Plaintiff seeks an Order: (a) pursuant to Domestic Relations Law §245 and Judiciary Law §753, adjudging defendant to be in contempt of court and punishing him for contempt for his willful and deliberate failure to comply with the lawful Order of the Court, specifically the Decision and Order (pendente lite) of the Honorable Justice Robert A. Bruno, dated November 8, 2010 ("Order") as follows: (I) defendant's failure to obtain medical insurance for the benefit of the plaintiff and the parties' unemancipated child; (ii) defendant's failure to pay 57 percent of the carrying charges for the marital residence, including but not limited to: mortgage, taxes, homeowners' insurance, utilities, telephone, cable, landscaping and the cost of reasonable repairs/maintenance retroactive to the original date of service of this application to wit: August 12, 2010; (iii) defendant's failure to pay 57 percent of the down payment of the lease of the 2010 Honda Accord and 57 percent of the monthly lease payment for said vehicle; (iv) defendant's failure to provide proof of payment of life insurance policies, pay all premiums associated with same (and naming plaintiff as irrevocable sole beneficiary); (v) defendant's failure to pay 50 percent of college expenses for the parties' daughter; (b) pursuant to Domestic Relations Law §245 and Judiciary Law §753, adjudging defendant to be in contempt of court and punishing him for contempt for his willful and deliberate failure to comply with the lawful Order of the Court, specifically the order Appointing Appraiser dated September 22, [*2]2010, for failure to pay his pro-rata share (57 percent) of the forensic accounting fees with Klein, Liebman & Gresen, LLC; ( c) pursuant to Domestic Relations Law §237( c), awarding plaintiff counsel fees in the sum of $10,000.00 for the bringing of this Order to Show Cause with leave to apply to the trial Court for additional fees; and (d) granting plaintiff leave to amend the papers in support of her application for a money judgment to include additional arrears which may accrue since the commencement of the instant motion at the time of a hearing upon or submission of the motion, pursuant to Domestic Relations Law §224-a.

Defendant opposes said application and cross moves for an Order: 1) Denying plaintiff's request for interim counsel fees and 2) seeks a downward modification of the pendente lite Order of Support dated November 8, 2010 and entered in the office of the Clerk of the County of Nassau on the 16th day of November, 2010.

A hearing was conducted on May 23, 24, 25, 26, 31, June 1, and 24, 2011. The plaintiff and defendant testified. The defendant also called Michael Boccia. The plaintiff testified and submitted documentation that the carrying charges on the marital residence along with ancillary expenses totaled $81,397.31 of which the defendant was to pay 57% or $46,396.69 (see Exhibits 1 and 2).

Plaintiff testified that the defendant did not comply with this Court's Order directing him to obtain medical insurance for the plaintiff. As a result, plaintiff obtained her own insurance at a cost of $640.00 per month from January 1, 2011 through the date of the hearing. Prior to January 1, 2011, the plaintiff testified she was without health insurance for approximately eight (8) months and has a seizure disorder. The defendant admitted that the health insurance had lapsed because the premiums were not paid.

Plaintiff also testified defendant made no payments regarding his 57% of any unreimbursed medical, dental, orthodontic, pharmacy or psychotherapy expenses. Plaintiff testified defendant's 57% of these bills equal $199.50 (Exhibit 1 and 2). The defendant did not dispute this amount.

In response to counsels voir dire of plaintiff regarding the loans her parents made to her to pay the LIPA and National Grid payments, plaintiff testified she was not sure whether these amounts were also included a second time in plaintiff's Exhibit No.1. However, the Court, sua sponte, reviewed the exhibits and has determined that the loans made to plaintiff by her parents in the amount of $1,397.39 (as indicated in this Court's prior Order) are already included in plaintiff's exhibit 2 and therefore shall not be counted twice.

Plaintiff further testified the defendant did not make his 57% of the payments he was ordered to pay pursuant to this Court's Order regarding the (i) mortgage, (ii) taxes, (iii) homeowner's insurance, (iv) utilities, (v) telephone, (vi) cable, (vii) landscaping, (viii) repairs or maintenance, (ix) down payment on lease for 2010 Honda Accord, and (x) lease payment for Honda Accord. The defendant did not dispute plaintiff's testimony.

