Recitation, as required by CPLR §2219(a), of the papers considered in the review of plaintiff’s motion, brought by order to show cause dated October 12, 2022, for an order adjudicated defendant in civil contempt of court, is as follows: Papers Numbered Order to Show Cause, Affidavits & Exhibits Annexed E50-61 Affidavits in & Opposition and Exhibits E62-67 Affidavits in Reply & Exhibits E68-77 FINAL ORDER JUDICIARY LAW §770 Upon the foregoing papers, after virtual conferences and upon due consideration, plaintiff’s motion, brought by order to show cause dated October 12, 2022, is decided as follows: Plaintiff Svetlana Katanova moves for an Order granting the following relief: (a) Pursuant to Judiciary Law §750, 753, 756 and Domestic Relations Law §245, adjudging Defendant, BORIS PINKHASOV, to be in criminal and civil contempt of Court and punishing him for said contempt for his willful and deliberate failure to comply with the provisions of this Court’s Order, dated January 27, 2022, and entered with the County Clerk on January 27, 2022, in that he has willfully failed and refused to provide child support in the amount of $1,154.00 per month; and punishing Defendant for said contempt; (b) Pursuant to Domestic Relations Law §244 granting Plaintiff a money judgment in her favor and against the Defendant in the sum of $3,262.00, representing basic child support, pursuant to the Court’s Order, dated January 27, 2022, and entered with the County Clerk on January 27, 2022; together with such additional arrears which accrue to the date of the determination of the within application; (c) Pursuant to Domestic Relations Law §244-a granting Plaintiff an amendment of the within application to include the additional arrears which accrue from the commencement of the within proceedings to the determination of said proceedings; (d) Directing that child support be paid through the Support Collections Unit; (e) Awarding Plaintiff’s attorney, GEMELLI, GROSS SHAPIRO & MARINO an award of counsel fees in the sum of $7,500.00 in connection with the prosecution of this application on behalf of the plaintiff with leave to apply for additional fees; (f) For such other and further relief as this Court may deem just and proper under the circumstances. The parties in this action were married on February 21, 2018 in a religious ceremony. There is one child of the marriage, Liora Pinkhasova, who was born on November 12, 2019. This action for a judgment of divorce and other ancillary relief was commenced on September 20, 2021 with the filing of a summons and verified complaint. On October 29, 2021, defendant answered and counterclaimed for custody of the parties’ child and thereafter, on November 3, 2021, plaintiff answered the counterclaim. The Preliminary Conference Order dated January 27, 2022 and stipulated to by the parties, provides, inter alia, (1) defendant would pay $1,154.00 per month in temporary child support to plaintiff beginning February 1, 2022; (2) The parties’ share of add-on expenses was to be 42 percent for the plaintiff and 58 percent for the defendant; (3) The parties were to exchange proof of defendant’s voluntary payments to defendant for child support to determine any amounts owed; and (4) Maintenance was reserved. According to defendant, since July 2022, the parties have equal time with their child. The child is with defendant every Tuesday from 10:00 AM to Wednesday 6:00 PM and every other Thursday from 8:00 PM to Sunday at 6:00 PM. The parties share pick ups and drop offs. According to plaintiff Svetlana Katanova, since August 2022, defendant has failed to remit to her the full amount of child support owed each month and thus has patently refused to honor the Court’s clear and unequivocal January 27, 2022 Preliminary Conference Order. Plaintiff asserts that defendant has sent her only $100.00 per month since that time. It is undisputed that plaintiff’s counsel has reached out to defendant’s counsel to resolve this issue but the amounts owed have not been paid. Plaintiff alleges that when she called defendant about the child support owed, he said “call your lawyer and find out more information.” Through October 2022, defendant owed $3,262.00 and through December 2022 he owes $4,616.00. Plaintiff states that defendant is a registered nurse employed by Jamaica Hospital and that in 2021, he earned