Scopelliti v. Scopelliti

• Decision Date: 15 September 2009
• Docket Number: 2007-10913.
• Citation: 65 A.D.3d 1120,2009 NY Slip Op 06529,885 N.Y.S.2d 512
• Parties: JOSEPH C. SCOPELLITI, Appellant, v. MARIA C. SCOPELLITI, Respondent. (Action No. 1.) MARIA C. SCOPELLITI, Respondent, v. ROBERT L. SCOPELLITI et al., Defendants, and JOSEPH C. SCOPELLITI, Appellant. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 1120

885 N.Y.S.2d 512

2009 NY Slip Op 06529

JOSEPH C. SCOPELLITI, Appellant, v. MARIA C. SCOPELLITI, Respondent. (Action No. 1.)

MARIA C. SCOPELLITI, Respondent, v. ROBERT L. SCOPELLITI et al., Defendants, and JOSEPH C. SCOPELLITI, Appellant. (Action No. 2.)

2007-10913.

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

Decided September 15, 2009.

In two related actions, inter alia, for a divorce and ancillary relief (action No. 1) and to set aside a conveyance of real property as fraudulent (action No. 2), which were joined for trial, Joseph C. Scopelliti, the plaintiff in action No. 1 and a defendant in action No. 2, appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), dated October 19, 2007, as, after a hearing, granted those branches of the motion of Maria C. Scopelliti, the defendant in action No. 1 and the plaintiff in action No. 2, which were to hold him in contempt of court for failing to pay, among other things, a mortgage loan on the marital residence and a home equity loan on the marital residence and for an award of an attorney's fee, and, in effect, directed his incarceration in the event he failed to purge himself of his contempt by paying Maria C. Scopelliti the sum of $2,000 as an attorney's fee, the sum of $250 as a fine, the sum of $4,080.37, representing arrears in

mortgage loan payments, and the sum of $2,198.13, representing arrears in home equity loan payments.

Ordered that the order is modified, on the law, by deleting the provision thereof, in effect, directing Joseph C. Scopelliti to pay Maria C. Scopelliti the sum of $4,080.37, representing arrears in mortgage loan payments, and the sum of $2,198.13, representing arrears in home equity loan payments; as so modified, the order is affirmed insofar as appealed from, with costs payable by Joseph C. Scopelliti to Maria C. Scopelliti; and it is further,

Ordered that within 30 days after service upon Maria C. Scopelliti of a copy of this decision and order, Maria C. Scopelliti is directed to pay to her attorney the sum of $6,278.50 for placement in her attorney's escrow account.

The evidence adduced at the hearing supports the Supreme Court's finding that the failure of Joseph C. Scopelliti (hereinafter the husband) to make payments on a mortgage loan on the marital residence and a home equity loan on the marital residence, in violation of certain prior orders, "resulted from willfulness rather than inability to pay" (Edwards v Edwards, 122 AD2d 18, 18 [1986]; see Melish v Melish, 34 AD3d 436 [2006]; Barinka v Barinka, 301 AD2d 487 [2003]; Craft v Craft, 282 AD2d 422, 423 [2001]; Higbee v Higbee, 260 AD2d 603 [1999]; Turk v Turk, 226 AD2d 448, 449 [1996]). Moreover, contrary to the husband's contention, the record demonstrates that any attempt to enforce the prior orders through means other than civil contempt, e.g., sequestration (see Domestic Relations Law § 243) or an income deduction order (see CPLR 5242), would have been futile (see Melish v Melish, 34 AD3d at 436; Turk v Turk, 226 AD2d at 449; Kaminski v Kaminski, 212 AD2d 1045 [1995]; Demchuk v Demchuk, 181 AD2d 756, 757 [1992]; Edwards v Edwards, ...