V.K. v. I.S.
| Docket Number | Index No. 55095/2014 |
| Decision Date | 19 May 2023 |
| Citation | 2023 NY Slip Op 50607 (U) |
| Parties | V.K. a/k/a V.K., Plaintiff, v. I.S., Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Attorney for Plaintiff
Brian D Perskin
BRIAN D. PERSKIN & ASSOCIATES P.C.
Attorney for Defendant
Christopher James Chimeri
Quatela Chimeri, PLLC
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Plaintiff's/Defendant's order to show cause/notice of motion are as follows:
Plaintiff, V.K., moves, post-judgment, by order to show cause for an order: (1) holding Defendant I.S. in contempt pursuant to DRL § 245 and Judiciary Law §§ 753 and 756, for his willful failure to comply with the parties' Stipulation of Settlement dated November 21, 2014, which was incorporated into their Judgement of Divorce dated August 10, 2015, for failing to pay monthly maintenance to Plaintiff since July 2017 until the present; (2) compelling Defendant to pay maintenance arrears for the months of July 2017 to the present; (3) entering a judgment in favor of Plaintiff for said arrears; (4) ordering Defendant to place into escrow the remaining sum of maintenance owed to secure remainder of the maintenance payments owed to Plaintiff; and (5) awarding the Plaintiff reasonable counsel fees, cost and expenses for the prosecution of this application.
Defendant responded with a cross-motion for an order: (1) denying Plaintiff's motion for contempt in its entirety; (2) cancelling all accrued maintenance arrears; and (3) terminating Defendant's maintenance obligation entirely.
Plaintiff and Defendant were married on August 1, 2009, in a civil ceremony in New York, New York. Plaintiff filed a summons and complaint on November 11, 2014 with a Request for Judicial Intervention (RJI) in an uncontested divorce. The matter was resolved by the Stipulation of Settlement (Agreement) dated November 21, 2014. Thereafter, a Judgement of Divorce (JOD) dated August 10, 2015, was entered on September 17, 2015. The Agreement stated that Defendant would pay maintenance to Plaintiff in the amount of $4,166.66 monthly for a period of 10 years.
Plaintiff filed an order to show cause in July of 2016 due to Defendant's nonpayment, and Defendant cross-moved seeking vacatur of the Agreement on the grounds that he was not of sound mind when it was executed and that it was unconscionable. The court denied Defendant's cross-motion and ordered him to pay the arrears (Plaintiff's exhibits D and E).
Plaintiff has again filed an order to show cause because Defendant has stopped all maintenance payments in July of 2017.
In September of 2017, two months after support payments ceased, Defendant suffered a massive left side intracranial bleed complicated by a left ventricular thrombus (Massive Stroke). As a result, Defendant is permanently paralyzed on his left side, nonverbal, and confined to his home and bed. He has been rendered incontinent and requires a permanent stomach feeding tube and assistance being transported anywhere inside or outside of his home (Defendant's exhibit C).
Defendant's current wife, O.S. (Mrs. S.), filed an order to show cause in Kings Country Supreme Court seeking to be appointed as his legal guardian on January 27, 2021. The order to show cause was signed by the Honorable Miriam Cyrulnik on January 27, 20219 (Defendant's exhibit D). Thereafter, the court granted Mrs. S.'s application and appointed Mrs. S. as Defendant's legal guardian pursuant to § 81.27 of the Mental Hygiene Law. The order appointed Mrs. S. the guardian of Defendant's person and property (Defendant's exhibits E and F).
A virtual oral argument hearing for the instant motions was held in October 2021 [1]. As neither party requested a trial, and both presented that there were no material issues of fact to dispute, the court reserved decision on submission. The transcript of the oral argument was submitted on November 22, 2021 (NYSCEF Doc. No. 40).
Due to a myriad of unforeseeable and unavoidable issues, coupled with a back log of cases resulting from the COVID-19 pandemic, the court has been delayed a year and a half in rendering this decision.
