was made" (Maria, 219 A.D.3d at 876; see also Klapper, 204 A.D.3d at 519). Here, the record reveals that there was no substantial change in circumstances based on either an increase in plaintiff's income or a decrease in defendant's income, or that any alleged increase in plaintiff's income or decrease in defendant's income was unanticipated (see Maria, 219 A.D.3d at 876; Lee v Lee, 68 A.D.3d 622, 622 [1st Dept 2009]; Matter of Fein v Gilchrist, 23 A.D.3d 558, 559 [2d Dept 2005]). Since plaintiff is currently earning only slightly more than she did at the time of the divorce, this does not warrant termination of maintenance (see McFarlane v McFarlane, 220 A.D.3d 1083, 1085 [3d Dept 2023]). In addition, defendant has failed to show that his income has decreased.
Contrary to defendant's assertions (NYSCEF Doc No. 96 at 11), plaintiff's receipt of rental income of $14,400 was expressly taken into consideration by the court in determining maintenance (NYSCEF Doc No. 25 at 29). Defendant's arguments that maintenance should not have been awarded to plaintiff because she was self-supporting at the time of the divorce were waived by his failure to take an appeal from the Judgment of Divorce (see Maria, 219 A.D.3d at 876; Dembitzer v Rindenow, 35 A.D.3d 791, 793-794 [2d Dept 2006]). Defendant cannot relitigate issues already decided and determined in the Decision After Trial and Judgment of Divorce by way of his instant motion.
Contrary to defendant's argument, the fact that plaintiff received payments pursuant to the QDROs does not warrant the termination of maintenance. The receipt of assets by way of equitable distribution does not bar an award of maintenance (see Kay v Kay, 302 A.D.2d 711, 712 [3d Dept 2003]). Moreover, a spouse's postdivorce receipt of payments from the other spouse's pension does not constitute a substantial change in financial circumstances so as to warrant a downward modification of the payor spouse's maintenance obligation (see Lee, 68 A.D.3d at 622). Consequently, the court denies defendant's motion insofar as he seeks to downwardly modify maintenance and terminate it.
The Subpoenas
The Parties' Contentions
Plaintiff states that the notice on the face of the nonparty subpoenas provide that they are sought to enforce the April 20, 2021 Judgment of Divorce awarding defendant the amount of $30,700.80 representing 40% of the equity in the former marital residence valued at $76,752. Plaintiff notes that the subpoenas are seeking documents and information from January 1, 2019 through January 1, 2021, which includes the time period prior to the January 21 and 22, 2020 trial and was prior to the April 20, 2021 Judgment of Divorce. Plaintiff points to the fact that the Judgment of Divorce was not in force during the period of time requested in these nonparty subpoenas seeking her bank statements. Plaintiff argues that it defies logic that defendant would seek information with regard to her finances in 2019 to enforce a Judgment of Divorce in 2024.
Plaintiff asserts that CPLR article 52 is inapplicable to the facts of the case at bar because there is no money judgment issued by this court against her for a sum certain. Plaintiff argues that the terms of the Judgment of Divorce that refer to the equitable distribution of the former marital residence do not constitute a money judgment since the Judgment of Divorce does not contain a sum certain payable to defendant by her. Plaintiff notes that the Judgment of Divorce provides that she would either buy out defendant's share in the former marital residence or it would be listed for sale. Plaintiff contends that defendant has not asserted how her bank statements for the period of January 1, 2019 through January 1, 2021 would be material or necessary to assist him in either enforcing the sale of the former marital residence or in enforcing the buy-out and payment by her of his equitable share in the former marital residence which would take place now in 2024.
Plaintiff further contends that while not stated in the notice on the face of the subpoenas, defendant is actually seeking the issuance of these postjudgment subpoenas to pursue a theory of fraud against her. Plaintiff asserts that defendant is improperly attempting to conduct discovery to obtain documents that were available prior to the trial in order to relitigate the issues of equitable distribution and reverse the Judgment of Divorce where there was no timely filing of a notice of appeal by him. Plaintiff maintains that defendant seeks to issue the subpoenas as a fishing expedition to obtain evidence to support his motion to vacate and that he is not entitled to conduct such postjudgment discovery.
Plaintiff argues that she is entitled to recover the attorney's fees incurred by her in connection with this motion because defendant has engaged in frivolous conduct pursuant to 22 NYCRR 130-1.1. Plaintiff contends that such frivolous conduct consists of defendant's attempt to vacate the Judgment of Divorce even though no notice of appeal was timely filed by him with regard to the Judgment of Divorce, and his submission of the subpoenas seeking postjudgment discovery after the trial of this action was completed.
Plaintiff has submitted her retainer agreement dated April 18, 2023 which shows that she paid a $2,000 retainer fee in retaining Ishelli Oliver, Esq. (NYSCEF Doc No. 133). Plaintiff has also submitted the affirmation of Ms. Oliver, Esq. (NYSCEF Doc No. 122). Ms. Oliver, Esq. states that as of July 12, 2023, plaintiff has incurred a total of $3,675 solely with regard to her motion to quash and protective order. Ms. Oliver, Esq. attests that she has spent approximately 10.5 hours preparing the motion to quash, sending letters to defendant's counsel, conducting legal research to prepare the memorandum of law in support of the motion to quash, drafting plaintiff's affidavit in support of the motion to quash, and preparing the exhibits in support of the motion to quash. Plaintiff seeks attorney's fees in the amount of $3,675. Plaintiff has submitted her attorney's invoice dated July 12, 2023, which describes the legal services performed from May 11, 2023 to July 12, 2023 and the time spent on the legal services, and lists that her attorney performed 22.2 hours at $350 per hour, totaling $7,770 (NYSCEF Doc No. 134). This invoice encompasses the 10.5 hours and $3,675 billed in connection with plaintiff's instant motion to quash.
Defendant contends that by the subpoenas, he is seeking to establish that plaintiff has the means to satisfy his money judgment granted by this court and he is also seeking to establish that plaintiff is self-supporting. Defendant asserts that pursuant to CPLR 3102 (d), during and after trial, disclosure may be obtained only by order of the trial court on notice except as provided in CPLR 5223, which provides that "[a]t any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment." Defendant claims that a money judgment currently exists in his favor since the Judgment of Divorce provided that he is entitled to 40% of the equity in the former marital residence, which was valued at $76,752, and, therefore, equals $30,700.80, an amount which remains unsatisfied. Defendant contends that he needs the nonparty subpoenas to determine the extent of plaintiff's assets and whether she had sufficient assets to satisfy this judgment. Defendant also asserts that he is asking this court to reopen this matter based on alleged fraud by plaintiff, and that he is entitled to these subpoenas based on his fraud claims against plaintiff.
Discussion
CPLR 3120 (1) (i) permits a party to serve a subpoena duces tecum on any person to produce designated documents in its possession. Pursuant to CPLR 3103 (a), a party may move for a protective order "denying, limiting, conditioning or regulating the use of any disclosure device." Such a protective order "shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." CPLR 2304 permits a party to move to quash a subpoena.
"Although the nonparty bears the initial burden of proof on a motion to quash, [CPLR] 3101 (a) (4)'s notice requirement nonetheless obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, 'the circumstances or reasons such disclosure is sought or required'" (Matter of Kapon v Koch, 23 N.Y.3d 32, 39 [2014]). As discussed above, the notice provided by defendant states that the subpoenas are sought to enforce the April 20, 2021 Judgment of Divorce awarding defendant the amount of $30,700.80 representing 40% of the equity in the former marital residence valued at $76,752.
CPLR 5101 provides that "[a] money judgment and an order directing the payment of money, including motion costs, may be enforced as prescribed in article fifty-two." CPLR 5223 provides that "[a]t any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment, by serving upon any person a subpoena, which shall specify all of the parties to the action, the date of the judgment, the court in which it was entered, the amount of the judgment and the amount then due..." CPLR 105 (q) defines a money judgment as "a judgment, or any part thereof, for a sum of money or directing the payment of a sum of money," and CPLR 105 (l) defines a judgment creditor as "a person in whose favor a money judgment is entered or a person who becomes entitled to enforce it."
Here, there was no money judgment pursuant to the terms of the Judgment of Divorce that refer to the equitable distribution of the former marital residence since the Judgment of Divorce does not contain a sum certain payable to defendant by plaintiff. The court notes that a Judgment of Divorce and a money judgment are not the same, just because the work "Judgment" appears in both. Rather, the Judgment of Divorce provides that plaintiff would either buy out defendant's share in the former marital residence or it would be listed for sale. Indeed, defendant's counsel has argued that the former marital residence should be placed for sale since plaintiff did not timely pay defendant for his equitable interest in the former marital residence.
"'Pursuant to CPLR 3101 (a) (4), a party may obtain discovery from a nonparty of matter material and necessary in the prosecution or defense of an action" in possession of the nonparty, as long as the nonparty is apprised of the reasons such disclosure is sought'" (Elavon, Inc. v Meyer, 203 A.D.3d 1030, 1031 [2d Dept 2022], quoting Islip Theaters, LLC v Landmark Plaza Props. Corp., 183 A.D.3d 875, 876 [2020], quoting CPLR 3101 [a]). "'A party or nonparty moving to quash a subpoena has the initial burden of establishing either that the requested disclosure "is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious"'" (Elavon, Inc., 203 A.D.3d at 1031, quoting Hudson City Sav. Bank v 59 Sands Point, LLC, 153 A.D.3d 611, 612-613 [2017], quoting Matter of Kapon, 23 N.Y.3d at 34; see also U.S. Bank Tr., N.A. v Carter, 204 A.D.3d 727, 729 [2d Dept 2022]; Islip Theaters, LLC, 183 A.D.3d at 876). "Should the [movant] meet this burden, the subpoenaing party must then establish that the discovery sought is 'material and necessary' to the prosecution or defense of [the] action" (Matter of Kapon, 23 N.Y.3d at 34; see also U.S. Bank Tr., N.A., 204 A.D.3d at 729-730; Islip Theaters, LLC, 183 A.D.3d at 876).
