2017 NY Slip Op 06309
August 23, 2017
This is an appeal from Nassau County Supreme Court. The order on appeal denied the motion that was to hold the defendant in contempt and order the defendant to maintain a whole life policy throughout the divorce action.
Order is affirmed.
The plaintiff served a summons on the defendant that included several “automatic orders” pursuant to Domestic Relations Law 236 (B)(2)(b). These required that each party maintain their existing life insurance policies during the proceedings. The plaintiff moved to hold the defendant in criminal and civil contempt. He alleged that she violated the automatic orders by not keeping up with her policy. He also asked that the court order her to maintain her policies during the divorce action.
The defendant admits that she stopped paying the policy, but contended that she didn’t violate the automatic orders, but regardless, the plaintiff wasn’t harmed as a result.
The couple had a life insurance policy for their children which was worth 12 million dollars, in addition to each having their own policy. The defendant says that the intent of those accounts was to serve as a forced savings account, and not be part of the automatic orders. She contends that she shouldn’t have to spend her current earnings on a savings account that only benefits her ex-husband. The Supreme Court denied holding her in contempt, but did order her to continue to pay into the policy. It said however, that under the circumstances the plaintiff’s policy was indeed a savings vehicle. The plaintiff filed this appeal.
The court said that it is within the discretion of the family law court, and the moving party must provide proof by clear and convincing evidence (Cassarino v Cassarino 149 AD3d 689, Hughes v Kameneva 96 AD3d 845. The moving party move prove 1) an order of the court was in full effect, 2) The party, with full knowledge disobeyed the order, and 3) The moving party was hurt in some way by the conduct (Judiciary Law 753 [A], McCormick v. Axelrod 59 NY2d 574, Sialon v. Stepping Stones Assn. L.P. 148 AD3d 955). Harm or prejudice is proper when the party’s actions “were calculated to, or actually did defeat, impair, impede or prejudice the rights and remedies of the other party (Figueroa-Rolon v Torres 121 AD3d 684).
In order to be successful with a motion for criminal contempt, the moving party must prove that there was willful disobedience of the court’s order (Judiciary Law 750 [A], Muraca v Meyerwitz 49 AD3d 697, Figeroa-Rolon v Torres 121 AD 685.
Under DRL 236 (B)(2)(b) the automatic orders say to “maintain life insurance” and keep the policies in full force and effect. In this case, the 12-million-dollar policy, the 7.6-million-dollar whole life policy of the defendant and the plaintiff admitting to using his whole life policy as a savings account, the Supreme Court was correct in not holding the defendant in contempt.
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