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Cassarino v Cassarino


2017 NY Slip Op 02623

April 5, 2017


The plaintiff appeals a decision from the Duchess City Supreme Court. The plaintiff filed a motion to hold the other party in civil contempt (for violating part of the separation agreement), which was made part of the order for divorce dated 8/6/12.

The court ordered that deleting provisions that denied the plaintiff’s motion for contempt and substitute a provision granting the motion is affirmed with costs to the plaintiff.

The plaintiff and the defendant were divorced in 2012. In the separation agreement, the parties noted that their primary source of income from 3 commercial properties that were owned by the couple jointly (via their company Springbrook Realty) According to the settlement agreement the parties could charge $1,500 on the respective credit cards per month. When their primary residence sold, they would be able to use the proceeds of the sale to pay off the cards. The settlement agreement also stated that when the parties sold their house they would use some of the money from the properties to pay the Springbrook expenses. Whatever money was left over they would split.

The court said a motion to punish someone for contempt is at the discretion of the court, and the movant will bear the burden of proving this by clear and convincing evidence (Hughes v Kameneva 96 AD3d 846). To find contempt, the court must determine that the contemptor violated a court order which clearly sets forth a clear mandate, and because of the violation or right or remedy has had an unfair result (Philie v Singer 79 AD3d 1041). The court said that it’s not necessary that the disobedience be willful, the act itself is enough if it defeats or prejudices the other party (El-Dehan v El-Dehan 26 NY3d 19).

When the movant proves a knowing failure to comply with an order, the burden shifts to the other party to refute the evidence and present a defense, such as an inability to comply with the order (El-Dehan v El-Dehan 26 NY 3d 19). The court said that a hearing is required only if a factual dispute is present regarding the civil contempt (Goldsmith v Goldsmith 261 AD2d 576, Metzger v Metzger 206 AD2d 352, Muller v Muller 233 AD2d 486).

In this case, the plaintiff showed that the defendant had violated provisions of the separation agreement (Philie v Singer 79 AD3d 1042). The plaintiff contends that when the defendant assumed control over the realty finances, she refused to pay off the joint credit card and didn’t share in the rental income equally. This prejudiced his rights as set forth in the separation agreement. While the Supreme Court found that the plaintiff hadn’t met his burden because he didn’t utilize other enforcement remedies, the court noted that Domestic Relations Law 245 was amended to remove the exhaustion requirement. The amended was to take effect immediately and apply to all actions whenever commenced as well as “all judgments and orders previously entered.” Because of this, the plaintiff’s failure to prove that had exhausted all of their remedies before holding the defendant in contempt doesn’t prevent him from obtaining relief.

The defendant didn’t refute the plaintiff’s showing or offering evidence (El-Dehan v El-Dehan 114 AD 317). The defendant didn’t raise a dispute for civil contempt or a defense. The Supreme Court should have granted the plaintiff’s motion and held that the defendant in contempt (Metzer v Metzer 206 AD2d 353, Goldsmith v goldsmith 261 AD2d 577, Muller v Muller 233 AD2d 487). The court remits the matter to the Supreme Court to determine the amount of the plaintiff’s financial losses.

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