D.G, Plaintiff, v. M.G, Defendant. (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 007) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 77, 78, 81, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 137, 138, 139, 140, 141, 142, 143, 150, 152, 154 were read on this motion to/for CONTEMPT.

Upon the foregoing documents, it is

BACKGROUND

The parties were married on October 9, 2005, in New York, New York. There is one child of the marriage, G.G ("the Child"), born on XX XX, 2007.

In 2012, plaintiff filed an action for divorce. On August 12, 2013, the parties entered into a Stipulation of Settlement ("Settlement Agreement") (Plaintiff's Exhibit 1). The Stipulation was incorporated, not merged, into the Judgment of Divorce entered on October 25, 2013 (Plaintiff's Exhibit 2).

On or about December 15, 2023, plaintiff filed an Order to Show Cause to enforce the terms of the settlement agreement. Specifically, plaintiff moved for an order: (1) holding defendant in contempt for his willful failure to pay child support to plaintiff from May 2023 to present in contravention of the order of this Court in the Court's Order, dated July 6, 2023, which denied defendant's application for a suspension of his child support obligation to plaintiff as set forth the parties' Stipulation of Settlement, executed on August 12, 2013, incorporated into the Judgment of Divorce, entered October 30, 2013; (2) holding defendant in contempt for his willful failure to pay direct child support in accordance with in the parties' Stipulation of Settlement, executed on August 12, 2013, incorporated into the Judgment of Divorce, entered on October 30, 2013, in the amount of $97,910; (3) holding defendant in contempt for his willful failure to pay child support add-ons in accordance with in the parties' Stipulation of Settlement, executed on August 12, 2013 and incorporated into the Judgment of Divorce, entered October 30, 2013, in the amount of $ 19,343.96; (4) in the alternative, compelling defendant to pay direct child support in accordance with in the parties' Stipulation of Settlement, executed on August 12, 2013, incorporated into the Judgment of Divorce, entered October 30, 2013, in the amount of $ 97,190; (5) in the alternative, compelling defendant to pay his child support add-ons in accordance with the parties' Stipulation of Settlement, executed on August 12, 2013 and incorporated into the Judgment of Divorce entered October 30, 2013, in the amount of $ 19,343.96; (6) directing that defendant make any and all direct child support payments through the Support Collection Unit; (7) restraining defendant, his agents or anyone acting on his behalf, from discussing or showing this Order to Show Cause to the subject child and restraining defendant, his agents or anyone acting on his behalf, from discussing any and all matters before this Court with the subject child; (8) directing defendant to provide proof of his present life insurance policy as set forth in the parties' Stipulation of Settlement, executed on August 12, 2013, incorporated into the Judgment of Divorce, entered October 30, 2013; and (9) awarding plaintiff counsel fees as and for the necessity of bringing this matter before the Court.

On April 25, 2024, defendant cross-moved for an order: (1) declaring May 14, 2023, to September 6, 2023, which is the time period that defendant had sole legal and physical custody of the parties' daughter, that defendant's basic monthly child support obligation is not due and owing to plaintiff; (2) modifying the parties' Judgment of Divorce, dated October 25, 2013, which incorporated but did not merge, the parties' Stipulation of Settlement, dated August 16, 2013, by reducing defendant's monthly obligation based on the significant decrease in income; and (3) directing that plaintiff pay the amount of $3,256.28, which is plaintiff's court-order portion of the child's therapy costs.

Since the motion and cross-motion were filed, defendant provided proof of his life insurance (10.25.24 Tr. pg. 3) and paid his share of the outstanding medical/dental co-pays for the years 2013 to 2024 in the amount of $950.00. Further, plaintiff credited defendant with the amount of basic child support due to plaintiff from May 19, 2023 to September 6, 2023, during which the Child was in defendant's custody (10.25.24 Tr. pg. 162), as well as for payments he made during the pendency of the matter, including checks for $12,012 and $11,088. Plaintiff also paid to defendant her share of the cost of the Child's therapy (5.2.25 Tr. pgs. 161, 162; Plaintiff's Exhibit 31). As such, these issues will not be addressed by the Court.

Relevant Provisions of the Settlement Agreement

Pursuant to article VII, entitled "Child Support," paragraph 1, the parties agreed

"As and for the support and maintenance of the Child the Husband shall pay to the Wife the sum of $3,500 per month, commencing September 1, 2013, and continuing each and every month thereafter until terminated as provided in paragraph 2 of this Article. For convenience, said monthly sum for the Child is hereinafter referred to as "direct support"

Furthermore, paragraph 7 states

"With respect to tutoring for the Child, if any, the parties agree that the Husband shall be responsible for eighty (80%) percent of such expense and the Wife shall be responsible for twenty (20%) percent of such expense. The parties shall confer prior to determining whether or not to enlist the assistance of a tutor and agree on the particular party to be retained or utilized" (id., ¶ 7.7)

Additionally, under paragraph 8, the parties agreed that

"The Wife is not employed on a full time basis and is currently available to care for the Child before and after school. In the event the Wife is employed for 30 hours or more per week, the Husband shall be responsible for eighty (80%) of the cost of child care incurred by the Wife as a result of her employment. The Wife shall provide to the Husband documentation representing the amount of hours she worked as well as an invoice or other documentation representing the fees associated with child care. The Husband shall reimburse the Wife, on a monthly basis, for his eighty percent (80%) share within the thirty days of the Husband's receipt of same" (id., ¶ 7.8).

Moreover, paragraph 9 states

"[t]he parties shall share the costs of the Child's extracurricular activities (including cost of equipment and fees) and summer programs, camp, teen tours, etc., with the Husband pay for eighty (80%) percent of the cost of these expenses and the Wife paying twenty (20%) percent of same. The Husband's responsibility will be limited to the payment of his 80% share of two extracurricular activities per school semester. The parties shall confer prior to determining which activities the Child will participate" (id., ¶ 7.9).

In regard to counsel fees, Article XXIV entitled "Defaults" provides

"24.1 In the event that the Husband defaults with respect to any obligation under this Agreement and said default is not remedied within ten (10) days after the receipt of a written notice by certified mail, return receipt requested, or overnight mail, to the Husband specifying said default, in addition to indemnifying and holding the Wife harmless for any losses, damages, expenses and costs, including without limitation attorneys' fees incurred as a result of such breach or default, the Husband agrees to indemnify the Wife against or to reimburse her for any and all expenses, costs and reasonable attorneys' fees resulting from or made necessary by the bringing of any suit or other proceeding to enforce any of the financial terms, covenants or conditions of this agreement to be performed or complied with by the Husband or to enforce any of the Wife's rights to recover any amount to be paid to her by the Husband pursuant to this Agreement, provided such suit or other proceeding results in a final judgment, decree or order in favor of the Wife."

