Thursday, July 21, 2016
ENFORCING SUPPORT ORDER THROUGH CONTEMPT
Rhodes v. Rhodes, 2016 NY Slip Op 1657 - NY: Appellate Div., 2nd Dept. 2016:
In matrimonial actions, Domestic Relations Law § 245 grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 756 where the party defaults "in paying any sum of money" required by a judgment or order, "and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced" pursuant to the enforcement mechanisms provided in Domestic Relations Law §§ 243 and 244 and CPLR 5241 and 5242. "A civil contempt motion in a [matrimonial] action should be denied where the movant fails to make a showing pursuant to section 245 that resort to other, less drastic enforcement mechanisms had been exhausted or would be ineffectual'" (El-Dehdan v El-Dehdan, 114 AD3d 4, 23, affd 26 NY3d 19, quoting Capurso v Capurso, 61 AD3d 913, 914; see Wolfe v Wolfe, 71 AD3d 878, 879). Here, the mother did not attempt to utilize any less drastic enforcement mechanism before moving to hold the father in contempt, and failed to demonstrate that resort to a less drastic enforcement mechanism would be ineffectual. Contrary to the mother's contention, the fact that the child care, medical care, and extracurricular activity expenses she sought payment of were not for a sum certain did not prevent her from seeking to fix any arrears due for those expenses and enforcing the father's payment obligations through less drastic means. Under these circumstances, the Supreme Court properly denied those branches of the mother's motion which were to hold the father in civil contempt (see Belkhir v Amrane-Belkhir, 128 AD3d 1382, 1383; Wolfe v Wolfe, 71 AD3d at 879; Capurso v Capurso, 61 AD3d at 914; Rienzi v Rienzi, 23 AD3d 447, 449; Snow v Snow, 209 AD2d 399, 401), and for an award of an attorney's fee (see Cooper v Cooper, 21 AD3d 869, 871)."