Plaintiff also testified the defendant did not maintain the life insurance policy as directed in [*3]the Order nor did defendant pay 50% of the parties daughter's college expenses, but plaintiff could not recall the amount she paid for her daughter's college expenses. Nor did the defendant pay his 57% portion of the court-appointed evaluator, Klein, Lieberman & Green, LLC to evaluate the defendant's business. However, plaintiff never indicated what the amount was.

Plaintiff testified she was unaware if a life insurance policy existed at the time action was commenced, but that the defendant had a policy during one point in the marriage but let it lapse sometime in February 2010.

Defendant contends that since some of the utility bills cover a period of time prior to plaintiff's pendente lite application, served August 12, 2010, that the defendant should only be responsible for charges incurred commencing on August 12, 2010 and thereafter and not prior to August 12, 2010, unless specifically provided for in this Court's Order, as the Order is retroactive to the date of the service of the application.

In the instant action, based upon the plaintiff's testimony in part and a review of the bills introduced into evidence, it appears that certain bills contain amounts which accrued prior to August 12, 2010. Regarding these certain bills in question, there was no evidence introduced at the hearing to delineate what expenses were incurred prior to August 12, 2010, the date the parties agreed service of plaintiff's pendente lite application was effectuated.

Therefore, as a result of the foregoing, and for the purpose of this contempt application only, the following bills shall not be considered; (1) LIPA dated August 31, 2010 in the amount of $239.00 for current charges, (2) LIPA dated September 30, 2010 in the amount of $535.43 from prior bill representing an end of the year budget adjustment, (3) National Grid dated July 29, 2010 in the amount of $189.00, (4) National Grid dated August 31, 2010 in the amount of $214.00, (5) Aqua New York Water dated August 10, 2010 in the amount of $195.20, (6) Cablevision/Optimum for the billing period August 23, 2010 - September 22, 2010 indicates the total cable current charges due is $206.26 and not $207 as indicated on Exhibit #1. Although there was evidence of the husband's failure to comply during that time period, insufficient evidence of the amounts owed was adduced at the hearing to sustain a contempt finding, regarding the aforementioned bills. Therefore, for the purposes of this contempt application only, this Court has subtracted the above amounts totaling $1,373.37 from the uncontested portion of defendant's arrears in the amount of $46,396.39 resulting in a net amount of $45,023.02.

Significantly, to sustain a finding of civil contempt based upon a violation of a court order, a movant must demonstrate, inter alia, the existence of an unequivocal mandate (see, Kawar v, Kawar, 231 AD2d 681 [2d Dept. 1996]) and must establish a violation thereof (see, Bickwid v. Deutsch, 229 AD2d 533 [2d Dept. 1996]). The failure to establish the amount of arrears is thus fatal to that branch of the wife's contempt motion (see generally, Miller v Miller, 18 AD3d 629 [2d Dept. 2005]; Kent v. Kent, 233 AD2d 258 [1st Dept. 1996].

The defendant testified that he owns 51% of Excel Electric Co., Inc. and Michael Boccia [*4]owns 49% of Excel. Excel is an electrical contractor who according to defendant had gross sales of approximately $1,625,312.00 in 2009 (Exhibit 14) and gross sales of approximately $811,669.00 in 2010 (Exhibit 15).

The defendant also testified he was aware of this Court's Order but never made any payments as directed in the Order. However, subsequent to this Court's Order dated November 8, 2010 the defendant testified on cross- examination that he purchased an I-phone case as a gift for his daughter, valued at $87.05, from Apple on-line. Defendant also testified subsequent to this Court's Order he purchased an additional item from Apple on-line, MXCO, New York, NY, and City Center but could not remember what those items were. Defendant further testified he purchased liquor, for himself, went to the movies, but could not recall what he saw or if he went alone and then after the movie went out to eat, continues to pay his Cablevision bill in the amount of $111.60 per month, Macy's charge card, gym membership and his college courses and books ($533.00 per month).

The defendant's Statement of Net Worth (Exhibit C) sworn to on May 20, 2011 lists, inter alia, certain of the defendant's monthly expenses, such as, (I) $1,995.00 - rent; (ii) $650.00 - food; (iii) $100.00 - clothing; (iv) $533.00 - college and books; (v) $130.00 - cable television - (vi) $100.00 - dining out; (vii) $80.00 - health club; and (viii) $335.00 - miscellaneous. The defendant's total monthly expenses equal $4,398.00 per month or approximately $52,776.00 per year.

