Joan Suter v. Patrick Machan (2010)

ORDER RE MOTION TO REARGUE/RECONSIDER

This action comes before the court on the motion of defendant Patrick Machan to reconsider the court's October 4, 2010 decision on plaintiff's motion for contempt pendente lite.   In support for this motion, the defendant asserts several grounds for reconsideration.   Defendant also raises a point that, in effect, appears to be a request for clarification concerning one provision of the order.

In the court's ruling, the court addressed two separate instances where the defendant had withdrawn sums of thirty thousand dollars from the same retirement account.   Defendant argued at the hearing, and more forcefully in the motion to reargue, that as the plaintiff's motion initially raised only the first withdrawal of funds, defendant was deprived of due process by not being put on notice that the second withdrawal of funds would also be asserted as a basis for contempt.   Given the seemingly identical conduct on each of the two occasions where funds were withdrawn from the retirement account, the court, at the time of the hearing, felt no meaningful claim for lack of notice could be made.   While no factual basis has been presented, either at the hearing or in the motion to reargue, which might buttress this argument, it does not appear under the facts of this case that either side would be prejudiced by making sure the defendant was given every opportunity to defend any motion for contempt with regard to the second withdrawal.   Accordingly the court grants, in part, the motion to reargue as follows:  the violation of the automatic order addressed on page one, lines 7 through 14, of the October 4, 2010 “Orders Only” transcript shall be modified to reflect the violation was based only upon the first thirty thousand dollar withdrawal from the AXA Retirement Account.   Consistent with this modification, the remedy ordered by the court (commencing at page one, line 25 through page two, line 4) is amended to reflect that:  “it's the order of the court that you are to repay the thirty thousand dollars borrowed from the AXA retirement account ․”

Counsel also asks that the order of the court be modified regarding which retirement account should be repaid from the proceeds of a severance payment, which payment was anticipated to be received by the defendant in the immediate future at the time of the hearing.

Defendant claims, albeit simply as argument in its motion papers, that upon further delay in receipt of the severance, the AXA Retirement Account was repaid through a “rollover” from a different retirement fund in effect resetting the period in which negative tax consequences might be avoided.

By way of clarification, the court clarifies that the order to repay the AXA Retirement Account from the proceeds of the severance payment does not prohibit the use of intermediary retirement accounts such that the severance payment may be used to replenish other retirement accounts used to replenish the AXA Retirement Account.

In all other regards, the court's order of October 4, 2010 remains in effect and unmodified.

BY THE COURT

WENZEL, J.

Wenzel, William, J.