IN RE: Morgan C. REESE

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Morgan C. REESE, Appellant, v. Marissa A. REESE, Respondent. (Proceeding No. 1)

IN RE: Marissa A. Reese, Respondent, v. Morgan C. Reese, Appellant. (Proceeding No. 2)

2018–14709

Decided: October 16, 2019

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ. Morgan C. Reese, Hicksville, NY, appellant pro se. Law Offices of Jay D. Raxenberg, P.C., Garden City, NY, for respondent.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 4, the father appeals from four orders of the Family Court, Nassau County (Linda K. Mejias, J.), all dated October 16, 2018.  The first order denied the father's objections to a fact-finding order of the same court (Lisa M. Williams, S.M.), dated August 15, 2018, which determined, after a hearing, inter alia, that the father failed to demonstrate a sufficient change in circumstances to warrant a downward modification of his child support obligation and that the mother established her entitlement to an award of child support arrears.  The second order denied the father's objections to an order of dismissal of the same court (Lisa M. Williams, S.M.), dated August 15, 2018, which dismissed his petition for a downward modification of his child support obligation.  The third order denied the father's objections to an order of the same court (Lisa M. Williams, S.M.), dated August 15, 2018, which granted the mother's motion for an award of attorneys' fees and denied the father's motion for an award of attorneys' fees.  The fourth order (1) denied the father's objections to an order of disposition of the same court (Lisa M. Williams, S.M.), dated August 15, 2018, which, inter alia, determined that the father was in contempt for willfully violating an order to pay child support, and directed the entry of a judgment against him in the sum of $65,900 for child support arrears, (2) confirmed the recommendation of the Support Magistrate in the order of disposition that the father be committed to jail for a period of 180 days if he failed to purge his contempt by paying the arrears, and (3) denied the father's objections to a judgment of the same court (Lisa M. Williams, S.M.), dated August 15, 2018, in favor of the mother and against the father in the principal sum of $65,900.

ORDERED that the appeal from so much of the fourth order dated October 16, 2018, as confirmed the recommendation of the Support Magistrate in the order of disposition dated August 15, 2018, that the father be committed to jail for a period of 180 days if he failed to purge his contempt, is dismissed as academic; and it is further,

ORDERED that the first, second, and third orders dated October 16, 2018, are affirmed; and it is further,

ORDERED that the fourth order dated October 16, 2018, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the mother.

The parties, who are the parents of three children, were married in 1998.  Prior to their marriage, they entered into a prenuptial agreement which provided, inter alia, that each party would retain ownership of their separate property and would retain the right to sell or dispose of that property.

The parties were divorced in Connecticut on February 3, 2012, pursuant to a judgment which incorporated the terms of a separation agreement.  The separation agreement provided, inter alia, that the father would pay aggregate child support of $4,400 monthly, plus $600 monthly for the children's extracurricular activities, $9,000 annually for the children's camp and summer activities, and 75% of the children's medical expenses.  The separation agreement expressly acknowledged that this represented a deviation from the Connecticut Child Support Guidelines.  At the time that the parties divorced, a trust provided the father's primary source of income and constituted the principal source of his child support payments.

On February 28, 2017, the father registered the Connecticut order in New York and petitioned in the Family Court, Nassau County, for a downward modification of his support obligation on the basis that the exhaustion of the trust account, which had covered his living expenses and child support payments, constituted a substantial change in circumstances.  Subsequently, the mother petitioned for enforcement of the father's support obligation, stating that the father had paid only $1,000 for child support since March 1, 2017.  Both parties also moved for an award of attorneys' fees.

After a hearing on the parties' petitions and motions, the Support Magistrate issued a series of four orders and a judgment which, collectively, inter alia, dismissed the father's petition for a downward modification of his child support obligation, awarded the mother child support arrears in the sum of $65,900, determined that the father was in contempt for willfully violating an order of child support, recommended that the father be committed to jail for a period of 180 days if he failed to purge his contempt by paying the arrears, denied the father's motion for an award of attorneys' fees, and granted the mother's motion for an award of attorneys' fees.  The father filed objections to each of the orders and the judgment.  The Family Court, in four separate orders, denied the father's objections and confirmed the Support Magistrate's recommendation that the father be committed to jail.  The father appeals.

Pursuant to Family Court Act article 5–B, where a party registers an out-of-state support order in this state, a New York court may modify or enforce that order (see Family Ct. Act §§ 580–601, 580–611[a], [b]).  “Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state” (Family Ct. Act § 580–611[b]).  However, the law of the issuing state governs the support obligation, and the courts of this state may not modify any aspect of the order which could not be modified in the issuing state (see Family Ct. Act §§ 580–604[a][1]; 580–611[c]; Matter of Epstein v. Shoshani, 66 A.D.3d 1014, 1017, 889 N.Y.S.2d 48).  Accordingly, we apply the substantive law of Connecticut, as the Family Court did.

