DECISION AND ORDER A hearing has been held in this post-judgment matrimonial proceeding on the defendant ex-wife’s motion to hold the plaintiff ex-husband in contempt for his failure to comply with the Order of this Court dated April 13, 2018, which awarded her counsel fees in the amount of $193,549.00 payable by the ex-husband within 30 days of the date of that Order. The plaintiff ex-husband opposes the motion for contempt, arguing that he is unable to pay the counsel fee award. The Judgment of Divorce was filed and entered on March 13, 2018. This Court held a hearing on the ex-wife’s motion on September 14, 2018, and the parties have submitted post-hearing briefs and Reply briefs1.The critical determination required to be made in this case is a legal issue rather than a factual one. The factual circumstances presented are unusual. The ex-husband has raised the defense that is he is unable to pay the court-ordered counsel fees out of his income and assets. There is no dispute that his brother has paid nearly all counsel fees, (including disbursements) totaling $1,018,895.00 from the inception of the case (June 8, 2012) through August 31, 2018 (Tr. 25). This amount does not include fees paid to retain the separate counsel he chose for the contempt hearing, and any fees incurred after September 1, 2018, to date. However, it does include legal fees incurred after the entry of the Judgment of Divorce and some $114,86.09 paid after the date of entry of the April 13, 2018, Order requiring him to pay the respondent’s counsel fees. Since the entry of the Judgment of Divorce, the plaintiff has filed an appeal of the Judgment, an appeal of the fee award to the ex-wife, and applied for stays of the proceedings pending before this Court, with all counsel fees paid by his brother. The plaintiff, as of the date of the contempt hearing, was current on his obligations with respect to his counsel fees.In addition, the plaintiff has paid $10,000 to the Attorneys for the Children on the appeal he filed, although the Orders directing payment of their fees were dated well after the counsel fee award to the wife was due.The Hearing — Claim of Inability to Pay Based Upon Income and AssetsWith respect to the outstanding amount of the court-ordered fee award to the ex-wife of $193,549.00, the parties agree that the ex-husband made 5 payments of $1,450 each and presented a check on the day of the contempt hearing in the amount of $30,000, which he obtained from cashing out a 401k. The current balance due and owing is $156,299.00.At the hearing, the credible evidence indicated that the plaintiff is employed as a production director at an advertising agency, with an annual income of $235,211.07 as per his 2017 W-2 form (admitted in evidence as Petitioner’s Exh. 1). Although he asserts that the defendant mischaracterized this amount in the post-trial brief, his 2017 W-2 form indicating that this was the amount he was actually paid is in evidence. His paystub from 2018 (see Respondent’s Exh. A) indicates a bonus was received in that year as well. According to his testimony, he has a net income of approximately $10,000 per month, and pays total monthly expenses of $10,418, including his own expenses, child support and add-on expenses. He testified this leaves him with a deficit of approximately $1,000 per month2.In addition, the plaintiff testified that he has no other savings accounts or assets, apart from the 401k account he recently cashed out for the maximum amount of $30,000, a check for which he brought to the contempt hearing. He has been making payments towards the counsel fee award of $1,450 per month, which he contends is the amount that would be obtainable through a garnishment of his wages if the ex-wife had filed an income execution instead.The defendant points out in her post-hearing brief, that although the plaintiff testified at the hearing that he has an annual income of $200,000, this did not include his yearly bonus amount of approximately $40,000 as reflected on his W-2 forms, admitted in evidence. The parties each claim a differing net income following the inclusion of the ex-husband’s bonus as a part of his total income ($137,437.68 net as claimed by the plaintiff compared with $160,335.00 net as claimed by the defendant). In either case, there would not be sufficient additional income by which the balance on the outstanding counsel fee award of $156,299 could be fully, or even substantially, satisfied. It is thus established by the hearing testimony that the ex-husband does not have a present ability to pay the balance of the fee award of $156,299 out of his earned income and assets.The Court notes that contrary to the ex-husband’s argument that the ex-wife failed to exhaust other remedies before seeking to hold him