Penavic v. Penavic

• Decision Date: 04 October 2011
• Citation: 2011 N.Y. Slip Op. 07016,88 A.D.3d 671,930 N.Y.S.2d 634
• Parties: Silvana PENAVIC, appellant,v.Kresimir PENAVIC, respondent.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 671

930 N.Y.S.2d 634

2011 N.Y. Slip Op. 07016

Silvana PENAVIC, appellant,

v.Kresimir PENAVIC, respondent.

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

Oct. 4, 2011.

Courten & Villar, PLLC, Hauppauge, N.Y. (Dorothy A. Courten and Edward Friedman of counsel), for appellant.Schlissel Ostrow Karabatos, PLLC, Garden City, N.Y. (Stephen W. Schlissel and Neil S. Cohen of counsel), for respondent.A. GAIL PRUDENTI, P.J., REINALDO E. RIVERA, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

In a matrimonial action in which the parties were divorced by judgment entered October 22, 2009, which incorporated, but did not merge, the terms of the parties' stipulations of settlement dated November 18, 2008, and June 22, 2009, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Bivona, J.), entered October 15, 2010, as denied, without a hearing, her motion, inter alia, pursuant to Judiciary Law § 756 to hold the defendant in civil contempt of the judgment of divorce and the parties' stipulation of settlement dated June 22, 2009.

ORDERED that the order is affirmed insofar as appealed from, with costs.

By judgment entered October 22, 2009, the plaintiff former wife and the defendant former husband were divorced. The judgment of divorce incorporated, but did not merge, inter alia, the terms of the parties' stipulation of settlement dated June 22, 2009, relating to financial issues (hereinafter the stipulation).

The stipulation provided, inter alia, that title and ownership of the former marital residence would be transferred solely to the defendant. The plaintiff was given title and ownership of other real property which had also been jointly owned by the parties. The parties acknowledged that there was an outstanding home equity line of credit (hereinafter the HELOC) with Citibank on the former marital residence in the amount of approximately $25,000. They agreed that “[t]he husband shall be solely responsible for payment of any and all costs and expenses related to the Marital Residence.” The list of costs and expenses included the HELOC, real estate taxes, and homeowners' insurance, as well as those expenses relating to the operation of the home. Included in Article VII(A)(3) of the stipulation, which pertained to the expenses of the former marital residence, was an acknowledgment that “all bills or accounts with respect to the Marital Residence are in the Husband's individual name.” The stipulation provided that the defendant would indemnify the plaintiff against all costs or expenses arising out of or in connection with the former marital residence.

In Article XXV(1), the parties also agreed that, without charge, upon request, each would “execute, acknowledge and deliver any instruments which are reasonably necessary to effectuate ... this Stipulation.”

Subsequent to the divorce, the plaintiff, in the course of applying for a line of credit on her own house, was advised by the bank that she needed to close the HELOC. The plaintiff contacted the defendant, advising him that he was required, pursuant to the terms of the stipulation, to close the HELOC or remove her name from it.

When the defendant refused to do so, the plaintiff moved, inter alia, pursuant to Judiciary Law § 756 to hold the defendant in civil contempt. The defendant cross-moved for sanctions and an award of counsel fees for defending against the motion. The Supreme Court denied the motion and the cross motion. The plaintiff appeals. We affirm the order insofar as appealed from by the plaintiff.

“To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights” ( Rubin v. Rubin, 78 A.D.3d 812, 813, 911 N.Y.S.2d 384; see Judiciary Law § 753[A] [3]; McCain v. Dinkins, 84 N.Y.2d 216, 225–226, 616 N.Y.S.2d 335, 639 N.E.2d 1132; McGrath v. McGrath, 85 A.D.3d 742, 742, 924 N.Y.S.2d 805; Matter of Philie v. Singer, 79 A.D.3d 1041, 1042, 913 N.Y.S.2d 745).

“A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” ( Zuchowski v. Zuchowski, 85 A.D.3d 777, 778, 925 N.Y.S.2d 541 [internal quotation marks omitted]; see Hannigan v. Hannigan, 50 A.D.3d 957, 957, 857 N.Y.S.2d 201; Simmons v. Simmons, 305 A.D.2d 661, 759 N.Y.S.2d 688). “A contract will be interpreted in accordance with the intent of the parties as expressed in the language of the agreement” ( Johnston v. MGM Emerald Enters., Inc., 69 A.D.3d 674, 677, 893 N.Y.S.2d 176; see Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166). A court should not, under the guise of contract interpretation, imply a term which the parties themselves failed to insert or otherwise rewrite the contract ( see ...