Dunn v. Dunn

• Decision Date: 03 November 2010
• Citation: 78 A.D.3d 649,911 N.Y.S.2d 96
• Parties: Margaret B. DUNN, appellant, v. David J. DUNN, Jr., defendant-respondent; Manhattan and Bronx Surface Transit Operating Authority, etc., nonparty-respondent.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 96

78 A.D.3d 649

Margaret B. DUNN, appellant,

v. David J. DUNN, Jr., defendant-respondent;Manhattan and Bronx Surface Transit Operating Authority, etc., nonparty-respondent.

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

Nov. 3, 2010.

Abel & Brustein-Kampel, P.C., New City, N.Y. (Steven L. Abel of counsel), for appellant.

Rametta & Rametta, LLC, Goshen, N.Y. (Robert M. Rametta of counsel), for defendant-respondent.

James B. Henly, New York, N.Y. (Ching Wah Chin of counsel), for nonparty-respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and SHERI S. ROMAN, JJ.

In an action for a divorce and ancillary relief in which the parties were divorced by judgment dated April 24, 1985, the plaintiff appeals, (1) as limited by her brief, from so much of an order of the Supreme Court, Orange County (Ritter, J.), dated November 7, 2009, as, upon granting that branch of her motion which was to hold Manhattan and Bronx Surface Transit Operating Authority in civil contempt pursuant to Judiciary Law § 753, imposed a fine in the sum of only $250, and (2) from so much of an amended qualified domestic relations order of the same court dated January 8, 2010, as awarded her only an additional 8% of the defendant's pension benefits to cover arrears totaling $136,877.67.

ORDERED that the appeal from the amended qualified domestic relations order dated January 8, 2010, is dismissed, as no appeal lies as of right from a qualified domestic relations order ( see Bernstein v. Bernstein, 18 A.D.3d 683, 683-684, 795 N.Y.S.2d 733; Gormley v. Gormley, 238 A.D.2d 545, 546, 657 N.Y.S.2d 85), and we decline to grant leave to appeal sua sponte; and it is further,

ORDERED that the order dated November 7, 2009, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the nonparty-respondent.

A court may punish for civil contempt any disobedience of a lawful judicial order expressing an unequivocal mandate ( see McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132; Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508; Biggio v. Biggio, 41 A.D.3d 753, 754, 839 N.Y.S.2d 527), whenever the rights or remedies of a party to a civil action may be defeated, impaired, impeded, or prejudiced ( see Judiciary Law § 753[A][3]; Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 239-240, 519 N.Y.S.2d 539, 513 N.E.2d 706; Casavecchia v. Mizrahi, 57 A.D.3d 702, 703, 869 N.Y.S.2d 604; Incorporated Vil. of Plandome Manor v. Ioannou, 54 A.D.3d 365, 366, 862 N.Y.S.2d 592; Dankner v. Steefel, 41 A.D.3d 526, 528, 838 N.Y.S.2d 601; Orange County-Poughkeepsie Ltd. Partnership v. Bonte, 37 A.D.3d 684, 686, 830 N.Y.S.2d 571). Here, the Supreme Court properly found that the plaintiff met her burden of proving, by clear and convincing evidence, that the nonparty-respondent violated a lawful and unequivocal mandate, i.e., the implementation of the qualified domestic relations order, of which it had knowledge, and in so doing, impaired and...