Plaintiff has established that the subpoenas are "utterly irrelevant" to this postjudgment divorce application (Matter of Kapon, 23 N.Y.3d at 34; Savino v Savino, 218 A.D.3d 508, 509 [2d Dept 2023]; U.S. Bank Tr., N.A., 204 A.D.3d at 730). In opposition, defendant has failed to establish that the requested disclosure was material and necessary to his efforts to enforce a money judgment (see Elavon, Inc., 203 A.D.3d at 1031).
There is no legal basis for defendant to subpoena these documents. While defendant seeks the issuance of the subpoenas under the guise of his assertion that he is attempting to enforce a money judgment and which was stated as the reason such disclosure is sought in the notice on the face of the subpoenas, they are utterly irrelevant to the enforcement of a money judgment. Rather, defendant is using the instant subpoenas as a vehicle to reargue and relitigate the amount of maintenance awarded in the court's Decision and Judgment of Divorce after trial by obtaining financial documents which were in existence prior to the time that the Judgment of Divorce was rendered and are improperly sought at this time. Moreover, a subpoena may not be used "to ascertain the existence of evidence, but, rather, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" (Matter of Terry D., 81 N.Y.2d 1042, 1044 [1993] [internal quotation marks and citations omitted]).
Defendant is improperly using the subpoenas to secure discovery not only long after the note of issue has been filed (see Feiner & Lavy, P.C. v Zohar, 210 A.D.3d 408, 408 [1st Dept 2022]; Tribeca Space Mgrs., Inc. v Tribeca Mews Ltd., 200 A.D.3d 626, 629 [1st Dept 2021]; Bour v 259 Bleecker LLC, 104 A.D.3d 454, 455 [1st Dept 2013]), but also long after there has been a Decision After Trial and a Judgment of Divorce entered. Since defendant has failed to establish that the requested postjudgment disclosure sought is material and necessary to his efforts to enforce a money judgment [that does not exist] against plaintiff or any other proper basis, the subpoenas must be quashed (see Elavon, Inc., 203 A.D.3d at 1031).
Insofar as plaintiff requests an award of counsel fees, based upon defendant's frivolous conduct, the court notes that, pursuant to 22 NYCRR 130-1.1 (a), the court has the discretion to award a party "costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct" as defined in 22 NYCRR 130-1.1 (c). 22 NYCRR 130-1.1 (b) provides that the court "may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both."
22 NYCRR 130-1.1 (c) defines frivolous conduct as conduct which is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"; "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"; or "asserts material factual statements that are false." Here, defendant's opposition to plaintiff's motion to quash and his motion to issue the subpoenas are "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," and is prolonging the resolution of this action long after a Judgment of Divorce has already been rendered. Thus, the court finds that defendant's conduct rises to the level of frivolous conduct, pursuant to 22 NYCRR 130-1.1, so as to warrant an award of counsel fees to plaintiff.
22 NYCRR 130-1.1 does not require a full evidentiary hearing, but states that attorney's fees and costs may be awarded "after a reasonable opportunity to be heard," and that "[t]he form of the hearing shall depend upon the nature of the conduct and the circumstances of the case" (22 NYCRR 130-1.1 [d]). Thus, the party upon whom sanctions are imposed does not have a right to a hearing, but only a reasonable opportunity to be heard (U.S. Bank N.A. v Zaccagnino, 214 A.D.3d 754, 758 [2d Dept 2023]; Martinez v Estate of Carney, 129 A.D.3d 607, 609 [1st Dept 2015]). Here, defendant had the opportunity to be heard through his written submissions and oral argument (see Matter of Kyriacos L. v Hyunjung K., 194 A.D.3d 650, 650-651 [1st Dept 2021]). The papers were sufficient to permit a proper determination of the issue (see Matter of Zaydenverg v Zaydenverg, 151 A.D.3d 871, 872 [2d Dept 2017]). Plaintiff has established that she has been billed for $3,675 in counsel fees in connection with her motion to quash, which she has not yet paid, and, therefore, defendant must pay Ms. Oliver, Esq. this amount within thirty (30) days of service of a copy of this decision.
Offset/Credit
The Parties' Contentions
Plaintiff contends that defendant should be estopped from seeking a sale of the former marital residence due to her failure to pay defendant for his share of the former marital residence pursuant to the time period set forth in the Judgment of Divorce. Plaintiff attests that defendant represented to her that he did not want his 40% of the value of the former marital residence, but, instead, would give his 40% interest to his children. Furthermore, plaintiff asserts that there were ongoing negotiations between her and defendant which caused her delay. Plaintiff has submitted emails showing that there were negotiations in August 2021 between her attorney and defendant's prior attorney, Gerald Gray, Esq., regarding a credit/offset of the amount owed for arrears of maintenance and child support against the amount owed to defendant for his 40% share of the former marital residence (NYSCEF Doc No. 76). Plaintiff also asserts that defendant owes her for 40% of the carrying charges of the former marital residence which she has fully paid since the Judgment of Divorce.
