Bergman v. Bergman, 3690-350257/02 3691

• Decision Date: 12 May 2011
• Docket Number: 3690-350257/02 3691
• Parties: Lynn Lucka Bergman, Plaintiff-Respondent, v. Franklin Bergman, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 03975

Lynn Lucka Bergman, Plaintiff-Respondent,
v.
Franklin Bergman, Defendant-Appellant.

3690-350257/02 3691

Appellate Division of the Supreme Court of the State of New York

ENTERED: MAY 12, 2011

Andrias, J.P., Catterson, Moskowitz, Manzanet-Daniels, Román, JJ.

Aaron Weitz, New York, for appellant.

David J. Aronstam, New York, for respondent.

Order, Supreme Court, New York County (Laura E. Drager, J.), entered on or about July 29, 2009, which granted plaintiff's motion to hold defendant in contempt for failure to pay obligations contained in the parties' judgment of divorce entered April 4, 2008, and order, same court and Justice, entered November 10, 2009, which denied defendant's cross motion for a downward modification of his support obligations, unanimously reversed, on the law, without costs, and the matter remanded for an evidentiary hearing on defendant's stated financial inability to comply with the court's judgment of divorce.

The record reflects the following facts: the parties were married in 1988, and had one son born in 1989. Plaintiff wife commenced an action for divorce in 2002. The court held a trial on financial issues in 2006, and issued a trial decision and order on June 26, 2007. In December 2007, defendant husband moved to reopen the trial, alleging a drastic decline in business income, and submitted evidence in the reopened divorce trial. As a result, the court rendered a second decision in February 2008 reducing the original award of maintenance from $7,500 to $5,000 per month, but leaving the other provisions of the divorce judgment unchanged.

On April 4, 2008, the court signed a judgment of divorce dissolving the marriage and awarding the parties joint custody of their child. The judgment directs defendant to pay, inter alia, child support, 100% of the child's tuition, room and board, and books and supplies. Defendant must also pay spousal maintenance and is required to maintain life insurance in the amount of $1.5 million.

The court awarded plaintiff her former residence and the marital residence, both of which are located in Manhattan. She was also awarded 40% of defendant's business, then valued at $700,000, and 60% of her own business valued at $10,000, for a net award of $221,925. The court directed the parties to sell their home in Sagaponack, and ordered plaintiff to use the proceeds to repay a bank loan of $200,000.

In June 2008, plaintiff brought the first contempt motion against defendant who, five days later, cross-moved for a downward modification of his support obligations. A hearing was held in September 2008. The record reflects that the court issued a decision on the contempt motion after that hearing, dated October 31, 2008, in which it found defendant "willfully failed to make

Page 2

payments required" and that "[h]is failure to pay the sum due the wife was not a result of an inability to pay, but rather [was] because he chose to spend his money on other things."

Subsequently, the Justice recused herself for reasons having nothing to do with the parties, and the matter was transferred to another Justice. On March 6, 2009, the court denied defendant's application for downward modification without...