The Second Department used its December 18th decision in El-Dehdan v. El-Dehdan to clarify the parties’ relative burdens of proof on an application for contempt where the Fifth Amendment privilege against self-incrimination has been invoked. The court also harmonized inconsistencies in case law as to the elements of civil contempt. The court held that there was no element of willfulness which needed to be shown to establish civil contempt, and that an adverse inference could be drawn from the invocation of the privilege against self-incrimination.

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 or remedies of a party.

In this matrimonial action, Kings County Supreme Court Justice Eric I. Prus had held the husband in contempt of court for disobeying a court order dated January 29, 2010, which required him to deposit with the wife’s attorney the proceeds of a certain 2009 real estate transaction. Justice Prus imposed a civil sanction which allowed him to purge the contempt to avoid incarceration.

The husband appealed, contending that the wife failed to satisfy her burden of proof and that the Supreme Court improperly drew an adverse inference against him for invoking his privilege against self-incrimination during the contempt hearing.

The wife had been granted a divorce on the ground of cruel and inhuman treatment. Among other things, she was awarded certain Brooklyn and Queens properties as part of the equitable distribution. Shortly thereafter, the wife learned the husband had transferred the properties earlier in 2009.

In January, 2010, The wife obtained an order which directed the husband to “deposit immediately” with the wife’s attorney the $776,046.21 in net proceeds the husband received from one of those transfers (the second transfer was purportedly for no consideration). The husband failed to turn over the proceeds.

In August 2010, the wife moved to hold the husband in civil and criminal contempt for violating the January 2010 Order. In opposition to the wife’s motion to hold him in contempt, the husband claimed he no longer possessed the proceeds of the March 2009 transfer.

In an order dated September 12, 2011, Justice Prus found that the requirements to hold the husband in civil contempt had been satisfied. The husband was aware of the lawful and unequivocal requirements of the January 2010 Order, and he disobeyed that order with full knowledge of its terms. Justice Prus also noted that while the husband was entitled to rely upon his constitutional privilege against self-incrimination in response to questions relating to the proceeds of the March 2009 transfer, the privilege did not protect him from the consequences of his failure to submit competent proof that he had no access to the proceeds. The court directed that the husband could purge his contempt and avoid imprisonment by complying with certain conditions, including the payment of the proceeds from the March 2009 transfer.

On appeal, the Second Department noted that Justice Prus, however, had not imposed the criminal sanction of a definite jail term without the opportunity to purge the contempt. Thus, only that branch of the wife’s motion which was to find the husband in civil contempt had been granted.

Affirming the finding of civil contempt, the Second Department analyzed the elements and burden of proof on a civil contempt motion. A motion to punish a party for civil contempt is addressed to the sound discretion of the court. The movant bears the burden of proving the contempt by clear and convincing evidence.

In restating the elements of civil contempt which must be proved by clear and convincing evidence, the Second Department was guided by the statutory source of judicial authority to punish for contempt. This authority is found in Judiciary Law §§750, et seq. The section applicable to civil contempt, Judiciary Law §753, provides:

A. A court of record has power 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 or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:

. . .

3. A party to the action . . . for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum . . . ; or for any other disobedience to a lawful mandate of the court.

By contrast, a court may impose punishment for criminal contempt where a person is guilty of “[w]ilful disobedience to [the court’s] lawful mandate” or “[r]esistance wilfully offered to [the court’s] lawful mandate” (Judiciary Law § 750).

For civil, but not criminal contempt, there must be a finding that a “right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced” (Judiciary Law § 753[A]). The element of prejudice to a party’s rights is essential to civil contempt, which aims to vindicate the rights of a private party to litigation, but not criminal contempt, which aims to vindicate the authority of the court.

Another notable distinction between the two kinds of contempt is that the civil contempt statute does not include the words “willful” and “willfully,” which are included in the criminal contempt statute (compare Judiciary Law § 753[A][3] [13] with § 750[A][3], [4]).

After reviewing the body of case law discussing the element of willfulness, the Second Department concluded that for the wife to prevail on her motion to hold the husband in civil contempt, she was not required to prove willfulness, but she was required to show by clear and convincing evidence:

  1. that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;

  2. that the order was disobeyed and the party disobeying the order had knowledge of its terms; and

  3. that the movant was prejudiced by the offending conduct.

The appellate court pointed out, however, that the absence of willfulness from this formulation does not result in strict liability. There can be no finding of contempt for the mere violation of a clear and unequivocal mandate. The proponent of a civil contempt motion must establish the violator’s failure to comply with a court order with knowledge of its terms. Civil contempt may not be founded upon an inadvertent or mistaken failure to comply with a court order.

Once the movant establishes a knowing failure to comply, the burden shifts to the violator to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order. A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense.

Here, the wife had met her burden of establishing, by clear and convincing evidence, that the husband was fully aware of the January 2010 Order, and that he disobeyed that mandate although having full knowledge of its terms. The disobedience resulted in prejudice to the wife (she was denied the equitable distribution of marital property).

The wife did not have the additional burden of establishing that the husband still possessed or had control over the proceeds from the March 2009 transfer. She did not have to prove that he had the ability to comply with the January 2010 order. Rather, once his failure to comply was established, the burden shifted to the husband to offer competent, credible evidence of his inability to pay the sum of money as ordered.

The appellate court agreed that the husband failed to meet his burden of establishing his defense of an inability to pay. (The court seems to have relied upon the wife’s showing that the husband received net proceeds of $776,046.21 from the March 2009 transfer less than a year prior to the January 2010 order.)

