CHEN v. CHEN (2026)

Order, Supreme Court, New York County (Kathleen C. Waterman, J.), entered on or about November 25, 2024, which, to the extent appealed from as limited by the briefs, held defendant in civil contempt pursuant to Judiciary Law § 753 of a June 9, 2023 pendente lite order based on his willful failure to comply therewith, and directed him to pay a fine of $52,873.83 representing arrears owed under the pendente lite order and plaintiff's reasonable attorneys’ fees in enforcing the pendente lite order, unanimously affirmed, without costs.

The court providently found that defendant was in civil contempt of the June 9, 2023 pendente lite order by failing to pay child support and add-on expenses to plaintiff in accordance therewith (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015]).  The order directed defendant to pay $1,967 per month in child support and 42% of the children's add-on expenses, yet he paid only $50 per month in child support and none of the add-ons, resulting in approximately $43,000 in arrears and thereby defeating, impairing, and prejudicing the wife's rights (see id.;  Judiciary Law § 753).

Plaintiff carried her prima facie burden of showing contempt because defendant admitted that he did not make the support and add-on expense payments as directed (see Matter of Ana B. v. Hector N., 100 A.D.3d 476, 477, 953 N.Y.S.2d 587 [1st Dept. 2012]).  Defendant failed to rebut plaintiff's showing with competent and credible evidence establishing his inability to pay (see El–Dehdan, 26 N.Y.3d at 35, 19 N.Y.S.3d 475, 41 N.E.3d 340).  Defendant's claim was contradicted by his own financial statements, which showed that he prioritized payment of his own expenses ahead of his child support obligations (see Matter of Powers v. Powers, 86 N.Y.2d 63, 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995]).

Moreover, defendant failed to establish adequate efforts to obtain employment that would generate sufficient income to meet his child support obligations (see Matter of Susan W. v. Darren K., 213 A.D.3d 593, 594, 183 N.Y.S.3d 417 [1st Dept. 2023];  Matter of Teller v. Tubbs, 34 A.D.3d 593, 594, 824 N.Y.S.2d 387 [2d Dept. 2006];  Matter of Falk v. Owen, 29 A.D.3d 991, 991–92, 816 N.Y.S.2d 533 [2d Dept. 2006]).  Nor did defendant's partial payments of $50 per month constitute a sufficiently good faith effort to comply so as to avoid contempt (cf.  Wessels v. Wessels, 200 A.D.3d 1178, 1179–1180, 160 N.Y.S.3d 128 [3d Dept. 2021]).

Defendant's arguments that the court violated his due process rights in the course of deciding the contempt motion are unpreserved (see Kolakowski v. 10839 Assoc., 185 A.D.3d 427, 427, 127 N.Y.S.3d 74 [1st Dept. 2020]).  In any event, the arguments are unavailing.  Defendant was represented by two attorneys, including a pro bono attorney regarding his financial matters, during the briefing of the contempt motion.  Moreover, since it was clear from the papers submitted to the court that there were no issues of fact to be resolved, it was proper for the court to make a finding of civil contempt without a hearing (see Cashman v. Rosenthal, 261 A.D.2d 287, 287, 690 N.Y.S.2d 251 [1st Dept. 1999]).

We have considered defendant's remaining arguments and find them unavailing.