Faina P. v. Alexander S.

Decision Date18 April 2022
Citation2022 NY Slip Op 22128
PartiesFaina P., Plaintiff, v. Alexander S., Defendant.
CourtNew York Supreme Court

Brian D. Perskin, Esq. Attorney for Plaintiff

Alexander S., Esq. Defendant, pro se

Jeffrey S. Sunshine, J.

Introduction

This Court is called upon to determine if, in a post judgment proceeding, the defendant-father, who is an attorney and seeks a downward modification of support contained in a recently executed stipulation should inter alia be held in contempt for failure to pay any direct basic child support for more than eighteen (18) months where those alleged arrears together with other add-on expenses total over $30, 000. The Defendant alleges that because he has shared custody of the child he should be given credit for any payments he electively makes on behalf of the child, such as trips to Legoland while the child is in his care. Defendant contends that he cannot afford to pay any direct child support to Plaintiff, who earns less than half of his annual income, while representing that he pays more than $900 monthly in lease, gas and other expenses for his 2019 Audi. Defendant represented that he earned approximately $85, 000 annually in 2019 when he signed the stipulation of settlement - current financial documents directed to be produced by this Court reveal that he reported income of $100, 037 on his 2020 individual income tax returns. The Court, on the record repeatedly told the Defendant of his right to seek independent counsel and Defendant declined to do so.

During oral argument Defendant asserted that if the Court held him in contempt and he lost his license to practice law he would be unable to pay child support. Defendant, who is clearly the monied spouse in this enforcement action against him for non-payment of child support filed an application seeking an award of counsel fees at a rate of $300 hourly to be paid by Plaintiff to him so that he could be paid for representing himself.

By order to show cause dated December 2, 2021, plaintiff moved seeking contempt and the following relief:

a) Adjudging and punishing Defendant for contempt of court for his contumacious misconduct and willful failure and refusal to pay child support pursuant to the Judgment of Divorce dated February 28, 2020 and entered in the Office of the Clerk of the County of Kings on March 3, 2020 in the amount of $27, 255.00; b) Adjudging and punishing Defendant for contempt of court for his contumacious misconduct and willful failure and refusal to pay his share of health insurance costs for the parties' child in the amount of $561.35 pursuant to the Judgment of Divorce dated February 8 2020 and entered in the Office of the Clerk of the County of Kings on March 3, 2020; c) Adjudging and punishing Defendant for contempt of court for his contumacious misconduct and willful failure and refusal to his share of add-on expenses in the amount of $2, 365.42 pursuant to the Judgment of Divorce dated February 28, 2020 and entered in the Office of the Clerk of the County of Kings on March 3, 2020; d) Pursuant to DRL §244 granting a money judgment in favor of the Plaintiff and against the Defendant in the amount of $30, 181.77, with interest, representing unpaid child support, the unpaid share of Defendant's contribution to the cost of health care for the parties' child, and Defendant's share of unpaid add-on expenses; e) For an Order pursuant to DRL §244-b directing the department of motor vehicles to suspend the Plaintiff's driving privileges as the amount due for support arrears is equivalent or greater than the amount of support due for a period of four (4) months; f) For an Order pursuant to DRL §244-c suspending the license of the Plaintiff to practice law in the State of New York as the amount due for support arrears is equivalent or greater that the amount of support due for four (4) months; g) Pursuant to DRL §244-a permitting Defendant to amend the papers in support of the application for enforcement to include any additional arrears which have accrued since the commencement of such enforcement proceeding at the time of a hearing upon or submission of the matter; h) Pursuant to CPLR §2201 staying the proceeding brought by the Defendant in the Family Court, Kings County for the termination of the Order of Support, until determination of the instant order to show cause; 3 i) Pursuant to CPLR §602 consolidating the proceeding brought by Plaintiff (sic) in the Family Court, Kings County for the termination of the Order of Support; i) Ordering that Defendant pay counsel fees to Plaintiff's attorneys in the amount of $15, 500 representing the costs in connection with the bringing the within motion; and j) Awarding such other and further relief as this Court deems just and proper;"

The order to show cause was signed returnable via virtual appearance on December 22, 2021.

