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Plaintiff Contends that Defendant is in Contempt of Court

 

This is a motion by the plaintiff (hereafter wife) for an order 1) adjudging the defendant (hereafter husband) in contempt; 2) enforcing the parties’ judgment of divorce; 3) granting her a money judgment for accrued arrears; 4) awarding her counsel fees; 5) awarding her costs (damages) incurred as a result of the husband’s breach of the parties’ stipulation of settlement; and 6) directing the husband to comply with the provisions of the judgment of divorce relating to drug testing.

The parties were married on June 3, 1990. There are three children of the marriage, born in1991; 1992 and 1994. The wife is 45 and the husband is 52 years old. The husband attained a law degree in 1980. During the marriage, he was employed by a business owned by a trust established by his parents in 1960. He was paid over $220,000.00 in 2001 and $175,000.00 in 2002.

The husband has a history of alcohol and prescription drug abuse and depression. He has been in in-patient rehabilitation facilities in Connecticut, Arizona, Georgia, Wisconsin, and New York. He was in an in-patient facility in Florida between December 2001 through March 2002 and an in-patient facility in Georgia in October 2004. His parents paid the costs of these facilities in excess of $100,000.00. He has been treated in hospital emergency rooms numerous times.

The wife was not employed during the marriage and she is presently unemployed. She is taking classes toward a master’s degree and teacher’s certificate. The wife commenced an action for divorce on August 2, 2002. In August 2002, the husband moved out of the marital residence and into his parents’ home. All three of the parties’ sons began residing in the paternal grandparents’ home in or about Labor Day 2002. In December 2002, the wife served a Writ of Habeas Corpus on the husband and his parents demanding the production of the children in the courthouse.

The issue of custody was hotly contested during the pendency of the divorce action. Four law guardians were appointed during the course of the proceeding and a custody forensic evaluation was conducted by a psychiatrist. The Court conducted several Lincoln interviews with the children who all exhibited significant distress. The competency of both parties to parent was at issue and the children were engaged in ongoing therapy. The wife accused the husband and his parents of alienation and the husband claimed that the wife was an unfit parent and that the children were resisting contact with her. In fact, in his affidavit submitted herein, the husband states that the wife continues to have problems in her relationship with the children, including, in his words, “a complete lack of the (sic) care pertaining to our children.”

The parties stipulated in open court on January 9, 2003 that the children would reside with the husband at his parents’ home during the pendency of the action. By written stipulation dated August 21, 2003, they further stipulated that the children would reside with the husband in a residence other than the home of the paternal grandparents.

The wife obtained interim custody of the children pursuant to an order dated September 24, 2004, when the Court learned that the husband had again been admitted to an in-patient rehabilitation facility. Pursuant to an order to show cause submitted on March 5, 2005, the wife moved for pendente lite financial relief including an award of child support.

The husband opposed that application stating the following: 1) that despite his chronic alcoholism his father kept him on the pay roll of the family business through December 31, 2004; 2) on January 1, 2005, his salary was reduced to $100,000.00 a year; 3) on February 4, 2005, he was terminated from his employment; 4) the family business “has not done well in the last few years;” 5) his father is 81 and his mother is 76 years old; 6) his mother had two surgeries this past year; 7)his parents liquidated $400,000.00 in personal assets to keep the family business “afloat;” 8) his parents have paid the cost of his present rehabilitation; 9) his income is zero; his assets, other than approximately $430,000.00 in retirement assets, have been depleted; and 9) he has credit card debt in excess of $35,000.00.

On July 17, 2005, the parties executed a stipulation of settlement. Said stipulation was incorporated and did not merge in a judgment of divorce dated September 30, 2005. Said stipulation provides in relevant part as follows: the wife shall have sole legal custody of the parties’ three sons; the oldest son shall reside with his aunt; the husband shall pay child support to the wife for all three children in the sum of $4500.00 a month; the husband shall pay maintenance to the wife through July 2007 in the sum of $1500.00 a month; the husband’s child support obligation shall be subject to a de novo review in three years; the husband is unemployed; the parties agree to impute annual income to the husband of $195,000.00; the wife’s income is zero; the husband shall pay 100% of therapy for the children for two years; the husband shall maintain medical insurance for the wife for one year after the issuance of a judgment of divorce; the husband shall maintain medical and dental insurance for the children; each parent shall pay 50% of the children’s uncovered health related expenses; the husband shall maintain $1,000,000.00 insurance coverage on his life naming the children as irrevocable beneficiaries; the parties acknowledge that the husband has a policy with an Irrevocable Trust dated May19, 1995; the husband may reduce the amount of coverage by $50,000.00 a year commencing with the first anniversary of the execution of the stipulation; the husband shall submit to hair follicle tests every three months commencing August 1, 2005 as a prerequisite to his exercise of parenting time with the children.

In or about February 2006, the wife and the two younger children relocated to the wife’s present residence. The wife states that between January 1, 2007 and October 1, 2007, the husband was obligated to pay child support and maintenance of $55,500.00. According to the wife, he paid a total of $5328.24, leaving arrears of $47,732.24. In addition, the wife states that the husband owes her $1375.00 for the month of February 2006 and health insurance premiums for August and September 2006 totaling $1237.52 (exhibit H). Further, the wife states that the husband has failed to maintain insurance on his life and has failed to submit to hair follicle tests.

As the result of a proceeding commenced by the wife in the Nassau County Family Court, an order was issued dated February 16, 2007, directing that effective March 1, 2007 the husband was obligated to pay maintenance of $1500.00 a month (only through July 31, 2007) and child support of $4500.00 a month through the Support Collection Unit. Said order did not establish any arrears existing as of the date of the order, and, as pointed out by the husband, pursuant documentation provided by the Support Collection Unit, as of August 9, 2007 arrears totaled $28,292.98.

