REBECCA TYE,

Plaintiff,

-vs- Index #H-03429

FRANK L. TYE,

Defendant.

ANTHONY J. SPANN, P.C.

(James J. Spann, Esq. of

Counsel) for Plaintiff

RHINEHART, WHITE & STEGER

(Thomas W. White, Esq.

of Counsel) for Defendant

DECISION and ORDER

GERACE, J.

This is before the Court on a motion for contempt. Defendant hasn't been cooperative. His memory, bookkeeping and statements have fallen short of accuracy and veracity. He has avoided meeting his obligations to his wife and children except through his support payments through DSS. However, his conduct did not rise to the level of contempt.

Defendant claims he did not know how much money he actually made. His records are almost non existent. He has few copies of written contracts or estimates, claiming that his customers inevitably make so many work changes that contracts serve little purpose.

DSS attorney Jerry Hyde testified there were inconsistencies in Tye's business records which indicated little income but large expenditures.

The testimony revealed that, at best, he is careless in his record keeping, at worst, his actions are consistent with his trying to hide his true income from plaintiff, the DSS and

the court.

His lifestyle suggests of earnings in excess of his claims and records. While his wife and children were on welfare, he was supporting another woman and her children, travelling to Florida for work, donating over $1000 to charity, enjoying the luxury of a boat and purchasing a $500 mini bike for the children.

It appears the amounts that he was ordered to pay were beyond what he could afford. This occurred because he never supplied any information to the Court although his former attorney, Charles Loveland, was given every opportunity to do so.

The Court's Memorandum Decision setting the support was based solely on information and documentation provided by petitioner's attorney as indicated by the following excerpt contained in said Decision:

"Various exhibits, submissions, affidavits and

memorandum of law have been received from the

plaintiff. Nothing has been received from the

defendant. Plaintiff's memorandum and submissions

were received on May 5, 1993. On June 3, 1993

defendant's attorney requested an extension of

time to make a submission. He was given until

July 15, 1993. When nothing was received, an

additional extension was granted until July 28,

1993. At no time before of after that date was

anything ever received."

The Court had no choice therefore except to rely upon the

information supplied by plaintiff.

After failing to provide the Court with any information, Mr. Loveland advised defendant that he "screwed up" and would

appeal. In the interim, he allegedly advised defendant that

he did not have to pay the amounts ordered!

The Support Collection Unit was only billing defendant $75 a week at the time, so he had no reason to disbelieve Mr.

Loveland. His statements from Support Collection Unit did

not show any arrears due.

Defendant argues the decision and order of the court did not state when attorney fees were to be paid by him to his wife's counsel, James Spann, Esq.; he says Mr. Spann never sent a demand for payment and did not recall being served with the order.

As for the American Express card, there is no proof

defendant received the bill or a demand for payment and had

been advised not to pay pending appeal.

Mr. Loveland never perfected the appeal. In the interim,

defendant paid the $75 per week billed by SCU on a regular

basis with no arrears. This covered the period of June 1992

through August 1994 when plaintiff brought the contempt

motion and SCU sent a new billing statement.

Jerry Hyde, Esq., attorney for the SCU testified that

plaintiff assigned all her rights to receive and enforce

support and maintenance over to DSS as is required for Public

Assistance recipients. He confirmed that Attorney Loveland

had advised on several occasions in Family Court that he was

appealing the order. On the basis of his representations,

enforcement proceedings were stayed.

When the time to perfect the appeal came and went, SCU took a judgment against defendant instead of proceeding with

contempt. DSS did not consider contempt proceedings

appropriate because their investigation convinced them

defendant did not have the ability to pay the amounts

ordered.

It appears defendant is in violation of the court order but that the violation is not willful.

Defendant's actions forced plaintiff and her children to go on welfare. However, plaintiff is not entitled to contempt on the support portion of her claim because she assigned her

rights to SCU. The Court should not substitute its judgment

over that of DSS.

Plaintiff went off public assistance September 30, 1994, but, is currently on medicaid. She may have been able to avoid asking for public assistance if defendant had made a bona fide effort to pay what his income would allow.

As for the American Express card liability, defendant must hold plaintiff harmless for any part she is called upon to pay.

Because of the conduct of his prior attorney, the fact that Defendant made his payments as ordered by SCU; the court

denies the motion to punish defendant for contempt but, because defendant's actions, nonaction and testimony warrant sanctions, costs and attorney fees, the Court orders the following:

Plaintiff's counsel, James J. Spann, Esq., is hereby awarded a judgment in the amount of $5,000, for his fees, and costs to date, said sum to be paid within 90 days.

As a sanction, defendant must pay plaintiff $5,000 in cash within 90 days, to be credited as maintenance and arrears to date.

This is the Decision and Order of this Court. Plaintiff is to submit a separate order memorializing the financial awards herein.

Dated: May 31, 1995

Mayville, New York

JOSEPH GERACE

Justice of Supreme Court