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Spencer v. Spencer

Supreme Court of New York, Second Department

February 28, 2018

Sharon Marie Spencer, respondent,
v.
Dwayne Spencer, appellant. Index No. 50663/12

          Argued - November 3, 2017

         D54605 M/hu

         APPEAL by the defendant, in an action for divorce and ancillary relief, as limited by his brief, from so much of an order of the Supreme Court (Catherine M. DiDomenico, J.), dated November 18, 2016, and entered in Richmond County, as, after a hearing, granted that branch of the plaintiffs motion which was to hold him in civil contempt for his violation of certain orders that had been issued during the pendency of the action and directed his incarceration unless he paid a purge amount of $150, 000 by December 16, 2016. By decision and order on motion dated February 2, 2017, this Court stayed enforcement of so much of the order as directed the defendant's incarceration unless he paid the purge amount by December 16, 2016, pending hearing and determination of the appeal.

          Jay S. Baum, Staten Island, NY, for appellant.

          Agulnick & Gogel, LLC, Great Neck, NY (William A. Gogel of counsel), for respondent.

          WILLIAM F. MASTRO, J.P. L. PRISCILLA HALL SANDRA L. SGROI COLLEEN D. DUFFY, JJ.

          OPINION & ORDER

          DUFFY, J.

         This case presents two issues of first impression in the area of matrimonial law not previously addressed by an appellate court in New York. The first issue is whether the provisions of Domestic Relations Law § 236(B)(2)(b) and Uniform Rules for Trial Courts (22 NYCRR) § 202.16-a, in tandem (hereinafter together the automatic orders), constitute unequivocal mandates of the court for the purposes of holding a party in civil contempt pursuant to Judiciary Law § 753. If so, then the next issue is whether such civil contempt is an available remedy for a violation of the automatic orders when that civil contempt is sought after entry of a judgment of divorce. For the reasons set forth below, we answer the first issue in the affirmative and the second in the negative. Specifically, we find that the automatic orders constitute unequivocal mandates of the court, but civil contempt is not an available remedy for violation of the automatic orders when civil contempt is sought after entry of a judgment of divorce.

         Sharon Marie Spencer (hereinafter the plaintiff) commenced this matrimonial action in the Supreme Court, Richmond County, against her husband, Dwayne Spencer (hereinafter the defendant), on July 18, 2012. An 18-day trial was held, and thereafter, on November 30, 2015, a judgment of divorce was entered.

         After the judgment of divorce had been entered, the plaintiff learned that, while the trial was pending, unbeknownst to her, the defendant sold a warehouse in Brooklyn, which was a marital asset (hereinafter the Property), without her consent and without the consent of the Supreme Court during the pendency of the action.

         At the time the defendant sold the Property, both Domestic Relations Law § 236(B)(2)(b) and 22 NYCRR 202.16-a were in full force and effect. As is relevant to this appeal, each provision, with language that virtually mirrors the other, precludes either of the parties in a matrimonial action from transferring or in any way disposing of marital assets such as the Property without the written consent of the other party or order of the court, except under certain circumstances not applicable to this case (see Domestic Relations Law § 236[B][2][b]; 22 NYCRR 202.16-a). The automatic 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]).

         Although the judgment of divorce had already been entered, as a result of the plaintiffs discovery of the defendant's earlier sale of the Property, on July 29, 2016, the plaintiff filed an order to show cause seeking, inter alia, pursuant to Judiciary Law § 753, a finding of civil contempt against the defendant. The Supreme Court then held a hearing on the plaintiffs order to show cause, during which the defendant admitted that he sold the Property for $1.6 million during the pendency of the divorce trial. The defendant asserted that, after paying the mortgage and other encumbrances on the Property, he received proceeds from the sale in the amount of $300, 000, which he spent paying debts that he owed.

         In an order dated November 18, 2016, the Supreme Court, inter alia, granted that branch of the plaintiffs motion which was to hold the defendant in civil contempt, finding the defendant's sale of the Property in violation of the automatic orders and his expenditure of the proceeds for his own benefit defeated, impaired, impeded, or prejudiced the rights of the plaintiff. The court directed that, unless the defendant purged the contempt by paying $ 150, 000 to the plaintiff on or before December 16, 2016, the defendant would be incarcerated every weekend for a period of six months. The defendant appeals from so much of the order as held him in civil contempt and directed him to be incarcerated if the purge amount was not timely paid. In a decision and order on motion dated February 2, 2017, this Court stayed enforcement of so much of the order as directed his incarceration if the purge amount was not timely paid.

         I. The Law ...


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