(Plaintiff's Exhibit 1).

THE HEARING

A trial was held over two days on October 25, 2024 and May 2, 2025. The Court heard from testimony both parties. The parties stipulated to certain facts and to the entry of various evidence.

Post-trial briefs were submitted in October 2025. Throughout the hearing, the Court generally found plaintiff's testimony to be credible. Although plaintiff exhibited some memory issues on cross-examination and was somewhat combative with defendant's counsel, her credibility overall was consistent. Of course, where plaintiff failed to have sufficient proof for certain claims the Court cannot grant the related relief. While plaintiff told the Court that she had emails, receipts, or invoices for all of the add-on expenses, she produced minimal evidence, thus belying her claim.

The Court found defendant's testimony to be credible in some aspects. For example, he credibly testified that in certain years due to the parties' amicable relationship he would pay child support in person to plaintiff. On the other hand, defendant was not credible with regard to his income and finances. One notable point in this area was his failure to advise the court that he had earned $242,000 in 2024 from a settlement in one case until he was confronted with this fact on cross-examination. Further, while contesting that he owed various add-on expenses he simultaneously conceded that he had consented to the same expenses.

DISCUSSION

Plaintiff's Motion

The terms of a separation agreement "incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties" (Matter of Gravlin v. Ruppert, 98 NY2d 1, 5 [2002]). "Where the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (Rainbow v. Swisher, 72 NY2d 106, 109 [1988]). "An ambiguity exists only where 'the agreement on its face is reasonably susceptible to more than one interpretation' " (Rosenberger v Rosenberger, 63 AD3d 898, 899 [2d Dept 2009] [citation omitted]).

It is clear that "courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing" (Bernstein v. Novani, 131 AD3d 401, 401 [1st Dept 2015] citing Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). "At a support violation hearing, the petitioner has the initial burden of presenting prima facie evidence of nonpayment of child support" (Lerner v. Relkin, 27 AD3d 745, 746, [2d Dept 2005]).

I. Basic Child Support Arrears

Plaintiff seeks the sum of $50,426 for basic child support arrears accrued to date. Plaintiff contends that defendant has not complied with the child support obligation agreed to in the settlement agreement. Plaintiff submits the settlement agreement wherein it calls for defendant to provide plaintiff $3,500 a month in child support payments starting September 1, 2013 (Plaintiff's Exhibit 1; 10.24.25 Tr. pgs. 14-15). Plaintiff submits her self-created summary sheets for basic child support arrears from 2013-2019, 2023, and 2024 (10.24.25 Tr. pg. 20; Plaintiff's Exhibits 5-13). However, she also submits her TD Bank statements for her account from 2013-2024 to back up these summary sheets and prove what payments were deposited into her account (Plaintiff's Exhibit 3).

The parties agree that during the pendency of the divorce action there was a pendente lite support order which directed defendant to pay $769 per week in basic child support. They also agree that through June 2019 defendant continued paying the pendente lite amount rather than the correct amount agreed to in the stipulation of settlement. However, once defendant was notified to pay the correct amount he began doing so in July 2019.

Defendant denies he is in non-compliance with his child support obligations.

Defendant in fact contends that he overpaid his basic child support. Defendant asserts that the correct amount of child support was $3,500 per month or $808 per week, and that he was paying $875 per week beginning July 2019 until recently (5.2.25 Tr. pgs. 86-88).¹

Moreover, defendant argues that many of his child support payments went uncredited. Defendant argues plaintiff only gave credit to him for child support payments when they equaled a regularly paid weekly child support amount or multiple of that amount (i.e., $769 or $1,538). Defendant also argues that plaintiff's tax returns and bank statements show that defendant has paid all child support due and owing because defendant claims there is no other possible source for the deposits in plaintiff's account. As such, Defendant argues that he has paid all child support due and owing. Defendant submits into evidence checks he sent to plaintiff for child support in the year 2019 (Exhibit E).

Plaintiff does not dispute that due to a mutual mistake defendant was paying the wrong amount of child support through 2019. However, plaintiff argues that defendant still owes her arrears for basic child support.

"Domestic Relations Law § 244 provides for entry of a judgment for arrears in payments directed to be made during an action for divorce, separation or annulment upon application of the aggrieved party to the court (Greenberg v. Greenberg, 218 AD2d 558, 560 [1st Dept 1995]). "As a matter of public policy, the failure to comply with a court order during the pendency of an action should not be rewarded by relieving the party directed to make payment of his liability once the matter is terminated by entry of a final judgment" (id.). "The court is mandated to direct the entry of judgment for arrears 'unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears" (Johnston v. Johnston, 115 AD2d 550, 521 [2d Dept 1985], quoting DRL § 244).

In the instant case, plaintiff gave detailed, specific testimony as to how she calculated the amount of child support owed. Plaintiff testified that she used bank statements to calculate the shortfall between the payments defendant made and what defendant did not pay (10.24.25 Tr. pgs. 17-21). The Court did not receive sufficient evidence to contradict the testimony and other documentary evidence provided by plaintiff regarding these arrears.

Defendant credibly testified that for most of his child support payments he would withdraw cash from his bank and walk down the block to deposit that cash into plaintiff's TD Bank account (5.2.25 Tr.pg. 89). Notably, plaintiff generally credited him for such deposits and similarly testified that he often directly deposited support to her account. Defendant asserted that he had paid more than plaintiff claimed but had no record of these payments. Defendant testified that he asked Citibank for his records regarding those cash withdrawals, but they didn't have them and defendant did not maintain his own records on a regular basis (5.2.25 Tr. pg. 131), which the Court does not find credible. Defendant testified, in regards to basic child support "I must have, over the years, handed her the cash a couple times with maybe more for some sort of add on" (5.2.25 Tr. pg. 165).

Even though the Court generally finds defendant's testimony credible as it relates to cash payments and deposits, defendant does not bring forth any evidence to prove he paid all the child support owing. When asked if he can provide any evidence that he paid the $490,000 he was obligated to, defendant even responded "Um more than 10 years later, no" (5.2.25 Tr. pg. 131). The only evidence defendant submitted was his own testimony and the checks he paid to plaintiff for child support in the year 2019 (Defendant's Exhibit E). Yet, these checks defendant provided already seem to be credited towards him in plaintiff's summary for child support owed for 2019 (Defendant's Exhibit E; Plaintiff's Exhibit 11).