In opposition to the contempt motion, the husband submitted an affidavit in which he stated that he no longer possessed those proceeds. However, he provided no evidence in support of that self-serving assertion.

Nonetheless, here, the husband had been afforded a hearing and the opportunity to present evidence in support of this defense. However, he refused to answer certain questions regarding the location of the proceeds of the March 2009 transfer by invoking his constitutional privilege against self-incrimination. He otherwise failed to present any evidence in support of his contention that he was unable to deposit the necessary sum of money as required by the order.

On appeal, the husband contended his invocation of the privilege against self-incrimination could not be used against him, as it was his right to invoke the privilege, without adverse consequence, in defense of the criminal branch of the proceeding.

The appellate court rejected that argument based on well-established principles. The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. A party to a civil action or proceeding is not relieved of his or her burden of proof simply by invoking the privilege against self-incrimination.

While a party may not be compelled to answer questions that might adversely affect his or her criminal interest, the privilege does not relieve the party of the usual evidentiary burden attendant upon a civil proceeding; nor does it afford any protection against the consequences of failing to submit competent evidence.

Here, the husband had the burden of establishing his defense of an inability to pay the sum required by the January 2010 order. His invocation of his privilege against self-incrimination did not relieve him of the obligation of coming forward with evidence in support of that defense. Justice Prus was entitled to draw an adverse inference against him.

The husband correctly contended that a party may not be held in criminal contempt solely for a justified assertion of the Fifth Amendment privilege. Thus, in a criminal contempt proceeding, in which willful disobedience is an element, the court may not base a finding of willfulness solely upon the husband’s justified invocation of the privilege, absent any other evidence of willfulness.

Here, however, the Supreme Court did not hold the husband in criminal contempt. Rather, the Supreme Court held him in civil contempt for failing to comply with the January 2010 Order. There is a difference. The civil penalty imposed was not a punishment for refusing to answer questions at the hearing. Where evidence in the record supports the civil contempt finding, which is not based solely upon the invocation of the privilege against self-incrimination, and the husband has failed to meet his or her burden of proof, the order will be upheld. [The court does not clearly state that an element of civil contempt may be established solely by the adverse inference.]

Finally, the husband contended that the wife failed to satisfy the mandatory precondition, contained in Domestic Relations Law § 245, that she first exhaust other, less drastic enforcement mechanisms, such as settling a judgment from the equitable distribution order and seeking enforcement of the judgment.

In an action for a divorce, Domestic Relations Law §245 grants the court authority to punish a party for civil contempt where the party defaults “in paying any sum of money” required by a judgment or order, “and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced” pursuant to the enforcement mechanisms provided in Domestic Relations Law §§243 and 244 and C.P.L.R. §§5241 and 5242. A civil contempt motion in a divorce action should be denied where the movant fails to make a showing pursuant to Section 245 that “resort to other, less drastic enforcement mechanisms had been exhausted or would be ineffectual.”

However, the wife correctly contended that the record establishes her satisfaction of the exhaustion precondition with evidence demonstrating that less drastic enforcement measures would have been ineffectual. The wife had demonstrated the husband’s pattern of divesting himself of his assets during the course of the earlier divorce litigation in 2000 through 2002, and during the present litigation. This, the court could conclude that the husband no longer held assets in his name against which execution could be obtained.

Moreover, the husband’s suggestion that the wife should have first settled a judgment upon the order of equitable distribution, and thereafter executed on the judgment, was without merit. It was undisputed that the husband had transferred the Brooklyn and Queens properties that had been awarded to the wife in the equitable distribution order, and that the purpose of the January 2010 order was to preserve the funds obtained from the sale of the real property. “Therefore, the wife satisfied the exhaustion precondition of Domestic Relations Law § 245.”

[The court did not clearly state that the precondition requirements of D.R.L. §245 need to be satisfied in every application to hold a spouse in civil contempt for the failure to make a mandated payment. Are the less stringent requirements of Judiciary Law §753 available to a party in a matrimonial action, or must the requirements of D.R.L. §245 always be met?

To reconcile Judiciary Law §753(A)(3) with D.R.L. §245, it may be noted that the former section applies to redress the failure to make a mandated payments only where “by law execution can not be awarded for the collection of such sum . . .” Section 753(A)(3) may also be used to redress any disobedience to a lawful mandate of the court other than for the payment of money where execution is allowed to be awarded.

Thus, D.R.L. §245 adds a remedy: contempt may be found for the failure to make mandated payments even though execution may be awarded, but only if the movant can show that enforcement through D.R.L. §§243 or 244, or C.P.L.R. §5241 or 5242 would be ineffectual.

The more troubling holding in this case is that the Fifth Amendment adverse inference was inconsistent with other inferences.

First, it was used to establish that the husband did have ability to comply with the order; that he was able to turn over the proceeds. The contempt finding was predicating upon him still having the money.

However, in order to meet the requirements of D.R.L. §245 that other enforcement means would be ineffectual, the court concluded that this leopard had not changed his spots; that the husband had a history of divesting himself of assets. Thus, it could be assumed that he had divested himself of the proceeds from the realty transfer.

Catch 22.]

Karina E. Alomar of Alomar & Associates, P.C., of Ridgewood, represented the wife. Bruce A. Barket and Brad A. Schlossberg of Barket Marion Epstein & Kearon, LLC, of Garden City, represented the husband.