Opinion
redacted
12-16-2020
J.R., Plaintiff, v. K.R., Defendant.
Plaintiff-pro se Attorney for the Defendant-Robert Wallack, Esq. and Michael Belmont, Esq.
Plaintiff-pro se
Attorney for the Defendant-Robert Wallack, Esq. and Michael Belmont, Esq.
Tandra L. Dawson, J.
In this matrimonial proceeding, the plaintiff (hereinafter the "Wife") filed an Order to Show Cause, on September 9, 2020, seeking an order, pursuant to DRL § 245 and Judiciary Law § 756, holding defendant (hereinafter the "Husband") in contempt of court for intentionally and willfully violating orders of this court dated April 7, 2017, January 3, 2018 and December 19, 2018, respectively, when he failed to reimburse the Wife for add-on expenses totaling $30,843.85. The Wife also requests that she be awarded costs of $200 incurred in bringing this motion. The Wife filed this application pro se despite being previously represented by many different attorneys. The Husband filed opposition papers, the Wife filed a reply, and the court heard oral argument on December 2, 2020. For the reasons set forth below, the Wife's motion is denied.
The court has issued multiple decisions and orders that set forth a more detailed background of this matter and will only be reiterated herein as is pertinent to the instant motion.
The parties were married on November 21, 2015 and separated on January 23, 2017. They have one child, who was born in October 2016. On April 7, 2017 (the "April 17, 2017 Order") the court issued an interim order directing that the Husband pay the Wife temporary maintenance of $2,967 per month, and temporary child support of $3,378 per month based on the income information presented. The court also ordered the Husband to pay 87% of childcare costs, and the outstanding amounts of childcare expenses upon presentation of documentation of such expenses. The order was issued pending briefing of the Wife's pendente lite motion (Motion Seq. No.002).
The Wife then filed Motion Sequence #3 seeking reimbursement for childcare expenses after the Husband allegedly failed to pay them. On January 3, 2018, the court issued a decision and order ("January 3, 2018 Order") related to Motion Sequence 2 and 3 and ordered that Wife is entitled to childcare expenses if she is employed, or engaged in education which will lead to employment. DRL § 240 [1-b] [c][4]. The Wife failed to submit a statement of net worth or present any proof that she was actually employed, despite being directed to do so by the court. The court found that the Wife did not present credible, competent proof of the necessity or reasonableness of the child care expenses, but nonetheless granted her application for reimbursement to the extent that she provides the Husband with adequate proof of child care expenses incurred directly related to her employment or education leading to employment, after which the Husband was directed to reimburse 83% of such expenses to the Wife within five (5) days of presentment.
The court directed that such proof of employment shall include copies of paycheck stubs with number of hours worked and corresponding payments made to the childcare provider.
On July 24, 2018, the Wife filed Motion Sequence #7 seeking various forms of financial relief, including as relevant to this motion: restoring the pendente lite monthly support order to require the Husband to pay 87% of all child-related add-on expenses and compelling the Husband to pay all outstanding add-on expenses in the amount of $49,307. The court issued an order dated December 19, 2018 (the "December 19, 2018 Order") denying the Wife's reimbursement request for failure to submit sufficient documentation, noting that she submitted copies of numerous checks of various amounts which were not made payable or endorsed by anyone. The December 19, 2018 Order granted the Wife's motion to the extent that the Husband was directed to reimburse the Wife 83% of the parties' child's add-on expenses, including pre-school and child care expenses, as well as 83% of the child's unreimbursed non-elective medical, dental, and pharmaceutical expenses within five (5) days of presentation of proof of payment of such expenses. The Wife's application for reimbursement of childcare expenses was also granted to the extent that she provide the Husband with proof of child care expenses incurred directly related to her employment or education leading to employment. The court specified that:
Such proof of employment shall include copies of paycheck stubs with number of hours worked and corresponding payments made to the childcare provider. Provided that the hours worked coincide with the childcare providers' services, then the Husband shall reimburse 83% of such expenses to the Wife within five (5) days of presentment. To the extent that the Wife incurs childcare expenses for educational purposes, she shall provide proof of the hours of such educational endeavors requiring childcare. See , December 19, 2018 Order at p. 7.
The Wife's Motion
The Wife argues that she is currently experiencing financial hardship, is receiving public benefits and is in default on her rent. She contends that this proceeding has driven her into "massive debt" and not being reimbursed for certain add-on expenses has exacerbated her severe financial downfall. She avers that while she is a working actor she has not been able to obtain employment for a variety of reasons, including the COVID19 pandemic and her parents' increasing medical needs. The Wife attaches over 480 pages of exhibits, which she believes demonstrates that the Husband owes her $30,843.85 for his share of unreimbursed expenses. The Wife attaches as Exhibit E a copy of all babysitting receipts and cancelled checks related to childcare payments that she alleges correspond to her employment and or study, as well as an excel spreadsheet (Exhibit F) that lists all payments made prior to and after January 15, 2018. She annexes as Exhibit G statements (some notarized) from babysitters and others including her talent manager, parents, work colleagues, employers and school adviser who purportedly corroborate her work and study schedule. She further attaches as Exhibit I copies of education receipts and as Exhibit J copies of payments made by the Husband towards childcare costs totaling $5,062.90.