the sum of $82,340.10. (It is noted that defendant has not filed a statement of net worth on this motion). Plaintiff avers that for each month that passes, she is prejudiced as she does not receive adequate funds in which to support the parties’ child and the child’s expenses. Plaintiff maintains that defendant’s contumacious conduct has forced her to bring this application to enforce her rights, prejudicing her and causing her to incur unnecessary counsel fees to force defendant to do what this Court has already Ordered. Plaintiff is seeking counsel fees in the amount of $7,500.00 as she has been forced by defendant’s willful non-compliance to seek the Court’s intervention to enforce the existing Order. These fees cover the application and the additional time that is anticipated to be spent reviewing defendant’s opposition, filing additional paperwork, attending Court conferences and possibly attend a hearing all to make sure defendant follows this Court’s Orders. Plaintiff states that no third party has promised to pay her legal fees for her. Additionally, plaintiff requests the right to obtain a Queens County Clerk’s Money Judgment for any portion of the fee that remains unpaid as of the due date established by the Court, with statutory interest thereon, against defendant. Defendant opposes the motion for contempt. Defendant admits he has not timely and fully paid child support and admits owing $3,162.00 in Court Ordered child support. With regard to not paying his Court ordered obligation, defendant informs that Court as follows: It has never been my intention to deprive Plaintiff of child support. In fact, I was trying to provide Plaintiff with some level of support long before there was an order in place. Defendant contends that certain actions by plaintiff caused him to incur unanticipated expenses. Defendant’s argues that his failure to complete all the scheduled child support payments was not willful or purposeful but rather, based on his inability to pay due to financial constraints. Plaintiff fails to provide evidence in admissible form of these constraints. Further, it is defendant’s position that plaintiff cannot complain that she was prejudiced by defendant’s actions when she herself hindered defendant’s ability to pay his support on time. Defendant argues that as he paid approximately $2,500.00 on the child’s behalf, for items such as clothing, a school bag, school supplies, diapers, pull ups and a toddler bed conversion. In light of these expenditures, defendant complains that he can not pay child support. The explanation provides by defendant with regard to the money spent is that the child is growing rapidly and her clothing needs to be replaced often. Also, defendant claims that as the daycare does not provide transportation, he is forced to maintain a vehicle the cost of which makes it impossible to also pay child support. Defendant states that the child’s insurance premiums have cost him $398.33 per month. A court of record has the power to punish a party for disobedience of a lawful mandate of the court clearly expressing an unequivocal mandate, which was in effect (Judiciary Law §§750[A][3]; 753[A][3]; McCormick v. Axelrod, 59 NY2d 574, 583[1983]; Madigan v. Berkeley Capital, LLC, 205 AD3d 900, 904 [2d Dept 2022]; Matter of Rubackin v. Rubackin, 62 AD3d 11, 15 [2d Dept 2009]). “‘A contempt of court ultimately may constitute a criminal contempt, a civil contempt, or both a criminal and a civil contempt”‘ (Matter of DeSiena v. DeSiena, 167 AD3d 1006, 1007 [2d Dept 2018]). Criminal contempt “involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates” (Matter of Department of Envtl Protection of City of NY v. Department of Envtl Conservation of State of NY, 70 NY2d 233, 239 [1987]; see also, Judiciary Law §750). The goal of civil contempt is to vindicate the rights of a private party to the litigation (Id; McCain v. Dinkins, 84 NY2d 216, 226 [1994]; see also, Judiciary Law §753). More serious criminal contempts are punishable by criminal sanctions pursuant to New York State Penal Law article 215. It is well settled that a motion to punish a party for civil contempt is addressed to the sound discretion of the motion court” (Matter of Slade v. Stanford, _ AD3d _ [2d Dept 2023], 2023 NY Slip Op 00097; Toranzo v. Toranzo, 185 AD3d 621 [2d Dept 2021]; Cover v. Cover, 173 