Further, while it is generally believable that defendant may have given plaintiff cash or made additional cash payments beyond those she credited him with, it was incumbent on defendant to demonstrate with specific evidence what additional credits he was owed. While plaintiff showed limited income on her tax returns for the years in question, she also admitted at trial that she had earned additional income not reflected on her returns. Regardless, it is insufficient for defendant to point to other cash deposits into plaintiff's account and ask the Court to assume that all such deposits should be credited to him. The sources of all the deposits in plaintiff's account cannot be determined on this record, but may include deposits from her additional income and support from family.

Plaintiff also made significant efforts to honestly credit defendant with every proper credit he was due, as evidenced by her continued updating of her claimed arrears as she found more credits. Ultimately, it was defendant's burden to show the court additional payments made by him in order to be given credits, and he failed to do so. Therefore, the Court finds that the evidence submitted by defendant is not enough to sufficiently reflect what defendant claims he paid towards child support (Boris v. Boris, 272 AD2d 284 (2d Dept 2000) [defendant presented no evidence that bills were paid, defendant presented insufficient evidence to establish entitlement to money judgment]).

Moreover, a review of plaintiff's bank statements and her summary charts support her testimony about the amount of basic child support arrears owed. Thus, the Court finds that this evidence sufficiently demonstrates which child support payments were made by defendant (cf. Michael R. v. Amanda R., 175 AD3d 1134, 1140 [1st Dept 2019] [Father's summary of alleged arrears, which was admitted into evidence without testimony or supporting documentation, was not competent evidence of the mother's obligation to pay child support or that she failed to pay any sums she was obligated to pay]). As such, this branch of plaintiff's motion is granted to the extent of determining that defendant owes $50,426.00 in basic child support arrears.

II. Add-on Arrears

Similarly, plaintiff seeks reimbursement in the amount of $12,818.87 for child support add-on arrears accrued to date. In support of her requested relief, plaintiff submitted into evidence summaries of the outstanding add-ons owed (Plaintiff's Exhibits 14-25) and her TD Bank Statements (Plaintiff's Exhibit 3) and Citi MasterCard statements (Plaintiff's Exhibit 4). Plaintiff testified that in arriving at the figure she believes defendant owes her in her summaries, "I used by TD Bank statements, my Citi MasterCard statements, my check registers, my planners, and backup paperwork that I had of invoices, receipts that were saved on either my computer or just files that I had at home, or would reach out to the entity for a copy to back that support that the charge was wither on my credit card or on my bank statement" (10.24.25 Tr., pgs. 33-34).

In opposition, defendant argues that he paid everything due and owing for add-ons under the stipulation. Notably, in stark contrast, defendant also argues that he should not be responsible for the cost as plaintiff did not provide any receipts, invoices, or proof of payment to support her claim of add-ons owed. Further, defendant argues that, at no point, did plaintiff's testimony point to specific charges on her bank statements or any credit card statements to prove these alleged add-on expenses. The different categories of add-ons arrears will each be analyzed below.

Tutoring

Plaintiff is seeking reimbursement for tutoring fees she claims she paid for the Child without receiving defendant's pro-rata share.

Plaintiff argues that per the paragraph of the settlement agreement that pertains to tutoring, there is no requirement in this paragraph that plaintiff notify defendant and provide proof of any payments for reimbursement. She stresses that the agreement only states the parties are to confer. In line with the settlement agreement, plaintiff testified that she conferred with defendant regarding the Child's math tutoring (5.2.25 Tr. pgs. 9-10).

In opposition, defendant argues that he paid for 80% of the Child's ACT tutor and 100% of the Child's math tutor (5.2.25 Tr. pg. 100). Although, defendant testified that he did not know who the person was that tutored the Child, and he did not receive any receipts or notification regarding the person's name and the amount and frequency (5.2.25 Tr. pg. 98). Conversely, plaintiff testified she paid for math lessons and that she never received the pro rata share she was due from defendant (5.2.25 Tr. pg. 16). Plaintiff also stated on the record "there were emails that he was always included in that involved the teacher and tutor, because she was—she was almost failing math" (5.2.25 Tr. pg. 14). Yet, she did not provide such emails to the Court.

The terms of the settlement agreement state that "[t]he parties shall confer prior to determining whether or not to enlist the assistance of a tutor and agree on the particular party to be retained or utilized" (Plaintiff Exhibit 1). Although defendant did testify that he agreed to the tutoring generally, he also credibly testified that he did not know who the person was, and did not receive any notification regarding the tutors name. Plaintiff does not offer any conflicting testimony stating that they chose the tutor together. Plaintiff did testify that defendant was included in emails with the tutor but again, she failed to provide these emails in evidence at the hearing. The Court finds that under the specific terms of the settlement agreement, and based on its credibility findings, the evidence does not suffice for plaintiff to receive any reimbursement for the Child's tutoring, as the settlement agreement required the parties to agree on the particular party to be utilized, which, based upon the evidence presented to the Court, they failed to do.

Extracurriculars

Plaintiff also claims that defendant owes her his outstanding potion of the Child's extracurricular activity costs.

Plaintiff contends that under the settlement agreement the parties agreed to share the cost of extracurricular activities, including the cost of equipment and fees, summer programs, camp, teen tours, etc., and that that the parties agreed to confer regarding extracurricular activities. Plaintiff argues there is no requirement that plaintiff notify defendant and provide proof of payments for reimbursement, only that the parties merely confer with one another regarding extracurriculars. She explained that this was often done in a casual manner in person, or over dinner. In fact, plaintiff argues that defendant was aware of the extracurricular activities in which the Child was included and agreed to them. Plaintiff testified she consulted with defendant on every extracurricular activity that the Child has ever done. (5.2.25 Tr. pg. 6).

In opposition, defendant avers that he does not owe any add-ons in regard to extracurricular activities. Defendant argues that plaintiff failed to provide any supporting evidence of her testimony that he owes her reimbursement for add-ons from extracurricular activities. Defendant argues that only evidence plaintiff submitted to corroborate her summaries were her attached bank statements. Defendant contends that plaintiff provided him with no receipts for the alleged extracurricular activities (5.2.25 Tr. pgs. 93, 124). As such, defendant argues under the settlement agreement, providing receipts or invoices was a requirement to receive reimbursement.

