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LAW AND THE FAMILY
Contempt of Court
Joel R. Brandes
New York Law Journal
November 23, 1999
By Joel R. Brandes
IN GOLDSMITH v. Goldsmith, [FN1] an action for a divorce, the
Appellate Division affirmed an Order of the Supreme Court that granted the
plaintiff wife's motion to hold the husband in contempt for violating of a
Temporary Restraining Order and imposed a monetary sanction of $15,000, plus
attorneys' fees of $1,500. In the course of the action, the Supreme Court
issued a TRO
prohibiting the defendant from transferring, selling, pledging or otherwise
encumbering any assets in his possession.
One month later, the husband executed a confession of
judgment, in the amount of $30,000, in favor of a friend who had allegedly
loaned him money to pay attorneys' fees. The confession was notarized by a
member of the law firm that was representing the defendant in the action. In
the defendant's papers in opposition to the motion to hold him in contempt, he
acknowledged that he had executed the confession of judgment but claimed that
he had not violated the restraining order because he incurred the debt to his
friend prior to the issuance of the order. The Supreme Court rejected the
defendant's argument and held him in contempt, concluding
that his action in confessing judgment had encumbered marital property and
prejudiced the plaintiff's right to equitable distribution.
The Appellate Division found that the Supreme Court
properly held the husband in contempt of court. The plaintiff's moving papers
established that the defendant violated a clear and unequivocal order of the
court by executing a confession of judgment in favor
of his friend, which prejudiced the plaintiff by elevating this individual's
claim over her right to equitable distribution of the parties' cooperative
apartment.
Since the plaintiff's moving papers established the
essential elements of contempt, which the defendant's affidavit failed to
contradict, the court was not required to conduct a hearing before holding the
defendant in contempt. The mere act of disobeying the TRO was sufficient to
sustain a finding of civil contempt, regardless of motive, where it was
calculated to or actually did
defeat, impair, impede or prejudice the plaintiff's rights.
Power to Punish
As Goldsmith demonstrates, a client's failure to
comply with a restraining order, a visitation order or an injunction in any
kind of action, including a matrimonial action, may result in a finding of
contempt of court, irrespective of intent.
The power to punish for contempt arises out of the
inherent power of the court, which is limited by 753(A)(3) of the Judiciary
Law. It provides, in part:
753. Power of courts to punish for civil contempts
A. A court of record has power 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 or special proceeding, an attorney,
counsellor, or other person, for the nonpayment of a sum of money, ordered or
adjudged by the court to be paid, in a case where by law execution can not 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.
8. In any other case, where an attachment or any other proceeding
to punish for a contempt, has been usually adopted and practiced in a court of
record, to enforce a civil remedy of a party to an action or special
proceeding in that court, or to protect the right of a party.
The purpose of this section is to limit the power
of the court to punish for contempt, and it has been held that it should be
strictly construed. [FN2] It was intended to preserve "to courts of
record the power they had previously possessed to punish, in the interest of a
party to the action as a contempt, an evasion or a violation of duty, or
misconduct, which resulted in defeating
or prejudicing the complainant's rights.'' [FN3]
The first seven subdivisions of this section specify
the particular classes of cases in which punishment for a civil contempt may
be imposed. Subdivision 8 contains a general clause and refers to "any
other case" that has been punishable as a civil contempt at common law.
This general clause applies only to matters ejusdem generis, and is not a
grant of plenary power to punish for contempt. [FN4]
Civil, Criminal Contempt
Civil contempt differs from criminal contempt. The
power to punish for civil contempt is much broader than the power to punish
for criminal contempt. It includes the power to punish a party for any abuse
of a mandate or proceeding of a court. [FN5] Criminal contempt is an offense
against the public justice. The penalty is purely punitive. The purpose of
civil contempt is to vindicate
the rights of a party to the action. The penalty is compensation to the
injured party, for loss of or interference with the benefits of the court's
mandate. [FN6]
Criminal contempt must be committed in the presence
and hearing of the court. The offender may be immediately apprehended and
punished, without further examination or proof, because the court, having
personally observed the offense, needs no further explanation. Civil contempt
is predicated on matters arising in the action, which are calculated to impede
or prejudice the rights
and remedies of a party. The court cannot summarily punish. The accused has
the right to notice and an opportunity to be heard. [FN7] Criminal contempt
must be proved beyond a reasonable doubt, while civil contempt requires proof
with reasonable certainty. [FN8]
The procedure for making an application for civil
contempt is found in 756 et seq. of the Judiciary Law. It may be brought by
service of a notice of motion or by order to show cause. If the application is
brought by notice of motion, the notice of motion and supporting papers must
be personally served upon the accused at least 10 days, and no more than 30
days, prior to the return
date of the application.
However, where the application is made by an order to
show cause, the court may reduce the period within which the papers must be
served or are returnable, and may direct service upon the attorney for the
accused. [FN9] A notice of motion for contempt, together with the supporting
papers, may be served by mail. [FN10] An application to punish for contempt
must contain on its face a notice that the purpose of the hearing is to punish
for contempt and that such punishment may consist of a fine or imprisonment.