AD3d 970 [2d Dept 2019]). Civil Contempt seeks “the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right” (Matter of McCormick v. Axelrod, 59 NY2d 574, 583 [1983]). Under Judiciary Law §753, “[a] court of record has power to punish, by fine and imprisonment, or either, a neglect of 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” (see also, El-Dehdan v. El-Dehdan, 26 NY3d 19, 28-29 [2015]). In Matter of McCormick v. Axelrod (59 NY2d 574 [1983]), the Court described the four elements necessary to support a finding of civil contempt: (1) It must be determined that a lawful order of the Court, clearly expressing an un equivocal mandate, was in effect; (2) It 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; and (4) Prejudice to the right of the party to the litigation must be demonstrated (id at 583; see also, El-Dehdan v. El-Dehdan, 26 NY3d 19, 28-29 [2015]). Wilfulness is not an element of civil contempt but is an essential element of criminal contempt (Id; Dalessio v. Kressler, 6 AD3d 57, 66 [2004]). The movant has the burden of proving the civil contempt with “reasonable certainty,” which requires “a quantum of proof…greater than a preponderance of evidence but less than proof beyond a reasonable doubt…akin to the clear and convincing evidence standard” (Kihl v. Pfeffer, 47 AD3d 154, 163-164 [2d Dept 2007]; El-Dehdan v. El-Dehdan, 26 NY3d at 29; Matter of McCormick v. Axelrod, 59 NY2d at 583; McCain v. Dinkins, 84 NY2d 216, 226 [1994]; McKnight v. New York City Tr Auth, 150 AD3d 840 [2d Dept 2017]). To prevail on a motion to punish for criminal contempt, the movant must establish, beyond a reasonable doubt, the willful disobedience of a court’s lawful mandate (see Judiciary Law §750 [A] [3]; Cty of Rockland v. Civil Serv Emples Ass’n, 62 NY2d 11, 14 [1984]; Matter of DeSiena v. DeSiena, 167 AD3d 1006, 1007-08 [2d Dept 2018]). As above stated, the purpose of criminal contempt is to vindicate the authority of the court (see Matter of McCormick v. Axelrod, 59 NY2d at 582-583). Thus, no showing of prejudice to the rights of a party to the litigation is needed, but willful disobedience is an essential element (Savel v. Savel, 153 AD3d 872, 873-74 [2d Dept 2017]). Once the moving party makes this showing, 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 or judgment (El-Dehdan v. El-Dehdan, 26 NY3d at 17; Matter of Slade v. Stanford, _ AD3d _ [2d Dept 2023], 2023 NY Slip Op 00097; Toranzo v. Toranzo, 185 AD3d 621 [2d Dept 2020]). A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense (Id; Shemtov v. Shemtov, 153 AD3d 1295, 1296 [2d Dept 2017]; Matter of Fitzgerald, 144 AD3d 906, 907 [2d Dept 2016]). Thus, where an alleged contemnor admits to having refused to comply with an order or judgment, no issue of fact is presented so as to require a hearing (Muller v. Muller, 233 AD2d 486 [2d Dept 1996]; see also, Cassarino v. Cassarino, 149 AD3d 689 [2d Dept 2017]; Cordova v. Cordova, 63 AD3d 982, 987 [2d Dept 2009]; see also, Matter of Sasha R v. Marcus L, 191 AD3d 511, 512 [1st Dept 2021]). Any claim of an inability to make support payments must be supported by competent, credible evidence of the inability to make the payments as ordered (see e.g., Matter of Powers v. Powers, 86 NY2d 63, 69-70, [1995]). If the movant has met the burden with reasonable certainty such that there is a finding of civil contempt, and if the court determines that the contemnor has caused an actual loss to the movant, then a fine “sufficient to indemnify the [movant]” must be imposed (Judiciary Law §773). The purpose of the imposition of civil contempt penalties is their remedial nature and effect (State of New York v. Unique Ideas, 44 NY2d 345 [1978]). Judiciary Law §773 distinguishes between the amount of the fine assessable in two separate types of civil contempt cases, one where actual damage has resulted from a defendant’s contemptuous acts and one where there may be prejudice to a complainant’s rights but “it is not shown that such an actual loss or injury has been caused” (Judiciary Law §773). In the first type of case the fine must be “sufficient to indemnify the aggrieved party”; in the latter the fine may not exceed the amount of the complainant’s costs and expenses plus $250 (Judiciary Law §773; see Moffat v. Herman, 116 NY 131, 135 [1889] ["in the absence of proof of the extent of the loss