After a review of the settlement agreement, the Court finds that it did not require plaintiff to provide defendant with any receipts or invoices to be entitled to reimbursement as defendant so claims in connection with extracurricular activities (Plaintiff's Exhibit 1). The terms of the agreement regarding extracurricular activities are: "[t]he parties shall confer prior to determining which activities the Child will participate" (id.). Indeed, interpreting the provision to require plaintiff to have to provide receipts or invoices for proof of payment like defendant claims would amount to the Court inserting the requirement into the agreement when the parties did not include that. However, specific and sufficient proof is required for the Court to fully analyze and, where appropriate, award arrears. Below, the Court will analyze whether the evidence presented suffices regarding each specific extracurricular activity.

Piano Lessons

Plaintiff lists costs for piano lessons as add-on amounts she claims are owed by defendant. Plaintiff testified that "when [G.G.] started piano lessons, I conferred with [M.G.], and he actually went out and bought two pianos, for her- one for our apartment and one more his. And she began piano lessons, which were at home. We both agreed to once a week" (5.2.25 Tr. pg. 7). Indeed, defendant's testimony does not refute this claim as defendant testified that he was aware the Child was engaged in piano lessons and agreed and consented to that (5.2.25 Tr. pg. 132). As such, the Court finds this meets the requirement "to confer" under the agreement.

Further, plaintiff testified she is owed money for the Child's piano lessons (5.2.25 Tr. pgs. 6, 15). However, when defendant was asked what monies he provided for piano lessons, he testified "[w]ell, again, I didn't know the frequency of the lessons. Once she asked me for the payment of the lessons, for the most part I paid it, whether I added it to child support or paid it in cash because I believe at one point the piano teacher was also a babysitter. Sometimes I would relieve her and pay for it" (5.2.25 Tr. pg. 94).

In support of plaintiff's claim that she is owed money for piano lessons, she provides the Court with her summaries, bank statements, credit card statements, and venmo payments (Plaintiff's Exhibits 14-22). In turn, the only evidence defendant relies upon is his own testimony, although he provides no documentation or proof of these payments he testifies to.

The Court finds plaintiff's submitted evidence is supported by her testimony, and, generally, sufficiently reflects what costs plaintiff paid for the Child's piano lessons. In contrast, defendant did not provide any evidence of the payments that he testified he provided for the Child's piano lessons. Defendant's testimony that he made the payments, standing alone, is not enough to refute plaintiff's showing.

However, the Court notes that for certain piano payments, the only evidence submitted is plaintiff's summaries with "cash" written. This is not enough for the Court to find that plaintiff paid these fees and is owed reimbursement. The payments for piano lessons that have "cash" written next to them in plaintiff's summaries, without any additional supporting documentation, will not be granted to plaintiff.

Similarly, for other payments, plaintiff references a check for piano in her summaries and then shows corresponding TD Bank statements. Yet, many of these statements do not include copies of actual checks referenced. Notably, for certain other bank statements plaintiff was able to include copies of the checks. These incomplete documents warrant the Court giving less weight to the bank statements for these purposes. In these instances, the Court is therefore unable to find that the evidence is sufficient to establish what the checks were for, and thus cannot award arrears.

Where plaintiff has provided a specific Venmo statement or other specific statement, the Court determines that this constitutes sufficient evidence, and will award such arrears.

Additionally, plaintiff lists some payments on her summaries as "lesson + babysit" or in her bank statements wrote "$40 to piano $30 babysitter (Plaintiff Exhibits 16 and 18). As plaintiff provided no proof that she provided defendant with an invoice or documentation representing the fees associated with childcare, which is required by the parties' settlement agreement (Plaintiff's Exhibit 1), plaintiff could only be entitled to the amount of the piano lesson and not the babysitting. However, this only applies if it is clear to the Court what amount was paid toward babysitting and what amount was paid toward the actual piano lesson, and if it is backed with sufficient corroborating evidence such as a check or venmo statement.

Accordingly, the plaintiff is only awarded part of her demand relating to these piano lessons in the amount of $384.00.

Sailing Camp

Sailing camp is another extracurricular activity listed by plaintiff. Plaintiff argues that she is still owed money for the Child's participation in sailing camp (5.2.25 Tr. pg. 5). Plaintiff testified "[w]hen I paid for some of the sailing camp, I was not reimbursed, or I was only given 50 percent of the 80" (5.2.25 Tr. pg. 15). Plaintiff testified that the parties agreed to sailing camp (5.2.25 Tr. pg. 8). Again, defendant does not refute this. Hence, the Court finds this sufficient under the parties' settlement agreement to "confer" with one another. However, defendant disputes plaintiff's claim that he owes money for sailing camp. Defendant testified "I recollect I paid the bulk of that. It must have been 80/20. I knew she was in the camp. I wanted her to be in the camp. And I believe I made a direct payment to the camp—to the company, which is no longer functioning" (5.2.25 Tr. pg. 93).

As to sailing camp, plaintiff submits to the Court her summaries along with TD Bank statements (Plaintiff's Exhibit 20) and credit card statements (Plaintiff's Exhibit 19) as proof of payments. Because the credit card statements show specific charges for the sailing camp, the Court finds that this suffices. In opposition, the only evidence that defendant submits to refute plaintiff's claim that she is owed money is his testimony stated above. Defendant did not provide the Court with any evidence from the sailing camp company, or his own baking or credit card statements proving these payments for the sailing camp as he so claims. The Court finds that this is not sufficient for the Court to find that he made all payments for the Child's Sailing Camp.

As such, plaintiff is entitled to reimbursements in the amount of $1,488.00 for the Child's sailing camp costs.

Tennis Lessons

Plaintiff is also claiming she was never reimbursed the pro rata share agreed to by the parties in the settlement agreement for the Child's tennis lessons. Plaintiff testified that the parties agreed, and defendant consented to tennis lessons (5.2.25 Tr. pg. 12). Defendant himself even testified that he was informed by plaintiff that plaintiff enrolled the Child in tennis lessons (5.2.25 Tr. pg. 123). This is enough for the Court to conclude the parties "conferred" regarding tennis lessons and is enough to satisfy the parties' settlement agreement.

In support, plaintiff submits her summaries and TD Bank Statements (Plaintiff's Exhibits 15, 21 and 23). However, in plaintiff's 2014 summary plaintiff lists "Tennis lessons SVCC (Cash to Dad ck# 855)" for two dates of 7/23/14 and 8/1/14 (Plaintiff's Exhibit 15), which is not contained in the supporting TD Bank Statements. As such, plaintiff will not be credited any amount for those listed payments.