Plaintiff asserts that pursuant to DRL § 245 and Judiciary Law §§ 753 and 756, the requirements for civil contempt have been met by the facts of this case. Plaintiff has shown that there is a clear mandate to pay maintenance, Defendant has not complied since July 2017, Defendant had knowledge of the order, and Plaintiff has been prejudiced by having been forced to expend legal fees and has been without sufficient funds for several years. Plaintiff contends that under these facts, the court may not refuse to enter a judgment for arrears of support because there are no issues of fact and, significantly, Defendant does not contest the arrears owed.
Plaintiff likewise does not contest Defendant's medical excuse. However, Plaintiff argues that, in the four years that Defendant has failed to pay maintenance, Defendant never moved to modify his support obligations, and therefore has not shown good cause for not being held in contempt or compelled to meet the obligations before the accrual of arrears. The burden is on the defaulting spouse to explain the lack of promptness in seeking a modification. Accordingly, the court must compel Defendant to comply with his obligations or, in the alternative, award Plaintiff a money judgment for the amounts sought in Plaintiff's order to show cause. The court must also find Defendant in contempt for his willful failure to comply with his maintenance payments to Plaintiff and mandate Defendant to secure the remainder of the support owed to Plaintiff in escrow, to be paid out each month until Defendant's obligation has terminated.
Regarding counsel fees, Plaintiff argues that under these circumstances, where a party is compelled to bring a motion to enforce terms set forth in a stipulation of settlement, courts have often exercised their discretion to award counsel fees to the moving party. The court in this matter should do the same pursuant to DRL § 238.
Defendant's cross-motion argues that the court must terminate Defendant's maintenance obligations and arrears pursuant to DRL § 236(B) which provides that a court may annul or modify any prior order as to maintenance upon a showing of the payee's inability to be self-supporting, or upon a showing of a substantial change in circumstances or extreme hardship. Defendant's status as an incapacitated person under Mental Hygiene Law § 81.02 constitutes an unforeseen change of circumstances, such that Defendant would experience serious hardship were the court to deny the relief requested. Particularly, the Second Department has found extreme hardship where a party suffered a grave medical condition resulting in an unintentional loss of income. Defendant's condition is such that he will require critical care for the rest of his life, and it is almost certain that he will incur significant medical costs as his condition worsens over time.
Defendant is currently earning $34,300 per year in Social Security Disability and Veteran's Affairs benefits, as opposed to the 6-figure salary he was earning when he entered the Agreement. Defendant does not have any assets to liquidate, except for the home in which he resides, and it would be cruel for the court to force him to sell his home while he is incapacitated and bed ridden.
As for failing to seek a modification prior to the accrual of arrears, Defendant argues that his stroke, which occurred two months after the arrears began to accrue, made him unable to tend to his affairs. His wife, Mrs. S., took it upon herself to care for him but, as a Russian immigrant, lacks an understanding of the American legal system and did not understand the concept of a downward modification, much less the necessary steps to file an application for same.
Furthermore, Defendant should not be held in contempt because his failure to obey the order was not willful or involuntary, given his inability to make conscious decisions. An award of counsel fees for Plaintiff should be denied for the same reasons set forth above.
Plaintiff asks the court to enter a judgement in favor of Plaintiff against Defendant for maintenance arrears owed from the month of July 2017 until the present as well as statutory interest pursuant to DRL § 244. Defendant argues that all accrued maintenance arrears should be canceled.
"Where the amount of arrears is shown to be due and unpaid, and where there is no good cause alleged for failure to pursue a modification of support order, the court has no discretion to refuse to enter a judgment for arrears of support" (Felton v Felton, 175 A.D.2d 794 [2d Dept 1991]). DRL § 244 "puts the onus upon the defaulter the burden is on the defaulting spouse to explain the lack of promptness" in seeking relief from an order of support (Shirback v. Shirback, 115 A.D.2d 992, 497 N.Y.S.2d 555, 556 [4th Dep 1985]).
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