Belkhir v. Amrane-Belkhir

• Decision Date: 01 May 2015
• Docket Number: 475 CA 14-01003
• Citation: 128 A.D.3d 1382,2015 N.Y. Slip Op. 03671,8 N.Y.S.3d 752
• Parties: Lotfi BELKHIR, Plaintiff–Appellant, v. Souad AMRANE–BELKHIR, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1382

8 N.Y.S.3d 752

2015 N.Y. Slip Op. 03671

Lotfi BELKHIR, Plaintiff–Appellant

v.Souad AMRANE–BELKHIR, Defendant–Respondent.

475 CA 14-01003

Supreme Court, Appellate Division, Fourth Department, New York.

May 1, 2015.

Lofti Belkhir, Plaintiff–Appellant Pro Se.

Leonard A. Rosner, Rochester, for Defendant–Respondent.

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, and DeJOSEPH, JJ.

OpinionMEMORANDUM:

On appeal from an order that, inter alia, held him in contempt of court for failing to comply with a provision of an amended divorce decree obligating him to pay defendant $75,000, plaintiff contends that defendant failed to meet her burden of proof on her motion. We agree. “In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the movant's rights ... The movant has the burden of proving contempt by clear and convincing evidence” (Wolfe v. Wolfe, 71 A.D.3d 878, 878, 895 N.Y.S.2d 855 ; see El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 10, 978 N.Y.S.2d 239 ). Here, the provision in the amended divorce decree stating that defendant is entitled to $75,000 “did not provide any time for payment and therefore, did not constitute a clear and unequivocal mandate” (Rienzi v. Rienzi, 23 A.D.3d 447, 449, 808 N.Y.S.2d 113 ; see Wolfe, 71 A.D.3d at 878, 895 N.Y.S.2d 855 ; Massimi v. Massimi, 56 A.D.3d 624, 624–625, 869 N.Y.S.2d 558 ). In addition, the amended divorce decree contemplates that plaintiff's obligation to pay $75,000 to defendant may be satisfied from plaintiff's share of the proceeds of the sale of the marital residence, and the marital residence had not been sold at the time of the instant motion. Finally, the motion should not have been granted inasmuch as “defendant failed to show that [s]he had exhausted less drastic enforcement remedies, or that resort to such remedies would be ineffectual” (Wolfe, 71 A.D.3d at 879, 895 N.Y.S.2d 855 ; seeDomestic Relations Law § 245 ; Klepp v. Klepp, 35 A.D.3d 386, 387–388, 826 N.Y.S.2d 629 ).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.