Like the law of New York (see Family Ct. Act § 451[3]), Connecticut law provides that a court may modify an order of support based upon a substantial change in circumstances (see Conn. Gen. Stat. § 46b–86[a]).  Although Connecticut law also permits modification on the ground that a parent's support obligation deviates substantially from that state's child support guidelines, contrary to the father's contention, that ground is unavailable where, as here, the parties' separation agreement expressly recites criteria for deviating from the guidelines (see id.; Becue v. Becue, 185 Conn. App. 812, 850–851, 198 A.3d 601, 624).

Under Connecticut law, where a modification petition is based upon an alleged change in circumstances, the court must first determine whether there has been a substantial change in the circumstances of one or both parties and, if so, may modify the obligor's support obligation (see De Almeida–Kennedy v. Kennedy, 188 Conn. App. 670, 680–681, 205 A.3d 704, 712; Bolat v. Bolat, 182 Conn. App. 468, 476, 190 A.3d 96, 102).  The party seeking modification has the burden to ‘ “clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper” ’ (De Almeida–Kennedy v. Kennedy, 188 Conn. App. at 681, 205 A.3d at 712, quoting Weinstein v. Weinstein, 104 Conn. App. 482, 492, 934 A.2d 306, 313).  “[T]o qualify as a substantial change in circumstances, a change or alleged inability to pay must be excusable and not brought about by the defendant's own fault.  Thus, a mere [i]nability to pay does not automatically entitle a party to a decrease of [a support] order” (Zilkha v. Zilkha, 167 Conn. App. 480, 488–489, 144 A.3d 447, 453 [internal quotation marks omitted]; see Malpeso v. Malpeso, 165 Conn. App. 151, 182, 138 A.3d 1069, 1089).

As in New York, in determining ability to pay, Connecticut looks not merely to a party's actual income, but also to the party's earning capacity and may consider, inter alia, the party's previous earnings, lifestyle, personal expenses, whether the party has willfully restricted his or her earning capacity to avoid support obligations, and the party's vocational skills, employability, age, and health (see McKeon v. Lennon, 155 Conn. App. 423, 432, 109 A.3d 986, 993, revd in part on other grounds 321 Conn. 323, 336, 138 A.3d 242, 249; Fox v. Fox, 152 Conn. App. 611, 634, 99 A.3d 1206, 1221; Regs., Conn. State Agencies § 46b–215a–1[11]; see also Morille–Hinds v. Hinds, 169 A.D.3d 896, 899, 94 N.Y.S.3d 336; Matter of Weissbach v. Weissbach, 169 A.D.3d 702, 703, 95 N.Y.S.3d 85).

The father correctly notes that, pursuant to Connecticut law, “[o]nce property is distributed in accordance with a dissolution decree, the court ceases to have jurisdiction over that property” and “may not consider the liquidation of awarded property as income” (McKeon v. Lennon, 155 Conn. App. at 439, 109 A.3d at 996; see McKeon v. Lennon, 321 Conn. at 346, 138 A.3d at 255; Simms v. Simms, 283 Conn. 494, 506, 927 A.2d 894, 900–901).  Nevertheless, Connecticut has “interpreted broadly the definition of gross income contained in the guidelines to include items that, in effect, increase the amount of a parent's income that is available for child support purposes” (McKeon v. Lennon, 321 Conn. at 345, 138 A.3d at 255 [internal quotation marks omitted] ).  Accordingly, although the Family Court could not modify the parties' property division or direct the father to sell property to which he retained sole title pursuant to the parties' prenuptial agreement, “[t]hat does not mean ․ that court had no authority to consider the value of the parties' assets in determining the amount of the modification or, in appropriate circumstances, to order the [father] to pay [child support] if doing so may require him to invade his assets” (Simms v. Simms, 283 Conn. at 505, 927 A.2d at 901).

Here, the Support Magistrate providently exercised her discretion in considering the father's assets, which the evidence established had always been his primary source of support, in finding that he had failed to demonstrate a change in circumstances rendering his support obligation unjust or inequitable (see Mountain v. Mountain, 189 Conn. App. 228, 233–234, 206 A.3d 802, 804–805).  Accordingly, we agree with the Family Court's denial of the father's objections to the Support Magistrate's determination that the father failed to demonstrate a change in circumstances warranting a downward modification of his support obligation and the Support Magistrate's dismissal of the father's petition for a downward modification.

