| Massimi v Massimi |
| 2008 NY Slip Op 09043 [56 AD3d 624] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Richard P. Massimi, Respondent, v Melissa Massimi,Appellant. |
—[*1] Steven A. Kimmel, Washingtonville, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by a judgment dated March 22,2005, as amended by judgment dated May 4, 2007, the defendant appeals, as limited by her brief,from so much of an order of the Supreme Court, Orange County (Owen, J.), dated February 6,2008, as granted the plaintiff's motion to hold her in contempt for failure to comply with aprovision in the amended judgment.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion to hold the defendant in contempt is denied.
"In order to find that contempt has occurred in a given case, it must be determined that alawful order of the court, clearly expressing an unequivocal mandate, was in effect. It mustappear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to beheld in contempt must have had knowledge of the court's order . . . Finally,prejudice to the right of a party to the litigation must be demonstrated (see Judiciary Law,§ 753, subd A)" (Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983][citations and internal quotation marks omitted]). The burden of proof is on the proponent of thecontempt motion, and the contempt must be established by clear and convincing evidence(see Rienzi v Rienzi, 23 AD3d 447, 448-449 [2005]).
As the defendant correctly contends, the plaintiff failed to sustain his burden in this case.While a finding of contempt requires the violation of a clear and unequivocal mandate set forthin an order or judgment of the court (see Raphael v Raphael, 20 AD3d 463 [2005]), theprovision of the amended divorce judgment upon which the plaintiff relies did not meet thatstandard. Rather, it [*2]provided that the defendant was to delivercertain items of personal property to the plaintiff unless the parties disagreed as to their properdistribution, in which case either party could request a hearing to resolve the dispute. Since theprovision contemplated further legal proceedings if the items were not distributed, it did notconstitute a clear and unequivocal mandate of the court upon which a finding of contempt couldbe based (see generally Rienzi v Rienzi, 23 AD3d 447 [2005]; Ottomanelli vOttomanelli, 17 AD3d 647 [2005]; Glassman v Glassman, 20 AD2d 563 [1963]).
Furthermore, a prior order of the Supreme Court resolved the dispute between the parties byfinding that the defendant already had properly distributed the personalty. That order contradictedthe subject provision of the amended divorce judgment and rendered the defendant's obligationsconfusing and unclear (see generally Matter of Kuriansky v Solomon, 210 AD2d 43[1994]; Vizzi v Town Bd. of Town of Islip, 51 AD2d 564 [1976]; see also Matter ofBetancourt v Boughton, 204 AD2d 804, 810 [1994]). Accordingly, the Supreme Court erredin granting the plaintiff's motion to hold the defendant in contempt. Prudenti, P.J., Mastro, Fisherand Dillon, JJ., concur.