Upon the following papers read on the motions, to wit: 1. Plaintiff’s Order to Show Cause and Supporting Papers (Mtn. No. 12); 2. Plaintiff’s Attorney Affirmation in Support of Order to Show Cause (Mtn. No. 12); 3. Plaintiff’s Affidavit in Support of Order to Show Cause (Mtn. No. 12); 4. Defendant’s Notice of Cross-Motion and Supporting Papers (Mtn. No. 13); 5. Defendant’s Affidavit in Support of Cross-Motion (Mtn. No. 13); 6. Defendant’s Attorney Affirmation in Support of Cross-Motion (Mtn. No. 13); 7. Plaintiff’s Affidavit in Further Support of OTSC and in Opposition to Cross-Motion (Mtn. Nos. 12 and 13); 8. Plaintiff’s Attorney Affirmation in Further Support of OTSC and in Opposition to Cross-Motion (Mtn. Nos. 12 and 13); and 9. Defendant’s Attorney Affirmation in Opposition and in Support of Cross-Motion (Motion. No. 13)1. DECISION & ORDER BRIEF BACKGROUND The parties were married on April 19, 2003. This consolidated action involves a matrimonial action commenced through the filing of a Summons with Notice on August 22, 2011 and a plenary action filed in 2012 to set aside a prenuptial agreement purportedly executed on two different dates: March 17, 2003, and as an antenuptial on April 12, 2004. The parties have been involved in extensive litigation in this matter, including appellate review of numerous applications. The most recent Appellate Order associated with this case was issued on January 27, 2021 [DE 24]. A Note of Issue was filed on the Matrimonial action on August 14, 2012 prior to the consolidation of the two matters on March 3, 2016. The March 3, 2016 Consolidation Order granted the application for consolidation to the extent that the validity and enforceability of the agreement is now a question that this Court must determine [DE 21]. A Note of Issue was filed by Plaintiff on the plenary action on February 23, 2021. As a result of further motion practice, this Court vacated the Note of Issue through Order dated August 5, 2021 and issued directives related to continued discovery in this case. In addition, this Court referred Defendant’s application to terminate child support to a hearing which was held on March 22, 2022 and March 29, 2022. Currently before the Court is Plaintiff’s application for a contempt finding against Defendant and for counsel fees and Defendant’s Cross-motion seeking dismissal/denial of Plaintiff’s motion and sanctions. CONTEMPT Branch A of Plaintiff’s motion seeks an Order from this Court finding Defendant in contempt of the Hon. William J. Kent’s Order dated December 22, 2011, directing the DEFENDANT to pay an interim child support award of $350.00 per week and modifying same, nunc pro tunc. Branch B of Plaintiff’s motion seeks an Order from this Court finding Defendant in contempt of the Hon. William J. Kent’s Order dated December 22, 2011, directing the DEFENDANT to maintain health, medical, dental insurance for the benefit of the Plaintiff, and to pay 100 percent of all of the unreimbursed medical expenses. Branch E of Plaintiff’s motion seeks an Order from this Court imposing any penalty authorized under the Judiciary Law 753(a), 756, Judiciary Law DRL 245, DRL 237(a), and the inherent powers of the Court that the Court deems appropriate. Branch F of Plaintiff’s motion seeks an Order from this Court directing that any payment awarded to Plaintiff be made in a lump sum, no later than 20 days from service of a copy of an order directing same upon Defendant. This Court is empowered, pursuant to Judiciary Law §753 to: “A.…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 whereby law execution cannot be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court.” The Court in El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 19 N.Y.S.3d 475 (2015) defined the elements necessary to find a party in civil contempt. There, the court concluded, for a party to prevail on a motion to hold the other party in civil contempt, a party is required to prove by clear and convincing evidence “[1]…that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect…[(2)] [i]t must appear, with reasonable certainty, that the order has been disobeyed…[3]…the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party…[and 4]…prejudice to the right of a party to the litigation must be demonstrated…Id. at 29 (internal citations omitted). Deliberate or willful conduct is not required for civil contempt, but the disobedience must defeat, impair, impede or prejudice the rights or remedies of the aggrieved party. See Gomes v. Gomes, 106 A.D.3d 868, 965 N.Y.S.2d 187 (2d Dept. 2013). Once the moving party establishes the requisite elements of contempt by clear and convincing evidence, the burden shifts to the opposing party to refute the movant’s showing, or to offer competent and credible evidence of a defense, such as an inability to comply with the order or judgment, El-Dehdan v. El-Dehdan, supra; see Yeager v. Yeager, 38 AD3d 534, 831 NYS2d 496 (2d Dept 2007). A hearing is only required if there is a factual dispute as to the elements of civil contempt and/or the existence of a defense. See e.g. Shemtov v. Shemtov, 153 A.D.3d 1295, 61 N.Y.S.3d 278, (2d Dept. 2017). A court of record has the power to punish a party for a criminal contempt, when such party is guilty of (1) disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority, (2) breach of the peace, noise, or other disturbance, directly tending to interrupt its proceedings, or (3) wilful disobedience to its lawful mandate (Judiciary Law §750 (A)); see El-Dehdan v. El-Dehdan, 114 AD3d 4, 978 NYS2d 239 (2d Dept Dec. 18, 2013). Unlike adjudging a party to be in civil contempt, the term “wilful” in the criminal contempt statute, is best defined as “intentional” (see El-Dehdan v. El-Dehdan, supra). A. Child Support The Order of Justice Kent dated December 22, 2011, directed that Defendant Husband pay Plaintiff Wife $350.00 per week for the support of child Vittorio Vincenzo Michelangelo Lombardi (hereinafter referred to as “Vittorio Vincenzo”). More specifically, the Order states the following: The plaintiff is awarded and the defendant is directed to pay the amount of $350.00 per week as and for temporary child support. Said payments shall be sent by the defendant to the plaintiff at her current residence or such other place she may designate in writing. In addition, any retroactive temporary child s apport arrears accrued hereunder shall be paid by the defendant in the amount of $50.00 per week until said arrears are paid in full. In support of her application, Plaintiff Wife contends that Defendant Husband announced that she was no longer entitled to child support due to Vittorio Vincenzo’s change of residence and, subsequently, unilaterally terminated his court-ordered obligation of child support as of August or September of 2021. She argues that, as a result of the loss of support, she was forced to apply for food stamps. Defendant Husband argues that he continued to pay child support even after it became clear that Vittorio Vincenzo no longer resided with Plaintiff, was not planning to return to Plaintiff and even after he filed his April 2021 application seeking termination of child support. Defendant Husband asserts that he “put money aside to cover child support in the event this court determines that [he is] responsible to pay it…”. He claims that it was never his intent to disobey any orders of the Court and in no manner has shirked his lawful obligation to provide for him. He further asserts that he continues to provide for all of Vittorio Vincenzo’s needs, including restaurant business training, vehicle, car insurance/repairs, food, housing, etc. He asserts that his failure to pay child support for an adult who was not living with him and working full time was not intended to violate a court order and did not defeat, impair or prejudice the rights and remedies of Plaintiff in any way. In support of Defendant’s cross-application to dismiss, he argues that their child Vittorio has resided in an apartment in the former marital residence since late 2020. Defendant asserts that, “to [his] knowledge, Vittorio has never slept a night at his mother’s home since he moved into the apartment he and [Defendant] caused to be refurbished for his use in [Defendant's] home…which [Defendant notes] is a legal two bedroom apartment which would easily command $2,200.00 to $2,500.00 per month.” Defendant cites to Plaintiff’s testimony in court on March 22, 2022, asserting that Plaintiff admitted that the last time Vittorio slept at her home was “two or three weeks ago” when he was feeling ill and “slept on the couch” and could not cite other occasions that son slept over other than for dinner or cooking together on certain evenings and/or holidays. Defendant further asserts that Vittorio is employed at his restaurant, Lombardi’s and starting in July of 2020, he started to come to work on a more regular basis culminating in full time training and employment at Lombardi’s. Here, there is a clear, unequivocal Order of the Court directing Defendant Husband to pay monthly child support in the amount of $350.00 per week to Plaintiff Wife. There is no dispute that Defendant had knowledge of the Order based on his prior compliance with the Order as well as admissions made in his Affidavit and at the Hearing. However, Defendant’s unilateral determination to cease making direct payments to Plaintiff and purportedly set aside the payments was not authorized by the Court. Not only has Defendant failed to provide the Court with any documentation to support the contention that he actually set the Court-ordered support obligation aside, he has failed to provide the Court with authority to support his unilateral determination to disobey Justice Kent’s December 2011 Order. Further, this Court finds that Defendant has provided no viable excuse or justification for this failure to comply with the December 2011 Order. In fact, Defendant essentially admits that he withheld child support payments in an effort to circumvent the longstanding public policy against reimbursement of overpayment of child support. The Court notes that rather than seek this relief from the Court in the form of a TRO or as an item for relief in his motion, Defendant made application to terminate child support in the form of a Notice of Motion with no application to place the money in escrow or to set the money aside. As such, any setting aside of the funds or placing the money in escrow, absent Court Order, is an inappropriate self-help tactic. Given that the Defendant failed to seek appropriate relief by application to the court, and instead purportedly resorted to self-help, this Court finds that Defendant’s actions were calculated to defeat, impair, impede, or prejudice the rights or remedies of Plaintiff, who claims that she continues to receive limited income, continues to provide towards Vittorio’s needs and was forced to apply for food stamps. As such, this Court finds that Defendant knowingly and intentionally disobeyed the December 2011 Order by failing to pay child support directly to Plaintiff from September 2021 to date. Therefore, this Court finds Defendant to be in contempt of Court. As this Court, under separate decision and order of today’s date, has terminated Defendant’s obligation to provide child support as of March 2021, this Court finds that Plaintiff’s damages are limited to her costs and expenses associated with the filing of this contempt application. The Court has reviewed the billing statements proffered by Plaintiff’s Counsel and, despite Counsel’s failure to specifically delineate which costs were attributed to this contempt motion, the Court has deduced that Plaintiff has incurred $3,690.00 associated with this contempt motion. Defendant is directed to pay to Plaintiff $3,690.00 for costs and expenses associated with this contempt motion along with a $250.00 fine for his contumacious behavior. Same shall be paid to Plaintiff within thirty (30) days of the date of this Order. B. Health Insurance As it relates to health insurance, Justice Kent’s December 22, 2011 Order states, in relevant part, that: The defendant shall continue to keep in full force and effect the health, medical and dental insurance he presently maintains covering the plaintiff and the subject child of the marriage. Further, the defendant shall pay 100 percent of the reasonable and necessary uncovered and/or unreimbursed medical, dental and pharmaceutical expenses incurred on behalf of the plaintiff and child of the marriage, provided that she utilizes only network providers in all instances, other than those which require emergency treatment. In the event, she fails to obtain medical or dental care for herself or the subject child from a network provider, in other than an emergency situation, she shall be solely responsible for the payment of same. In support of her application, Plaintiff Wife asserts that Defendant terminated her health care coverage and has not paid for her unreimbursed medical expenses, violating the Automatic Orders and forcing her to apply for Medicaid assistance. Defendant argues that he faithfully maintained medical insurance for Plaintiff through the “Oscar Agency” until he turned 65 years of age and had to apply for Medicare coverage. He asserts that after communicating this Plaintiff, he agreed to pay for Plaintiff’s coverage at four hundred dollars ($400.00) per month. He contends that the payments came off of his American Express until April 2021, when Plaintiff informed him that she has another source of insurance and that through a New York State plan. Defendant submitted copies of his American Express statements to support his position. Here, there is a clear, unequivocal Order of the Court directing Defendant to maintain health insurance for the benefit of Plaintiff and their child Vittorio Vincenzo. There is no dispute that Defendant had knowledge of the Order based on his admissions in his Affidavit and at the Hearing. However, Defendant argues that Plaintiff requested that the health insurance be cancelled due to her qualifying for Medicaid. Defendant provided no evidence, other than his own testimony, that Plaintiff requested a cancellation of the policy. It appears that Defendant sought information regarding same through a Subpoena, which was returnable as of May 6, 2022, prior to the full submission of this motion and well before Defendant’s submission of Reply papers on his Cross-motion on July 6, 2022. However, nothing was filed with the Court regarding any documents received through subpoenas. This Court finds that Defendant has failed to rebut Plaintiff’s prima facie case that Defendant has failed to maintain health insurance for Plaintiff and child. Absent any evidence that the parties essentially agreed to terminate the insurance, Defendant is still bound by the December 22, 2011 Order of this Court. As such, this Court finds Defendant to be in contempt. Accordingly, Defendant is directed to maintain and/or reinstate health insurance coverage (comparable to the plan that Defendant provided during the marriage) for Plaintiff and their child Vittorio Vincenzo within thirty (30) days of the date of this Order and shall provide Plaintiff with proof of coverage within that time period. Plaintiff Wife provided the Court with medical bills that remain outstanding. However, Plaintiff fails to indicate whether Defendant received notice of these bills. Defendant Husband denies receiving any notice. As such, this Court finds that Plaintiff failed to meet her burden of showing that Defendant was aware of the unreimbursed medical expenses, and therefore, no contempt can be found related to the unreimbursed expenses. This Court, however, directs Plaintiff to immediately provide Defendant with a copy of all uncovered and/or unreimbursed medical, dental and pharmaceutical outstanding expenses incurred on behalf of the plaintiff and child of the marriage. Defendant is to pay 100 percent of the reasonable and necessary uncovered and/or unreimbursed medical, dental and pharmaceutical expenses incurred on behalf of the plaintiff and child of the marriage, within thirty (30) days of the receipt of the outstanding expenses from Plaintiff. Further, Defendant shall pay for any future unreimbursed medical expenses within thirty (30) days of Defendant receiving notice of these bills by Plaintiff. As such, Plaintiff’s application for contempt for Defendant’s failure to provide health insurance coverage is DENIED. SANCTIONS/ATTORNEY FEES Branches C and D of Plaintiff’s application seek an Order awarding Plaintiff interim attorneys’ fees in the amount of $250,000.00 to enable her to prosecute