in contempt, Domestic Relations Law §245 was amended, effective September 29, 2016, to remove the exhaustion requirement (L. 2016, ch. 365, §1). The Legislature directed the amendment to “take effect immediately,” and apply “to all actions whenever commenced as well as all judgements or orders previously entered” (id. §2). Accordingly, the ex-wife’s failure to show that she exhausted other enforcement remedies, such as income execution, before seeking to hold the ex-husband in contempt does not bar her from obtaining that relief (Cassarino v. Cassarino, 149 AD3d 689, 691 (2d Dept. 2017); see also Avraham v. Avraham, 155 AD3d 931 (2d Dept 2017)).Fees paid by the Brother on Behalf of the PlaintiffThe issue, as the Court sees it, is whether the substantial monies still being paid by the brother to the plaintiff’s attorneys to pay for the plaintiff’s counsel fees, may be attributed to him and considered towards his ability to pay the respondent’s counsel fees. This is not a matter of holding the plaintiff’s brother in contempt. He is not a party to this proceeding and has no legal duty to pay the wife’s counsel fees (see Gottlieb v. Gottlieb, 137 AD3d 614 (1st Dept 2016)).The plaintiff has characterized the monies paid on his behalf by his brother as “loans.” Notably, there is no evidence of indebtedness, i.e., a promissory note, and no apparent ability based on the plaintiff’s testimony regarding his current income, to ever pay it back. The plaintiff testified that he cannot obtain any further “loans” from his brother to pay the defendant respondent’s counsel fees. It would seem, however, there is a steady stream of money to assist the plaintiff in prosecuting the appeal and making applications to this Court and the Appellate Division.Discussion and FindingsThe factual circumstances present in this case are notably unusual. It is not typical to have a family member with no financial or direct personal interest in the outcome of the litigation, to advance well over one million dollars towards fees paid to another person’s attorneys.In this Court’s view, it would be an entirely inequitable result to permit the ex-husband in this matrimonial proceeding to avoid his court-ordered obligation to pay the ex-wife’s counsel fees, but to continue to take money from a family member to pay his own counsel fees. Whether the arrangement is characterized as a loan or as a gift, the effect is the same. He gains an unfair advantage by outspending and out-litigating her, to the point where she has no ability to pay for counsel. His legal fees have been five times greater than hers in this case. The pattern seems clear here; there is unlimited money to be advanced on behalf of the plaintiff’s case except when it comes to leveling the playing field and satisfying the plaintiff’s obligation to pay his ex-wife’s attorney’s fees. The line is drawn right there.Domestic Relations Law §237(a) provides that a court in a divorce action may award counsel fees to a spouse “to enable that spouse to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and the respective parties” (DRL §237(a)). The purpose of Domestic Relations Law §237(a) is to “redress the economic disparity between the monied spouse and the non-monied spouse” (O’Shea v. O’Shea, 93 NY2d 187, 190 (1999); see also Cohen v. Cohen, 73 AD3d 832 (2d Dept 2010)).“Recognizing that the financial strength of matrimonial litigants is often unequal — working most typically against the wife — the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for legal expenses of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet” (Prichep v. Prichep, 52 AD3d 61; 64 (2d Dept 2008) citing O’Shea v. O’Shea, supra at 190; see also DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881 (1987)).The direction contained in Domestic Relations Law 237 (a) that the court must consider the relative financial circumstances of both parties is intended not only to permit determination of one side’s need and the other’s ability to pay; it is also to ensure that a spouse with substantially greater financial resources cannot use those resources against the less powerful spouse to obtain the outcome he desires (Charpie v. Charpie, 271 AD2d 169, 171-72 (1st Dept 2000)).Unfortunately for the ex-wife in this case, the ex-husband has used his substantially greater financial resources in an attempt to gain the outcome he desires in the litigation by taking “loans” from a family member to his own benefit, which he then asserts cannot be used to pay court-ordered counsel fees for the ex-wife. If the plaintiff cannot afford to fully discharge his court-ordered responsibilities to pay the ex-wife’s attorneys fees, either by his own income or from his “loans,” perhaps he cannot truly afford to further litigate. Under the circumstances of this case, the Court finds that the funds taken as “loans” from the ex-husband’s family members to pay his counsel fees must be imputed to him for purposes of his court-ordered obligation towards payment of the ex-wife’s counsel fees (see Yaroshenko v. Kats, 7 AD3d 806 (2d Dept 2004) [loans the father received from his mother were properly imputed as income]; Ambrose v. Felice, 45 AD3d 581, 583 (2d Dept 2007) [imputation of income to mother warranted where her father covered significant expenses]; see also Karas-Abraham v. Abraham, 69 AD3d 428 (1st Dept 2010) [imputed income warranted where husband took undocumented loans and hid income through family businesses]).