Plaintiff seeks an Order: (a) pursuant to Domestic Relations Law §245 and Judiciary Law §753, adjudging Defendant GM to be in contempt of Court and punishing him by fine or imprisonment for his willful and deliberate failure to comply with the provisions of the Order of this Court dated February 11, 2010 (Bruno, J.), and by failing to do so having frustrated and impeded Plaintiff's financial rights; (b) directing Defendant GM to immediately comply with the provisions of the Order of this Court dated February 11, 2010 (Bruno, J.) and compelling Defendant to immediately remit payments to Plaintiff in the total amount of $38,047.94; ( c) granting Plaintiff a money judgment, in the amount of $38,047.94 due to Defendant's failure to remit payment of $38,047.94, as required by the Order of this Court dated February 11, 2010 (Bruno, J.); (d) granting Plaintiff a money judgment, pursuant to Domestic Relations Law §244 (a), in such further amount as may represent any additional arrears which may accrue through the date of the determination of the instant Order to Show Cause herein; (e) pursuant to Domestic Relations Law §§244-b, 244-c and 244-d, Family Court Act §§454(2)(f), 458-a and 458-b, suspending all professional, occupational, business and recreational licenses of Defendant GM, including but not limited to his New York State driver's license, by virtue of his intentional refusal to have paid child support and maintenance; (f) directing Defendant GM to immediately reinstate or obtain a new policy of automobile insurance insuring Plaintiff's car, homeowner's insurance and an umbrella insurance policy; (g) directing Defendant GM to pay and satisfy the [*2]outstanding mortgage and real estate tax arrears which have accrued over the past twenty-two (22) months, and exceed $210,000.00; (h) directing Defendant GM to provide proof of the existence of a current and up-to-date policy of life insurance naming Plaintiff EM as irrevocable beneficiary thereof; (i) granting Plaintiff an award of reasonable counsel fees incurred by Plaintiff for the preparation and prosecution of the instant Order to Show Cause in the sum of $15,000.00 payable by Defendant directly to Plaintiff's counsel; and (j) awarding Plaintiff a reasonable interim counsel fee in the amount of $25,000.00 payable by Defendant directly to Plaintiff's counsel, Kenneth J. Weinstein, Esq., together with leave to seek such other and further counsel fees as may be warranted. Defendant opposes said application.

A hearing was conducted on February 15, 16 and 17, 2011. The Plaintiff ("wife") and the Defendant ("Husband") were the only witnesses called to testify. For the reasons set forth herein, this Court found the testimony of the wife credible and the testimony of the Husband not credible.

Counsel for both parties stipulated that the amount of direct support and maintenance due and owed to the Plaintiff by the Defendant from February 11, 2010 through December 13, 2010, a period of 45 weeks, pursuant to the Court order is $6,100.00.

Plaintiff testified that pursuant to the Court's decision and order dated February 9, 2010, ("Order") the Defendant was ordered to pay for the following items:

1. Mortgage, real estate taxes and homeowner insurance on the marital residence located at XXX XXX XXX, XXX, NY.

Plaintiff testified she resided there for approximately 20 years and currently resides there with her son and younger daughter, as the Defendant moved out and was living at the XXX XXX since June 2009. According to Plaintiff, she has been a housewife for 20 years and the mortgage was current as of the date of her application for pendente lite support.

Plaintiff also testified the mortgage on the marital residence is in default and has not been paid since the issuance of the Court's Order. The Defendant admitted on cross examination that he did not pay the mortgage or real estate taxes since the date of the Court's Order. The Defendant, however, never disputed Plaintiff's allegations regarding when he stopped paying the mortgage, only that as of this Court's Order the mortgage was in default. Plaintiff also testified she confirmed this with the lender and the amount currently in arrears on the mortgage was approximately $217,000.00 as of December, 2010. Plaintiff's exhibit 2 reflects that as of December 2010 the amount needed to cure the mortgage default was $217,884.49.

Plaintiff testified the homeowners insurance policy and umbrella policy were cancelled (see exhibit 10) notwithstanding the fact that Plaintiff sent the notices to Defendant.

2. Medical and Dental Services. [*3]

The Plaintiff testified that she and her children received dental services at Prosthodontic of Long Island . The Plaintiff's oldest daughter, XXX, ("XXX") incurred a bill for $155.00 and the Plaintiff's younger daughter, XXX ("XXX"), incurred a bill for $764.00. Plaintiff sent both bills to the Defendant for payment but the Defendant did not pay them. Therefore, the dentist will no longer treat the children (See exhibit 13). Defendant testified that the first time he saw this bill was in court during this hearing, February 16, 2011. On cross examination the Defendant admitted his prior testimony was not accurate. He admitted that he saw the document in question as an exhibit to Plaintiff's initial application, in which Defendant also submitted opposition. Defendant also admitted he did not pay this bill.

In addition to the foregoing, the Plaintiff also testified she has a dental bill in the amount of $4,970.00 which was also sent to the Defendant for payment but the Defendant did not pay the bill. Therefore, her dentist will no longer treat her due to non-payment (See exhibit 14).

Plaintiff testified she sent a bill from XXXX Pediatrics, the children's pediatrician, in the amount of $588.19 regarding XXX XXX to the Defendant but the bill was not paid. As of June 24, 2010; the amount owed to XXXX Pediatrics regarding XXX XXX was $1,696.20. Plaintiff testified that these bills were sent to the Defendant, but he did not pay these bills (see exhibits 16 and 17).

On November 2, 2010, Plaintiff received a bill from her internist in the amount of $90.00. The bill was sent to the Defendant for payment, but payment was not made (see exhibit 18). Defendant testified that the first time he saw this bill was in court during this hearing, February 16, 2011. On cross examination, the Defendant admitted his prior testimony was not accurate, as the document in question was an exhibit to Plaintiff's initial application, in which Defendant also submitted opposition. Defendant also admitted he did not pay this bill.

Next, Plaintiff produced a bill from Nassau Radiological Group for a procedure called a "bone age" for her daughter XXX in the amount of $150.00, a bill from NYU to Plaintiff in the amount of $80.00 and a bill for her daughter, XXX, from Select Pediatric PC dated August 4, 2010 in the amount of $100.00, all of which Plaintiff testified were sent to the Defendant, but were not paid. (See exhibit 19A - C). Defendant testified that the first time he saw these bills was in court during this hearing, February 16, 2011. On cross examination, the Defendant admitted his prior testimony was not accurate, as he saw the document in question as an exhibit to Plaintiff's initial application, in which Defendant also submitted opposition. Defendant further admitted he did not pay this bill.

Plaintiff then testified that Dr. XXX, her daughter XXX's orthodontist for the past few years, will no longer see XXX because of an outstanding bill in the amount of $1,200.00, which was sent to the Defendant to pay (see exhibit 20). Defendant testified that the first time he saw this bill was in court during this hearing, February 16, 2011. On cross examination, the Defendant admitted his prior testimony was not accurate, as this document in question was also an exhibit to Plaintiff's initial application, in which Defendant submitted opposition. Defendant [*4]admitted he did not pay this bill.

In short, the Defendant admitted he did not pay any of the aforesaid medical or dental bills.

3. Utilities, electric, cable, telephone, internet and all necessary repairs to the home.

Plaintiff testified her land line telephone and home security alarm system were terminated after the issuance of the Court's Order, as well as her electric, gas and cable television. She also testified said services get disconnected frequently, as Defendant instructed the various utilities to send the bills directly to him. As such, Plaintiff does not know, if or when these various bills are being paid. Plaintiff testified she never saw the utility bills. On or about August 26, 2010, Plaintiff received a disconnect notice from LIPA for failure to pay $3,245.34 (see exhibit 6). Service was disconnected for several days and then was reinstated.

Plaintiff testified that she received a Verizon Wireless bill dated December 2010 in the amount of $645.70 and another bill from Verizon Wireless dated January 20, 2011 in the amount of $640.59. These bills were sent to the Defendant for payment, but he did not pay them. Therefore, the Plaintiff and the parties' children's cell phone service was disconnected (see exhibit 22 and 22A).

XXX Landscaping provided service for the lawn, trees, snow removal and general landscaping. All bills were sent to the Defendant. For the period of October 11, 2009 through October 30, 2010, $4,969.48 was owed and the landscaping service was discontinued for non-payment (see exhibit 24).

XXX Electric performed some minor electrical work at the marital residence on or about October or November 2009 and billed Plaintiff $1,048.23 which was also sent to Defendant. Defendant testified that the bill was never received by him.

XXX Contracting performed services at the marital residence such as painting, sheet rocking, repairs, bedroom doors and leaks on the roof. Plaintiff mailed XXX's bill in the amount of $2,130.00 to Defendant for some cement work and repairs due to a pipe that burst in the marital residence (see exhibit 26).

XXX's Tree Service was hired by Plaintiff to remove a tree that was leaning on the house at a cost of $1,500.00, which Plaintiff sent to the Defendant for payment (See exhibit 27). Defendant testified that he first learned of the bill in court on February 16, 2011.

XXX's Tree Service was retained to remove another tree leaning against the house because XXX's Tree Service refused to do any more work due to non-payment. XXX's Tree Service performed the work and rendered a bill for $2,281.00 for the full amount of work to be performed. However, only half of the work was done. Defendant testified he first became aware [*5]of the bill in court on February 16, 2011.

XXX Heating and Air Conditioning Inc., rendered service to the marital residence and billed Plaintiff $1,100.00 which Plaintiff sent to the Defendant for payment (See exhibit 29 A). Defendant testified he first become aware of the document in court on February 16, 2011.

Plaintiff had her car registered for a cost of $235.00 which Plaintiff paid and sent the bill to Defendant, but he never paid it. (See exhibit 29 B). Defendant testified he paid this bill but offered no documentary proof of same. X and X Sprinkler rendered services at the marital home for a cost of $141.21 which Plaintiff sent to Defendant (See exhibit 29 C). Plaintiff further testified that X and X serviced the marital residence for many years and their service to activate the sprinkler system was a recurring expense. Again, Defendant testified that the first time he saw this document was in court on February 16, 2011.

Plaintiff further testified on re-direct examination that all of the work performed on the marital residence that she testified to on her direct examination was reasonable and necessary. The Defendant did not dispute her testimony.

The Verizon land line service was also terminated in June 2010 and to date has not been reinstated. As a result of the land line being terminated, the home security system was terminated. Also, the alarm company, XXX Alarms terminated service because of non-payment of $1,713.97 (see exhibit 11). Plaintiff testified that Verizon and XXX provided service to the marital residence for about 20 years.

XXX Exterminating also rendered monthly service at the marital residence during the course of the parties' marriage. Specifically, on April 23, 1010 and July 9, 2010, XXX rendered services for a cost of $418.21 and $70.61 respectively, for a total of $599.43 (See exhibit 12). Defendant testified that the first time he saw this bill was February, 2011 when he testified at this hearing. Defendant also testified that the first time he saw the bill for XXX Alarms (exhibit 11) dated July 1, 2010 was in court.

4.Range Rover.

Plaintiff testified that the Range Rover has a monthly payment of $643.00 plus vehicle maintenance, repairs, gasoline, inspection, registration and automobile insurance. Plaintiff testified her Range Rover payments are currently five (5) months overdue. Plaintiff further testified that as of September 29, 2010 the amount owed on the Range Rover was $2,114.59, and that she currently owes just under $3,000.00. Since Plaintiff failed to submit any other documentation regarding the current outstanding balance on the Range Rover through the date of this hearing, this Court calculated the amount due based upon Plaintiff's uncontroverted testimony that the car payments were five (5) months in arrears. Exhibit 7 indicated the monthly payments were $643.00 per month equaling $3,215.00. However, subsequent to the conclusion of this hearing counsel for Plaintiff submitted a statement to this Court, on notice to the [*6]Defendant that the correct amount due is $2,752.84.

5.Homeowners Insurance and Automobile Insurance.

Plaintiff also testified that she and the parties' children XXX and XXX, were under Plaintiff's automobile insurance policy which the Defendant was required to pay pursuant to the Court's Order. However, Plaintiff testified that she first realized her insurance was cancelled when her children were involved in an automobile accident. Plaintiff further testified Defendant never notified her or the children that there was no insurance coverage. During Defendant's testimony, he admitted that he never informed the Plaintiff nor his children that the auto insurance policy had lapsed (See exhibits 8 and 9).

Plaintiff testified her automobile insurance was cancelled on June 30, 2010 when she received a notice of cancellation (see exhibit 8). Again, on October 30, 2010, it was cancelled when she received another notice of cancellation (see exhibit 9). Defendant claims he paid the insurance on October 29, 2010 (see exhibit A). He also claims the insurance for the automobile and marital residence is current. The Court notes that exhibit A, is the only document that was admitted into evidence on behalf of the Defendant regarding any payments made pursuant to this Court's Order.

Plaintiff testified that when she would try to communicate with the Defendant by e-mail or text to put him on notice of the various bills, the Defendant's response would be, "I will erase every message without reading. Leave me alone.", "You are an asshole. Don't leave me any more voice messages or I won't pay you next week" or "You are nuts, you will be lucky if I pay you this week, you are nuts" (See exhibit 21). The Defendant testified that he did not remember the context in which the messages were sent.

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 N.Y.S.2d 835 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Company Limited, 174 AD2d 487, 571 N.Y.S.2d 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 N.Y.S.2d 434 (2nd Dept. 2004); McCain v. Dinkins, 84 NY2d 216, 616 N.Y.S.2d 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 N.Y.S.2d 135 (2nd Dept. 2003); Pantelidis v. Pantelidis, 297 AD2d 791, 747 N.Y.S.2d 809 (2nd Dept. 2002).

Further, pursuant to Domestic Relations Law §245, before a defaulting party can be held 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, [*7]Higbee v. Higbee, 260 AD2d 603, 688 N.Y.S.2d 669 (2nd Dept. 1999); Snow v. Snow, 209 AD2d 399, 618 N.Y.S.2d 442 (2nd Dept. 1994); Wiggins v. Wiggins, 121 AD2d 534, 503 N.Y.S.2d 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 N.Y.S.2d 849 (4th Dept. 2007).

Here, the Defendant testified he was aware of the Order and that he was required to make specific fixed payments regarding the mortgage, real estate taxes, homeowners insurance, medical and dental services, utilities, necessary home repairs, automobile expenses and insurance and interim counsel fees for the Plaintiff and the parties' children. Defendant also testified that he did not comply with the Order and argues that his failure to pay was not willful, but rather the result of his inability to pay.

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 and is an independent contractor who receives a form 1099. As such, a garnishment, judgment or execution would be ineffectual. The Defendant testified when the Order was issued, that he earned approximately $240,000.00 a year and in 2010 he only earned $165,000.00. Surprisingly, Defendant never introduce his form 1099 for the year 2010 to corroborate his testimony or any other documentation to support same, nor did the Defendant explain why he did not seek a modification of this Court's prior Order if there was a substantial change in his income. The Court notes that Defendant's current Statement of Net Worth sworn to and dated January 9, 2011 submitted in opposition to this instant action ("2011 Statement") indicates the Defendant's income in 2010 was $191,400.00.

The Defendant testified he was able to pay his rent in the amount of $1,700.00 per month plus gas, electric, $450.00 per month for his Mercedes-Benz, pay legal fees and according to his own 2011 Statement, he spent $900.00 per month dinning out, while at the same time complaining he can not afford to comply with this Court's Order. The Court also notes that with the exception of the Defendant's car and rent payments, the Defendant did not offer any other credible evidence regarding his expenses and why he could not afford to comply with this Court's Order. This Court finds it shocking that the Defendant herein, who admits he made $191,400.00 last year and can well afford to spend $900.00 per month dinning out, can afford to drive a Mercedes-Benz and support his own life style can not find the money to provide for his wife and his children's medical needs and other daily needs. Equally shocking is how a father could let his children drive an automobile without even having the decency to tell them the automobile insurance policy had been cancelled, due to his failure to pay same.

In addition to the foregoing, the Defendant along with his two brothers, were named executors of his fathers estate some time in August or September 2008. The Defendant testified [*8]he received $10,000.00 from the sale of his father's apartment at XXX XXX, approximately $15,000.00 from his father's IRA sometime in 2010 (the Court notes again the 2011 Statement indicates $21,000.00) and approximately $367,000.00 from two life insurance policies, but that he used the life insurance proceeds to pay for family obligations. Defendant also testified that the amount of the life insurance proceeds were not listed on his net worth statement.

The Defendant also testified that another reason why he did not comply with this Court's Order was due to the fact, his prior counsel, Maxine Last, Esq., advised him not to comply with this Court's Order. Surprisingly, Defendant offered no explanation why a well respective member of the bar, would intentionally advise the Defendant to violate this Court's Order. Not surprisingly, the Defendant failed to call Ms. Last as a witness to corroborate this alleged defense. This Court finds Defendant's argument is belied by the fact that as soon as this Court issued it's Order, the payments the Defendant was making to the Plaintiff in the amount of $400.00 per month increased to the correct amount of maintenance and child support pursuant to the Order.

