Spathis v. Spathis

• Decision Date: 02 July 2019
• Docket Number: 9786–9786A,Index 302534/08
• Citation: Spathis v. Spathis, 174 A.D.3d 407, 105 N.Y.S.3d 422 (N.Y. App. Div. 2019)
• Parties: Constantine SPATHIS, Plaintiff–Respondent, v. Alina D. SPATHIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 407

105 N.Y.S.3d 422

Constantine SPATHIS, Plaintiff–Respondent,

v.Alina D. SPATHIS, Defendant–Appellant.

9786–9786A

Index 302534/08

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

ENTERED: JULY 2, 2019

Alina Dulimof, appellant pro se.

Richter, J.P., Tom, Gesmer, Kern, Moulton, JJ.

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered October 27, 2017, which, to the extent appealed from as limited by the briefs, ordered that interest on the husband's maintenance arrears of $31,750 would run from January 8, 2014, and denied the wife's request for counsel fees, unanimously affirmed, without costs. Order, same court and Justice, entered on or about July 24, 2018, which, to the extent appealed from as limited by the briefs, denied the wife's motion to hold the husband in contempt for failure to transfer half of his shares of Partsearch Technologies, Inc., unanimously affirmed, without costs.

The motion court's October 27, 2017 decision reaffirmed a determination first made by this Court in March of 2016, that the interest on maintenance arrears was due and owing from January 8, 2014, the date on which the divorce judgment was entered, which is the law of the case ( Spathis v. Spathis, 137 A.D.3d 654, 26 N.Y.S.3d 862 [1st Dept. 2016] ).

The motion court correctly denied the wife's motion for contempt, sanctions and related relief in its order entered on July 24, 2018. The wife sought relief in connection with the husband's alleged failure to transfer shares of stock to her in compliance with the judgment of divorce as modified by this Court's order dated February 28, 2013 ( Spathis v. Dulimof–Spathis, 103 A.D.3d 599, 960 N.Y.S.2d 384 [2013], lv dismissed and denied 22 N.Y.3d 913, 975 N.Y.S.2d 733, 998 N.E.2d 397 [2013], cert denied 574 U.S. 383, 135 S. Ct. 140, 190 L.Ed.2d 105 [2014] ), and with the order of the motion court entered on October 27, 2017. This Court's 2013 order did not specify a date by which the husband was to transfer the stock shares to the wife. Accordingly, there was no clear and unequivocal mandate directing the husband to transfer the shares by a particular date, so that a finding of contempt could not lie ( Judiciary Law § 753[3] ; McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 [1983] ).¹

That issue was remedied when the motion court entered its order on October 27, 2017 in which it directed the husband to transfer the shares to the wife within 30 days. However, in the wife's motion for contempt of that order, she attached to her moving papers a copy of a letter from the husband's attorney dated November 20, 2017 and the enclosed assignment to her of 125,000 shares of the stock in question, executed by the husband. Since the husband had complied with the October 27, 2017 order, the motion court correctly denied the wife's request to hold the husband in contempt and for related relief. Moreover, while the wife claims that the stock shares are now worthless, she fails to demonstrate a loss in value, much less that such loss occurred during a time when the husband was required to transfer the stock to her but failed to do so. Indeed, this Court previously determined that there was insufficient evidence at trial to establish any value for the stock shares ( 103...