Farkas v. Farkas

• Decision Date: 22 November 1994
• Citation: 618 N.Y.S.2d 787,209 A.D.2d 316
• Parties: Jeffrey FARKAS, Plaintiff-Appellant, v. Jennifer FARKAS, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 787

618 N.Y.S.2d 787

209 A.D.2d 316

Jeffrey FARKAS, Plaintiff-Appellant, v. Jennifer FARKAS, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 22, 1994.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Barry Salman, J.), entered March 11, 1994, which, inter alia, adjudicated plaintiff in contempt for failure to comply with a pendente lite order, unanimously reversed, on the law and facts, to vacate the finding of contempt and remanded for a hearing on the issue of whether plaintiff's conduct was calculated to, or actually did, defeat, impede or prejudice the rights or remedies of the wife and for a determination and clarification of the fine to be imposed, if any, without costs or disbursements.

In a prior order of the Supreme Court, Bronx County (Salman, J.), entered June 3, 1992, the defendant wife was granted pendente lite relief, which, inter alia, directed the husband to: maintain to the same extent all medical, dental, optical and life insurance policies in effect prior to the parties' separation; pay or reimburse medical, dental, optical and prescription expenses of the wife or their child (she had another child from a previous marriage); make marital residence mortgage payments and other carrying charges, and provide proof of such payments; pay their child's private school tuition and summer camp expenses; pay $7500 in accountants' and $3300 in appraisal fees; pay $2500 in deposition fees; pay $1500 per month in temporary maintenance and retroactive amounts of $500 per month; pay $1400 in interim child support and retroactive amounts of $500 per month; pay $10,000 in attorneys' fees; directed the husband to make his corporate books and records available for photocopying; and directed the husband to provide a net worth statement.

Thereafter, the wife sought to hold the husband in contempt for willful failure to comply with the foregoing order.

The IAS court found the husband in contempt and fined him $58,550.64. This sum included arrears of maintenance and child support totalling $44,900, less $8500 paid, for a total of $36,440. Utilities arrears were $6477.40. Medical, dental and optical bills were $2833.24. Accounting, legal, appraisal and deposition expenses were $23,300, less $10,500 paid, for a total of $12,800. The husband was given the opportunity to purge by paying the fine and furnishing proof of payment that he was current on his other obligations. A stay of the order was granted.

The IAS Court did not err in failing to hold a hearing with respect to the husband's assertion of financial inability. The bare conclusory claim of inability in this case, unsupported by tax returns or other documentation, was insufficient to warrant a hearing (see, Loewenstein v. Loewenstein, 201 A.D.2d 286, 607 N.Y.S.2d 279). There was no factual dispute raised by the husband that could not be resolved on the papers alone (see, Benny v. Benny, 199 A.D.2d 384, 388, 605 N.Y.S.2d 311; Bowie v. Bowie, 182 A.D.2d 1049, 1050, 583 N.Y.S.2d 54). A hearing is required only when the affidavits demonstrate a genuine issue as to whether a party is able to abide by the terms of the order or judgment, such as, for example, where the noncomplying party submits a detailed affidavit as to his inability to pay (see, Singer v. Singer, 52 A.D.2d 774, 382 N.Y.S.2d 793).

The husband's general statement concerning the decline of the real estate market and his resort to the equity in his building[s] to meet living expenses is insufficient for this purpose. The reference in his brief to an "abundance of evidence" of his financial inability has no basis in the record.

Similarly meritless is the...