However, in her summary for 2020 add-ons, plaintiff lists multiple tennis lessons and provides the Court with the supporting checks showing payment was made (Plaintiff's Exhibit 21). The Court finds this sufficient to find plaintiff provided these payments for the Child's tennis lessons listed in her 2020 summary. Plaintiff also submits supporting TD Bank statements for her 2022 Add-on summary (Plaintiff's Exhibit 23). The Court notes that these bank account statements reflect debit card purchases for these specific tennis payments (id.). As these bank statements specifically identify the nature of the purchases, plaintiff is entitled to reimbursement for the two tennis payments listed in her 2022 add-ons summary.²

In opposition, defendant did not submit any evidence that he made any payments towards the Child's tennis lessons. However, when asked what, if any, part of tennis lessons he paid, defendant stated "[w]hatever I was asked to pay" (5.2.25 Tr. pg. 123). The only evidence defendant submits is his own testimony. Once again, the Court finds this is not sufficient for the Court to find defendant made any payments toward tennis lessons.

As such, plaintiff is owed reimbursement for certain of the Child's tennis lessons as indicated above in the sum of $318.00.

Horseback Riding

Plaintiff is also seeking reimbursement for payments she laid out for the Child's horseback riding lessons and camp. Plaintiff stated that she conferred with defendant and both parties agreed to allow the Child to participate in horseback riding camp during the summer (5.2.25 Tr. pg. 10). Defendant further testified that he knew the Child took horseback riding lessons (5.2.25 Tr. pg. 9). Thus, this is sufficient to find that the parties conferred with respect to horseback riding lessons.

Plaintiff also testified that she paid for horseback riding, and either received 50 percent or possibly the pro rata share from defendant, but she had to check (5.2.25 Tr. pg. 16). When defendant was asked "[s]o, in 2013, [plaintiff] claims that you owe her add-ons for $80 for horseback riding lessons. Do you agree with that?" defendant responded "no" and further explained "[b]ecause according to the stipulation, she was supposed to notify me in writing of when she paid something and what it was for" (5.2.25 Tr. pg. 90). Defendant further testified that even though he knew about the horseback riding lessons, he did not know the frequency or anything like that, but if he had he would have paid (id.).

In support, plaintiff submits her summaries (Plaintiff's Exhibits 14 and 15). In her 2013 add-on summary, plaintiff lists "Horseback riding lesson" twice, with no other supporting documentation (Plaintiff's Exhibit 14). In her 2014 add-on summary she lists "Horse back riding lesson CASH" (Plaintiff's Exhibit 15). Even though defendant testified that he knew the Child took horseback riding lessons, plaintiff's summaries, standing alone, are not enough for the Court to find plaintiff is entitled to reimbursements for these listed horseback riding lessons in plaintiff's 2013 and 2014 add-on summaries.

In addition, in her 2015 summary, plaintiff lists "Horseback Riding Camp Ck#1017" (Plaintiff's Exhibit 16) and in her 2017 add-on summary lists "Horse back Riding Camp ck#1365" (Plaintiff's Exhibit 18). For these specific add-ons, plaintiff also submits TD Statements proving these payments but does not provide copies of these specific checks (Plaintiff's Exhibits 16 and 18).

Accordingly, the Court finds plaintiff is not entitled to reimbursements for these specific add-ons for horseback riding camp in 2015 and 2017.

Country Club Day Camp

Another category of extracurricular activities the Child participated in is a day camp at plaintiff's parents' country club. Plaintiff testified that defendant agreed to this day camp at plaintiff's parents' country club (5.2.25 Tr. pg. 11). There was no testimony or evidence defendant put forth that proves he did not consent. As such, the Court finds this sufficient to find the parties "conferred" regarding the day camp at the country club.

Plaintiff testified that she paid for the country club and was never reimbursed for that (5.2.25 Tr. pgs. 16-17). Defendant's testimony does not refute this claim. The only testimony defendant provided was that he was not provided with any invoices or receipts regarding any activities that the Child did at the country club (5.2.25 Tr. pg. 93).

In support of her payments, plaintiff submits her summary listing "[redacted country club camp] extended day wrote ck to Dad/Mom)" and "[redacted country club camp] Ck #834 9/21/14 (to Dad)" with TD Bank Statements and receipts from [redacted country club camp] (Plaintiff's Exhibit 15). However, for the payment listed for the "[redacted country club camp] extended day," there is no evidence submitted of the check wrote for the amount. Moreover, the check number #834 plaintiff points to in her TD Bank Statements for payment for the camp, does not match the number in her summary listed or the receipt from the country club. As such, the Court finds that this is not sufficient. Therefore, plaintiff's request for reimbursements regarding add-ons for country club day camp is denied.

[Redacted After School Program]

Plaintiff is also claiming she is owed reimbursements for costs incurred due to the Child's participation in the [redacted after school program]. Plaintiff testified she consulted with defendant and he agreed to the Child's participation in [redacted after school program] (5.2.25 Tr. pg. 11). Once again, the Court finds this sufficient to find the parties "conferred."

Plaintiff also testified that she is owed reimbursements for the [redacted after school program] (5.2.25 Tr. pg. 17). In support of these payments, plaintiff provides the Court with her summaries, TD Bank Statements, and her credit card statements (Plaintiff's Exhibits 17 and 18). Because the credit card statements show specific charges for the [redacted after school program], the Court concludes that plaintiff has submitted sufficient evidence to warrant reimbursement.

On the other hand, defendant does not provide any testimony regarding whether he made payments for the [redacted after school program]. However, defendant does raise the argument that it was an afterschool program for which he was not obligated to pay without plaintiff providing proof of the cost and her employment. The only testimony relating to this that defendant provides is that he thinks that it was an after-school program, and that he doesn't know if plaintiff was working in 2016, 2017, and 2018, as she never notified him if she was or wasn't (5.2.25 Tr. pg. 125). Defendant argues that this is considered "childcare" and did not reach the requirements under the settlement agreement. Nevertheless, plaintiff explained what the [redacted after school program] wherein she testified "it was called [redacted after school program], which was during the school year, which was after school, so the child could stay until 5:00, 5:30 and do various activities, that they did throughout the year" (5.2.25 Tr. pg. 11). There was no other testimony or evidence provided to the Court that the [redacted after school program] was used strictly as a childcare service.