this matter fairly, pursuant to DRL 237 (a) and awarding Plaintiff interim attorneys’ fees for having to bring this application and to defend against an upcoming hearing on the issues of child support. As it relates to Plaintiff’s application for counsel fees associated with the contempt action, that application was granted, supra, to the extent that Defendant is directed to pay Plaintiff’s Counsel the amount of $3,690.00 for costs and expenses associated with this contempt motion along with a $250.00 fine for his contumacious behavior. As it relates to Plaintiff’s application for attorney fees under DRL 237 (a), this Court has reviewed the financial circumstances of the parties. Notwithstanding Defendant’s contention that Plaintiff’s application is procedurally defective, this Court finds that after a review of the attached Net Worth Statement of Plaintiff and all other papers submitted to this Court, Plaintiff is clearly the non-monied spouse. Domestic Relations Law §237 (a) states in pertinent part: “In any action or proceeding brought…for a divorce…the court may direct either spouse…to pay counsel fees…directly to the attorney of the other spouse to enable the other party 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 of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse…Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses.” It is well settled that an award of interim counsel fees is within the sound discretion of the court. The issue of counsel fees is also controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 A.D.3d 605, 949 N.Y.S.2d 741 (2d Dept. 2012). Additionally, an award of interim counsel fees is warranted where there is a significant disparity in the financial circumstances of the parties. See Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 (2d Dept. 2008). However, with requests for “an interim award of counsel fees, as opposed to a final award, no such detailed inquiry is warranted.” Id. at 64-66. Interim fees will ensure that the non-monied spouse will be able to litigate on equal footing with the monied spouse “from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation.” Id. As such, Plaintiff’s application for interim attorney fees is GRANTED to the extent that Plaintiff is awarded an interim counsel fee in the sum of $10,000.00, payable within forty-five (45) days of the date of this order, with leave to apply to the trial court for additional sums if warranted. See DRL §237; Prichep v. Prichep, supra. In rendering this determination, the Court has considered the financial positions of the parties, the parties’ income, assets and liabilities as delineated in the Statements of Net Worth as well as Plaintiff’s Billing Statements and the nature of services rendered by Plaintiff’s Counsel. The Court notes that a prior award of interim attorney fees was awarded by Justice Kent as a part of the December 22, 2011 Decision and that the recent motion practice and hearing conducted regarding child support was heard as a part of the matrimonial portion of this action. Defendant also seeks sanctions and attorney fees against Plaintiff for alleging Plaintiff’s application is frivolous in nature. Defendant’s application for sanctions and attorney fees is DENIED. Accordingly, it is hereby ORDERED that Plaintiff’s contempt motion is GRANTED and Defendant, VITTORIO LOMBARDI, is found to be in contempt of Court for his violation of this Court’s December 22, 2011 Pendente Lite Decision and Order; and it is further ORDERED that Defendant is directed to pay to Plaintiff $3,690.00 for costs and expenses associated with bringing this contempt motion, along with a $250.00 fine for his contumacious behavior. Same shall be paid to Plaintiff within thirty (30) days of the date of this Order; and it is further ORDERED that upon failure of Defendant to pay Plaintiff the amount of the sum of $3,940.00 within thirty (30) days of the date of this Order, and upon serving a certified copy of this Decision and Order pursuant to C.P.L.R. 8019(c) on the Suffolk County Clerk along with the filing of an Affirmation of non-compliance, the Clerk of the County of Suffolk is hereby directed to enter and docket a money judgment with statutory interest thereon as of the date of this Order in favor of Plaintiff MARY BETH LOMBARDI and against Defendant, VITTORIO LOMBARDI, which shall have execution therefor without further proceedings; and it is further ORDERED that upon failure of Defendant to pay Plaintiff the amount of the sum of $3,940.00 within thirty (30) days of the date of this Order, Defendant is directed to appear before this Court for sentencing on December 9, 2022 at 2:15 p.m.; and it is further ORDERED that Defendant is directed to maintain and/or reinstate health insurance coverage (comparable to the plan that Defendant provided during the marriage) for Plaintiff and their child Vittorio within thirty (30) days of the date of this Order and shall provide Plaintiff with proof of coverage within that time period; and it is further ORDERED that Defendant is directed to pay for any future unreimbursed medical expenses within thirty (30) days of Defendant receiving notice of these bills from Plaintiff; and it is further ORDERED that Defendant is to pay Plaintiff’s Counsel interim counsel fees in the sum of $10,000.00, payable within forty-five (45) days of the date of this order; and it is further ORDERED that all relief requested not specifically addressed herein is DENIED. The foregoing constitutes the Decision and Order of this Court. Dated: September 30, 2022