sustained, to wit, complainant's costs and expenses and $250 in addition thereto, was without authority and demanded the order of reversal"]). Where, as here, no actual loss or injury is shown, a party may still recover the reasonable costs and expenses necessitated in prosecuting the contempt (Jamie v. Jamie, 19 AD3d 330 [1st Dept 2005]). Judiciary Law §773 permits recovery of attorney’s fees from the offending party by a party aggrieved by the contemptuous conduct so long as they are attributable to proving contempt or the damages flowing therefrom and are a direct product of the contempt proceeding (Schwartz v. Schwartz, 79 AD3d 1006, 1010 [2d Dept 2010] quoting Children’s Vil. v. Greenburgh Eleven Teachers’ Union Fedn of Teachers, Local 1532, AFT, AFL-CIO, 249 AD2d 435 [2d Dept 1998]; see also, Matter of Gonnard v. Guido, 141 AD3d 649, 650 [2d Dept 2016]; Vider v. Vider, 85 AD3d 906 [2d Dept 2011]). The court is required to consider the nature and extent of the services, the actual time spent, the nature of the issues involved and the prevailing hourly rate for similar legal work in the community (Matter of First Natl. Bank of E. Islip v. Brower, 42 NY2d 471, 474 [1977]; Gamache v. Steinhaus, 7 AD3d 525, 527 [2d Dept 2004]; see also, Matter of Rahmey v. Blum, 95 AD2d 294 [2d Dept 1983]). Likewise, pursuant to DRL §237 and DRL §238 a party who is forced to file a contempt application in order to enforce an Order of the Court is generally entitled to reimbursement of legal fees relating to that application (Hayes v. Barroga-Hayes, 117 AD3d 794 [2d Dept 2014]). Where a person has been found guilty of a civil contempt, the contemnor may be jailed until there is compliance with the lawful mandate, which may be months or years (Judiciary Law §774 and 775; People ex rel Feldman v. Warden, 46 AD2d 256 [1st Dept 1974], aff’d 36 NY2d 846 [1975]). Judiciary Law §774[1] provides “Where the misconduct proved consists of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed” (see also, People ex rel Kuby v. Warden, Brooklyn House of Detention, 305 AD2d 339, 340 [2d Dept 2003]; Wides v. Wides, 96 AD2d 592, 593-94 [2d Dept 1983]; NA Dev Co v. Jones, 99 AD2d 238 [2d Dept 1984]). It has long been said that as a jailed contemnor is able to purge the contempt and obtain his or her release by committing an affirmative act, that person “carries the keys of his prison in his own pocket” (Int’l Union v. Bagwell, 512 US 821, 828 [1994] quoting In re Nevitt, 117 F 448, 451 [8th Cir 1902]). “The law is not so tender of those who defy its power and trample upon its command” (People ex rel Stearns v. Marr, 181 NY 463, 469 [1905]). All of the elements necessary to hold defendant in civil contempt have been met. First, there is a Court Order in effect dated January 27, 2022, expressing an unequivocal lawful mandate that defendant pay pendente lite child support. Second, plaintiff has demonstrated with reasonable certainty and defendant admits, that this Order has been disobeyed. Third, defendant knew of the Order as he stipulated to it, complied with it for several months and admits he owes the outstanding child support. Fourth, the prejudice to plaintiff is inherent in the fact that she has not been provided with sums to pay for the child’s support and she has incurred more legal fees in bringing this motion for enforcement. The Court finds that plaintiff has shown with reasonable certainty that defendant is in civil contempt of court. The record supports a finding that defendant was actually aware of, and disobeyed, clear and unequivocal court directive, thereby prejudicing plaintiff’s rights, justifying the finding of civil contempt (Judiciary Law §753 [A][3]; El-Dehdan v. El-Dehdan, 26 NY3d at 29; McCain v. Dinkins, 84 NY2d at 226; Matter of McCormick v. Axelrod, 59 NY2d at 583). Under these facts and circumstances, punishment for civil contempt pursuant to Judiciary Law §§770, 773 and 774 would be warranted. The Court finds that defendant’s actions in ignoring the lawful mandate of this Court was calculated to, and actually did, defeat, impair, impede or prejudice plaintiff’s rights or remedies in this civil matrimonial action and it appearing that the misconduct of defendant consisted of an omission to perform an act or a duty which it was in his power to perform. As plaintiff has met her burden, the burden