Opinion
026692/1992.
Decided September 13, 2005.
Upon the foregoing papers and for the following reasons, the motion by Plaintiff Nancy I., for an adjudication of contempt against Defendant Alan I., is granted.
The Plaintiff and Defendant were married on June 18, 1977, and have twin issue of the marriage, to wit: Miguel and Rocio I. Marital difficulties apparently ensued in 1992, prompting the Plaintiff to commence this action for divorce against the Defendant. Following years of litigation, the parties eventually entered into an Agreement of Separation dated November 15, 1994, which was incorporated, but not merged in the Judgment of Divorce (Brucia, J.) dated November 3, 1995. Said Agreement and Judgment awarded the Plaintiff, inter alia, child support of $200 per week as well as a proportion of all educational, medical and other related expenses for the children to be payable by the Defendant. Despite these clear directives, the Defendant at one time a commodities trader with a seat at the New York Mercantile Exchange (NYMEX) earning over $300,000 per year has failed to fully comply, thus necessitating numerous post-judgment enforcement applications by the Plaintiff.
In 1996, faced with the Defendant's accumulated arrears, the Plaintiff sought contempt against him, but the parties entered into a so-ordered Stipulation settling that motion pursuant to the Defendant's sale of his NYMEX seat, a substantial monetary distribution to the Plaintiff and a credit of $20,000 for future child support and all child related expenses. Defendant's failure to once again keep current with his payments resulted in the Plaintiff's successfully obtaining, by Short Form Order (Covello, J.) dated July 27, 2001, sequestration of funds in the sum of $41,269, which were to be distributed to the Defendant from his NYMEX's pension. By Short Form Order (Covello, J.) dated January 22, 2002, the Court granted the Plaintiff permission to continue withdrawing amounts from the sequestered funds for child support and related expenses.
A third proceeding for contempt was needed in 2002, resulting in a Short Form Order on Default (Raab, J.) holding Defendant in contempt of court and awarding the Plaintiff $4,178 for related expenses and counsel fees. In 2003, those sequestered funds were depleted. Yet another contempt hearing was held before the Hon. Meryl Berkowitz, who by Memorandum Decision and Order dated April 26, 2004, adjudicated the Defendant in contempt of court, with a purging provision of $7,500, and awarded the Plaintiff a money judgment of $25,515, stating:
Defendant next asserts that he should not be held in contempt because his failure to pay support is not willful. He does not have the ability to comply because of his current financial status. The Court acknowledges that Defendant has made legitimate exploration into the field of real estate development. The projects, however, have not come to fruition, through no fault of his own. Notwithstanding, Defendant has made no effort to seek employment elsewhere. He is an articulate, intelligent, healthy, able, presentable man. He, however, has chosen to seek a job in a finite universe without success. The reality of the situation is that there are jobs beyond the boundaries he has set. Driving a cab, or pumping gas may seem too menial for Defendant's ego, but they are not. The Defendant has a financial obligation to his children, and this should be his primary job.
Only upon his subsequent arrest and the threat of incarceration did the Defendant come up with the $7,500 necessary to purge himself of the contempt. He has also obtained sufficient funds to retain counsel on all those proceedings. Undeterred, however, the Defendant has continued his disregard for the terms of the Agreement and Judgment.
As a result, the Plaintiff now moves, by Order to Show Cause returnable July 8, 2005, to adjudge the Defendant in contempt of court, pursuant to Judiciary Law § 756 and Domestic Relations Law § 245, for his failure to comply with the Judgment and his accumulation of arrears of over $75,885 in child support and child related expenses. Additionally seeking the suspension of Defendant's driver's license and counsel fees for this proceeding, the Plaintiff argues in her motion that he has intentionally impeded and prejudiced her rights to child support, while taking vacations with the children, living rent-free with his girlfriend, and pursuing real estate ventures. In opposition to the motion, the Defendant repeats the arguments previously outlined by Judge Berkowitz above, claiming that he is on the verge of closing millionaire real estate deals and other ventures in his hometown of Syracuse, New York, and cannot pursue a "position lower on the skill-and-salary ladder" to afford his child support obligations. This Court disagrees.
