Opinion
xxxxx
03-23-2021
M.L., Plaintiff v. J.L., Defendant
On March 19, 2018, Plaintiff moved via Order to Show Cause to hold Defendant in contempt for failing to comply with his support obligations pursuant to the November 29, 2016 Decision and Order and the July 20, 2017 Judgment of Divorce. Defendant opposed on the ground that he was financially unable to comply with his support obligations. On November 13, 2018, the Court ordered a hearing on whether Defendant's alleged financial inability to comply with his support obligations constituted a defense to contempt ["the contempt hearing"]. Defendant and Plaintiff both testified at the contempt hearing, which was conducted on November 19, 2019 and February 25, 2020. On March 11, 2020, Defendant moved for a downward modification of his support obligations (Motion Sequence No. 15). By Decision and Order dated January 29, 2021, the Court denied Defendant's downward modification motion. After a conference with counsel on February 22, 2021, the Court incorporated the submissions and the January 29, 2021 Decision and Order into the record of the contempt hearing. For the following reasons, the Court grants Plaintiff's motion to hold Defendant in contempt for nonpayment of court-ordered maintenance and child support, with a purge amount of $99,548.67 or a jail sentence of four (4) months.
The November 29, 2016 Decision and Order directed Defendant to pay Plaintiff $1,500 per month in maintenance for seven (7) years; $500 per month towards $26,171.86 in pendente lite maintenance arrears; $2,410.54 per month in child support; and 63% of all add-on expenses, including private school tuition, based on an imputed annual income to Defendant of $100,328. Although Plaintiff concedes that Defendant has paid some court-ordered child support, Defendant admits that he never has paid any court-ordered maintenance. As of the February 25, 2020 contempt hearing date, Defendant owed $99,548.67 in combined maintenance and child support.
Plaintiff testified that this was the total amount of combined support that Defendant owed on that date.
Defendant's testimony at the contempt hearing about his alleged inability to comply with his support obligations was neither credible nor persuasive. Initially, Defendant maintained that he is an "architectural designer ... not a licensed architect," but when asked why his tax returns state that he is an architect, he offered that his brother "must have put in in wrong." Although Defendant alleged that an architect must "review and sign off" on his designs, he inconsistently averred that his former business, LD, LLC, was a "one-person company." In any event, Defendant did not submit proof of any certification or licensure for his occupation.
Defendant additionally testified that his brother "is not my official accountant" but helps him prepare his taxes.
Moreover, despite gross receipts of $98,672 and a net income of $59,196 in 2018, Defendant claimed that in early 2019, his business "failed essentially" and that he was "forced to declare bankruptcy." Defendant asserted that he "didn't have any capital to support [his] company, so [he] had to find employment elsewhere." Notwithstanding this self-serving declaration, Defendant stated that he did not seek other employment and accepted his current position at XYZ Co. only after the owner of the company contacted him to offer the job. Further, Defendant admitted that although he "is trained" and "continually train[s]" as an emergency medical technician ["EMT"], he never has applied for a paid EMT job. Instead, he stated that he has worked for the past eight or nine years as a volunteer EMT for which he receives a tax credit.
Defendant also acknowledged that he visits his children in California every "four to six weeks," incurring travel costs that include airfare, hotels and rental cars. Although Defendant claimed that he "would look for the cheapest hotel in the Jewish community or near the airports," he testified that he and the children stayed at the Beverly Hills Marriot, the Hilton Universal, the Sheraton Universal and the Four Points Sheraton. He also admitted that during visits he traveled with the children to Disneyland, Las Vegas and Israel. When asked to approximate the average cost of a visit with his children in California, Defendant responded that he spends $500 to $600 for airfare; $250 for car rental; $500 for hotel; and $250 for food, for a total of $1,600. Defendant also alleged that that he buys or brings clothes for the children during visits because Plaintiff "doesn't share clothes with me." He complained that the children do not "come presentable" to visits because their "shirts are too small ... dresses are too small ... and shoes are too tight." He said that during a particular visit he spent almost $700 on clothes for them. Defendant did not supply documentation of any these expenses, however. Defendant added that his parents "help out" with the costs of visiting his children in California but did not volunteer specifics.
Although Plaintiff introduced an email that she received on March 20, 2017 from Defendant which stated that he and the children would be staying at the "Marriot in Beverly Hills" (Plaintiff's Exhibit 1), Defendant alleged that they actually stayed at the Residence Inn by Marriot in Beverly Hills. In any event, Defendant submitted no documentation to support his testimony.
