| Hayes v Barroga-Hayes |
| 2014 NY Slip Op 03488 [117 AD3d 794] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| Michael J. Hayes, Jr., Respondent, v FlorentinaBarroga-Hayes, Appellant. |
Florentina Barroga-Hayes, Staten Island, N.Y., appellant pro se.
Morelli & Gold, LLP, New York, N.Y. (Richard L. Gold of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment dated June 4,1998, the defendant appeals (1), as limited by her brief, from so much of an order of theSupreme Court, Richmond County (Panepinto, J.), dated June 15, 2012, as denied thatbranch of her motion which was for an award of counsel fees, (2) from an order of thesame court, also dated June 15, 2012, which denied her separate motion for recusal, (3)from an order of the same court, also dated June 15, 2012, which granted the plaintiff'scross motion for certain injunctive relief to the extent of directing the defendant to makefuture applications only by order to show cause, (4) from a judgment of the same courtdated August 9, 2012, which, upon an order dated April 4, 2012, granting that branch ofthe plaintiff's motion which was to enforce the child support provisions of the judgmentof divorce, is in favor of the plaintiff and against her in the total sum of $6,681.09,representing unpaid basic child support for the period from July 1, 2005, through June30, 2006, plus interest, (5) from a judgment of the same court, also dated August 9, 2012,which, upon the order dated April 4, 2012, is in favor of the plaintiff and against her inthe total sum of $32,448.70, representing unpaid basic child support for the period fromJuly 1, 2006, through July 12, 2012, plus interest, and (6) from a money judgment of thesame court dated June 15, 2012, which, upon an order of the same court dated March 22,2012, finding the defendant in civil contempt for failure to comply with an order of thesame court dated August 15, 2007 (De Lizzo, Ct. Atty. Ref.), awarding the plaintiffcounsel fees in the sum of $15,000 plus interest, is in favor of the plaintiff and againsther in the sum of $21,265.48.
Ordered that the first order is affirmed insofar as appealed from; and it isfurther,
Ordered that the second and third orders and the judgments are affirmed; and it isfurther,
[*2] Ordered that one bill of costs isawarded to the plaintiff.
"Absent a legal disqualification under Judiciary Law § 14, a court is thesole arbiter of the need for recusal, and its decision is a matter of discretion and personalconscience" (Matter ofO'Donnell v Goldenberg, 68 AD3d 1000, 1000 [2009]; see Vigo v 501 Second St. HoldingCorp., 100 AD3d 870, 870 [2012]; Matter of Imre v Johnson, 54 AD3d 427, 427-428 [2008]).Here, the defendant failed to demonstrate that any determinations in the case were theresult of bias (see Chusid vSilvera, 110 AD3d 662, 662 [2013]). Accordingly, the Supreme Courtprovidently exercised its discretion in declining to recuse itself (see York v York, 98 AD3d1038, 1038 [2012], affd 22 NY3d 1051 [2014]; DiSanto v DiSanto, 29 AD3d936, 936 [2006]).
Contrary to the defendant's contention, the money judgment dated June 15, 2012,was properly issued pursuant to the Supreme Court's order dated March 22, 2012, whichfound her in civil contempt of a prior order dated August 15, 2007, awarding the plaintiffcounsel fees in the sum of $15,000 plus interest. "To prevail on a motion to punish forcivil contempt, the movant must establish (1) that a lawful order of the court, clearlyexpressing an unequivocal mandate, was in effect, (2) that the order was disobeyed andthe party disobeying the order had knowledge of its terms, and (3) that the movant wasprejudiced by the offending conduct" (Coyle v Coyle, 63 AD3d 657, 658 [2009]; see Galanos v Galanos, 46AD3d 507, 508 [2007]; Biggio v Biggio, 41 AD3d 753, 753-754 [2007]; Raphael v Raphael, 20 AD3d463, 463 [2005]). The movant has the burden of proving contempt by clear andconvincing evidence (see Galanos v Galanos, 46 AD3d at 508). Here, where it isundisputed that the defendant did not comply with the clear mandate of the court's orderdated August 15, 2007, the plaintiff met his burden on the motion (see id.;Biggio v Biggio, 41 AD3d at 754; Raphael v Raphael, 20 AD3d at 464).Moreover, under the circumstances of this case, less drastic enforcement measures thanseeking to hold the defendant in contempt would have been ineffectual (seeDomestic Relations Law § 245; Tarone v Tarone, 104 AD3d 760, 760 [2013]; Lopez v Ajose, 33 AD3d976, 976 [2006]; Haber v Haber, 225 AD2d 664, 664-665 [1996]).
Upon review of the defendant's contentions regarding the two judgments datedAugust 9, 2012, entered with respect to child support arrears, we find no basis uponwhich to disturb those judgments.
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in directing the defendant to make future filings by order to show cause (see Matter of Simpson vPtaszynska, 41 AD3d 607, 608 [2007]).
The defendant's remaining contentions are either not properly before this Court orwithout merit. Balkin, J.P., Dickerson, Leventhal and Roman, JJ., concur.