The Court finds defendant's arguments regarding the [redacted after school program] unavailing. Defendant also did not provide any documentation or evidence that he made any payments towards the [redacted after school program]. The testimony also supports the fact that defendant agreed to the Child's participation in the [redacted after school program] as he knew what the program was.

As such, the Court finds plaintiff is entitled to $520.00 in reimbursement for any costs sustained for the Child's participation in the program.

Other Camps and Sporting Good Purchases

In her add-on summaries for certain years plaintiff lists some expenses for other camps and some sporting good store purchases (Plaintiff's Exhibits 17-19, 21-15).

Defendant argues that plaintiff included these other add-on expenses on her summaries that she failed to testify about. For example, defendant argues plaintiff lists (1) "[redacted = camp A]" (Plaintiff Exhibits 17, 18); (2) Drone Camp, and several school trips in 2018 summary (Plaintiff Exhibit 19); (3) charges titled "Dicks sporting goods"; (4) "SMS Sporting Goods" and "REI Sporting" in her 2022 summary (Plaintiff Exhibit 23); and (5) "[redacted Camp B]" (Plaintiff Exhibit 22).

Plaintiff provides no testimony regarding the above-referenced add-on expenses. Plaintiff refers to add on expenses for "[redacted camp A]" in 2016 and 2017 (Plaintiff Exhibits 17 and 18). For 2016, the only evidence plaintiff puts forth are her own summary stating "[redacted camp A] Cash Winter Break (Exhibit 17). In addition, for 2017, plaintiff provides her summary with "[redacted Camp A] 2/23, 2/24" (Exhibit 18). However, in her corresponding TD bank statements, the Court does not find the payments plaintiff is referring to. There is also no evidence or testimony from plaintiff that the parties conferred regarding this add on.

Plaintiff also includes "[redacted Camp C] Deposit PAYPAL TD," "[redacted Camp C] MC 8/6-8/20" and several school trips such as, "School-Trip-Waterfront ck #1448," and "Nature's Classroom trip $105/Piano880" (Exhibit 18). To prove these payments, plaintiff includes her TD bank statement reflecting a debit card purchase from "DRONEGENIUS" via paypal and a check in the amount of $148, and she also includes an email from the drone camp regarding a $300 dollar deposit that was made (id.). She also submits a statement from [redacted preparatory school] showing a payment of $105 for "Nature's Classroom" (id.). The Court finds plaintiff did not meet her burden to prove she conferred with defendant regarding these expenses for drone camp, and she provided no testimony as to these alleged add-on expenses for drone camp. Additionally, the Court finds there is no specification in the parties' settlement agreement that the parties split the cost of school trips. As such, this is not enough for the Court to award plaintiff arrears with regard to payments for drone camp and school trips.

Plaintiff includes charges for "Dick's sporting goods" for the years 2020, 2021, 2022, 2023, and 2024 (Plaintiff Exhibits 21-25). For the year 2020, plaintiff just lists "DICKS SPORTING GOODS TD" on her summary, with a supporting bank statement listing a debit card purchase for $54.30 from dicksportinggoods.com (Plaintiff Exhibit 21).

In 2021, plaintiff submits a summary add-on listing $54.43 for "DICKS SPORTING GOODS MC" (Exhibit 22). Plaintiff submits her Citicard statement, similarly without any supporting testimony for what this purchase was for (id.). Accordingly, without any supporting documentation or testimony about what these purchases were for, the Court finds that this does not suffice. Plaintiff also includes an add-on expense for "[redacted Camp B] 6/14-6/18" in the year 2021 (id.). However, plaintiff provides no testimony, or documentation that she paid the amount claimed, or that the parties conferred and agreed to enroll the Child in this camp. As such, plaintiff will not be awarded arrears for sewing camp.

In 2022, plaintiff claims add-ons for "EMS Sporting Goods TD," "DICK'S Sporting TD" twice for 2/22/22 and 4/4/22, and "REI Sporting TD" (Exhibit 23). Plaintiff provides the Court with TD Statements, and an email sent to defendant on March 12, 2022, with a receipt from Dick's Sporting Goods from February 19, 2022 (id.). While the Court finds the only evidence plaintiff submits that is sufficient for the Court is the email to defendant with the receipt, plaintiff failed to testify about or explain this request.

In 2023, plaintiff claims add ons for "[redacted] Registration Fee MC," "[redacted camping trip] Fee 5/13-5/14," "Camping equipment TD Visa & cash itemized below," "Target 5/7/23," "DICK'S Sporting Goods 4/29/23," "REI Co-op 5/7/23, and "Target 7/15/23" (Exhibit 24). Plaintiff provides the Court with her Citibank records, and receipts (id.). There is no documentation or testimony that was put forth to the Court proving that the parties conferred and agreed to enroll the Child in a [redacted camping trip]. In addition, the receipts plaintiff provides are either illegible or don't have each item listed. There is also no supporting testimony regarding what these receipts are for. As such, plaintiff will not be awarded arrears for the above.

In 2024, plaintiff lists "[redacted Pre-College Summer Program] MC" and "[redacted Pre-College Summer Program]" (Plaintiff Exhibit 25). However, there is no other evidence or testimony that the parties conferred regarding this summer program. Moreover, plaintiff also seeks reimbursement for a co-pay for the Child's therapy in 2023 (id.). However, the only evidence plaintiff submits is United Healthcare Oxford bills sent to defendant, but does not point the Court to any evidence regarding this co-pay in the amount of $193.57. Lastly, plaintiff also lists "Dick Sporting Goods-Volleyball equipment" on her summary, but also writes "MJG PAID* (see email outline) *other than volleyball sleeves, purchased unnecessary items at the request of [G.G] and did not discuss with me first MJG deducted my 20% share without discussing with me" (id.). However, the only evidence submitted to support this were two emails plaintiff sent defendant providing the Dick's Sporting Goods receipt stating that she reimbursed the child and defendant owes his 80% and a venmo screenshot sent from plaintiff to the child (id.). There is no other evidence supporting plaintiff's claim regarding the purchase of unnecessary items without her consent or deducting her 20% share.

As such, plaintiff will not receive any reimbursements for any of the payments listed on her 2024 add-on summary.

Child Care/Babysitting

The terms of the settlement agreement were also clear about the requirements regarding after school care: "[t]he Wife shall provide to the Husband documentation representing the amount of hours she worked as well as an invoice or other documentation representing the fees associated with child care" (Plaintiff's Exhibit 1).