In order to find a party in civil contempt of court pursuant to Domestic Relations Law § 245 and Judiciary Law § 756, the applicant must demonstrate by clear and convincing evidence that the alleged contemnor has intentionally engaged in conduct which violated a lawful order of the court clearly expressing an unequivocal and explicit mandate ( see McCain v. Dinkins, 84 NY2d 216, 226; Pereira v. Pereira, 35 NY2d 301, 308; Ottomanelli v. Ottomanelli, 17 AD3d 647; Hoglund v. Hoglund, 234 AD2d 794). The movant is also required to demonstrate that the alleged contempt defeated, impaired and prejudiced her rights ( Vujovic v. Vujovic, 16 AD3d 490, 491; Sklover v. Sklover, 11 AD3d 527; Goldsmith v. Goldsmith, 261 AD2d 576, 577). The need for a hearing may be obviated by a repeated failure to discharge a support obligation or by an admittance of disobedience of the court order ( Raphael v. Raphael, ___ AD3d ___, 2005 NY Slip Op 05895; Green v. Green, 288 AD2d 436, 437; Farkas v. Farkas, 209 AD2d 316; Bowie v. Bowie, 182 AD2d 1049).
Applying the foregoing principles to the matter at bar, the Plaintiff has sufficiently established the Defendant's contempt and disregard for the court orders. It is undisputed that the Defendant was aware of his responsibility for the mandated child support payments, yet has failed to pay the Plaintiff for them year in and year out, accumulating arrears of over $101,400. Indeed, the Defendant has admitted his failure to pay child support and child related expenses since at least 2004, thus obviating the need for a hearing as to the fact of his disobedience ( see id.). He has defended his conduct by conclusorily arguing that he has no assets, income, or debt; yet, he is at the same time "confident," that he "will in a little over a month, prevail in [his] bid to purchase the Mizpah Towers form the City of Syracuse" for millions of dollars.
Defendant's excuses fall woefully short of a good cause excusing his defaults in making the mandated payments and his failure to move for a downward modification of his obligations prior to the accumulation of arrears ( see Domestic Relations Law § 244; Matter of Boden v. Boden, 42 NY2d 210, 213; Matter of Schroder v. Schroder, 205 AD2d 986). With his conduct and actions since the Judgment's inception, the Defendant has repeatedly defeated, impaired and prejudiced the Plaintiff's rights and remedies.
The Plaintiff, as the aggrieved spouse, has further established that payment by the defaulting Defendant cannot be enforced by sequestration or the giving of security ( see Domestic Relations Law § 243; Gabbay v. Gabbay, 260 AD2d 345, 346, lv dismissed 94 NY2d 875), by the enforcement of a money judgment ( see Domestic Relations Law § 244; Felton v. Felton, 175 AD2d 794), or by an income execution order ( see CPLR 5241, 5242; Vicinanzo v. Vicinanzo, 233 AD2d 715). All these remedies have already being used or attempted herein since the Defendant has fought his financial obligations every inch of the way and, in any event, does not show any asset or income to attach at this time. As such, the Plaintiff is deemed to have exhausted "the less drastic enforcement remedies available" ( Snow v. Snow, 209 AD2d 399; see Judiciary Law § 753[A][3]; Matter of Powers v. Powers, 86 NY2d 63, 71). This lack of alternative remedies coupled with the Defendant's voluntary unemployment and continued pattern of non-payment leaves the Court with no choice ( see Farkas v. Farkas, 209 AD2d 316).
In accordance with the foregoing, the Plaintiff's motion is granted and the Defendant is hereby adjudicated in civil contempt of court for his violation of the Judgment of Divorce by his failure to pay arrears of $75,885, which have accrued since his prior contempt adjudication. His current total arrears are determined to be $101,400, comprised of $75,885 currently owed plus the $25,515 money judgment granted by Judge Berkowitz. Defendant's contempt may be purged, within thirty (30) days from the service upon him of this Order with Notice of Entry, by payment to the Plaintiff of $50,000, and a judgment shall be entered for the remaining sum of $25,885. Said payment may be made by certified check or money order only. If payment is not so timely received, the Plaintiff shall submit an Affirmation of Non-Compliance, on notice, and the Court will automatically issue a warrant for Defendant's immediate arrest and commitment to a Correctional Institution or for any other disposition the Court, in its discretion, shall make.
Pending receipt of his payment in full and given satisfaction of the statutory requirements of Domestic Relations Law § 244-b(a), the Defendant's driving license is hereby ordered to be suspended as he has failed to pay child support for over four months. There is no clear opposition by the Defendant despite receiving notice of the Plaintiff's suspension request. The Plaintiff's counsel shall, therefore, submit an appropriate order to accomplish the license suspension for signature by the Court forthwith. Counsel fees shall await the presentation of an affirmation of services by the Plaintiff.
This constitutes the decision and order of the Court.