“To find a party in civil contempt of court pursuant to Judiciary Law §753, the applicant must demonstrate, 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” (Savas v. Bruen, 154 AD3d 859, 860 (2d Dept 2017), citing Matter of McNelis v. Carrington, 116 AD3d 858, 859; see Judiciary Law §753[A][3]; El-Dehdan v. El-Dedhan, 26 NY3d 19, 29 (2015)). “Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order” (Lundgren v. Lundgren, 127 AD3d 938, 940-941 (2d Dept 2015); El-Dehdan v. El-Dedhan, supra, 26 NY3d at 35-36).The Court finds that under the circumstances present here, the ex-husband clearly disobeyed a lawful order of this Court dated April 13, 2018, of which he was fully aware as it was served upon him with notice of entry, which awarded the ex-wife counsel fees in the amount of $193,549.00, payable within 30 days of the date of that Order. Of that amount, $156,299 remains unpaid to date. Further, the Court finds that the ex-wife was thereby prejudiced by the offending conduct, since the defendant’s disobedience of the Order actually did defeat, impair, impede, or prejudice her rights and remedies, as it left her without counsel fees (see Savas v. Bruen, 154 AD3d 859, 860 (2d Dept 2017); see also Freihofner v. Freihofner, 39 AD3d 465 (2d Dept 2007)). The failure to pay leaves the ex-wife deeply in debt and likely unable financially to defend the appeal he has filed. The Court now finds, for the reasons stated above, that plaintiff R.L. has failed to comply with this Court’s prior Decision and Order dated April 13, 2018, and finds him in civil contempt (Galanos v. Galanos, 46 AD3d 507 (2d Dept 2007)).Therefore, it is herebyORDERED, that plaintiff’s disobedience actually did defeat, impair, impede, or prejudice the rights and remedies of defendant L.T.; and it is furtherORDERED that sequestration, posting of a bond and/or entry of a judgment would not lie or would be ineffectual; and it is furtherORDERED, that plaintiff R.L. by reason of his misconduct and disobedience and neglect and refusal to comply with said order be and hereby is committed and directed to be imprisoned in the common or county jail of the County of Westchester in which he shall be found there to remain charged with contempt for thirty (30) days, as may be extended, or until he shall have paid the outstanding arrears in the amount of $156,299.00; and it is furtherORDERED, that plaintiff R.L. may purge of said contempt by paying the outstanding arrears in the amount of $156,299.00 to the ex-wife in satisfaction of unsatisfied amounts due pursuant to this Court’s Order of April 13, 2018. The execution of the order of commitment will be stayed for 10 days, to allow him to purge the contempt.Conduct of Plaintiff’s CounselLastly, the Court will address what can only be described as improper behavior by the counsel for the plaintiff on this motion, Deveraux Cannick, Esq.. Counsel leveled an accusation at this Court, that a campaign donation to the Court’s re-election campaign made by the counsel for the defendant influenced the Court to rule against his client. This language, set forth in a footnote in his Reply brief, as reprinted below3, is tantamount to an accusation of bribery by the Court, is contemptuous and is in fact utterly baseless. Counsel is referred to the Professional Disciplinary Rules, Rule 3.3. This language, espoused by Mr. Cannick, is eerily similar to language used by Mr. L.’s matrimonial attorneys, who have alleged at various times, that this Court is biased and cannot be impartial.This Court firmly believes that this tactic is being undertaken solely as a litigation strategy, to gain some perceived advantage, whether that be before this Court or on appeal, or in a misguided attempt to intimidate this Court. The Court refuses to be influenced by such blatantly inappropriate assertions, and would caution counsel against engaging in such undignified conduct in the future.The plaintiff is directed to appear in court on December 14, 2018 at 9:30 am..This constitutes the Decision and Order of this Court.Dated: November 30, 2018White Plains, New York