With regard to the father's failure to pay child support, under Connecticut law, “[a] finding of noncompliance alone will not support a judgment of contempt” and must instead be coupled with a finding of willfulness (McKeon v. Lennon, 155 Conn. App. at 450, 109 A.3d at 1002; see Becue v. Becue, 185 Conn. App. at 824, 198 A.3d at 610; Malpeso v. Malpeso, 165 Conn. App. at 181, 138 A.3d at 1088).  “[T]he inability of [a] defendant to obey an order of the court, without fault on his [or her] part, is a good defense to the charge of contempt ․ The contemnor must establish that he [or she] cannot comply, or was unable to do so” (Bolat v. Bolat, 182 Conn. App. at 480, 190 A.3d at 104 [internal quotation marks omitted]; see Malpeso v. Malpeso, 165 Conn. App. at 182, 138 A.3d at 1089).  An obligor may not engage in “self-help” or unilaterally modify the support obligation without the permission of the court (Becue v. Becue, 185 Conn. App. at 827, 828, 198 A.3d at 612; see Malpeso v. Malpeso, 165 Conn. App. at 183, 138 A.3d at 1089; Nuzzi v. Nuzzi, 164 Conn. App. 751, 770–771, 138 A.3d 979, 992).

Here, the mother established that, during the period for which she sought arrears, the father had assets from which he could have satisfied his support obligation.  In response, the father offered no “competent, credible evidence of his inability to make the required payments” (Matter of Powers v. Powers, 86 N.Y.2d 63, 70, 629 N.Y.S.2d 984, 653 N.E.2d 1154; see Matter of Gorsky v. Kessler, 133 A.D.3d 854, 855, 22 N.Y.S.3d 204).  The father likewise failed to demonstrate that enforcing the existing order would be unjust or inequitable (see Mountain v. Mountain, 189 Conn. App. at 232–233, 206 A.3d at 804).  Under both New York and Connecticut law, the Support Magistrate's credibility determinations are entitled to deference (see Matter of Gharachorloo v. Regeer, 173 A.D.3d 1025, 100 N.Y.S.3d 886; Matter of Robinson v. Thomas, 167 A.D.3d 749, 751, 89 N.Y.S.3d 705; De Almeida–Kennedy v. Kennedy, 188 Conn. App. at 680, 205 A.3d at 712; Malpeso v. Malpeso, 165 Conn. App. at 182, 138 A.3d at 1089), and we discern no basis to disturb them on the present record.  Accordingly, we agree with the Family Court's denial of the father's objections to the Support Magistrate's determination finding that the father willfully violated the order of support and was in contempt pursuant to Connecticut law (see Conn. Gen. Stat. § 46b–87), and that the mother was entitled to the payment of arrears in the sum of $65,900 as well as the money judgment awarding her that sum.  However, inasmuch as the father purged himself of his contempt prior to being committed to jail, his appeal from so much of the court's fourth order as confirmed the Support Magistrate's recommendation that the father be committed to jail must be dismissed as academic (see Matter of Leonard v. Leonard, 150 A.D.3d 1242, 1243, 56 N.Y.S.3d 341; Cutroneo v. Cutroneo, 140 A.D.3d 1006, 35 N.Y.S.3d 173).

Connecticut law further provides that reasonable attorneys' fees may be awarded in a contempt proceeding (see Conn. Gen. Stat. § 46b–87; Becue v. Becue, 185 Conn. App. at 854, 198 A.3d at 627).  The award of attorneys' fees in such matters “is punitive, rather than compensatory” (Becue v. Becue, 185 Conn. App. at 855, 198 A.3d at 627 [internal quotation marks omitted]; Larson v. Larson, 138 Conn. App. 272, 277, 51 A.3d 411, 415 [internal quotation marks omitted] ), and “may be imposed without balancing the parties' respective financial abilities” (Larson v. Larson, 138 Conn. App. at 277–278, 51 A.3d at 415 [internal quotation marks omitted] ).

Here, the evidence supported the Support Magistrate's finding that the father chose to use his substantial assets to benefit himself rather than to meet his obligations to his children, and that his claim of an inability to pay lacked credibility.  The evidence further established that in addition to forcing the mother to bear the full burden of supporting the children, he also subjected her to a lengthy hearing and voluminous motion practice, forcing her to incur substantial attorneys' fees and costs while he was able to use his own substantial assets to raise $62,500 to pay his attorneys' fees.  We therefore agree with the Family Court's denial of the father's objections to the Support Magistrate's determination that the mother was entitled to an award of attorneys' fees and that the father was not entitled to an award of attorneys' fees.

The father's remaining contentions are without merit.

MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.

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