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Seale v. Seale

Supreme Court of New York, Third Department

October 26, 2017

MARY SEALE, Appellant,
MICHAEL SEALE, Respondent.

          Calendar Date: September 13, 2017

          Wardlaw Associates, PC, Saratoga Springs (Donna E. Wardlaw of counsel), for appellant.

          Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Paula Nadeau Berube of counsel), for respondent.

          Before: Garry, J.P., Egan Jr., Devine, Aarons and Rumsey, JJ.


          Garry, J.P.

         Appeals (1) from an order of the Supreme Court (Breen, J.), entered July 24, 2014 in Warren County, which, among other things, denied plaintiff's motion to hold defendant in contempt of court, (2) from an order of said court (Bruening, J.), entered January 21, 2015 in Warren County, which, among other things, denied plaintiff's motion for a money judgment, and (3) from an order of the Family Court of Warren County (Wait, J.), entered December 14, 2015, which, among other things, denied plaintiff's objections to a prior order of counsel fees.

         This action seeking the dissolution of an eight-year marriage was commenced in May 2010. The parties were divorced pursuant to a March 2014 judgment that was the subject of a previous appeal (149 A.D.3d 1164');">149 A.D.3d 1164 [2017]). In April 2014, plaintiff (hereinafter the wife) moved, as pertinent here, for an order of protection against defendant (hereinafter the husband) and for orders holding the husband in contempt and directing him to pay counsel fees. In July 2014, Supreme Court (Breen, J.) directed the husband to pay $2, 000 in counsel fees and to return certain items to the wife, and denied the remaining requests. Also in July 2014, the wife filed an order to show cause requesting, as pertinent here, a money judgment in her favor and counsel fees based upon the husband's failure to make equitable distribution payments and to pay certain child care costs. In August 2014, she moved for counsel fees in connection with her appeal from the divorce judgment. In January 2015, Supreme Court (Bruening, J.) denied the wife's request for a money judgment but awarded her $2, 000 in counsel fees on that issue, denied her request for counsel fees on the award, and referred the issue of child care expenses to Family Court. The parties later stipulated that the husband would pay the disputed expenses and that the sole question for the court to resolve would be the wife's entitlement to counsel fees on that issue. In March 2015, the Support Magistrate awarded the wife $2, 000 in counsel fees. In December 2015, Family Court denied the wife's objection to the amount of the counsel fee award. The wife appeals from the July 2014, January 2015 and December 2015 orders.

         We turn first to the determination of Supreme Court (Breen, J.) declining to hold the husband in contempt. Pursuant to a 2010 pendente lite order, the wife was granted exclusive use and occupancy of the marital residence (hereinafter the Carriage Hill property). The findings of fact and conclusions of law, incorporated into the judgment of divorce, determined that the Carriage Hill property was the husband's separate property, but the provisions of the pendente lite order were temporarily continued, and the wife was directed to surrender the residence to the husband by a specified date. Certain items of personal property that were located in the Carriage Hill property were awarded to the husband, and he was authorized to obtain them upon taking possession of the residence. The husband entered the property before the wife surrendered it to him and retrieved various possessions. The wife contends that the court erred in failing to hold the husband in contempt for entering the residence and for taking items that were not awarded to him.

         This Court will not overturn a contempt determination in the absence of an abuse of discretion (see Matter of Wesko v Hollenbeck, 149 A.D.3d 1175, 1176 [2017]; Matter of Rebecca O. v Todd P., 309 A.D.2d 982, 983 [2003]), and we find no such abuse here. A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party's rights (see Judiciary Law § 753; Matter of Khan v Khan, 140 A.D.3d 1252, 1253-1254 [2016]; Matter of Aurelia v Aurelia, 56 A.D.3d 963, 964 [2008]). The husband's counsel averred that, after the judgment issued, counsel provided the husband with a timeline of dates for the performance of various actions. This document mistakenly advised him to obtain his possessions from the Carriage Hill property "[i]mmediately." The husband averred that he relied upon this erroneous timeline rather than reading the lengthy findings of fact and conclusions of law in detail, and thus incorrectly believed that he was entitled to enter the residence. Nothing in the wife's submissions contradicted this account of counsel's error, demonstrated that the husband knew that the direction was mistaken or revealed that his reliance upon the error was "entirely unreasonable" (Matter of McCormick v Axelrod, 59 N.Y.2d 574, 585 [1983], amended 60 N.Y.2d 652');">60 N.Y.2d 652 [1983]). Accordingly, we do not find clear and convincing evidence that the husband committed a knowing violation by entering the residence.

