In a February, 2019 decision, the Appellate Division, Second Department, foiled the cooperative efforts of previously-divorced parties, by their settlement of post-judgment issues, to avoid an interim fee award to the ex-wife’s counsel to prosecute an appeal.

In Rhodes v. Rhodes, the parties were married in 1993, had three children, and divorced in 2008. In 2013, the ex-husband successfully moved to modify the parties’ custody arrangement and, in a December, 2014 order, was granted residential custody of the children. The ex-wife appealed from that order.

In May 2015, the ex-wife moved for interim appellate attorney’s fees and costs. In an August 25, 2015 order, Former Suffolk County Supreme Court Acting Justice Marlene L. Budd granted that motion, awarding the ex-wife $20,000 in attorney’s fees and costs “for the prosecution of the appeal, with leave to apply for additional sums upon the completion of the appeal.” The ex-husband was directed to pay those attorney’s fees and costs to the ex-wife’s then-attorney, Karyn A. Villar, PLLC (hereinafter Villar), within 20 days of the order.

When payment was not made, on September 23, 2015, Villar moved to hold the ex-husband in civil contempt of the fee order. The ex-husband cross-moved for leave to renew his opposition to the ex-wife’s prior motion for interim appellate attorney’s fees and costs. The ex-husband attached to his cross motion a stipulation of settlement dated September 28, 2015, in which the parties agreed that the ex-wife would waive payment of attorney’s fees and costs owed by the ex-husband pursuant to the August, 2015 order. The ex-wife retained new counsel, and thereafter cross-moved to impose sanctions against Villar, arguing that Villar’s contempt motion was punitive and an abuse of process.

In an order dated March 7, 2016, Suffolk County Supreme Court Justice Carol MacKenzie (1) denied Villar’s motion to hold the ex-husband in civil contempt, (2) vacated the August, 2015 interim fee award and denied a fee, and (3) granted the ex-wife’s cross motion to impose sanctions against Villar, directing Villar to pay the ex-wife’s new attorneys $2,500. Villar appealed.


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In the first New York appellate decision to rule on the issue, the Appellate Division, Second Department held in its February 28, 2018 opinion in Spencer v. Spencer, that violations of matrimonial action “Automatic Orders” can be grounds for a finding of civil contempt, but an application for that relief must be made before the entry of the judgment of divorce.

The facts are straightforward. Following the entry of her November, 2015 divorce judgment, the wife discovered that while the divorce action was pending, her husband sold a warehouse in Brooklyn, without the knowledge or consent of the wife or the court. He netted $300,000.00.

Under Court Rule 22 N.Y.C.R.R. §202.16-a, the listed orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law § 236[B][2][b]). Automatic Orders seek to preserve the status quo while the action is pending, by prohibiting the transfer or encumbrance of real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies.

The wife, then, sought to hold the husband in civil contempt (Judiciary Law §753). After a hearing, Richmond County Supreme Court Justice Catherine M. DiDomenico granted that motion. Justice DiDomenico directed that, unless the defendant purged the contempt by immediately paying $150,000 to the wife, the husband would be incarcerated every weekend for a period of six months. The husband appealed.


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Contested litigation is remarkably unsuited for healing a divorced family. One gets a sense of the feelings of frustration, if not helplessness a Family Court Judge may feel as she tries to figure out “what do we do next?” What remedy should be ordered that will actually strengthen the bonds between parent and children?

Consider the July 1, 2016 decision of Erie County Family Court Judge Mary G. Carney in Matter of Gregory S. v. Dana K. Judge Carney was charged with resolving the claims of a father, rejected by his four children in substantial part due to the mother’s willful violations of visitation orders.

Judge Carney noted that the family’s history was branded by protracted, caustic litigation, toxic interpersonal conflict and all categories of broken hearts.


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In its October 20, 2015 decision in El-Dehdan v. El-Dehdan, New York’s highest court restates the elements of civil contempt, the burdens of proof needed to support a finding, and the effect of the assertion of a Fifth Amendment privilege against incrimination. Doing so, the Court of Appeals affirmed a 2013 decision of the Appellate Division, Second Department, which in turn upheld the finding of civil contempt made by Kings County Supreme Court Justice Eric I. Prus.

In January 2010, an Order to Show Cause was signed to bring on the wife’s motion to hold the husband in contempt for having violated a 2008 order that supposedly restrained the transfer of assets. The husband had transferred certain parcels of realty. In addition to scheduling a hearing on the contempt motion, a Temporary Restraining Order was issued directing the husband to deposit immediately with the wife’s attorney the sum of $950,000.00 “which is the sum of money he purportedly received from the transfer of [the property] 171 Ainslie Street, Brooklyn, New York and 64-17 60th Road, Maspeth, New York, minus the money paid for [the] real estate broker, transfer taxes and payment of the underlying mortgage.” The husband was personally served with this Order to Show Cause.

As it turns out, the 2008 order did not, in fact, prohibit the transactions in which the husband engaged. However, here, the husband was not found in civil contempt for having violated the 2008 order, but for violating the Temporary Restraining Order contained in the January, 2010 Order to Show Cause that looked to preserve marital assets and the status quo while the court considered whether the husband violated the 2008 order.


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Sentencing a father (a police officer) to 15 days in jail for sending abusive e-mails to the mother, Supreme Court, Putnam County Justice Victor G. Grossman attempted to stop the war between divorcing parents.

Charging the parties with acting more like children, throwing tantrums, teasing and name-calling, Justice Grossman, in his decision in L.T. v. K.T.  noted that both parents behaved like preschoolers. Unfortunately, the Court could send the parties to their rooms. The parties’ three children have two parents whose embarrassing behavior has set a horrible example. the behavior of both parties was “all the more disappointing when one considers the parties should know better.” The father was a police officer, who had been trained to defuse difficult situations. The mother had a Master’s Degree in Psychology. Thankfully, the children had multiple outlets where they can see responsible adult behavior.

The Court also blamed the lawyers, observing “how counsel for each of the parties has personalized the conflict to the point where they are incapable of communicating effectively beyond a litigating posture, to promote their clients’ interests.”


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Unemployment, alone, is not sufficient to avoid incarceration for the willful failure to pay child support. So held the First Department when on April 8, 2014 it affirmed the determination of Bronx County Family Court Judge Sidney Gribetz in Gina C. v. Augusto C.

Based upon the fact-finding determination of the Support Magistrate, Judge Gribetz

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.


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No retroactive fine or suspension of maintenance is to be  imposed against a wife who violated her so-ordered stipulation not to allow her paramour into the marital residence. Instead, suspension of maintenance and a fine would only be imposed prospectively and only until the wife complied with that stipulation. Civil contempt fines are not intended

In five cases decided May 1, 2013, the Second Department continued to voice its concern when parents just don’t get along. Again, the court considered joint custody, hampering the child’s relationship with the other parent, private interviews of children by the judge, contempt for violations of visitation orders, and whether a non-parent may be granted custody over a surviving parent.

In Wright v. Kaura, the Second Department reversed a joint legal custody award to grant sole legal custody to a mother.  The appellate court noted that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.

Here, joint legal custody was inappropriate as the parties demonstrated an inability to cooperate on matters concerning the child. The record was replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child. Thus, Acting Westchester Family Court Judge Thomas R. Daly erred when awarding the parties joint legal custody of their child.

In Lawlor v. Eder, the Second Department held that a father’s refusal to encourage and foster meaningful contact between the child and the mother was the basis to award residential  custody to the mother, although the parents shared joint legal custody.

A custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.


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