JK v. EK

• Decision Date: 22 October 2010
• Parties: JK, Plaintiff, v. EK, Defendant.
• Court: New York Supreme Court

913 N.Y.S.2d 493
30 Misc.3d 194

JK, Plaintiff,
v.
EK, Defendant.

Supreme Court, Nassau County, New York.

Oct. 22, 2010.

913 N.Y.S.2d 494

Charles Ferzola, Esq., Westbury, for Plaintiff.

Michael J. Angelo, Esq., Garden City, for Defendant.

ROBERT A. BRUNO, J.

30 Misc.3d 195

Defendant moves by Order to Show Cause seeking to hold the plaintiff in contempt of Justice Driscoll's order dated September 24, 2009 ("Order"), claiming, inter alia, that the plaintiff has willfully failed to pay the college expenses of their daughter for the school year 2010/11 and for counsel fees.

The plaintiff, JK, an attorney admitted to practice law in the State of New York submitted his affidavit in opposition. Although the plaintiff's affidavit is 12 pages long, most of his opposition addresses his displeasure with his wife and daughter's lifestyle. However, the plaintiff never alleges that he paid the daughter's college expenses for the Fall, 2010 semester and acknowledges the existence of the Order. Furthermore, the plaintiff never claims he is financially unable to comply with the Order, he only urges this Court to order the sale of the marital residence (before the parties are divorced) so that he has the means to pay, but the plaintiff stops short of alleging he is unable to pay the college expenses. For reasons not fully explained

30 Misc.3d 196

to the Court, the plaintiff has also stated that his adjusted gross income for 2007 was over $100,000.00, however, the plaintiff does not indicate what his income was for 2008, 2009 or 2010, or what his expenses are.

"A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone' ( Bowie v. Bowie, 182 A.D.2d 1049, 1050, 583 N.Y.S.2d 54; see Matter of Ginther v. Ginther, 13 A.D.3d 1128, 786 N.Y.S.2d 775; Matter of Benny v. Benny, 199 A.D.2d 384, 605 N.Y.S.2d 311"; Jaffe v. Jaffe, 44 A.D.3d 825, 826, 844 N.Y.S.2d 97, 98 (2nd Dept.2007)). In light of the foregoing, since there are no facts in dispute, the Court need not schedule a hearing and shall decide the instant application on the papers submitted.

Background

The parties were married on April 18, 1982 and have three children. Two of the children have already graduated from college and the third child, MK, began college in August 2008 at the University of Rhode Island. On September 24, 2008, Justice Driscoll issued an Order directing the plaintiff, JK, to pay six-sevenths or approximately

913 N.Y.S.2d 495

86% of MK's college expenses and directing the defendant, EK, to pay one-seventh approximately 14% of MK's college expenses.

Procedural Background

On or about February 9, 2009, defendant moved this Court by Order to Show Cause seeking to hold the plaintiff in contempt of court for his deliberate violation of the Order. The plaintiff, resolved the contempt application rather than proceed with a hearing by entering into a "so ordered" stipulation, which provided, inter alia, that the plaintiff pay his share of college expenses. The stipulation provided in relevant part:

... plaintiff shall wire directly to the University of Rhode Island the sum of $20,504.96 as his share of college tuition for the 2008/09 school year for the daughter MK....

The defendant was again compelled to bring a second Order to Show Cause seeking to hold the plaintiff in contempt of court for failing to pay MK's college expenses for the second year; 2009/10. Again, after...