S.M.S. v. D.S.,

CourtUnited States State Supreme Court (New York)
Writing for the CourtCATHERINE M. DiDOMENICO, J.
Citation2016 N.Y. Slip Op. 26383,54 Misc.3d 779,44 N.Y.S.3d 691
Parties S.M.S., Plaintiff v. D.S., Defendant.
Decision Date18 November 2016

54 Misc.3d 779
44 N.Y.S.3d 691
2016 N.Y. Slip Op. 26383

S.M.S., Plaintiff
D.S., Defendant.

Supreme Court, Richmond County, New York.

Nov. 18, 2016.

44 N.Y.S.3d 693

William Gogel, Esquire., Great Neck, for Plaintiff Wife.

Jay Baum Esquire., Staten Island, for Defendant Husband.


54 Misc.3d 780

The Decision and Order on Plaintiff's application is as follows:

Current Application

By Post Judgment Order to Show Cause filed on July 29, 2016 (Mot. Seq. No. 014) Plaintiff, former Wife, seeks an Order holding Defendant, former Husband, in civil contempt for selling a parcel of real property, located at 1* *–1* *27th Street, Brooklyn, New York, in violation of the "Automatic Orders" issued in conjunction with the parties' underlying divorce proceeding. See DRL § 236(B)(2)(b). Plaintiff alleges that Defendant sold this property, unbeknownst to anyone involved in the divorce proceeding, in a secret transaction intended to defraud both the Plaintiff, and the Court.

54 Misc.3d 781

In furtherance of her request for a finding of contempt, Plaintiff seeks to re-open the trial of this action to address the Defendant's contemptuous acts. In addition to issues of contempt, Plaintiff seeks various other aspects of relief, including money judgments for unpaid support, distributive, and counsel fee awards.

Defendant has submitted written opposition to Plaintiff's application although he openly admits to the facts pertinent to this Court's analysis. Having admitted the facts, the Defendant's sole argument in opposition is that the law somehow precludes the Court from addressing the relief requested. In sum and substance, Defendant argues that any claim that could have been raised during the underlying trial, should have been, and thus that Plaintiff's contempt claim merged into the Judgment of Divorce. While the Defendant seems to acknowledge that the re-opening the trial might cure this alleged procedural defect, he argues that the Plaintiff has not established the relevant elements to reopen the trial. Defendant essentially argues that his ability to obfuscate the truth during the underlying divorce, and Plaintiff's inability to discovery his wrongdoing at the time it was committed, should somehow grant him immunity in this post judgment context. The Defendant makes reference to Plaintiff's failure to exercise "due diligence" and claims that since she was unable to detect his secretive unlawful behavior, he should now be immune from any consequences of that behavior.

Plaintiff's application appeared on this Court's calendar on September 15, 2016 for argument. During oral argument of the motion testimony was taken from both parties. When testifying, Defendant brazenly admitted that despite the fact that he was under oath during the trial, and despite the fact that he had been advised of the Automatic Orders that prevented the distribution of property, and further despite the fact that the property at issue was one of the few assets owned by the parties, that on or around February 3, 2015 (mid trial) he sold the property at issue, and spent the proceeds for his own benefit. (Tr. 9/15/16 pg. 5; 9). When the Court inquired as to why the Defendant didn't inform the Court, his own attorney, or the Plaintiff, that he had sold the property, he callously indicated that "no one asked him directly." (Tr. 9/15/16 pg. 14).

44 N.Y.S.3d 694

In addition to the sale of the property at issue, the Defendant further admitted on the record that he has failed to pay the various support obligations, distributive awards, and counsel

54 Misc.3d 782

fees awarded by this Court. As the Defendant has admitted to all of the facts relevant to the Court's analysis, a full evidentiary hearing was not required before rendering this Decision and Order. SeeBarton v. Barton, 137 A.D.3d 723, 27 N.Y.S.3d 572 (2d Dept.2016).

Procedural History

Due to the unique nature of the current proceeding, the Court finds that a brief history of the underlying divorce is appropriate. The parties to this action litigated, for a period of over two years, one of the most bitterly contested proceedings that have appeared before this Part. During trial, Plaintiff credibly testified as to a history of domestic violence, including physical, emotional, and economic abuse together with a pattern of controlling behavior. This pattern of domestic violence ultimately resulted in the issuance of a five year Order of Protection.