In contrast to the defendant's aforementioned expenses, the defendant testified he makes approximately $12,000.00 per year (Exhibit D) and he makes up his monetary short fall by borrowing money from Excel, in which he controls a majority interest. Notwithstanding, defendant's characterization that the monies he receives from Excel are "loans," the defendant further testified that the terms of these "loans" do not provide for any interest rate nor do they provide for a date the "loans" must be repaid. In addition to the foregoing, the defendant did not offer any credible written documentation to substantiate the additional monies he receives from Excel over and above his salary are loans. Defendant's testimony that the additional funds he received from Excel over and above his salary are "loans" are further belied by Excel's own tax returns for the years ending 2009 (Exhibit 14) and 2010 (Exhibit 15) which both indicate on Schedule L, line seven, under the heading "loans to shareholders" the amount is blank. The Court also notes that the tax returns list the defendant as the president and majority stockholder. The defendant was unable to reconcile these inconsistent positions.

The defendant continued to testify at length regarding Excel's poor financial condition and how Excel accumulated various judgments and liens for failure to pay its taxes and employee benefits. However, the defendant testified that notwithstanding Excel's poor financial condition, Excel still managed to pay the monthly lease and ancillary expenses associated with defendant's Mercedes-Benz and Corvette as well as continue to lend defendant money to support his lifestyle and repay Michael Boccia more than $103,000.00 in loans and at the same time declare Excel had a loss for the year.

It is clear to this Court that the defendant was and still is in a unique position to manipulate [*5]the financial condition of Excel as well as take additional money out of Excel to support his lifestyle while never seeking to borrow or take out money to comply with this Court's Order. The defendant admitted that he never borrowed money from Excel to pay his Court Ordered obligations.

Plaintiff testified she was not aware of any liquid assets the defendant might have had. More to the point, the defendant testified he had no liquid assets and he used a check cashing service to avoid judgment creditors. Therefore, in light of the fact the defendant made himself judgment proof, is the president and a majority shareholder in Excel, with the ability to manipulate payments or "loans," it appears to this Court that other enforcement remedies would be ineffective.

Michael Boccia testified he was a 49% shareholder in Excel, had lent Excel approximately $200,000.00 in 2009-2010 for operating capital and that Excel's financial condition was not good. However, Mr. Boccia was not able to produce any promissory notes or other documentation to evidence his loan to Excel.

Mr. Boccia, despite owning 49% of Excel, testified during cross examination that he didn't remember if he ever saw the tax returns Excel filed for 2010 or if his wife was ever a shareholder of Excel. The Court also notes that Mr. Boccia's testimony regarding plaintiff's exhibit eight (Shareholder Agreement, Article 4 - Shareholder Loan) was inconsistent and contradictory.

After hearing the testimony of the defendant and his witness, Mr. Boccia, watching and listening to their demeanor, their inability to remember important recent events and facts, this Court finds the defendant's testimony and the testimony of Mr. Boccia, simply not believable or 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 wilfully failed and refused to obey this Court's Order, beyond a reasonable doubt and that such refusal was intended to and did in fact defeat, impair, impede and prejudice the rights of the plaintiff. [*6]

For the reasons set forth herein defendant's cross motion is denied.

Accordingly, it is

ORDERED that the Defendant, David J. Burgos, shall pay Plaintiff an award of reasonable counsel fees incurred by Plaintiff for the preparation and prosecution of the instant action in the sum of $23,861.03 payable by Defendant directly to Plaintiff's counsel, Jody Pugach, P.C., 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 Jody Pugach, P.C., as against Defendant, David J. Burgos upon presentation of this order together with an affirmation of noncompliance; and it is further ^[FN1]

ORDERED that Defendant, David J. Burgos, is sentenced to incarceration in the Nassau County Correctional Facility for a period of six months. The contemnor may purge his contempt by paying plaintiff, Gina M. Burgos, by bank or certified check in the sum of $45,023.02 representing arrears and the sum of $3,840.00, representing health insurance premiums the plaintiff was required to expend due to the defendant's failure to comply with this Court's Order;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, September 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 September 1, 2011, and shall provide the Court with proof of such service.

All matters not decided or requests for relief not granted herein are hereby DENIED ^[FN2].

This constitutes the decision and order of this court.

Dated: August 23, 2011

Mineola, New YorkE N T E R: [*7]

______________________________

Hon. Robert A. Bruno, J.S.C. C:\HTFormat\f5181210.txt