| Manning v Manning |
| 2011 NY Slip Op 02361 [82 AD3d 1057] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Laura Manning, Respondent, v William Manning,Appellant. |
—[*1] Howard M. Sklar, Carle Place, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), enteredSeptember 8, 2009, which, upon a decision of the same court dated December 22, 2008, madeafter a nonjury trial, inter alia, adjudicated him in contempt of court, distributed the maritalproperty, and awarded the plaintiff maintenance and counsel fees. The notice of appeal from thedecision is deemed a notice of appeal from the judgment (see CPLR 5512 [a]).
Ordered that the judgment is modified, on the law, by deleting the provision thereof directingthe defendant to transfer title to certain commercial property to the plaintiff; as so modified, thejudgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter isremitted to the Supreme Court, Nassau County, for the entry of an appropriate amendedjudgment in accordance herewith.
In order to sustain a finding of civil contempt under Judiciary Law § 753 based on aviolation of a court order, it is necessary to establish by clear and convincing evidence that alawful court order clearly expressing an unequivocal mandate was in effect, that the personalleged to have violated the order had actual knowledge of its terms, and that the violation hasdefeated, impaired, impeded, or prejudiced the rights of a party (see Schwartz v Schwartz, 79 AD3d1006, 1009 [2010]; Dankner vSteefel, 41 AD3d 526, 527-528 [2007]; Hinkson v Daughtry-Hinkson, 31 AD3d 608 [2006]). Here, theevidence was sufficient to establish that the defendant knowingly disobeyed the Supreme Court'sorder directing him to pay an expert to ascertain the value of his business and also failed tocomply with the pendente lite support order. Consequently, the Supreme Court properlyadjudicated the defendant in contempt of court.
A court is not required to rely upon a party's account of his or her finances in determiningthat party's income (see DeSouza-Brownv Brown, 71 AD3d 946, 947 [2010]). Under the circumstances here, the Supreme Courtproperly imputed the sum of only $15,000 in annual income to the plaintiff and the sum of$100,000 in annual income to the defendant (see Khaimova v Mosheyev, 57 AD3d 737, 737-738 [2008]; Matter of Thompson v Perez, 42 AD3d503, 504 [2007]).
The Supreme Court did not improvidently exercise its discretion in rejecting the defendant'sclaim that he should have been credited for overpayments of child support (see Johnson [*2]v Chapin, 12 NY3d 461, 466 [2009]). Further, theSupreme Court's determination regarding arrears, equitable distribution, child support, andmaintenance rested largely on its credibility assessments, and it was in the best position to gaugethe credibility of the parties. Consequently, we afford its credibility determinations greatdeference on appeal (see Fugazy vFugazy, 44 AD3d 613, 615 [2007]). Under the circumstances here, we decline to disturbthe Supreme Court's determinations with respect to these contested issues (id.; see Peritore v Peritore, 66 AD3d750, 753 [2009]).
The Supreme Court did not err in directing the defendant to contribute his pro rata share ofthe expenses related to the religious schooling of the children (see Chan v Chan, 267AD2d 413, 414 [1999]). In addition, the counsel fee award to the plaintiff was not improper(see Johnson v Chapin, 12 NY3d at 467).
We agree with the defendant's remaining contention that the Supreme Court erred indirecting him to transfer title to certain commercial real property to the plaintiff. The commercialproperty at issue was owned by a corporation over which the Supreme Court lacked jurisdiction.We note that the Supreme Court has since issued an order dated April 29, 2010, in which itcorrected its decision on two issues. Accordingly, we remit the matter to the Supreme Court,Nassau County, for the entry of an appropriate amended judgment.
The plaintiff's contentions regarding the order dated April 29, 2010, are not properly beforeus on this appeal. Moreover, since the plaintiff has not taken a cross appeal from the judgment,we have not considered her contention that the defendant was improperly given a credit formoney he allegedly used for the downpayment on the marital residence. Skelos, J.P., Balkin,Austin and Sgroi, JJ., concur.