Plaintiff contends that whatever she owes defendant pertaining to the former marital residence, she should be given a credit/offset against whatever defendant owes her pursuant to the Judgment of Divorce, including maintenance and child support. Plaintiff specifies that defendant owes her in excess of $70,431.48 for maintenance and child support, $23,664 for attorney's fees, and $10,500 for her 60% equitable share of the property in Guyana. Plaintiff also asserts that defendant owes her $9,584.15 for credit card debt pursuant to the Judgment of Divorce.
Defendant asserts that he has made several attempts to discuss and negotiate with plaintiff to allow her to offset his interest in the former marital residence against any amount that he may owe to her for maintenance or child support, and that his current attorney, Ms. Washington, Esq., has also made attempts to negotiate with the attorney for plaintiff (NYSCEF Doc No. 97 at paragraph 25). Defendant requests that the court order plaintiff to place the former marital residence on the market for sale so that he can be paid his 40% interest in it. Defendant states that the arrears that he owes plaintiff may be offset out of his share of the proceeds of a sale of the former marital residence.
Defendant contends that plaintiff cannot seek an order of contempt or enforcement against him in this action because she did not seek to consolidate this action with the Family Court action and he has withdrawn his first order to show cause which sought consolidation. Defendant asserts that there is a December 5, 2022 order by the Family Court, directing him to pay monthly maintenance and child support, pending the resolution of plaintiff's petition in the Family Court (NYSCEF Doc No. 100). Plaintiff responds that defendant has not complied with that Family Court order (NYSCEF Doc No. 112 at 8).
Discussion
Contrary to defendant's contentions, merely because plaintiff brought a proceeding before the Family Court, this court is not deprived of jurisdiction as to the issues raised here. Subject matter jurisdiction over matrimonial actions is vested in the Supreme Court, and the Supreme Court has inherent jurisdiction to enforce its orders. Furthermore, there is a jurisdictional distinction between the broad authority of the Supreme Court and the more narrowly circumscribed power of the Family Court, which has a more limited jurisdiction. The New York State Constitution invests in the Supreme Court "general original jurisdiction in law and equity" (NY Const art VI, § 7 [a]).
The issues of defendant's failure to pay counsel fees, credit card debt, and the buyouts of the former marital residence and the Guyana property are not before the Family Court. The Family Court petition is solely for enforcement of the Judgment of Divorce with respect to maintenance and child support payments (NYSCEF Doc No. 104). Furthermore, the Family Court does not have the authority to determine the seeking of a credit on an issue of equitable distribution. Thus, the Family Court does not have jurisdiction to determine a credit/offset of the amounts owed by defendant to plaintiff as against the amount owed by plaintiff to defendant for his 40% interest in the former marital residence. Therefore, this court has the jurisdiction to enforce the Judgment of Divorce regardless of the enforcement proceedings filed with the Family Court.
While defendant seeks to force a sale of the former marital residence because plaintiff did not pay him his 40% equitable share of the former marital residence within 120 days of service of the Judgment of Divorce with notice of entry, defendant also did not pay plaintiff for her 60% equitable share of the Guyana property within this time period. Defendant also failed to pay plaintiff child support, maintenance, his share of the credit card debt, or plaintiff's counsel fees, as required by the Judgment of Divorce. Thus, defendant cannot seek strict compliance with the deadlines in light of his own failure to make timely payments (see Matter of Vogelgesang v Vogelgesang, 71 A.D.3d 1132, 1134 [2d Dept 2010] [where the husband's failure to comply with the child support provisions of the judgment of divorce was held to properly result in denying the husband's motion to compel the former wife to transfer to him her interest in real property awarded to him by the judgment]). Notably, plaintiff had reduced access to funds due to defendant's failure to pay her the monies owed to her and then demands that she pay him. It is rather audacious to make this argument when it was defendant who steadfastly has systematically not paid child support and maintenance.
Furthermore, plaintiff has shown that there were ongoing negotiations between her attorney and defendant's attorney which led to her delay (NYSCEF Doc No. 76). A party may be granted an extension of time to buy out a property interest where the other party has participated in the delay of the buyout (see Porter, 137 A.D.3d at 993 [court could properly extend the 60-day time frame that had already expired, which was set forth in the judgment of divorce for the defendant to purchase the plaintiff's share of the marital residence where the plaintiff thwarted the buyout process by making additional demands]). Here, the time limit was contained in the court's Decision After Trial and Judgment of Divorce and not in an agreement between the parties, and, therefore, may properly be extended by the court.
Under these circumstances, while there was an inordinate delay here, equity mandates that plaintiff should not be forced to sell the former marital residence and that plaintiff should still be afforded an opportunity to pay defendant his equitable share in the former marital residence, to which plaintiff already has title, particularly in view of the monies owed by defendant to plaintiff to which plaintiff is entitled to offset/credit against the amount owed. Thus, the court declines to order that the former marital residence be listed for sale. To do so would reward defendant for not paying support.