shifts to defendant, 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 or judgment. In opposition to the motion for contempt, defendant admits plaintiff’s claims regarding his nonpayment but states, without any proof, much less competent, credible evidence of the inability to make the payments as ordered, that he has financial constraints. It appears defendant believes saying he cannot pay is sufficient to defeat a motion for civil contempt. In light of defendant’s failure to raise an issue of fact as he admits owing child support and fails to support his claimed impecunity, the motion is granted without a hearing. On January 26, 2023, at the most recent conference, defendant claimed that he made certain other electronic payments to plaintiff but that any error was on plaintiff’s side. Even if this is correct, based on defendant’s admissions, any error in trying to pay child support to plaintiff occurred well after the amounts were due, well after this application was made and after defendant’s opposition to the motion was made. In light of the foregoing, the Court will not reach plaintiff’s motion for criminal contempt. Having reviewed plaintiff’s attorney’s invoices and considered the extent of the services, the nature of the issues involved and the prevailing hourly rate for similar legal work in the community and mindful that an award of legal fees on a motion for contempt are strictly limited to those fees incurred in proving contempt, the Court awards counsel fees in the amount of $3,500.00. It is therefore ORDERED and ADJUDGED that plaintiff’s motion is granted to the extent that, pursuant to Judiciary Law §772, defendant Boris Pinkhasov is guilty of Civil Contempt of Court, as defendant’s actions in disobeying the lawful mandate of this Court dated January 27, 2022 which required him to pay temporary child support were calculated to, and actually did, defeat, impair, impede or prejudice plaintiff’s rights or remedies in this civil matrimonial action and it appearing that the misconduct of the defendant consisted of an omission to perform an act or a duty which it was in his power to perform. The arrears as of December 1, 2022 were $ $4,616.00; and it is ORDERED that pursuant to Judiciary Law §773, a fine of $250.00 plus the costs and disbursements, here attorney’s fees, in the amount of $3,500.00, will be imposed on defendant for his misconduct and Civil Contempt of Court which he has been found guilty of, as aforesaid. The fine will consist of (1) the statutory amount of $250.00; and (2) plaintiff’s counsel fees related to defendant’s contemptuous conduct in the amount of $3,500.00; and it is ORDERED that defendant shall have the opportunity to purge himself by, within thirty (30) days of service on him of a copy of this Order with notice of entry, (1) paying the fine of $250.00 plus counsel fees in the amount of $3,500.00, (2) paying plaintiff the temporary child support arrears in the amount of $4,616.00, or by demonstrating, through competent admissible evidence submitted to the Court and served on plaintiff, within thirty (30) days of today’s date, including but not limited to all financial records from the date of commencement forward, relating to defendant’s income, retirement accounts, credit card statements, checking and savings accounts, Zelle accounts, crypto-currency accounts, an updated statement of net worth with his most recent tax returns and a W-2 Form for calendar year 2022, that he is unable to pay the fine, costs and arrears (Judiciary Law §§772 and 773); and it is ORDERED that in the event that defendant fails to timely purge himself of the contempt and comply with any of the above requirements to the satisfaction of the Court, upon submission of an Affirmation of Non-Compliance together with a copy of this Order, on notice, the Court will issue a Warrant for defendant Boris Pinkhasov’s immediate arrest and commitment for a period of incarceration and will issue a money judgment inclusive of interest where applicable for all arrears and attorney’s fees as outlined above, supplemented by any new arrears for child support, and any other disposition the Court, in its discretion shall make. ORDERED that any remaining requests for relief not specifically addressed are denied. This constitutes the Decision, Order and Judgment of the Court. Dated: February 9, 2023
