| Rhodes v Rhodes |
| 2016 NY Slip Op 01657 [137 AD3d 890] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| Rebecca A. Rhodes, Now Known as Rebecca Palumbo,Appellant, v Christopher J. Rhodes, Respondent. |
Law Offices of Eyal Talassazan, P.C., Westbury, NY, for appellant.
Mangi & Graham, LLP, Westbury, NY (James J. Graham of counsel), forrespondent.
Appeal from an order of the Supreme Court, Suffolk County (Stephen M. Behar, J.),dated March 28, 2014. The order, insofar as appealed from, denied those branches of theplaintiff's motion which were to hold the defendant in civil contempt for failure tocomply with the child support provisions set forth in the parties' judgment of divorcedated July 15, 2008, and for an award of an attorney's fee.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties, who are the parents of three children, were divorced by a judgment ofdivorce dated July 15, 2008. Pursuant to the terms of a stipulation of settlement, whichwas incorporated but not merged into the judgment of divorce, the father was directed topay basic child support in the sum of $2,000 per month. The father was also directed topay additional child support including one half of reasonable medical expenses notcovered by insurance, one half of extracurricular activity expenses, and a share of anychild care expenses incurred by the mother to attend work. In October 2013, the mothermoved, inter alia, to hold the father in civil contempt, alleging that he had violated thechild support provisions set forth in the judgment by failing to make $3,795 in basicchild support payments, and by refusing to reimburse her for his share of child care,medical care, and extracurricular activity expenses. The mother also sought an award ofan attorney's fee for the expenses she incurred in the preparation of her motion. Inopposition to the motion, the father submitted bank records to support his claim that hehad made all required basic child support payments, and alleged that the mother hadfailed to respond to his request for documentation substantiating her payment of childcare, medical care, and extracurricular activity expenses. He further contended that themother had failed to make the statutorily required showing that she had exhausted otherenforcement remedies prior to seeking to hold him in civil contempt. The Supreme Courtdenied those branches of the mother's motion which were to hold the father in civilcontempt and for an award of an attorney's fee. The mother appeals.
In matrimonial actions, Domestic Relations Law § 245 grants the courtauthority to punish a party for civil contempt pursuant to Judiciary Law§ 756 where the party defaults "in paying any sum of money" required by ajudgment or order, "and it appears presumptively, to the [*2]satisfaction of the court, that payment cannot be enforced"pursuant to the enforcement mechanisms provided in Domestic Relations Law§§ 243 and 244 and CPLR 5241 and 5242. "A civil contempt motionin a [matrimonial] action should be denied where the movant fails to make a showingpursuant to section 245 that 'resort to other, less drastic enforcement mechanisms hadbeen exhausted or would be ineffectual' " (El-Dehdan v El-Dehdan, 114 AD3d 4, 23 [2013], affd26 NY3d 19 [2015], quoting Capurso v Capurso, 61 AD3d 913, 914 [2009]; see Wolfe v Wolfe, 71 AD3d878, 879 [2010]). Here, the mother did not attempt to utilize any less drasticenforcement mechanism before moving to hold the father in contempt, and failed todemonstrate that resort to a less drastic enforcement mechanism would be ineffectual.Contrary to the mother's contention, the fact that the child care, medical care, andextracurricular activity expenses she sought payment of were not for a sum certain didnot prevent her from seeking to fix any arrears due for those expenses and enforcing thefather's payment obligations through less drastic means. Under these circumstances, theSupreme Court properly denied those branches of the mother's motion which were tohold the father in civil contempt (see Belkhir v Amrane-Belkhir, 128 AD3d 1382, 1383[2015]; Wolfe v Wolfe, 71 AD3d at 879; Capurso v Capurso, 61 AD3d at914; Rienzi v Rienzi, 23AD3d 447, 449 [2005]; Snow v Snow, 209 AD2d 399, 401 [1994]), and foran award of an attorney's fee (see Cooper v Cooper, 21 AD3d 869, 871 [2005]). Eng,P.J., Rivera, Hall and Hinds-Radix, JJ., concur.