The wife states that she refinanced her home in April 2007 with the help of her parents to stave off a foreclosure proceeding and that she incurred $30,000.00 in closing costs. She states that the husband has left her and the children virtually destitute, unable to purchase food or clothing.

In opposition to the instant motion, the husband states that he has been paying $2000.00 to $3000.00 a month for the past few months, but he has not submitted any proof of payment. He has submitted documentation that he has a life insurance policy in the face amount of $750,000.00 and that a certain Irrevocable Trust is the beneficiary. The husband states that he has not returned to work; that he continues to suffer from depression; that his depression was exacerbated by the death of his father and his sister’s diagnosis of cancer. He states he intends to apply for social security disability. He acknowledges that he is the beneficiary of a Family Trust but states that there is only $2200.00 remaining in the trust. He has not disclosed what funds, if any, he has received from this Trust since July 2005, nor has he provided any documentation relating to said Trust. He has not denied that he recently spent ten days in a resort in Costa Rica, has spent numerous weekends in 2007 in Atlantic City, took vacations with his girlfriend to Gurney’s Resort in Amagansett and a trip to Florida, or that he purchases $180.00 sneakers for the children. He explains that these trips were paid for “by others;” that he traveled to Florida with the children using his deceased fathers “miles;” that he vacationed at Gurney’s using insurance proceeds paid to repair an oil spill at his mother’s home; his mother pays for gifts he gives the children and his mother owns the 2005 Toyota that he drives. He submitted a number of hair follicle drug test reports, the most recent dated March 2007.
To sustain a finding of civil contempt based upon a violation of a court order, a movant must demonstrate the existence of an unequivocal mandate and must establish a violation thereof by clear and convincing proof. There also must be a finding that the conduct complained of was calculated to or actually did defeat, impair or prejudice the rights or remedies of a party to a civil proceeding.

Further, pursuant to DRL 245, before a defaulting party can be held in contempt for the non-payment of a sum of money, it must appear “presumptively, to the satisfaction of the Court”, that payment cannot be enforced pursuant to DRL 243 (sequestration), DRL 244 (money judgment), CPLR 5241 (income execution) or CPLR 5242 (income deduction).

Once a movant establishes the knowing violation of a clear mandate which impaired the movant’s rights or remedies, and the movant demonstrates that resort to other means of enforcement would be futile, the burden then shifts to the defaulting party to demonstrate that the default was not willful by the presentation of evidence that he or she was financially unable to make the payments required by the order in issue. On the issue of contempt, courts focus on whether the failure to meet the support obligation was “willful”.

In the case at bar, it is uncontroverted that the husband had knowledge of the judgment of divorce dated September 30, 2005 and the Family Court order dated February 16, 2007. Further, as the husband is unemployed and states that his only asset is $2200.00 remaining in a Family Trust, the wife has demonstrated presumptively that she has no means to enforce said judgment and order other than contempt. In addition, the wife has established that the husband’s failure to pay maintenance and child support has impaired and prejudiced her rights. Nevertheless, the husband contends that the Court lacks the authority to adjudge him in contempt on the ground that he is financially unable to comply with the aforesaid judgment and order.

The Court notes that pursuant to DRL 240(1-b)(b)(5)(iv)(D), a Court may consider “money, goods or services” provided by relatives, in determining a party’s income. The parties and their children enjoyed a luxurious life style during the marriage through the largess of the husband’s parents despite the husband’s self-described chronic alcoholism and repeated lengthy in-patient rehabilitations and out-patient treatments. The husband’s mother and “others” continue to support the husband, although he has not been restored to the payroll of the family business. This support constitutes income to the husband.

The Court is not unmindful of the husband’s travails as a recovering alcohol and or substance abuser undergoing treatment for depression. The husband, however, has voiced little concern for the trauma levied on his children through the years by virtue of his addiction, his in-patient treatments and the lengthy and highly contentious divorce proceedings. He reminds the Court of the wife’s difficulties in her relationship with the children, but again voices no concern as to the extraordinary stress imposed on her by his failure to pay child support, nor the effect her inability to purchase necessaries will have on the children.

The Court finds that the husband has not made a prima facie showing that there has been any change in his financial circumstances since July 2005 and or February 2007 and that absent a change of circumstances, he is precluded, as a matter of law, from contending in defense of the instant motion that he does not have income of $195,000,00 as imputed to him, on his consent, pursuant to the parties’ stipulation of settlement. Accordingly, there is no issue of fact vis a vis his financial ability to comply with said judgment and order requiring a hearing.

The Court adjudges the husband to be in willful default of the February 16, 2007 order and the divorce judgment dated September 30, 2005. Accordingly, it is hereby ordered that the husband is guilty of contempt pursuant to Judiciary Law 753; and it is further ordered, that maintenance and child support arrears are established in the sum of $28,292.94 as of August 9, 2007 as established by the Support Collection Unit. The wife is awarded a money judgment in the sum of $28,292.94 with interest thereon at the statutory rate from the date payment was due. This order is without prejudice to the wife’s right to settle a proposed money judgment for additional arrears, on notice, including arrears accrued in February 2006, January and February 2007, insurance premium arrears, and arrears accrued through October 2, 2007. Said proposed money judgment shall be supported by an affidavit setting forth, in detail, the manner in which arrears were calculated including any payments received during the relevant period. The husband may submit an affidavit in opposition supported by calculations and proof of payments, on or before the settlement date.

If you want to file for child support, seek the legal representation of a Nassau Family Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

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