C.A., Plaintiff, v. E.B., Defendant. (2022)

In this divorce action, Plaintiff Wife (“C.A.”) moves for the following relief: (1) a finding that Defendant Husband (“E.B.”) is in contempt of parties’ Pendente Lite Stipulation; (2) direction that E.B. pay arrears for the stipulated the interim child support and maintenance; (4) an award of counsel fees for this motion; and (3) an award of $15,000 in interim counsel fees.

Background

The parties were married on October 30, 2011. C.A. commenced this action on March 9, 2019. There is one child of the marriage, M. (D.O.B. XX/XX/13), who lives with C.A. in New York. E.B. lives in Barcelona.

On May 17, 2019, the parties entered the Pendente Lite Stipulation, So-Ordered by Justice Sattler (the “So-Ordered Stipulation”). The So-Ordered Stipulation requires, inter alia, E.B. to pay: (1) $4,500 monthly, inclusive of unallocated maintenance and basic child support; (2) 70% of agreed upon add-on expenses, including, inter alia, extracurricular activities, child-care costs, and therapy; and (3) $6,000 in counsel fees by June 16, 2019.

On July 15, 2020, C.A. moved to hold E.B. in contempt of the So-Ordered Stipulation, arguing that, as of June 19, 2020, E.B. was $9,049 in arrears on maintenance, support and add-ons and had only paid $3,000 of the $6,000 interim counsel fees owed. E.B. did not oppose or otherwise respond to the motion. However, between September 15, 2020 (the initial return date) and February 17, 2021, the parties, including E.B., counsel, and the court had three conferences during which E.B. made promises and insinuated that he would settle the matter. E.B. ceased communication. Consequently, On February 17, 2021, C.A. filed supplemental papers showing that, as of said date, E.B. was in arrears for basic support and maintenance in the sum of $13,500 and $14,568 in arrears for add-ons, for a total of $28,068 in arrears.

Contempt

Judiciary Law § 753 (A) empowers the Court to “punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action pending in the court may be defeated, impaired, impeded, or prejudiced, in a case.” Civil contempt is available where “a party to the action” is guilty of “disobedience to a lawful mandate of the court.” See Judiciary Law § 753 (A) (3). The aim of civil contempt is “the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right.” McCormick v Axelrod, 59 NY2d 574, 582-583 (1983). In order for the court to find civil contempt, there must be: (1) a lawful order of the court in effect, which “clearly express[es] an unequivocal mandate”; (2) the party sought to be held in contempt “must have had knowledge of the court's order”; (3) disobedience of the order; and (4) prejudice to the right of a party to the litigation. See McCormick v Axelrod, supra 59 NY2d at 583 (civil contempt found where nursing home transferred residents in violation of court order that expressed “clear mandate” staying all steps to involuntarily discharge residents pending appeal); El-Dehdan v El-Dehdan, 114 AD3d 4, 16-17 (2d Dept 2013). “A motion for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence.” See El-Dehdan v El-Dehdan, supra 114 AD3d at 10.

Here, the record clearly and convincingly demonstrates that E.B.’s conduct amounts to disobedience of a lawful mandate of the court warranting a finding of contempt. See El-Dehdan v El-Dehdan, supra; see also, Rhodes v Rhodes, 169 AD3d 841, 844 (2d Dept 2019) (contempt found where lawful court order in place, undisputed that defendant had knowledge of order and did not comply with order). The So-Ordered Stipulation, signed by the parties, their attorneys, and so-ordered by the Court, is a lawful and valid order which has been in effect since May 17, 2019. The So-Ordered Stipulation clearly expresses an unequivocal mandate: E.B. shall pay C.A. $4,500 monthly, inclusive of unallocated maintenance and basic child support, plus 70% of add-on expenses, and a one-time payment of $6,000 in interim counsel fees. There is no dispute that E.B. is aware of his obligations.

It is clear to this Court that E.B.’s actions defeat, impair, impede, and prejudice the rights of C.A. and the child — specifically, their right to financial support. See Doors v Greenberg, 151 AD2d 550 (2d Dept 1989) (“In order to sustain a finding of civil contempt, it is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights of a party.”). Accordingly, this Court finds that E.B. has willfully violated, and is in contempt of, the Stipulation. See McCormick v Axelrod, supra; El-Dehdan v El-Dehdan, supra; Rhodes v Rhodes, supra; Doors v Greenberg, supra.

Although C.A. is entitled reasonable counsel fees for work performed in bringing the contempt motion as E.B.’s conduct caused these costs and expenses to be incurred [see, Boukas v Boukas, 163 AD3d 755, 756 (2d Dept 2018); Gonnard v Guido, 141 AD3d 649, 650 (2d Dept 2016)], no proof, such as legal bills or an affirmation of legal services, is submitted to substantiate the request. Accordingly, the request for attorney's fees on the motion is denied without prejudice.

Counsel Fees

Pursuant to DRL § 237, the court may direct either spouse to pay counsel and expert fees to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case, and of the respective parties. DRL § 237 (a) creates “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” An award of interim counsel fees is warranted where there is significant disparity in the party's financial resources. The less-monied spouse is not required to spend down all available funds to finance the divorce litigation. See Lennox v Weberman, 109 AD3d 703,704 (1st Dept 2013); Charpie v Charpie, 271 AD2d 169 (1st Dept 2000); Prichep v Prichep, 52 AD3d 61, 66 (2d Dept 2008). The court should create a more level playing field so that litigation is shaped not by the power of the bankroll but by the power of the evidence. Silverman v Silverman, 304 AD2d 41, 48 (1st Dept 2003).

However, a request for interim counsel fees must be supported by a retainer, legal bills (redacted as necessary), and affirmation of legal services. See DRL § 237; 22 NYCRR 202.16 (k). No legal bills or affirmation of legal services have been submitted.

Accordingly, it is,

ORDERED that E.B. is in contempt of the May 17, 2019 So-Ordered Stipulation; and it is further

ORDERED that E.B. shall pay to C.A. $28,068, for child support and maintenance arrears owed through February 17, 2021, inclusive of add-ons, due under the So-Ordered Stipulation, within thirty (30) days hereof; and it is further

ORDERED that E.B. shall pay to Daniel Szalkiewicz & Associates, P.C. $3,000 in counsel fees owed under the So-Ordered Stipulation, within thirty (30) days hereof; and it is further

ORDERED that C.A.’s request for interim counsel fees is denied without prejudice to renew on a proper set of papers.

Kathleen C. Waterman-Marshall, J.