It is undisputed that since the Decision After Trial was issued on December 1, 2020, plaintiff has made all payments for the three mortgages and carrying charges secured by the former marital residence which, plaintiff states, totaled approximately $64,192.95 as of the time of her motion ($2,213.55 per month for 29 months). Plaintiff opposes defendant's request for 40% of the rental income since defendant has not contributed to the mortgage or payment of any carrying charges of the former marital residence since the entry of the Judgment of Divorce. Defendant is responsible for 40% of these charges, which would equal $25,677.18 on $64,192.95. Plaintiff testified at the trial that the rental income was used to pay the mortgage (NYSCEF Doc No. 25 at 5). Rental income in the amount of $1,200 per month for the same 29 months that plaintiff paid the $64,192.95 equals $34,800. Defendant's 40% of such $34,800 rental income equals $13,920 ($64,192.95 x 40% = $25,677.18 - $13,920 results in a difference of $11,757.18 in plaintiff's favor between the carrying charges and the rental income). Any rent that may be due to defendant should be applied to offset the 40% that he owes to plaintiff for the mortgage and carrying charges as of December 1, 2020 (see Roma v Roma, 140 A.D.3d 1242, 1243-1244 [3d Dept 2016] [interest husband would have earned on delayed sale of homestead was offset by loan taken out in wife's sole name]).
As to the credit card debt, the Judgment of Divorce provided that pursuant to the court's Decision After Trial, the parties' credit card balances shall be deemed marital debt subject to equitable distribution and that each party shall be equally financially responsible for 50% of the credit card balances. Based upon the Decision After Trial, defendant is responsible for $13,544.29 of plaintiff's credit card debt (50% of the credit card debt in her name) and plaintiff is responsible for $3,960.14 of defendant's credit card debt (50% of the credit card debt in his name) (NYSCEF Doc No. 25 at 19-20). Neither party has paid the other for the marital credit card debt. Credit card debt may be offset against the equitable distribution of the former marital residence (see Grasso v Grasso, 47 A.D.3d 762, 765 [2d Dept 2008] [parties' marital debt would have been more appropriately distributed by allocating it equally between them, and offsetting it against the net proceeds of the sale of the marital residence after deduction of their contributions of separate property]). Thus, plaintiff is entitled to a credit/offset from defendant against the amount that she owes defendant for his 40% interest in the former marital residence in the amount of $9,584.15, which represents the difference in the amount owed to her over and above the $3,960.14 that she owes to him.
Support arrears may be considered as a credit/offset with respect to the transfer of an equitable interest in the marital residence to one of the spouses (see Bittner v Bittner, 296 A.D.2d 516, 518 [2d Dept 2002]; Maher v Maher, 144 A.D.2d 343, 344 [2d Dept 1988]; Erdheim v Erdheim, 119 A.D.2d 623, 625 [2d Dept 1986], appeal denied 68 N.Y.2d 607 [1986]; Maloney v Maloney, 114 A.D.2d 440, 441 [2d Dept 1985]). Thus, while the former marital residence is already in plaintiff's name, plaintiff is entitled to a credit/offset of any unpaid support still owed by defendant to her. As noted above, the determination of the amount owed for arrears in maintenance and child support is presently before the Family Court. In addition, plaintiff (as discussed below) may be entitled to a credit/offset for the amount that defendant owes for payment of $23,664 in counsel fees.
Since it cannot be determined, based solely on the papers, as to the amount of the credit/offset to which plaintiff is entitled and the amount which remains owed to plaintiff and must be paid to her by defendant following the application of such credit/offset, a hearing must be held to determine these issues. The court notes that this credit offset could not be determined in a family court proceeding. Thus, a hearing shall be scheduled and held to determine these issues.
Arrears in Maintenance and Child Support
The Parties' Contentions
Plaintiff, in her motion, seeks a money judgment for arrears in maintenance and child support in the amount of $70,431.48, and an order of contempt due to defendant's failure to pay her for such arrears. Defendant contends that these issues are presently before the Family Court. Defendant argues that since he has withdrawn his original request for consolidation of the Family Court proceeding with this action, this precludes the court from determining these issues.
Discussion
"The Supreme Court has concurrent jurisdiction over any matter within the jurisdiction of the Family Court" (Sementilli v Sementilli, 102 A.D.2d 78, 84 [1st Dept 1984]). However, while the Family Court proceeding could have been consolidated with this action (see CPLR 602 [b]; Sementilli, 102 A.D.2d at 84 [1st Dept 1984]), both parties oppose such consolidation at this time and it appears that the Family Court proceeding is well advanced in the determination of the issues of maintenance and child support owed by defendant to plaintiff and the issue of defendant's contempt for nonpayment. Thus, the court declines to make a determination as to the issues of maintenance arrears and child support arrears owed and defendant's contempt based on his failure to make these payments in view of the pendency of these issues before the Family Court.
As noted above, defendant has withdrawn his original order to show cause which sought consolidation.