         As for the personal property, the findings of fact and conclusions of law provided that the husband was entitled to possess "the dishes and silverware of [his] mother" and some tools, but did not enumerate the particular objects covered by this broad direction. The husband averred that he believed that he was entitled to all of the property that he took, and, although Supreme Court ultimately directed him to return some items, it did not find that he had acted knowingly in taking them. On this record, we cannot find that the findings of fact and conclusions of law "clearly expressed an unequivocal mandate" as to which possessions were awarded to the husband (Howe v Howe, 132 A.D.3d 1088, 1089 [2015] [internal quotation marks and citations omitted]; accord Matter of Gerber v Gerber, 145 A.D.3d 1128, 1129 [2016]; see Monaco v Monaco, 116 A.D.3d 452, 452-453 [2014]).

         The wife also contends that Supreme Court should have held a hearing to determine which items should be returned. However, "[a] hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone " (Jaffe v Jaffe, 44 A.D.3d 825, 826 [2007] [internal quotation marks and citation omitted; emphasis added]; see Matter of Chichra v Chichra, 148 A.D.3d 883, 885 [2017]; Quantum Heating Servs. v Austern, 100 A.D.2d 843, 844 [1984]). Here, the court was thoroughly familiar with the parties, having recently presided over their divorce trial, which had included 30 days of testimony. The parties submitted extensive documentation supporting their competing ownership claims, and the court stated that its decision was based upon careful consideration of these submissions. Upon our review, we find no abuse of discretion in the determination that no hearing was required (compare Howe v Howe, 132 A.D.3d at 1090-1091). In view of our resolution of these issues, we need not address the wife's contentions related to counsel fees for the contempt application.

         The wife next contends that Supreme Court erred in denying her application for an order of protection based on family offenses allegedly committed by the husband [1]. Supreme Court is authorized by Domestic Relations Law §§ 240 and 252 to issue an order of protection in a pending divorce action, but the divorce action was no longer pending at the time of the wife's application. However, an order of protection pursuant to Family Ct Act article 8 remained as a potential remedy (see Xiaokang Xu v Xiaoling Shirley He, 147 A.D.3d 1223, 1227 [2017]). That article limits the duration of an order of protection to two years in the absence of a violation of a prior order of protection or a finding of aggravated circumstances (see Family Ct Act § 842; Matter of Jodi S. v Jason T., 85 A.D.3d 1239, 1241-1242 [2011]). Here, there was no prior order of protection, and the record contains no claims or circumstances that might bring the matter within the purview of Family Ct Act § 827 (a) (vii). Accordingly, any protective order granted in response to the wife's 2014 application would have expired before the appeal reached this Court. The rights of the parties will not now be directly affected by our determination, nor did denial of the wife's application result in any "significant enduring consequences" that could be ameliorated by an appellate decision (Matter of Veronica P. v Radcliff A., 24 N.Y.3d 668, 671 [2015]; see Matter of Powell v Mount St. Mary Coll., 142 A.D.3d 1082, 1083 [2016]; compare Matter of Bickwid v Deutsch, 87 N.Y.2d 862, 863-864 [1995]). Accordingly, we find that the wife's challenge on this issue is moot (see Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714 [1980]; Matter of King v Jackson, 52 A.D.3d 974, 975 [2008]).

         Turning to the January 2015 order, the wife contends that Supreme Court (Bruening, J.) erred in refusing to issue a money judgment in her favor based upon the husband's failure to make several equitable distribution payments. The findings of fact and conclusions of law required the husband to pay the wife a sum for equitable distribution related to the Carriage Hill property by a specified deadline, and to pay other sums for expert fees and two installment payments for counsel fees on the dates of any sales or transfers of his separate property or by specified deadlines. In her enforcement application, the wife asserted that the husband had belatedly paid only part of the Carriage Hill obligation and had made no payments for expert or counsel fees after selling a parcel of separate property in June 2014. In September 2014, while the motion was pending, the husband sold a second parcel of separate property and paid the remainder of the Carriage Hill obligation, the expert fee obligation, and the first counsel fee installment payment. The court thereafter denied the application, finding that the husband had paid all monies that were due.

         The wife's request for a money judgment should have been granted. Domestic Relations Law § 244 provides that, upon a party's failure to make any payment for an obligation under a judgment of divorce other than child support, "the court shall make an order directing the entry of judgment for the amount of arrears... unless the defaulting party shows good cause for failure to make application for relief... prior to the accrual of such arrears" (emphasis added). This provision was intended to shift the burden of seeking relief to the defaulting spouse and to limit a court's discretion in determining whether to grant judgments for arrears (see Dox v Tynon, 90 N.Y.2d 166, 171-173 [1997]; Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law ยง 244 at 54-55). The husband offered various explanations for his failure to make timely payments, but he neither applied for relief prior to his default nor stated any reason for his failure to do so. Supreme Court thus had no discretion to deny the wife's request ...

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