The November 29, 2016 Decision and Order affords Defendant a "liberal visitation schedule, including visits during summer and school vacations." Specifically, the Order grants Defendant summer access, from "the first Sunday following the last day of school" to "the second Sunday in August," as well as alternate holiday access, including Yom Kippur, Passover and Shavuot. The Order also provides that "should [Defendant] travel to California and provide [Plaintiff], in writing, at least ten (10) days prior notice of such visit ... and such visit does not conflict with [Plaintiff's] holiday access or with a family event of [Plaintiff], [Plaintiff] shall make the children available to [Defendant]." The wording of this latter provision implies that such visits should supplement Defendant's otherwise "liberal visitation," not transform into his regular parental access. Indeed, the Order further states that the "provision shall only remain in effect so long as [Defendant] resides on the east coast and [Plaintiff] resides in California," which is consistent with this interpretation. Yet, it appears that Defendant has chosen to utilize this provision to visit with his children almost every month. That might be acceptable, if Defendant were able to afford such visitation after satisfying his monthly support obligations. To the contrary, not only has Defendant failed to pay maintenance and child support as ordered, he has attempted to use his visitation expenses to justify his delinquency. Nevertheless, Defendant's discretionary visitation expenditures cannot excuse his default on his mandatory support obligations.
The trial court granted Defendant holiday access to the children on Yom Kippur "in even numbered years" and Passover and Shavuot "in odd numbered years." The Appellate Division, Second Department expanded Defendant's alternate holiday access to include Rosh Hashanah, Succoth, Hanukkah and Purim in even numbered years.
Despite Defendant's efforts to portray himself as frugal and impoverished, his testimony demonstrates that his claim is one of convenience only. To further illustrate, despite making several charitable donations in 2019, including $360 to the DT dinner; $880 to the DT special fund; and $250 to the KTD, Defendant admittedly has not paid one penny of court-ordered maintenance to Plaintiff. Indeed, Defendant's posture throughout the post-judgment proceedings may be summed up in the following lines from his Reply Affidavit on his downward modification motion: "I should not be paying this Plaintiff, a woman whose family is beyond wealthy" and Plaintiff "should be required to substantially contribute to my considerable travel costs incident to my visitation with my children."
Although Defendant acknowledged that the donation "was in my name," he alleged that he did not "know if I paid for it or my father paid for it."
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A party responsible for support may not remain voluntarily underemployed in an attempt to evade support responsibilities (see Fries v Price-Yablin , 209 AD2d 1002, 1003 [2d Dept 1994] ; see also Falk v Owen , 29 AD3d 991, 991-992 [2d Dept 2006] [father willfully failed to pay court-ordered child support where he voluntarily left his job and obtained employment at less than half his previous salary]; Caldwell v Caldwell , 259 AD 845 [2d Dept 1940] [husband's voluntary divestiture "of the greater part of his assets" does not entitle him to "reductions in or exemptions from the payment of alimony or freedom from the penalties imposed for nonpayment"]. In denying Defendant's motion for a downward modification of his support obligations, the Court previously found that his alleged financial hardship was self-created. The Court now finds, based upon reasonable inferences drawn from the evidence, that Defendant's financial hardship — namely, his business closure, voluntary bankruptcy and current salaried employment — is partly contrived to convey the impression of adversity and ultimately to evade responsibility for support, particularly maintenance. Indeed, Defendant "has utterly failed to give any convincing evidence that he made a reasonable and fair effort to comply" with his maintenance obligation (see Didero v Didero , 10 AD2d 875 [2d Dept 1960] ).
Accordingly, the Court finds that Defendant knowingly disobeyed the mandates clearly expressed in the November 29, 2016 Decision and Order and July 20, 2017 Judgment of Divorce to pay Plaintiff maintenance and child support, thereby prejudicing Plaintiff's right to receive those funds (see Shemtov v Shemtov , 153 AD3d 1295 [2d Dept 2017], citing Judiciary Law § 753[A][3] ; see also El-Dehdan , 26 NY3d at 29 ; Matter of Fitzgerald , 144 AD3d 906, 907 [2d Dept 2016] ; Mollah v Mollah , 136 AD3d 992 [2d Dept 2016] ). Consequently, the Court grants Plaintiff's motion to hold Defendant in contempt for nonpayment of his maintenance and child support obligations. To purge said contempt, Defendant shall pay Plaintiff the total amount of support arrears owed at the time of the contempt hearing, or $99,548.67. Defendant shall make such payment within ninety (90) days of the date of entry of this Decision and Order. Should Defendant fail to purge said contempt as ordered, Defendant shall surrender himself forthwith to serve a sentence of four (4) months' jail. Should Defendant fail to surrender himself as ordered, a Warrant shall issue for his arrest.
The Court denies any other application not specifically addressed herein.
This constitutes the Decision and Order of the Court.