| Matter of Chase v Chase |
| 2007 NY Slip Op 09461 [45 AD3d 1206] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of John T. Chase, Appellant, v Kristin F. Chase,Respondent. |
—[*1] Kristin F. Chase, Huntington, respondent pro se.
Mugglin, J. Appeal from an order of the Supreme Court (Hummel, J.), entered September 14,2006 in Columbia County, which, among other things, held plaintiff in contempt of a temporaryorder of the court.
A recitation of the chronology of proceedings in this extremely acrimonious divorce action isnecessary to understand the relevant appellate arguments made by plaintiff.
First, on July 15, 2004, in deciding defendant's application for temporary maintenance andchild support, Supreme Court ordered plaintiff to "bring the mortgage [payment] current andmake the monthly payments until further order." In addition to paying child support, plaintiff wasdirected to maintain health insurance coverage for defendant and their son. Next, on September20, 2004, by order to show cause, defendant initiated contempt proceedings alleging that plaintiffwillfully violated the July 2004 order. Because a relative of defendant supplied the funds to bringthe mortgage current, Supreme Court reserved decision without holding a hearing. The partiesstipulated to list the home for sale and that defendant would receive a credit against plaintiff'sshare of the sale proceeds for the amount the relative paid. This stipulation was incorporated inan order dated October 12, 2004. It does not appear that the house was ever listed for sale.
On March 4, 2005, by order to show cause, plaintiff sought to hold defendant in [*2]contempt for a variety of alleged violations of prior orders. By crossmotion, defendant asked the court to decide the previously reserved decision. Without holding ahearing, Supreme Court held plaintiff to be in contempt and, by judgment dated August 18, 2005,sentenced plaintiff to 30 days in jail with the provision that plaintiff could purge the contempt bypaying $39,243 in mortgage arrears and $2,975.40 in child support arrears within 30 days. Therecord reflects that no payment was made and that plaintiff was never incarcerated. On May 19,2006, by order to show cause, defendant again sought to hold plaintiff in contempt of the July2004 order, but this time only for plaintiff's failure to purchase health insurance coverage fordefendant and their son.
On August 14, 2006, Supreme Court conducted a bifurcated divorce trial and contemptproceeding. At the end of plaintiff's proof, Supreme Court granted defendant's oral motion todismiss the complaint. Supreme Court also granted defendant's oral motion to withdraw herdivorce counterclaim. Despite the fact that the pending contempt application was based on theMay 19, 2006 order to show cause (which did not allege failure to make the mortgage payments),Supreme Court adjudicated plaintiff to be in contempt of the July 2004 order and sentenced himto six months incarceration unless, within 60 days, he purged the contempt by payment of themortgage arrears of $39,243 to defendant. During the hearing, plaintiff, who by this time was notrepresented by counsel, twice sought the aid of an attorney and repeatedly denied that hisnonpayment was willful in that he was without sufficient funds to make payment. Plaintiffappeals and we reverse.
Our analysis begins by noting that the validity of the July 2004 order and the August 2005judgment, which contained a purge provision, are not before us as no appeal was taken fromeither. Moreover, because Supreme Court reserved on the issue of contempt, we disagree withplaintiff's argument that the October 2004 order directing the sale of the marital residencesuperceded the July 2004 order. Parenthetically, we note that the October 2004 order does impacton the amount of the payment necessary to purge the contempt as it directs that defendant receivefrom plaintiff's share of the proceeds from the sale of the house the amount of the mortgagearrears paid by her relative, thus substituting the sale proceeds for plaintiff's personal funds as thesource of this payment. This order, however, did not relieve plaintiff from making the monthlymortgage payments. Likewise, we disagree with plaintiff's argument that Supreme Court wasdivested of jurisdiction to enforce the July 2004 order by way of contempt when it dismissed theunderlying matrimonial actions (seeFotiadis v Fotiadis, 18 AD3d 699, 701 [2005]).
We do agree, however, that the May 2006 order to show cause did not allege a violation ofthe mortgage payment provisions and, therefore, despite a brief comment by Supreme Court, it isapparent from plaintiff's comments that adequate notice was not given to him so that he could beexpected to prepare to defend against that charge (see Matter of Rose BB., 243 AD2d999, 1001 [1997]; Matter of Proper v Proper, 144 AD2d 712, 713 [1988]). We also agreewith plaintiff's arguments that he was denied his right to counsel and that the September 2006contempt judgment is invalid because it does not describe the contemptuous conduct or recite allthe elements of civil contempt. Here, because the contempt order was modified to increase theperiod of incarceration, we hold that plaintiff was not fully informed of his statutory right to berepresented by counsel, to have an adjournment to consult with counsel or to have counselprovided if he could not afford to retain counsel (see People ex rel. Foote v Lorey, 28 AD3d 917, 918 [2006], lvdismissed 7 NY3d 863 [2006], lv denied 8 NY3d 803 [2007]). With respect to theorder adjudging plaintiff to be in contempt, it does not include a description of the acts whichwere committed—it makes no reference to failure to cover defendant and their son withhealth [*3]insurance, an issue unaddressed by SupremeCourt—and it does not contain an adjudication that the acts done impaired the rights of aparty to the action (see Matter of Loeber v Teresi, 256 AD2d 747, 749 [1998]). Plaintiff'sremaining arguments have been considered and rejected as meritless.
Crew III, J.P., Peters, Rose and Kane, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision.