Plaintiff moved, by Order to Show Cause ("OSC"), to hold the defendant in contempt, for violating several court orders dated October 14, 2008, November 21, 2008 and May 20, 2009, claiming, inter alia, that the defendant has willfully failed to pay the plaintiff's household expenses, certain support obligations and counsel fees as previously ordered for the benefit of plaintiff and the parties minor child.

For reasons not explained to this Court, this matter was adjourned four (4) times from July 31, 2009 though February 18, 2010, this Court conferenced this matter for the first time on February 18, 2010, at which time this Court advised counsel for the defendant he had until March 4, 2010 to submit opposition papers to plaintiff's OSC and a hearing was scheduled for March 23, 2010.

On March 23, 2010 a hearing was conducted. Counsel for defendant did not submit opposition papers. Both the plaintiff and the defendant testified. No other witnesses were called. According to the testimony adduced at trial and plaintiff's OSC, plaintiff has previously brought a motion for contempt seeking to hold the defendant in contempt of court for failing to comply with Justice Driscoll's orders dated October 14, 2008 and November 21, 2008. [*2]

On May 20, 2009 the parties settled the first motion for contempt by entering into a stipulation of even date which was "so ordered" by Justice Ross. This order provided:

"IT IS HEREBY STIPULATED AND AGREED by and between the below-names attorney(s) as follows: plaintiff's motion for contempt is resolved as follows: defendant shall bring the mortgages on the marital residence current by 6/15/09. Defendant shall pay as and for counsel fees on the motion, the sum of $5,000, with $2,500 to be paid by 5/16 and the remaining $2,500 to be paid by 6/15/09. Plaintiff reserves her right to move for a pendente lite counsel fee award. Defendant represents that except as set forth herein, all [bills] are required to be paid pendente lite are current."

Plaintiff testified that the defendant has not complied with Justice Ross's Order dated May 20, 2009 ("Order") nor has the defendant complied with the two (2) previous orders dated October 14, 2008 and November 21, 2008 and as a result, foreclosure proceedings regarding the marital home where plaintiff resides have been commenced. Similarly, plaintiff testified her health insurance was cancelled and she has received notice from at least one utility company that service was going to be disconnected. Plaintiff also testified that as a result of the defendant's failure to comply with the Court's three (3) prior orders, there is a tax lien against the marital residence.

Defendant testified that he owns and operates a pizzeria for approximately twenty-six (26) years and averages approximately $1,900 on a bad day and $6,200 on a good day. Defendant also testified that he was aware of the prior orders and that he did not pay the mortgage as provided in the orders and that his pizza business was off by about 30% and he owed others money. The defendant testified on direct examination that he moved in with his mother in 2005 and does not take a salary. However on cross-examination the defendant admitted that he takes cash from his business to pay for his living expenses, such as car, gas, insurance, cloths, food and his daughter's college tuition.

The defendant's testimony is further belied by his net worth statement sworn to on January 15, 2009 indicating he derives no income from his pizzeria (see Exhibit G to OSC), however the defendant lists as his expenses approximately $116,852 annually and his 2007 federal tax return lists defendant's annual income of $59,852.

A Contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto, 120 AD2d 337, 501 NYS2d 835 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Company Limited, 174 AD2d 487, 571 NYS2d 264 (1st Dept. 1991). A court of record has the power to punish a party for civil contempt, upon a satisfactory showing by the movant that the party against whom the citation is sought had knowledge of a clear and unequivocal court order, which he/she violated, thereby prejudicing the rights of another party to the litigation. See, Judiciary Law § 753(A)(3); Dalessio v. Kressler, 6 AD3d 57; 773 NYS2d 434 (2nd Dept. 2004); McCain v. Dinkins, 84 NY2d 216, 616 NYS2d 335 (1994). Criminal contempt, which is aimed to vindicate the authority of the court (see Ketchum v. Edwards), will be supported by the additional showing of wilful disobedience. McCain v. Dinkins, supra ; Brinka v. Brinka, 321 AD2d 487, 753 NYS2d 135 (2nd Dept. 2003); Pantelidis v. Pantelidis, 297 AD2d 791, 747 NYS2d 809 (2nd Dept. 2002).

Further, pursuant to Domestic Relations Law § 245, before a defaulting party can be held [*3]in contempt for the non-payment of a sum of money, it must appear "presumptively, to the satisfaction of the Court", that the movant exhausted the less drastic enforcement remedies available under Domestic Relations Law §§ 243 and 244, CPLR §§ 5241 and 5242. See also, Higbee v. Higbee, 260 AD2d 603, 688 NYS2d 669 (2nd Dept. 1999); Snow v. Snow, 209 AD2d 399, 618 NYS2d 442 (2nd Dept. 1994); Wiggins v. Wiggins, 121 AD2d 534, 503 NYS2d 843 (2nd Dept. 1986).

Once the movant has made a prima facie showing that the party against whom a contempt citation has failed to pay support as ordered, the burden then shifts to the obligor to adduce some competent, credible evidence of his inability to make the required payments, in order to show that the failure to pay was not wilful. See, Christine L.M. v. Wlodek K., 45 AD3d 1452, 846 NYS2d 849(4th Dept. 2007).

The defendant testified he was aware of all three (3) orders of the Court and that he was required to make specific fixed payments regarding the mortgage, car loans, health insurance premiums, home insurance premiums, cablevision, auto insurance, life insurance, home equity line of credit and interim counsel fees for the plaintiff and the parties' child.

Based upon the testimony of the defendant, this Court finds that other enforcement remedies would be ineffectual since the defendant claims to receive no salary but admits that he takes the cash from the pizzeria at the end of each day which ranges between $1,900.00 to $6,200.00 per day. Defendant also testified he does not deposit the cash in the bank and uses the cash to pay bills. Since the defendant controls all aspects of this cash business a garnishment, judgment or execution would be ineffectual.

The defendant argues that his failure to pay is not wilful, but rather the result of his inability to pay. The defendant failed to submit a motion to modify any of the three (3) orders and instead decided to use the cash proceeds from his business to pay his own expenses in violation of the three (3) prior orders issued by the Court.

Accordingly, this Court finds that the defendant has willfully failed and refused to obey those provisions of the three (3) orders which required him to pay the mortgage on the marital residence, the home equity line and $2,500 in legal fees and that such refusal was intended to and did in fact defeat, impair, impede and prejudice the rights of the plaintiff.

That portion of plaintiff's application to hold the defendant in contempt for failing to pay the car loans, health insurance premiums, home insurance premiums, cablevision, auto insurance, life insurance, is denied without prejudice, as plaintiff has failed to quantify the exact amount of money owed for each item and if any partial payments were made.

Accordingly, it is

ORDERED that Plaintiff, VITTORIO DIGIOVANNI, is sentenced to incarceration in the Nassau County Correctional Facility for a period of ninety (90) days. The contemnor may purge his contempt by payment of the mortgage arrears and the arrears on the home equity loan on the marital residence located at 132 Claflin Boulevard, Franklin Square, New York and $2,500 counsel fees on or before April 26, 2010. Payment shall be by bank or certified check. [*4]

ORDERED, that the parties and their counsel shall appear in Part 26 of the Nassau County Supreme Court, 400 County Seat Drive, Mineola, NY 11501 for sentencing on Tuesday, April 27, 2010 at 9:30 a.m. which date shall not be adjourned without the consent of this Court.

ORDERED, that counsel for the Plaintiff shall serve a copy of this order upon the Defendant, by personal service pursuant to CPLR § 308 (1), on or before April 9, 2010, and shall provide the court with proof of such service.

This constitutes the decision and order of this Court.

Dated: April 2, 2010

______________________________

Hon. Robert A. Bruno, J.S.C.