As in her prior applications, the vast majority of checks the Wife attaches are not payable to anyone, not endorsed or bear any indication of being paid. Some checks are payable to "W.V.," and only some of the checks are endorsed by Ms. V. on the back of the check. All of the checks are signed by the Wife.
The Wife contends that she emailed the Husband several times seeking reimbursement, along with proof of payment, despite which he has failed to provide reimbursement. (Exhibit K)
The Husband's Opposition
The Husband argues that this is now the fourth time that the Wife has filed a motion seeking reimbursement for the same childcare expenses that were previously addressed by this court. He contends that the Wife continues to waste the court's time with frivolous motions and engaging in sanctionable behavior. He argues that the Wife has failed to establish the elements necessary for a finding of civil contempt. He contends that the Wife has once more failed to follow the court's prior orders by again submitting much of the same insufficient proof, and has also included a request for reimbursement of costs that the Husband already reimbursed her for, which the Husband attaches as D-Exh. 4. The Husband argues that he paid the child's entire pre-school tuition in the amount of $24,000 for 2019-2020 school year and $36,100 for the 2020-2021 school year. (D-Exh. 6 and 7) He notes that the Wife failed to pay her 17% share and actually owes him $10,217. He requests that the court deny the Wife's request for reimbursement of extracurricular activities as the pendente lite order does not provide for reimbursement of extracurricular activities and the Husband should not be financially responsible for the Wife's unilateral decisions.
Indeed, the Wife's excel spreadsheet as Exhibit F includes check numbers 195-200, 7341, 7344, 7345, 226 and 228, which the Wife acknowledged receiving payment for. (P-Exh. J)
The Wife's Reply
The Wife submitted a reply where she "sincerely apologizes" to the court for her previous attempts to provide clear and accurate information related to her request for reimbursement, which was due to her misunderstanding as to what was required. She maintains that in this application, she provided sufficient proof of payment in that she provided notarized affidavits from the payee related to checks that were not made payable to or endorsed by anyone. She argues the Husband knowingly disobeyed several lawful orders of the court and that his refusal to provide reimbursement has severely impaired, impeded and prejudiced her rights in that she is now in default on her rent payments and receiving public assistance. The Wife characterizes French, music and dance classes for the child as "educational" rather than "extra-curricular," arguing that they were the child's only source of professional education and that the Husband was aware of the child's enrollment and gave his consent. She lastly requests that the court reduce her pro rata share of add-on expenses to 0% given she is now unemployed with no income.
As the Wife failed to include this request as part of her original motion, it cannot be considered on reply.
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Discussion/Findings
Pursuant to Judiciary Law § 750 (3) a court has the power to punish for criminal contempt a person guilty of willful disobedience to its lawful mandate. A hearing is required to determine whether willful disobedience has been proven beyond a reasonable doubt. Simens v. Darwish, 100 AD3d 527 (1st Dep't 2012).
In order to adjudge a party in civil contempt, a court must conclusively determine three things: (1) the existence of a lawful order expressing an unequivocal mandate of which the party had knowledge: 2) the disobedience of such order; and 3) that the rights and remedies of a party to the action were defeated, impaired, impeded or prejudiced by the violation of the order. El Dehdan v. El-Dehdan , 114 AD3d 4, 16-17 (2d Dept 2013), aff'd 26 NY3d 19 [2015] [internal citations omitted]; Matter of McCormick v. Axelrod , 59 NY2d 575, 583 [1983]); Jud Law § 753 (A)(3). Civil contempt is punishable by fine, imprisonment, or both. (id ). "Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order." El Dehdan v. El-Dehdan , 114 AD3d at 17. The required standard of proof is clear and convincing evidence, which is lower than the standard required for a finding of criminal contempt; civil contempt does not require a finding of willfulness, mere disobedience is sufficient. El Dehdan v. El-Dehdan , 114 AD3d at 10 and16.
The Wife has failed to establish that the Husband failed to comply with a clear and unequivocal mandate of this court. The Husband is only obligated to reimburse the Wife for expenses included in this court's orders, and only upon adequate proof submitted. The Wife acknowledges receipt of $5,062.90 from the Husband for reimbursement of some of these expenses. While the Wife did submit notarized statements from certain payees, she failed to explain why she could not produce copies of endorsed and/or paid checks. The Husband has contested the sufficiency of proof submitted, as well as objected to the Wife's request for reimbursement of the child's extracurricular activities that he contends he was not required to pay under the pendente lite order and did not consent to. Given the actual amount owed is contested, and a specific sum is not set forth in prior orders, the Wife cannot demonstrate that the Husband refused to comply with an "unequivocal mandate." Latterman v. Latterman, 174 AD3d 518, 519 (2d Dep't 2019) (a "finding of civil contempt requires an unequivocal mandate as to the amount owed"); See also , Spathis v. Spathis, 174 AD3d 407, 408 (1st Dep't 2019).
Given the increase in the filing of motions in this matter, going forward, should either party seek to make a motion for any reason concerning any issue in this case, he or she must first get permission from the court.
Accordingly, it is
ORDERED that the Wife's motion is denied in its entirety; and it is further
ORDERED that any relief not specifically granted is denied.
The foregoing constitutes the decision and order of the court.