| Cutroneo v Cutroneo |
| 2016 NY Slip Op 04903 [140 AD3d 1006] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| Garynn R. Cutroneo, Now Known as Garynn S. Rodner,Respondent, v Kenneth R. Cutroneo, Appellant. |
Daniel L. Pagano, Yorktown Heights, NY, for appellant.
Bodnar & Milone LLP, White Plains, NY (Elizabeth E. Erickson of counsel),for respondent.
Appeals from (1) an order of the Supreme Court, Westchester County (Francis A.Nicolai, J.), dated April 14, 2014, (2) an order of commitment of that court dated April17, 2014, and (3) a money judgment of that court entered April 29, 2014. The order, aftera hearing, granted that branch of the plaintiff's cross motion which was pursuant toDomestic Relations Law § 245 to adjudge the defendant in civil contemptfor his failure to comply with the child support and maintenance provisions of the parties'judgment of divorce, and directed that he be incarcerated unless he paid arrears in thesum of $5,000 by April 17, 2014, and an additional $5,000 by April 28, 2014. The orderof commitment, upon the order and the defendant's failure to purge his contempt,directed that he be committed to the Westchester County Correctional Facility for aperiod of six months unless he paid arrears in the sum of $10,000 to purge his contempt.The money judgment awarded the plaintiff the principal sum of $19,906.15, representingthe defendant's arrears that had accrued from February 15, 2013 through April 17,2014.
Ordered that the order is affirmed, without costs or disbursements; and it isfurther,
Ordered that the appeal from the order of commitment is dismissed as academic,without costs or disbursements; and it is further,
Ordered that the money judgment is modified, on the facts, by reducing the principalsum of $19,906.15 to the principal sum of $14,871.23; as so modified, the moneyjudgment is affirmed, without costs or disbursements.
The parties were divorced in December 2011 and have two children. The defendant'schild support and maintenance obligations were set forth in the parties' stipulation ofsettlement, which was incorporated but not merged into the judgment of divorce. OnNovember 4, 2013, the [*2]defendant moved to modifyhis child support obligation. The plaintiff thereafter cross-moved, seeking, inter alia, toadjudge the defendant in civil contempt pursuant to Domestic Relations Law§ 245 for failure to pay child support and maintenance as directed, andincarcerating him therefor. After a hearing, the Supreme Court found that the defendanthad violated the subject provisions of the stipulation and adjudged him in contempt in anorder dated April 14, 2014, directing that he be incarcerated unless he made twopayments of $5,000: the first by April 17, and the second by April 28, 2014. Upon thedefendant's failure to make the first payment, the court entered an order of commitmentdated April 17, 2014, confining him for a period of six months or until he paid $10,000to purge his contempt. The defendant purged his contempt approximately four days later.The court then entered a money judgment in favor of the plaintiff in the principal sum of$19,906.15, representing the defendant's arrears that had accrued from February 15, 2013through April 17, 2014. The defendant appeals from the order, the order of commitment,and the money judgment.
Inasmuch as the defendant purged himself of his contempt four days after he wasincarcerated and thereupon was released from incarceration, we dismiss his appeal fromthe order of commitment dated April 17, 2014 as academic (see Matter of Curbelo vClemente, 7 AD3d 524 [2004]; Fiedler v Fiedler, 230 AD2d 822[1996]; Federal Deposit Ins. Corp. v Wolkoff, 209 AD2d 469 [1994]; cf.Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]).
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 satisfaction of the court, thatpayment cannot be enforced" pursuant to the enforcement mechanisms provided inDomestic Relations Law §§ 243 and 244 and CPLR 5241 and 5242(see Rhodes v Rhodes, 137AD3d 890, 891 [2016]; El-Dehdan v El-Dehdan, 114 AD3d 4, 22-23 [2013],affd 26 NY3d 19 [2015]). To prevail on the motion, the movant mustdemonstrate by clear and convincing evidence that the party charged disobeyed a clearand unequivocal court order, of which the party had knowledge, and that the movant wasprejudiced thereby (see Judiciary Law § 753 [A] [3]; El-Dehdanv El-Dehdan, 26 NY3d at 28-29). " 'It is not necessary that the disobediencebe deliberate or willful; rather, the mere act of disobedience, regardless of its motive, issufficient if such disobedience defeats, impairs, impedes, or prejudices the rights orremedies of a party' " (Gomes v Gomes, 106 AD3d 868, 869 [2013], quoting Matter of Philie v Singer, 79AD3d 1041, 1042 [2010]; see El-Dehdan v El-Dehdan, 114 AD3d at 17). "Acivil contempt motion in a [matrimonial] action should be denied where the movant failsto make a showing pursuant to section 245 that 'resort to other, less drastic enforcementmechanisms had been exhausted or would be ineffectual' " (Rhodes vRhodes, 137 AD3d at 891, quoting El-Dehdan v El-Dehdan, 114 AD3d at23).
Here, the plaintiff adequately demonstrated that other, less drastic enforcementmechanisms than contempt would be ineffectual (see Domestic Relations Law§ 245; Hayes vBarroga-Hayes, 117 AD3d 794 [2014]). Moreover, the plaintiff met her burdenof establishing, by clear and convincing evidence, that the defendant was fully aware ofhis maintenance and child support obligations, which were set forth in a lawful andunequivocal mandate of the court, and that he disobeyed that mandate, while having fullknowledge of its terms, resulting in prejudice to the plaintiff. The burden thus shifted tothe defendant to offer competent, credible evidence of his inability to make the paymentsas directed (see El-Dehdan v El-Dehdan, 114 AD3d at 17; Yeager v Yeager, 38 AD3d534 [2007]). The defendant failed to meet his burden of establishing his defense ofan inability to pay. The plaintiff's evidence established that during the period for whichshe sought arrears, the defendant had income, including from both regular pay andseverance pay, the sale of stock, and the sale of personal assets, from which he couldhave made support payments. Although the defendant established that his severance payhad been seized by the sheriff to satisfy a prior judgment and that his regular pay hadbeen garnished, he failed to demonstrate that he could not have made payments from thesale of stock and personal assets. In addition, the hearing court's credibilitydeterminations are given great deference on appeal (see Kerley v Kerley, 131 AD3d 1124, 1125 [2015]; Matter of Funaro v Kudrick,128 AD3d 695, 696 [2015]). The Supreme Court's determination to resolve allcredibility issues in favor of the plaintiff is amply supported by the record.
The defendant moved, on November 4, 2013, to modify his child support obligation[*3]and, at the time that the Supreme Court enteredjudgment in favor of the plaintiff, that motion remained pending and undecided. Sincethe modification, if granted, could have reduced the defendant's arrears retroactive to thedate of his motion but not prior to that date (see Matter of Cadwell v Cadwell, 124 AD3d 649, 650[2015]; Family Ct Act § 451), the court erred in entering judgment in a sumthat included arrears accumulated after the date of the defendant's motion. Since theparties stipulated to the amount of the defendant's arrears and since the record permitscalculation of the arrears accumulated prior to the defendant's motion, we modify thejudgment by deleting the provision thereof awarding the plaintiff the principal sum of$19,906.15, and substituting therefor a provision awarding her the principal sum of$14,871.23, which represents the defendant's arrears that had accrued from February 15,2013 through November 3, 2013. Leventhal, J.P., Roman, Hinds-Radix and BrathwaiteNelson, JJ., concur.