[FN11] Additionally, the application requires a warning, printed in
18-point bold type, stating that failure to appear may result in arrest or
imprisonment. [FN12] The notice and service requirements are
jurisdictional. Absent requisite notice and warning, the court is without
jurisdiction to punish for contempt. [FN13] However, the notice and service
requirements may be waived by contesting a contempt application on the merits
and failing to object in a timely manner to the omission of the notice and
warning required by the statute. [FN14]
Criteria
In order to find that a civil contempt has occurred, it
must be determined that:
(i) a lawful order of the court was in effect;
(ii) the order clearly expressed an unequivocal mandate;
(iii) the party against whom the contempt is sought had knowledge
of the order (although the order need not be served upon the party);
(iv) there is proof as to a "reasonable certainty" that
the order was disobeyed; and
(v) the rights of a party to the litigation were prejudiced, i.e.
that the accused "defeated, impaired, impeded, or prejudiced" the
petitioner's rights or remedies. [FN15]
It is not necessary that the disobedience be intentional
or willful. The mere act of disobedience, regardless of its motive, is
sufficient if the disobedience may defeat, impair, impede or prejudice any
right of a party. [FN16] The intent required to be proved is not an intent to
violate the law, or the order of the court, but to do the act that the law, or
the order of the court, forbids. [FN17]
Judiciary Law 753(A)(3) provides that contempt lies for
"the nonpayment of a sum of money, ordered or adjudged by the court to be
paid, in a case where by 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.''
Since an action for breach of a settlement agreement
results in a judgment that may be executed upon to collect the amount of the
judgment, a court does not have the power to hold a party in contempt for
failure to comply with the financial provisions of the judgment. Nor does
contempt lie for breach of the financial provisions of a stipulation or
agreement which is not incorporated in a court order. [FN18]
Nonpayment Contempt
Domestic Relations Law 245 authorizes contempt
applications to be made in a matrimonial action for nonpayment of a sum of
money. It provides that where a spouse defaults in paying any sum of money as
required by a judgment or order, and the court is satisfied that payment
cannot be enforced by sequestration of that spouse's property or by resorting
to security, if any, that was given (DRL 243), money judgment (DRL 244),
income execution (Civil Practice Rule and Laws 5244) or income deduction order
(CPLR 5242), the "aggrieved spouse" may make application pursuant to
756 of the Judiciary Law for the punishment of contempt of court.
Since an attorney is not an "aggrieved spouse,"
it follows that the attorney may not seek enforcement of his or her counsel
fee award by contempt.
The court must first determine, to its satisfaction, that
the relief sought cannot be enforced by alternative means or methods. DRL 245
requires a finding that payment cannot be enforced pursuant to DRL 243 or 244
or CPLR 5241 and 5242, and that the exhaustion of these remedies or a finding
that they would be ineffectual as a prerequisite to contempt for disobeying an
order
requiring the payment of money in a matrimonial action. [FN19]
The ineffectual nature of alternatives to contempt
need not be determined with a high degree of certainty, as DRL 245 requires
only that it appear presumptively that an order cannot otherwise be enforced.
[FN20] Finally, the court must find willfulness and must find expressly that
the actions of the defaulting spouse were calculated to or actually did
defeat, impair or impede or prejudice the other spouse's rights or remedies.
[FN21]
By virtue of DRL 246(3), financial inability to pay
is a defense to contempt under DRL 245. Thus, nonpayment alone does not
establish the requisite willfulness. [FN22] However, in the usual case, the
conduct of the deadbeat parent, who continues to live extravagantly after
transferring his assets to a friend or relative or intentionally reducing his
income establishes the requisite willfulness.
FN(1) 690 NYS2d 696 (2d Dept, 1999).
FN(2) Dollard v. Koronsky, 1910, 67 Misc. 90, 121 N.Y.S. 987,
affirmed 138 A.D. 213, affirmed 199 N.Y. 558.
FN(3) People ex rel. Platt v. Rice, 1894, 144 N.Y. 249.
FN(4) Dollard v. Koronsky, supra.
FN(5) Gabrelian v. Gabrelian (2d Dept. 1985) 108 AD2d 445.
FN(6) McCain v. Dinkins, 1994, 84 NY2d 216. Frankel v. Frankel (3d Dept.
1985) 111 AD2d 447.
FN(7) Franzone v. Tumminelli, 1910, 67 Misc. 549, 123 N.Y.S. 455. See,
also, King v. Flynn, 1885, 37 Hun 329.
FN(8) N.A. Development Co. Ltd. v. Jones (1 Dept. 1984) 99 AD2d 238.
FN(9) N.Y. Jud. Law 761.
FN(10) See New York Higher Educ. Assistance Corp. v. Cooper, 65 AD2d 906
(3d Dept. 1978).
FN(11) N.Y. Jud. Law 756.
FN(12) Id.
FN(13) See, e.g., Barreca v. Barreca, 77 AD2d 793 (4th Dept, 1977);
Murrin v. Murrin, 93 AD2d 858 (2d Dept. 1983).
FN(14) See In Re Rappaport, 58 NY2d 725 (1982).
FN(15) McCain v. Dinkins, 84 NY2d 216 (1994); Mysakyan v. Mysakyan, 129
AD2d 896 (3d Dept 1987).
FN(16) Cannizzaro v. Cannizzaro, 186 AD2d 776 (2d Dept. 1992). Yalkowsky v.
Yalkowsky (2d Dept. 1983) 93 AD2d 834.
FN(17) Gage v. Denbow, 1888, 49 Hun 42, 17 N.Y.St.Rep. 515, 1 N.Y.S. 826.
FN(18) Gingold v. Gingold (1st Dept. 1975) 48 AD2d 623.
FN(19) Farkas v. Farkas (1994 1st Dept.) 201 AD2d 440; Rosenblitt v.
Rosenblitt, 121 AD2d 375.
FN(20) Farkas v. Farkas, 209 AD2d 316 (1st Dept. 1994).
FN(21) Stempler v. Stempler (1994, 2d Dept) 200 AD2d 733.
FN(22) Hough v. Hough (1986, 3d Dept) 125 AD2d 791.
Joel R. Brandes has law offices in Garden City and New York City.
Bari B. Brandes, a member of the firm and co-author of the annual supplements
to Law and the Family New York 2d, assisted in the preparation of this
article.