Defendant's Failure to Pay Plaintiff's Counsel Fee Award
The Parties' Contentions
The Judgment of Divorce ordered defendant to pay counsel fees in the amount of $17,164 directly to Ishelli Oliver, Esq. plus interest on pendente lite counsel fees in the amount of $6,500 which had been previously ordered by the court (NYSCEF Doc No. 58 at 8). The Judgment of Divorce directed that the award of counsel fees shall be paid by defendant to Ms. Oliver, Esq. within 60 days of notice of entry of the Judgment of Divorce, and if defendant failed to make payment of the counsel fees within this specified time, the Office of the Kings County Clerk may enter a money judgment in favor of Ms. Oliver, Esq. in the outstanding sum, together with costs and statutory interest retroactive to the date of the required payment, upon affirmation of noncompliance by Ms. Oliver, Esq. on 10 days' written notice to defendant and to defendant's counsel by certified mail and email as well as filing in NYSCEF (id.). Notice of entry of the Judgment of Divorce was served on defendant's then counsel Gerald Gray. Esq. on June 28, 2021 (NYSCEF Doc Nos. 42, 44).
Ishelli Oliver, Esq. has submitted her affirmation, dated May 15, 2023, in which she attests that defendant failed to make any payments for pendente lite counsel fees or the final order of counsel fees as set forth in the Judgment of Divorce (NYSCEF Doc No. 66). Although the Judgment of Divorce permitted Ishelli Oliver, Esq. to obtain a money judgment within 60 days of notice of entry of the Judgment of Divorce, upon an affirmation of noncompliance and 10 days' written notice, she did not seek to enter a money judgment against defendant pursuant to the Judgment of Divorce. Plaintiff seeks an order adjudging that defendant is in contempt for his failure to pay counsel fees in the total amount of $23,664 ($17,164 plus $6,500) plus interest.
Defendant contends that the award of counsel fees should be vacated based on fraud (NYSCEF Doc No. 153 at 31). Defendant states that he believes that plaintiff already paid her attorney's fees from the monies that he claims she inherited from her deceased father's estate. Defendant argues that plaintiff had the ability to be self-supporting and may not have been the less monied spouse due to her inheritance. Defendant maintains that counsel fees should not have been awarded to plaintiff in the Judgment of Divorce and that they were awarded to her due to her fraud in not disclosing her inheritance.
Discussion
As discussed above, there is no showing of fraud by plaintiff. In the absence of a timely appeal, defendant may not relitigate the court's Decision After Trial which determined that defendant was the monied spouse (NYSCEF Doc No. 25 at 51) and the Judgment of Divorce which awarded counsel fees to plaintiff. Defendant cannot reopen and rehash issues that have already been finally determined by the Judgment of Divorce.
Plaintiff now seeks payment of the attorney's fees awarded and still owed by defendant directly to her as a credit/offset of the amount that she owes to defendant for his 40% share of the former marital residence (NYSCEF Doc No. 112 at 14 point IV; NYSCEF Doc No. 153 at 12, line 2).
Since the Judgment of Divorce did not direct the payment of attorney's fees directly to plaintiff and it is plaintiff, rather than her attorney, who is seeking the order of contempt, it must be denied. It appears that plaintiff may have already paid her attorney and is seeking to recover these monies which should have been paid by defendant pursuant to the Judgment of Divorce.
Domestic Relations Law § 237 provides for the payment of counsel fees to be made directly to the attorney for the spouse to whom counsel fees are awarded. However, the court may direct that the payment be made directly to a party who has already advanced funds to his or her counsel, and it is appropriate and permissible to direct a spouse to reimburse the other spouse for monies that he or she already advanced to his or her counsel (see Matter of Tornheim v Rube, 90 A.D.3d 1059, 1060 [2d Dept 2011]; Ross v Ross, 90 A.D.2d 541, 542 [2d Dept 1982], Silver v Silver, 63 A.D.2d 1017, 1017 [2d Dept 1978]).
However, neither plaintiff nor Ms. Oliver, Esq. attests to whether plaintiff paid Ms. Oliver, Esq. this amount owed by defendant for attorney's fees nor do they provide any other proof of such payment. Thus, plaintiff is entitled to a payment or offset/credit for the amount $23,664 owed by defendant for her counsel fees upon proof that she has paid Ms. Oliver, Esq. these fees and is the one to whom these monies should be paid (as opposed to Ms. Oliver, Esq.). The plaintiff may seek offset/reimbursement of any share she paid of defendant's counsel fees owed at the hearing before the referee with accounting and proof pursuant to the Judgment of Divorce. If plaintiff has not paid the fees and the fees are still due and owing, Ms. Oliver, Esq. may enter a money judgment pursuant to the Judgment of Divorce of any money owed. The court does not award postjudgment interest on the $23,664 owed since Ms. Oliver, Esq. never obtained a money judgment in this amount pursuant to the Judgment of Divorce.
Plaintiff's Attorney's Fees for Enforcement
The Parties' Contentions
Plaintiff asserts that defendant has failed to comply with the order of this court directing him to pay her maintenance and child support. Plaintiff states that as a result of defendant's failure, she has incurred attorney's fees with regard to the filing of her order to show cause, under motion sequence number four, seeking to hold defendant in contempt and seeking enforcement, and opposing defendant's motion for enforcement. Plaintiff requests that this court issue an order requiring that defendant pay her attorney's fees for the costs of filing this motion. Plaintiff has submitted a copy of her retainer agreement dated April 18, 2023, which shows that she paid a $2,000 retainer fee in retaining Ishelli Oliver, Esq. for services in connection with her postjudgment order to show cause under motion sequence number four (NYSCEF Doc No. 80).
