Brandford v. Brandford

things, pursuant to CPLR 4403 to confirm the referee's amended report. The plaintiff opposed the motion and cross- moved, inter alia, to reject the referee's amended report and to hold the defendant in civil contempt for violating the stipulations dated July 16, 2019, and October 31, 2019.

In an order of reference dated February 22, 2022, the Supreme Court referred the matter to the referee to determine the issues of equitable distribution and the allocation of carrying charges on the martial residence, certain marital debt, and certain mortgage loan proceeds from a refinancing of the mortgage loan. Following a hearing, the referee determined that the plaintiff was required to pay the defendant's share of the amount of the mortgage loan, which was taken jointly by the parties on the marital residence but was deposited into the plaintiff's personal bank account and not used by the plaintiff to pay marital expenses. In a decision dated January 5, 2024, after the hearing, the referee directed the plaintiff to pay the defendant her share of the equitable distribution of certain marital property in the sum of $45,547.43 within 30 days of service of the decision upon the plaintiff with notice of entry. After the plaintiff failed to make that payment, the defendant moved, inter alia, to hold the plaintiff in civil contempt and for an award of counsel fees in the sum of $5,000. The plaintiff opposed the motion.

In an order dated January 28, 2025, the Supreme Court, among other things, (1) upon granting that branch of the defendant's motion which was pursuant to CPLR 4403 to confirm the referee's amended report, held the plaintiff in civil contempt for willfully failing to pay child support arrears, directed that the plaintiff be incarcerated for a period of 60 days unless he purged his contempt by paying the sum of $30,550, and awarded the defendant counsel fees in the sum of $14,400, (2) granted those branches of the defendant's separate motion which were to hold the plaintiff in civil contempt for failing to pay the defendant the sum of $45,547.43 awarded to her in the referee decision after hearing dated January 5, 2024, and for an award of counsel fees in the sum of $5,000, and directed that the plaintiff be incarcerated for a period of 60 days unless he purged his contempt by paying the sum of $45,547.43, and (3) denied those branches of the plaintiff's motion which were to reject the referee's amended report and to hold the defendant in contempt for violating the stipulations dated July 16, 2019, and October 31, 2019. The plaintiff appeals.

"CPLR 4403 provides that, '[u]pon the motion of any party . . . , the judge required to decide the issue may confirm or reject, in whole or in part, . . . the report of a referee to report'" (U.S. Bank N.A. v Maher, 219 AD3d 1372, 1374; see Guzman v Ramos, 239 AD3d 953, 953-954). "The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility"

(DeStefano v Law Offs. of William Pager, 232 AD3d 788, 789 [internal quotation marks omitted], quoting Citimortgage, Inc. v Kidd, 148 AD3d 767, 768).

"A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court" (Shemtov v Shemtov, 153 AD3d 1295, 1295; see Lugo v Torres, 174 AD3d 595, 596). "To prevail on a motion to hold a party in civil contempt, the movant must establish by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court's order, and (4) prejudice to the right of a party to the litigation" (Matter of Binong Xu v Sullivan, 155 AD3d 1031, 1032; see El-Dehdan v El-Dehdan, 26 NY3d 19, 29). "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" [*2](Latterman v Latterman, 174 AD3d 518, 519; see Naser v Naser, 244 AD3d 1220, 1220). "Wilfulness is not an element of civil contempt, however, the party alleged to be in contempt may offer as a defense evidence of his or her inability to comply with the order or judgment" (Bauman v Bauman, 208 AD3d 624, 626; see El-Dehdan v El-Dehdan, 26 NY3d at 35).

Here, the referee's recommendation that the plaintiff be held in civil contempt for willfully failing to pay pendente lite child support was substantially supported by the record. Contrary to the plaintiff's contention, the evidence submitted in opposition to the defendant's motions did not establish the plaintiff's financial inability to comply with the order to pay pendente lite child support. Accordingly, the Supreme Court properly held the plaintiff in civil contempt for his failure to comply with the orders dated November 25, 2019, and October 14, 2020, respectively, and directed that the plaintiff be incarcerated unless he purged the contempt.

The Supreme Court also properly held the plaintiff in civil contempt for his failure to comply with the referee's decision after hearing directing him to pay the defendant's share of the equitable distribution of certain marital property in the sum of $45,547.43 within 30 days of service of the decision upon the plaintiff with notice of entry. "Where . . . a referee was appointed to hear and determine, the referee possesses 'all the powers of a court in performing a like function' (CPLR 4301), and the referee's decision 'shall stand as the decision of a court'" (Seabring, LLC v Elegance Rest. Furniture Corp., 188 AD3d 744, 746; see Makmudova v Cohen, 216 AD3d 935, 937). The referee's decision after hearing determined the rights of the parties with respect to the equitable distribution of the martial property at issue, expressing an unequivocal mandate upon which the civil contempt finding against the plaintiff was properly based (see El-Dehdan v El-Dehdan, 26 NY3d at 29; see CPLR 5011; Shah v 20 E. 64th St., LLC, 198 AD3d 23, 32-33). Under the circumstances of this case, the court providently exercised its discretion in setting a purge amount in the sum of $45,547.43 (see Matter of Nickel v Nickel, 172 AD3d 1210, 1212; Matter of Gorsky v Kessler, 79 AD3d 746, 746; Cattell v Cattell, 254 AD2d 357, 357).

Moreover, the Supreme Court properly awarded the defendant counsel fees pursuant to Domestic Relations Law § 237(c) and Judiciary Law § 773 incurred as a result of the plaintiff's willful violations of the orders requiring him to pay pendente lite child support and the defendant's share of the equitable distribution of certain marital property (see Matter of Gonnard v Guido, 141 AD3d 649, 650; Lamassa v Lamassa, 106 AD3d 957, 960).

Finally, the plaintiff failed to prove by clear and convincing evidence that the defendant disobeyed a lawful order of the court that clearly expressed an unequivocal mandate that the defendant could not schedule her vacation with the child during the Labor Day 2024 holiday. Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to hold the defendant in civil contempt for violating the stipulations dated July 16, 2019, and October 31, 2019 (see Cover v Cover, 173 AD3d 970, 971; Matter of Perazone v Perazone, 188 AD2d 750, 751).

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The plaintiff's remaining contention is improperly raised for the first time on appeal. GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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