| Palladino v Palladino |
| 2011 NY Slip Op 08130 [89 AD3d 814] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Katherine Palladino, Appellant-Respondent, v ThomasPalladino, Respondent-Appellant. |
—[*1] Paul D. Stone, P.C., Tarrytown, N.Y., for respondent-appellant.
In an action for a divorce and ancillary relief, (1) the wife appeals, as limited by her brief,from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), enteredDecember 8, 2010, as denied her cross motion for an award of interim counsel fees, and thehusband cross-appeals, as limited by his brief, from so much of the same order as denied hismotion to hold the wife in civil contempt for failure to comply with a so-ordered stipulationdated April 24, 2009, and (2) the wife appeals, as limited by her brief, from so much of an orderof the same court entered December 23, 2010, as denied her motion to hold the husband in civilcontempt for failure to comply with the so-ordered stipulation dated April 24, 2009, and for anaward of interim counsel fees.
Ordered that the order entered December 8, 2010, is affirmed insofar as appealed andcross-appealed from, and the order entered December 23, 2010, is affirmed insofar as appealedfrom, without costs or disbursements.
The parties are involved in a divorce action after an 18-year marriage. In an order datedMarch 20, 2009, the husband was restrained from transferring, withdrawing, or otherwise usingany of the funds deposited in any of the parties' accounts at nine different financial institutions,including Chase Bank, except for ordinary business and personal expenses. On April 24, 2009,the parties entered into a so-ordered stipulation which continued the restraints imposed by theorder dated March 20, 2009, except that the restraints with respect to certain financialinstitutions, [*2]including Chase Bank, were vacated. The wifewas restrained from transferring or disposing of property except for ordinary business andpersonal expenses.
In July 2010 the husband moved to hold the wife in civil contempt, asserting that she haddisposed of at least $155,000 of joint property in violation of the April 24, 2009, so-orderedstipulation. The wife cross-moved for an award of interim counsel fees.
In an order entered December 8, 2010, the Supreme Court, inter alia, denied the husband'smotion and the wife's cross motion, finding that the use of the money by the wife did not rise tothe level of contempt.
In November 2009 the wife moved to hold the husband in civil contempt on the ground thathe had withdrawn funds from a joint bank account, and for an award of interim counsel fees. Inan order entered December 23, 2010, the Supreme Court denied the wife's motion.
The Supreme Court providently exercised its discretion in denying the motions to hold therespective parties in civil contempt, as the respective parties failed to demonstrate, by clear andconvincing evidence, that the other party to be held in contempt willfully violated a clear andunequivocal mandate of a court order, with knowledge of that order's terms, thereby prejudicingthe movant's rights (see McGrath vMcGrath, 85 AD3d 742 [2011]; Rubin v Rubin, 78 AD3d 812 [2010]; Soehngen v Soehngen, 58 AD3d829 [2009]; Galanos v Galanos,46 AD3d 507 [2007]; Pantelidis v Pantelidis, 297 AD2d 791 [2002]).
The parties' remaining contentions are without merit. Mastro, J.P., Dillon, Sgroi and Miller,JJ., concur.