During the underlying divorce proceeding the Defendant, then Husband, consistently evidenced that he had little regard for Court Orders, or the Law in general. In one brazen example, detailed in this Court's Decision after Trial, the Defendant traveled to the State of Georgia, and attempted to purchase a firearm in violation of this Court's Temporary Order of Protection. Due to this admitted violation of the Court's Order, Defendant was found to be in criminal contempt, and ordered to pay a fine. (See Decision after Trial dated 9/1/15).

In addition to the contemptuous act of attempting to purchase a firearm, Defendant consistently failed to comply with various other Orders of the Court, including his obligation to pay pendente lite maintenance. Moreover, Defendant failed to comply with the Court appointed business evaluator, which resulted in a failure of the Plaintiff to prove the value of his trucking business at trial. In accordance with this consistent pattern of disregard for the Plaintiff, the applicable law, and the Court's Orders, the Defendant now openly admits that while the trial was ongoing, he violated the Automatic Orders set forth in DRL § 236 by selling one of the few remaining assets of the parties without the consent of Plaintiff or the Court.

Applicable Law

In order to prevail on a motion for civil contempt, the moving party must prove: (1) the existence of a clear and lawful

54 Misc.3d 783

mandate of the court; (2) that the party alleged to have disobeyed the Order was aware of its terms, and (3) that the moving party's rights were prejudiced. SeeCoyle v. Coyle, 63 A.D.3d 657, 882 N.Y.S.2d 423 (2d Dept.2009) ; See alsoKeller v. Keller, 126 A.D.3d 940, 6 N.Y.S.3d 126 (2d Dept.2015). These elements must be established by the moving party by clear and convincing evidence. SeeMcCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279, 453 N.E.2d 508 (1983) ; See also,Matter of Hughes v. Kameneva, 96 A.D.3d 845, 946 N.Y.S.2d 211 (2d Dept.2012). While "willfulness" is an essential element for a finding of "criminal contempt", the mere act of disobedience, regardless of motive, is sufficient to establish "civil contempt" if such disobedience "defeats, impairs, impedes, or prejudices the rights or remedies of a party." Therefore, a showing of willfulness is unnecessary for a finding of civil contempt. El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 978 N.Y.S.2d 239 (2d Dept.2013) ; See also,Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 461 N.Y.S.2d 54 (2d Dept.1983).

Plaintiff seeks contempt pursuant to Judiciary Law § 756 and, as necessarily

44 N.Y.S.3d 695

related, Judiciary Law § 753. This distinction is pertinent because Domestic Relations Law § 245, which addresses contempt in the context of matrimonial proceedings, has been recently modified. At the time Plaintiff's motion was filed, a party seeking contempt pursuant to DRL § 245 (for the nonpayment of funds) had an obligation to show that all less drastic remedies have been exhausted or would be ineffectual. SeeWolfe v. Wolfe, 71 A.D.3d 878, 895 N.Y.S.2d 855 (2d Dept.2010). However, the New York State Legislature has recently removed this obligation when it comes to the nonpayment of funds mandated by a Judgment of Divorce. This amendment to the Domestic Relations Law was made effective "immediately" and is intended to "apply to all actions, whenever commenced, as well as judgments or orders previously entered". See DRL § 245, as amended. While DRL § 245, as it existed at the time when Plaintiff's motion was filed, included language regarding "alternative remedies," no such language appears in the Judiciary Law. See Judiciary Law § 756 & § 753.

Upon a finding of civil contempt, and a failure to purge that contempt, the Court may impose a period of incarceration. SeeMatter of Rubackin v. Rubackin, 62 A.D.3d 11, 875 N.Y.S.2d 90 (2d Dept.2009). This period of incarceration will cease if the contemnor commits the affirmative act required by the purge condition. See

54 Misc.3d 784

New York City Tr. Auth. v. Transport Workers Union of Am., 35 A.D.3d 73, 822 N.Y.S.2d 579 (2d Dept.2006). As the contemnor may purge his contempt at any time, he effectively "carries the key of his prison in his own pocket." International Union, United Mine Workers of America v. Bagwell, 512...

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1 practice notes
  • People v. Twist,
    • United States
    • New York City Court
    • November 18, 2016
    ...of one year. According to the monitor, the defendant committed a reportable IID violation. Although specification of terms of probation 44 N.Y.S.3d 691 may be required, there is no necessity of a written elaboration of each instance of prohibited conduct in the orders of conditional dischar......
1 cases
  • People v. Twist
    • United States
    • New York City Court
    • November 18, 2016
    ...of one year. According to the monitor, the defendant committed a reportable IID violation. Although specification of terms of probation 44 N.Y.S.3d 691 may be required, there is no necessity of a written elaboration of each instance of prohibited conduct in the orders of conditional dischar......

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