In addition to the foregoing, this Court finds that the numerous inconsistencies in Defendant's sworn testimony that took place during this hearing simply rendered Defendant's testimony not credible. "The trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" (Peritore v. Peritore, 66 AD3d 750, 888 NYS2d 72 [2 Dept., 2009]; see Varga v. Varga, 288 AD2d 210, 732 NYS2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 AD2d 358, 717 NYS2d 635 [2 Dept., 2000] ["Evaluating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court"]; Ferraro v. Ferraro, 257 AD2d 596, 257 AD2d 596. 684 NYS2d 274 [2 Dept., 1999]). The court's assessment of the credibility of witnesses is entitled to great weight (see generally Wortman v. Wortman, 11 AD3d 604, 783 NYS2d 631 [2 Dept., 2004]). "In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Ivani v. Ivani, 303 AD2d 639, 303 AD2d 639, 757 NYS2d 89 [2 Dept., 2003],citing L'Esperance v. L'Esperance, 243 AD2d 446, 663 NYS2d 96 [2 Dept., 1997]; accord Krutyansky v. Krutyansky, 289 AD2d 299, 733 NYS2d 920 [2 Dept., 2001; see Schwartz v. Schwartz, 67 AD3d 989, 890 NYS2d 71 [2 Dept., 2009]). The trial court's ". . . assessment of the credibility of witnesses and evidence is afforded great weight on appeal" (Schwartz v. Schwartz, 67 AD3d 989, 890 NYS2d 71 [2 Dept., 2009]).

Accordingly, based upon the foregoing, this Court finds that the Defendant has willfully failed and refused to obey those provisions of the Order which required him to pay the items enumerated in the Order and that such refusal was intended to and did in fact defeat, impair, impede and prejudice the rights of the Plaintiff and the children.

Accordingly, it is

ORDERED that the Defendant, GM, shall pay Plaintiff an award of reasonable counsel [*9]fees already incurred by Plaintiff for the preparation and prosecution of the instant action through November 1, 2010 in the sum of $15,789.58 payable by Defendant directly to Plaintiff's counsel, as well as interim counsels fee for the prosecution of the instant hearing and continued representation of Plaintiff in the amount of $25,000.00 payable by Defendant directly to Plaintiff's counsel, The Law Offices of Kenneth J. Weinstein, P.C., regarding the continued representation of Plaintiff, within ten (10) days of this Decision and Order and it is further ordered that if payment of the aforementioned legal fees are not paid as directed herein, the Clerk of the County of Nassau, upon payment of all appropriate fees, shall enter judgment in favor of The Law Offices of Kenneth J. Weinstein, P.C., as against Defendant, GM upon presentation of this order together with an affirmation of non-compliance; and it is further

ORDERED that Defendant, GM, is sentenced to incarceration in the Nassau County Correctional Facility for a period of six months. The contemnor may purge his contempt by (1) payment of the amount of thirty-eight thousand seven hundred eighty-five dollars and fifty-seven cents ($38,785.57) to Plaintiff, EM, on or before April 26, 2011, by bank or certified check, representing the aggregate amount owed regarding, child support and maintenance ($6,100.00), XXX of Long Island ($155.00, $764.00 and $4,970.00), XXX Pediatrics ($588.19 and $1,696.20), XXX Internal Medicine ($90.00), Nassau Radiological Group ($150.00), NYU ($80.00), XXX Pediatric PC ($100.00), Dr. XXX ($1,200.00), LIPA ($3,245.34), Verizon Wireless ($645.70 and $640.59), XXX Landscaping ($4,969.48), XXX Electric ($1,048.23), XXX Contracting ($2,130.00), XXX's Tree Service ($1,500.00), XXX's Tree Service ($2,281.00), XXX Heating and Air Conditioning Inc.($1,100.00), car registration ($235.00), X & X Sprinkler ($141.21), XXX Alarms ($1,713.97), XXX Exterminating ($418.21 and $70.61), Range Rover ($2,752.84), (2) obtain a policy of automobile insurance insuring Plaintiff's car, homeowner's insurance, umbrella insurance, medical insurance and life insurance naming Plaintiff, EM, as irrevocable beneficiary thereof and provide proof of payment and proof that these policies are in full force and effect and (3) to pay and satisfy the outstanding mortgage and real estate tax arrears in the amount of $ 217,884.84 to Bank of America, or its designee by bank or certified check; and it is further

ORDERED, that in the event The Bank of America or its designee, refuse to accept the aforementioned $217,884.84, then the Defendant, GM, is directed to pay this amount to The Law Offices of Kenneth J. Weinstein, P.C., as escrow agent, by bank or certified check, which sum shall remain in escrow, pending further order of this Court; and it is further

ORDERED, that the parties and their counsel shall appear in Part 24 of the Nassau County Supreme Court, 400 County Seat Drive, Mineola, NY 11501 for sentencing on, April 27, 2011 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 March 25, 2011, and shall provide the Court with proof of such service.

All matters not decided herein are hereby DENIED. [*10]

This constitutes the decision and order of this Court.

Dated: March 16, 2011

Mineola, New YorkE N T E R:

______________________________

Hon. Robert A. Bruno, J.S.C. [*11]