Plaintiff is seeking reimbursements for babysitting expenses. Per the terms of the settlement agreement, plaintiff was supposed to provide defendant with an invoice or documentation representing the fees associated with childcare. There is no testimony or evidence plaintiff provided proving that she complied with the requirement in the settlement agreement. In fact, defendant testified that he was never told plaintiff was working, or provided with any documentation showing the amount of hours she was working (5.2.25 Tr. pg. 27).

As such, the Court finds that plaintiff is not entitled to any arrears for reimbursement relating to babysitting or childcare.

III. Contempt

Plaintiff argues that she has established all elements necessary for civil contempt in the instant matter. Plaintiff argues that through her testimony at trial, she established there was a lawful order of the Court, which defendant has and continues to disobey. Plaintiff also avers she proved that defendant was and is aware of the court's order. Moreover, plaintiff asserts that she has been prejudiced by defendant's refusal to obey the orders of the Court as defendant's refusal to abide by the terms of the parties' settlement agreement left plaintiff, at times, to have difficulty paying her monthly bills.

Defendant argues that he should not be held in contempt as plaintiff did not establish that defendant has any arrears for basic child support. Defendant avers that neither plaintiff's testimony, nor admitted evidence did any to support her self-created summaries or argument that child support was owed. Additionally, defendant argues that plaintiff did not establish that defendant has any arrears from add-on expenses.

To prevail on a motion to punish for contempt pursuant to Judiciary Law § 753, "[f]irst, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. Second, it must appear, with reasonable certainty, that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Fourth, prejudice to the right of a party to the litigation must be demonstrated" (El-Dehdan v. El-Dehdan, 26 NY3d 19, 28-29 [2015] [internal citations and quotations omitted]). The movant bears the responsibility of establishing contempt with clear and convincing evidence (Tener v. Cremer, 89 AD3d 75, 78 [1st Dept 2011]). "Applications to punish as a civil contempt the noncompliance with court directives are generally addressed to the sound discretion of the court" (In re Hildreth, 28 AD2d 290, 292, [1st Dept 1967]).

Here, there is no dispute that defendant had knowledge of the settlement agreement and judgment of divorce. Plaintiff also established defendant's failure to comply with the agreement, and pay the required child support payments, and certain add on expenses. Defendant relies on Michael R. v. Amanda R., as cited above, where the Court reversed a finding of willful attempt where the movant's summary of alleged arrears was submitted into evidence without testimony or supporting documentation (Michael R., 175 AD3d at 1139). Defendant's reliance on this case is partially misplaced, as plaintiff provided more than just her self-created summaries for certain expenses.

However, contempt is a drastic remedy that is available to defend the rights of the injured party. Enforcement, by contrast, is a less drastic remedy. Here, the Court finds enforcement is a more appropriate remedy. Initially, regarding basic child support, it is undisputed that both parties mistakenly thought the pendente lite support amount was the correct amount for support until 2019. Further, while defendant could not sufficiently demonstrate proof that he paid additional support by cash payments or deposits so as to avoid arrears, the Court finds defendant's credibility on this issue relevant to the issue of contempt. In other words, defendant's testimony and the record evidence support a finding that additional payments were made such that a contempt finding would be inappropriate.

As to the add-on expenses, as noted above, many of them were not sufficiently proven. Moreover, although the parties' agreement only required them to confer and unfortunately did not include an organized process for the payment of add-ons, for a contempt finding plaintiff must show that defendant knew about each of the claimed expenses, was sent a bill or invoice and then refused to pay it. While the Court has found that plaintiff is owed some of these add-on arrears, the Court also concludes that the evidence was insufficient to make a willfullness finding. There was minimal, if any, proof of communications between the parties or proof that defendant had been sent the bills at issue. Thus, contempt is not warranted.

Accordingly, as the Court stated on the record, these are not appropriate circumstances in which to hold Plaintiff in contempt or to incarcerate him. Indeed, civil contempt is "not inflicted as a punishment" (see Gompers v Buck's Stove & Range Company, 221 US 418 [1911]).

Although the Court now finds that defendant owes plaintiff a sum of $53,136.00 in arrears, a contempt finding and incarceration is an extreme remedy and should be a last resort and is not appropriate given the circumstances. Accordingly, the court is now directing that a money Judgement in favor of the Plaintiff in the amount of $53,136.00 be entered.

IV. Counsel Fees

Plaintiff seeks $52,727.50 in counsel fees based on defendant's alleged defaults of the settlement agreement. In support, plaintiff provides her retainer agreement with counsel, and invoice statements. Defendant opposes and asserts that plaintiff's request for attorneys' fees should be denied. Defendant argues that while plaintiff claims she intends to pay her attorneys' fees, she is closely related to one of the named partners and has yet to pay her attorneys anything. Furthermore, defendant argues that due to plaintiff's unreasonable litigation positions, and her delay in bringing this application. In fact, defendant argues that plaintiff should be responsible for his attorneys' fees in the amount of $42,552, from the date of her application to date.

Pursuant to DRL 238, "[i]n any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce, separation, annulment or in any proceeding pursuant to section two hundred forty-three, two hundred forty-four, two hundred forty-five, or two hundred forty-six the court may in its discretion require either party to pay counsel fees and fees and expenses of experts to enable the other party to carry on or defend the action," Under DRL 238, an award of counsel fees is discretionary." Where there is a stipulation of settlement that provides the basis of an award of attorneys' fees, the terms of the agreement control (Millard v. Millard, 246 AD2d 349, 349 [1st Dept 1998]; Berns v. Halberstam, 46 AD3d 808, 809 [2d Dept 2007]).

Here, under the settlement agreement, in the event that defendant defaults, plaintiff is entitled to reasonable counsel fees provided that she sent notice of said defaults to the defendant and is successful in litigation (Plaintiff's Exhibit 1). Plaintiff submitted proof that she adhered to the settlement agreement and sent defendant a letter of his specific defaults on October 17, 2023 (NYSCEF Doc. No. 71, 72). The Court found defendant was in default of child support payments and certain add-on expenses. As such, the Court must award counsel fees related to plaintiff's instant application (Rubio v. Rubio, 70 AD3d 805, 806 [2d Dept 2010] [Defendant entitled to an award of counsel fees as defendant established that the plaintiff defaulted in the performance of certain terms under the settlement agreement])

Plaintiff submitted her retainer agreement (Plaintiff's Exhibit 28) and copies of invoices (NYSCEF Doc. No. 200, pgs. 17-30) which reveal she incurred $52,727.50 in counsel fees for this matter. However, the Court does not award the full amount because certain aspects of plaintiff's application were unsuccessful as to certain add-on payments, and the evidence with respect to many add-on expenses was entirely lacking. In addition, the Court takes into consideration that plaintiff testified that her attorney was her cousin and that she had not paid her any of the fees, including the $5,000 retainer, even though she was awarded approximately half a million dollars in 2024 in connection with the settlement of her personal injury case. Accordingly, plaintiff's application seeking an award of counsel fees is granted to the extent that the Court awards the plaintiff $25,000 in counsel fees. The defendant is directed to pay this sum directly to plaintiff's counsel within 60 days of this order.

