SUFFOLK COUNTY
Supreme Court
Justice J. Bivona
PLAINTIFF wife sought an order finding defendant husband in contempt of court for failing to comply with a summons. The summons contained automatic restraining orders, yet defendant on the same day withdrew nearly $10,000 and over $170,000 on the following day, in violation of the automatic restraining orders. Defendant argued he withdrew the funds out of economic necessity. Defense counsel contended the "automatic orders" set forth in Domestic Relations Law §236(B)(2)(b) were statutory mandates, but did not constitute court orders, arguing civil contempt under Judiciary Law §753 was inappropriate for violation of these mandates. The court agreed, finding that as the directive in the summons did not constitute a clear and unequivocal order, plaintiff's application for contempt was denied. However, the court noted defendant was also in violation of two court orders in which defendant was directed to provide an accounting of the $170,000 he withdrew from his IRA. Thus, it directed defendant to appear with a full accounting and a check for the remaining sums in defendant's account, noting if defendant failed to appear, a warrant for his arrest would be issued.
Plaintiff seeks the following relief:
a. citing defendant for his contempt of Court and imposing such fines, monetary sanctions and/or other penalties, including incarceration for failing to comply with the parties' Summons with Notice duly served on defendant on September 21, 2009;
b. ordering defendant to provide an accounting of the approximate sum of $180,000.00 from the proceeds of defendant's _________ retirement Account;
c. ordering defendant to deposit all remaining monies from the defendant's _________ retirement Account into the escrow account of _________, LLP pending further Court Order or Stipulation by the parties;
d. directing plaintiff to pay counsel fees in the sum of $1,095.00 for services in connection with the paperwork on this enforcement proceeding with leave to request additional counsel fees, if warranted.
Defendant was served with a Summons with Notice on September 21, 2009 at 4:12 p.m. Said Summons contained the automatic restraining Orders. It is undisputed that on September 21, 2009, defendant removed $9,999.99 and then withdrew the remaining balance of $170,966.99 on September 22, 2009, in violation of the automatic restraining Order literally the day after he was served with the Summons for divorce. Defendant contends that these funds were withdrawn out of economic necessity and due to his advanced Lyme disease.
Prior to adjudicating the defendant in contempt, the Court must ascertain that there was a clear and unequivocal Order, that defendant had knowledge of the Order, that defendant violated the Order and that noncompliance caused prejudice to the plaintiff in this litigation, see McCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279 (1983); Rienzi v. Rienzi, 23 A.D.3d 447, 808 N.Y.S.2d 113 (2nd Dept., 2005). Counsel for defendant argues that the "automatic orders" set forth in DRL smark236(B)(2)(b) are statutory mandates and do not constitute orders issued by a Court. Therefore, civil contempt pursuant to Judiciary Law smark753 is not an appropriate remedy for violation of these statutory mandates, warranting denial of the plaintiff's application as a matter of law. This Court agrees as the directive in the Summons does not constitute a clear and unequivocal order. Accordingly, plaintiff's application for contempt is denied.
The Court notes that defendant is also now in violation of this Court's Orders dated February 16, 2010 and February 18, 2010, in which defendant was directed to provide an accounting (with back up documentation) of the approximate $170,000.00 he withdrew from his IRA by April 1, 2010 and to deposit all remaining monies from the fidelity IRA into the plaintiff's attorney's escrow account. Defendant does not dispute same. Based on the foregoing, the Court directs the defendant to appear before this Court on Monday, May 17, 2010 at 10:30 a.m. with the full accounting and a check for the remaining sums in the defendant's account as of the date of service of the Order to Show Cause dated February 18, 2010. In the event defendant fails to appear a warrant shall be issued for his arrest.
Plaintiff is granted a counsel fee award in the sum of $1,095.00 to be paid by defendant on May 17, 2010, Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 (2nd Dept., 2008); Kesten v. Kesten, 234 A.D.2d 427, 650 N.Y.S.2d 807 (2nd Dept., 1996).
The foregoing constitutes the Order of this Court. ¦
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