Howe v. Howe

• Decision Date: 22 October 2015
• Citation: 19 N.Y.S.3d 111,132 A.D.3d 1088,2015 N.Y. Slip Op. 07709
• Parties: Dennis M. HOWE, Respondent, v. Brandy K. HOWE, Appellant.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1088
19 N.Y.S.3d 111
2015 N.Y. Slip Op. 07709

Dennis M. HOWE, Respondent,
v.
Brandy K. HOWE, Appellant.

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

Oct. 22, 2015.

19 N.Y.S.3d 112

David M. Brown, Binghamton, for appellant.

Butler & Butler, PC, Vestal (Matthew C. Butlerof counsel), for respondent.

Opinion

EGAN JR., J.

132 A.D.3d 1088

Appeal from an order of the Supreme Court

132 A.D.3d 1089

(Sherman, J.), entered August 21, 2013 in Tioga County, which, among other things, conditionally granted plaintiff's motion to hold defendant in contempt.

In April 2012, plaintiff (hereinafter the husband) and defendant (hereinafter the wife) executed a stipulation of settlement that provided, in relevant part, that the husband would quitclaim his interest in the marital residence within 60 days of the execution thereof, and the wife, in turn, would “make a good faith effort” to refinance the property and remove the husband's name from the mortgage within 45 days of receipt of the quitclaim deed. The husband tendered the quitclaim deed in open court on the date of its execution, April 16, 2012, and the parties' stipulation was incorporated but not merged into their May 2012 judgment of divorce.

In May 2013, the husband moved by order to show cause seeking to hold the wife in contempt for failing to comply with the terms of the parties' stipulation relative to the refinancing of the subject premises. The wife opposed the husband's application and cross-moved to hold the husband in contempt based upon his alleged failure to comply with certain unrelated provisions of the stipulation. Supreme Court granted the husband a conditional order of contempt requiring the wife to remove the husband's name from the mortgage within 90 days—either by refinancing or selling the marital residence—and otherwise denied the requested relief. This appeal by the wife ensued.¹

“To sustain a civil contempt finding based upon the violation of a court order, it must be established that there was a lawful court order in effect that clearly expressed an unequivocal mandate, that the person who allegedly violated the order had actual knowledge of its terms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party” (Matter of Paul A. v. Shaundell LL.,117 A.D.3d 1346, 1347–1348, 987 N.Y.S.2d 463 [2014],

19 N.Y.S.3d 113

lv. dismissed and denied24 N.Y.3d 937, 993 N.Y.S.2d 548, 17 N.E.3d 1146 [2014][internal quotation marks and citations omitted]; accord Matter of Aurelia v. Aurelia,56 A.D.3d 963, 964, 869 N.Y.S.2d 227 [2008]; see Matter of Claydon,103 A.D.3d 1051, 1052, 962 N.Y.S.2d 352 [2013]). Such violation, in turn, “must be established by clear and convincing evidence” (Matter of Aurelia v. Aurelia,56 A.D.3d at 964, 869...