On December 20, 2021, Defendant filed an order to show cause seeking, inter alia, contempt against Plaintiff:

A. Adjudging and punishing Plaintiff for contempt of Court for her contumacious and wilful [ sic ] misconduct for violating the joint decision-making provisions regarding the child, per the Custody and Parenting Agreement;
B. enjoining and prohibiting Plaintiff from any further unilateral decision making regarding the child's educational and medical care without prior written approval from Defendant;
C. ordering that Plaintiff pay Defendant's legal fees and costs in the amount of $5, 000 in connection with the bringing of this motion; and D. for such other and further relief as this Court may deem just and proper under the circumstances

The respective motions were fully briefed and the Court heard oral argument on March 2, 2022. Plaintiff was represented by privately-retained counsel. Defendant, an attorney himself, represented himself. The Court notified and extensively allocuted the defendant of his right to be represented by counsel on the record at each court appearance but defendant repeatedly declined to seek legal representation and represented on the record that he could represent himself. Clearly, Defendant's income and resources do not make him qualified for assignment of government paid counsel on the issue of contempt.

PROCEDURAL HISTORY

The parties entered into two stipulations on November 12, 2019 - one for custody [NYSCEF #6] and parenting time and the other resolving finances [NYSCEF #7] - these were duly executed and incorporated but not merged into a Judgment of Divorce signed on February 28, 2020 [NYSCEF #5] and entered in the Office of the Clerk of the County of Kings on March 3, 2020. There is one child of the marriage: a son, Z, who is (6) years old (DOB December 2015).

The parties represented in their Stipulation of Settlement of Financial Issues that their incomes as of November 2019 where as follows: Plaintiff-mother, $44, 511; Defendant-father $85, 754. Plaintiff-mother waived any request for temporary or final maintenance. Pursuant to the parties' stipulation of settlement, Defendant-father consented to pay Plaintiff $1, 500 monthly in basic child support; 50% of the cost of health insurance for the child; 50% of "[a]ny out of pocket expenses to cover the Child's medical expenses"; 50% of dental insurance for the child (to the extent either parent "is able to obtain dental insurance coverage for the Child"); 50% of unreimbursed medical expenses for "all non-cosmetic, necessary medical, dental and optical expenses incurred at in-network providers." [1] Additionally, the parties agreed to "equally contribute to the cost of any [summer] camp the child attends, with the parties' summer access not to interfere with the Child's attendance at a Summer program."

The Court notes that the sum of child support agreed to by the parties is already a downward deviation of more than $500 from the CSSA presumptively correct child support as detailed in the parties' stipulation of settlement (NYSCEF #7, p. 29). Furthermore, despite the disparity in the parties' incomes that Plaintiff, who made only half of what the Defendant earns at the time the parties entered into the stipulation of settlement, agreed to pay 50% of add-on expenses which is substantially more than what her pro rata share would have been under the presumptively correct CSSA calculation.

Plaintiff is employed as a region sales administrator for a business company and Defendant is a practicing attorney admitted to practice law in the State of New York and he is employed by a private law firm. Plaintiff was represented by counsel in the underlying divorce action. Defendant, an attorney licensed to practice in the State of New York, represented himself in the underlying divorce action despite repeated opportunities to seek legal counsel.

MOTION SEQUENCE #3

Plaintiff contends that defendant has not complied with the financial support he agreed to in the Stipulation of Settlement specially, his child support obligation. She alleges that in June 2020, during the pandemic, Defendant advised her that he was starting his own law practice and would no longer pay child support. Plaintiff annexed documentation supporting her claim that despite his refusal to pay support, she continued to remind him each month (NYSCEF #10; Exhibit F).

Plaintiff represents that her enforcement application was delayed due to a life-threatening accident involving the parties' son which resulted in a traumatic brain injury. This is not disputed by defendant. Plaintiff contends that defendant's alleged failure to comply with his financial obligations "exacerbated the difficulties" she faced due to the child's accident and, subsequently, her mother's battle with terminal cancer and death in April 2021. She contends that she was forced to postpone seeking to enforce defendant's...

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