The Court finds no basis to award defendant counsel fees, and that request is denied.

Defendant's Cross-Motion

The only remaining relief left for the Court's determination in defendant's Cross-Motion is his request for a downward modification of his basic child support obligation. As such, that portion of defendant's Cross-Motion will be determined below.

I. Downward Modification

Defendant argues that in the three years since the most recent child support order has been entered in this matter, his income has been reduced by more than fifteen percent (15 %) (Defendant's Exhibits U, V, W). As such, defendant argues that his child support obligation should be modified from $3,500 per month to $1,912 per month.

In opposition, plaintiff argues that defendant did not sustain his burden of proving a change of circumstances that would entitle him to a downward modification of his basic child support obligations. Plaintiff notes that defendant only submitted his income tax returns for the years 2021, 2022, and 2023 (Defendant's Exhibits U, V, W). As such, plaintiff argues that it is unknown what defendant has earned for the years 2013 to 2020, and even 2024. In addition, plaintiff avers that defendant earned the sum of $242,675.86 for his representation of plaintiff in a personal injury case (5.2.25 Tr. pg. 171). Defendant in fact conceded earning this fee in 2024.

Plaintiff adds that if she had not brought this information to light, defendant would have successfully concealed this information from the Court. Therefore, plaintiff argues that the Court cannot determine what, if any, downward modification defendant might be entitled to because he withheld his 2024 income.

Modification of child support is permitted pursuant to Domestic Relations Law 236(B)(9)(b)(2)(i) which provides "[t]he Court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances." Further DRL 236(B)(9)(b)(2)(ii)(A)-(B) provides:

"In addition, unless the parties have specifically opted out of the following provision in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where:

(A)three years have passed since the order was entered, last modified or adjusted; or

(B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience."

"In determining whether there has been a change in circumstances warranting a modification of a parent's child support obligation, the court must consider several factors, including 'the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or substantial improvement in the financial condition of a parent, and the current or prior lifestyles of the children.'A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order sough to be modified was issued." (Oelsner v. Heppler, 181 AD3d 916, 917 [2d Dept 2020] [internal citations omitted]).

The only evidence defendant puts forth that his income has decreased are his tax returns from the years of 2021, 2022, and 2023 (Defendant's Exhibits U, V,W). Defendant did not submit any tax returns from 2024. The only evidence submitted for the year of 2024 was defendant's testimony that he was on extension for his 2024 tax returns, and paid the requisite fees (5.2.25 Tr. pgs. 105-106). Defendant also submits his statement of net worth for the year of 2023 (Defendant's Exhibit T). Defendant also testified that he had not updated his statement of net worth (5.2.25 Tr. pg. 148). Significantly, defendant testified he made $242,675.86 in 2024 from a settlement in plaintiff's personal injury case wherein he was representing her (5.2.25 Tr. pgs. 146-147).

In addition to the credibility concerns raised by defendant's testimony and his failure to be forthright about his income in 2024, defendant failed to submit sufficient information about his financial condition in the past and his financial condition at the time of the motion and hearing. Motions for downward modification must be supported by enough data and evidence to enable a Court to make a full assessment of the parties' financial status over time so that it can make a determination about whether there has been a substantial change in circumstances.

In sum, the Court finds that defendant did not sufficiently show a substantial change in circumstances ((Rabasco v. Lamar, 106 AD3d 1095, 1097 [2d Dept 2013] ["A party who fails to credibly and clearly disclose his or her financial circumstances will be unable to establish that there has been a substantial change in circumstances warranting a downward modification of child support"]; Levine-Seidman v. Seidman, 88 AD3d 883, 884, [2d Dept 2011] ["[D]espite the father's testimony that the current economic downturn severely affected his earnings, and despite the fact that his income fluctuated yearly, depending on stock sales, he did not show a substantial change in average income since the entry of the divorce judgment which established his support obligation"]; Racquel L.J. v. Derwin J.J., 64 Misc 3d 1221(A), 117 N.Y.S.3d 468 (NY Sup. Ct. 2019, Kings Cty) ["The Court finds that the defendant's testimony regarding his income were not credible because they were not supported by the credible documentary and testimonial evidence and he displayed a lapse in truthfulness regarding his own finances]).

Therefore, defendant's application for downward modification of his child support obligation is denied without prejudice, and defendant has leave to refile a new motion in front of a matrimonial justice with complete updated financial records.

Accordingly, it is hereby,

ORDERED, plaintiff's application to hold the defendant in contempt is denied; and it is further

ORDERED, plaintiff is entitled to a money judgment in the total amount of $53,136.00 and plaintiff's counsel can submit a money judgment to the Court; and it is further

ORDERED, plaintiff is awarded counsel fees in the amount of $25,000.00 and it is further

ORDERED, defendant is to pay the awarded counsel fees to plaintiff's attorney within 60 days of the date of this Order; and it is further

ORDERED, defendant's application for a downward modification of his child support obligation is denied without prejudice.

Any relief not granted is denied.

This constitutes the Decision and Order of the Court.

DATE 3/17/2026

ARIEL D. CHESLER J.S.C.

FOOTNOTES

1.   Although defendant is correct that the sum of $875 is an overpayment on a weekly basis, and that the correct weekly amount is $808, plaintiff's summary charts ultimately calculate the total payments made in each month as compared to the total of $3,500 owed. The Court similarly will consider whether there are arrears by reviewing total payments in a month rather than focusing on the incorrect weekly amount stated.

2.   However, in plaintiff's 2022 add-ons summary, she indicates that defendant has already paid 50% the amount owed. Accordingly, in calculating arrears for the 2022 tennis lessons, the Court includes only the remaining balance attributable to defendant's 80% share.

Ariel D. Chesler, J.