Plaintiff has also submitted her attorney's affirmation in support of her request for counsel fees incurred in bringing this order to show cause (NYSCEF Doc No. 69). Ms. Oliver, Esq. states that she was retained by plaintiff on April 18, 2023 with regard to this postjudgment motion, and that as of May 15, 2023, plaintiff has been billed for a total of $6,300. Ms. Oliver, Esq. sets forth that her rate for professional services is $350 per hour. Ms. Oliver, Esq. has submitted an invoice for $6,300 for 18 hours of legal services rendered from April 18, 2023 to May 11, 2023 (NYSCEF Doc No. 87).
Ms. Oliver, Esq. subsequently submitted an invoice dated July 12, 2023 for legal services rendered from May 11, 2023 to July 12, 2023 (NYSCEF Doc No. 134). This invoice lists that Ms. Oliver, Esq. performed 22.2 hours at $350 per hour, totaling $7,770 for this time period (NYSCEF Doc No. 134). This invoice encompasses the 10.5 hours and $3,675 billed in connection with plaintiff's motion to quash as discussed above. The balance of charges listed on this invoice was $4,095. The amount of $4,095 plus $6,300 total $10,395.
The total amount of counsel fees incurred on these two invoices is $14,070 ($7,770 plus $6,300), of which plaintiff has already paid $6,000. The $7,770 includes the $3,675 incurred in connection with plaintiff's motion to quash discussed above.
This July 12, 2023 invoice sets forth that plaintiff paid $6,000 of the $6,300 balance from the May 11, 2023 invoice on June 19, 2023, leaving a balance on that invoice of $300. The July 12, 2023 invoice further sets forth that plaintiff's counsel fees which remain due and owing total $8,070 with respect to the amount due of $7,770 on this invoice plus the previous balance of $300 (including the counsel fees incurred with respect to the motion to quash).
Defendant asserts that he cannot be held in contempt since the Family Court is resolving this issue with respect to maintenance and child support.
Discussion
Since the court has declined to find defendant in contempt, an order granting counsel fees pursuant to Judiciary Law § 753 is not warranted. Domestic Relations Law § 237 (b) provides that upon an application to enforce a judgment for maintenance, distributive award, distribution of marital property or child support, "the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." Pursuant to this section, there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (Domestic Relations Law § 237 [b]). Domestic Relations Law § 237 (c) provides that "[i]n any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner."
"Domestic Relations Law § 238 authorizes a court, in its discretion, to award counsel fees in a proceeding to enforce the provisions of a divorce judgment" (Tuchman v Tuchman, 201 A.D.3d 993, 993 [2d Dept 2022]; see also Domestic Relations Law § 237 [b], [c]). "[A] court may require... [one] party [to] pay counsel fees to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard [for] the circumstances of the case and of the respective parties" (Maddaloni v Maddaloni, 163 A.D.3d 794, 796 [2d Dept 2018]). As with Domestic Relations Law § 237 (b), pursuant to Domestic Relations Law § 238, "[t]here is [a] rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (Tuchman, 201 A.D.3d at 993 [internal quotation marks omitted]). "In exercising its discretion [to award fees], the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation" (id. at 993-994 [alterations and internal quotation marks omitted]).
Here, plaintiff was compelled to bring this motion to enforce the terms of the Judgment of Divorce, and defendant has failed to rebut the statutory presumption that plaintiff, as the less monied spouse, is entitled to attorney's fees (see Mollah v Mollah, 136 A.D.3d 992, 994 [2d Dept 2016]). Plaintiff has submitted itemized billing statements as proof of the attorney's fees incurred by her, which establish the "extent and value of [the] services" rendered to her (see Yakobowicz v Yakobowicz, 217 A.D.3d 733, 737 [2d Dept 2023]).
The court need not conduct a hearing to determine plaintiff's attorney's fees since defendant did not request such a hearing, object to the submission of the issue based on papers, or object to the reasonableness of the amount of plaintiff's request, and thus he waived that right (see Savino, 218 A.D.3d at 506; Besosa v Besosa, 172 A.D.3d 990, 990 [2d Dept 2019]; Matter of Zaydenverg, 151 A.D.3d at 872; Castello v Castello, 144 A.D.3d 729, 731 [2d Dept 2016]; Mollah, 136 A.D.3d at 994; Delijani v Delijani, 100 A.D.3d 951, 952 [2d Dept 2012]). The court finds that the amount billed and requested by plaintiff is reasonable, considering, among other things, the time and labor required and the results obtained. Thus, the court finds that an order directing defendant to pay $10,395 for the attorney's fees incurred by plaintiff in relation to motion sequence number four is warranted. Since plaintiff has already paid Ms. Oliver, Esq. $6,000 of these attorney's fees, plaintiff is entitled to direct reimbursement in this amount and Ms. Oliver, Esq. is entitled to be paid the remaining $4,395 due and owing to her.
This is in addition to the $3,675 in attorney's fees incurred by plaintiff with respect to her motion to quash, which shall be paid directly to Ms. Oliver, Esq. since it has not been shown that plaintiff has paid Ms. Oliver, Esq. these attorney's fees.
The defendant is directed to pay $8,070 directly to plaintiff's counsel, Ms. Oliver, Esq., within sixty (60) days of service of this decision with notice of entry by regular and certified mail. If the $8,070 in counsel fees are not paid by defendant to Ms. Oliver, Esq., as ordered herein, Ms. Oliver, Esq. may enter a money judgment with the Office of the County Clerk against the defendant, together with costs and statutory interest from the date of service with notice of entry of this decision, together with an affirmation of non-payment without need for further Court order on fourteen (14) days notice by regular and certified mail.
The defendant is directed to pay $6,000 directly to plaintiff within sixty (60) days of service of this decision with notice of entry by regular and certified mail. If the $6,000 in counsel fees are not paid by defendant to plaintiff, within sixty (60) days of service of this decision with notice of entry by regular and certified mail by such date, plaintiff may enter a money judgment with the Office of the County Clerk against the defendant, together with costs and statutory interest from the date of service with notice of entry of this decision, together with her sworn written affidavit of non-payment without need for further Court order on fourteen (14) days notice by regular and certified mail.
Conclusion
Accordingly, plaintiff's motion, under motion sequence number four, insofar as she seeks an order directing that defendant pay her or give her a credit/offset against the $30,700.80 amount owed by her to defendant for his 40% interest in the former marital residence for the amount owed to her by defendant for: (1) any unpaid maintenance and child support (the amount of which shall be determined by the Family Court); (2) 40% of all mortgage payments, property taxes (which are included in the mortgage), homeowner's insurance, and any other carrying charges paid by her with regard to the former marital residence from December 1, 2020; (3) $10,500, which is 60% of the $17,500 value of the marital property in Guyana; (4) $9,584.15, which is the amount that defendant owes plaintiff in credit card debt; and (5) the amount, if any, of the awarded $23,664 for plaintiff's counsel fees to the extent that they are owed by defendant directly to plaintiff, and defendant's motion, under motion sequence number five, insofar as he seeks a credit/offset for 40% of the rent on the former marital residence collected during this same time period, shall be determined by a hearing to be scheduled and held by the court. Such hearing shall determine the exact amounts to be credited and offset in connection with the former marital residence and the remaining balance owed by defendant to plaintiff to be paid by him to plaintiff. Plaintiff may seek an award of additional counsel fees following the hearing.
Plaintiff's motion, under motion sequence number four, insofar as she seeks an order adjudging and punishing defendant for contempt, pursuant to Judiciary Law § 753 and CPLR 5104, as a result of his willful and contumacious failure to pay maintenance and child support to her as ordered by this court in the Judgment of Divorce dated April 20, 2021 in the total amount of $70,431 and insofar as she seeks a money judgment against defendant in the amount of $70,431.48 for arrears of spousal maintenance and child support, is denied based on the fact that the determination of these same issues is currently before the Family Court.
Plaintiff's motion, insofar as she seeks an order punishing defendant for contempt for failure to pay counsel fees to her counsel in the amount of $23,664 plus interest, is denied. Since plaintiff seeks an order directing defendant to pay her this $23,664 or a credit/offset in this amount as against the monies that she must pay him for his 40% equitable share in the former marital residence, plaintiff must provide proper proof that she paid Ms. Oliver, Esq. this amount or whether this $23,664 remains owed and should be directly paid to Ms. Oliver, Esq.
Plaintiff's motion, under motion sequence number four, for an order, pursuant to Domestic Relations Law § 237 and § 238, directing defendant to pay her attorney's fees incurred by her in connection with that motion, and plaintiff's motion, under motion sequence number seven, for an order, pursuant to 22 NYCRR 130-1.1, directing defendant to pay her attorney's fees incurred by her in connection with that motion, are granted to the extent that plaintiff is awarded a total of $14,070 in counsel fees ($10,395 in connection with motion sequence number four and $3,675 in connection with motion sequence number seven). Since plaintiff has shown that she has already paid Ms. Oliver, Esq. $6,000 of this $14,070, defendant is directed to pay $8,070 directly to Ms. Oliver, Esq. and $6,000 directly to plaintiff.
Defendant's motion, under motion sequence number five, is granted solely to extent that defendant shall receive a credit/offset of 40% of the rental income from the former marital residence as against the mortgage and carrying charges that plaintiff paid during the same time period. Defendant's motion, under motion sequence number five, is otherwise denied in its entirety.
Plaintiff's motion, under motion sequence number six, is granted, and the nonparty subpoenas are hereby quashed.
Defendant's motion, under motion sequence number seven, for the issuance of the nonparty subpoenas is denied in its entirety.
Any issue raised and not addressed in this decision is denied.
The hearing shall be referred to a referee to hear and determine. If there is no consent to hear and determine the issues will be submitted to the referee to hear and report. If the parties agree to hear and determine they shall submit a referee referral order to the Part e-mail by April 8, 2024. If the parties do not agree to hear and determine, they shall submit a referee referral order to hear and report by April 8, 2024.
This shall constitute the decision of the Court.