This motion by defendant Stephen Lord for an order: (1) holding the plaintiff in contempt; (2) removing the plaintiff from property located at 18 Woods Road, Tivoli, New York (the "property"); (3) approving a sale price for the property; (4) requiring the plaintiff to pay fifty percent (50%) of the differential between the sale price and $250,000.00; and (5) for attorney's fees and disbursements is resolved as follows.

An evidentiary hearing was conducted over parts of four (4) days.

Both parties testified and presented seven (7) additional witnesses. I resolve all issues of credibility in favor of the plaintiff. (PJI, Vol. 1A, 1:41; Goldstein v. Guida, 74 AD3d 1143, 1144 [2d Dept. 2010]; Ivani v. Ivani, 303 AD2d 639, 640 [2d Dept. 2003].)

The court has taken judicial notice of undisputed court records and files. (Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill, 8 AD3d 485 [2d Dept. 2004].)

The plaintiff and defendant were divorced pursuant to a judgment, dated and entered May 30, 2006. With respect to the property located at 18 Woods Road, Tivoli, New York, the judgment provides a perspicuous protocol for its ineluctable disposition. It was developed with the assistance of counsel when the parties appeared and placed a stipulation of settlement on the record on February 3, 2006. The salient provisions are as follows:

"ORDERED AND ADJUDGED that the marital residence located at 18 Woods Road, Tivoli, New York, which residence is marital property of the parties but titled solely in the name of the [*2]Defendant, shall be placed on the market and sold and the proceeds of the sale distributed all in accordance with the following protocol:

(a) The parties shall, by March 5, 2006, select a real estate broker with an office in Red Hook or Rhinebeck, New York to list the marital residence for sale;

(b) The parties shall consult with the selected real estate broker and reach an agreement no later than March 5, 2006, as to what repairs are needed to make the premises marketable for sale to achieve the best sales price, it being recognized that the marital residence presently has no heating system, requires a new kitchen floor and requires other repair work and improvements to make the property marketable for sale and achieve the best sales price;

(c) That the Defendant shall be responsible for payment of those repairs and improvements, to a limit of $30,000.00 and if the cost of needed repairs or improvements exceed the sum of $30,000.00, the parties can share that cost or work out some other arrangement for providing those repairs;

(d) That the Defendant shall be responsible for obtaining estimates from reputable contractors to perform whatever repairs and improvements the parties agree are going to be made to the premises and shall be responsible for hiring those contractors and coordinating the work and, for that purpose, the Defendant shall have reasonable access to the property on notice to the Plaintiff to perform those tasks;

(e) When the repair and improvement work has been completed, the parties shall place the house on the market for sale, through the real estate broker selected by the parties, at a gross asking price determined upon recommendation by the real estate broker selected by the parties which price should reflect the fair market value of the property;

(f) The parties shall also agree on a net selling price that they will agree to accept in the event an offer on the property is made in an amount less than the gross asking price and that the agreement on the gross selling price and net selling price shall be reduced to writing by the parties with the real estate broker;

(g) That in the event the property has not sold within a period of ninety (90) days of being placed on the market for sale, the parties shall, based on the recommendations of the [*3]selected real estate broker, on a periodic basis, make necessary reductions in the gross asking price and net selling price to reflect the market conditions, in an effort to sell the marital residence as soon as possible;

(h) Except as provided herein, the Plaintiff shall have exclusive use and possession of the marital residence until such time as the marital residence is sold."

"In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with the contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the movant's rights." (Galanos v. Galanos, 46 AD3d 507, 5008 [2d Dept. 2007].) The movant "bears the burden of proving contempt by clear and convincing evidence." (Danker v. Steefel, 41 AD3d 526, 528 [2d Dept. 2007].) Additionally, the movant must demonstrate "the party to be held in contempt must have had knowledge of the order." (McCain v. Dinkins, 84 NY2d 216, 226 [1994], mo to amend den'd 84 NY2d 846 [1994].)

The evidence indicates that the plaintiff was fully aware of the terms and conditions which would essentially result in the sale of the former marital residence as set forth in the judgment of divorce. However, it became abundantly clear as the hearing unfolded that the predominant reason for the parties' failure to market and sell the residence for the past six (6) years is their unwillingness to communicate or cooperate with each other. Fault can be easily ascribed to the parties equally. This fact was indeed established through their own testimony and the multiple real estate brokers who testified. The defendant testified to a variety of instances of undertaking unilateral actions without consulting the plaintiff or obtaining her consent as required by the judgment. Similarly, the plaintiff failed to communicate or cooperate with the defendant. On that basis, the defendant has failed to meet his burden of proof on the issue of the plaintiff's alleged civil contempt. Therefore, branches (1) and (2) of the defendant's motion are denied.

Branch (3) of the motion is granted to the extent that the parties are directed to fully comply with paragraphs (a) through (h) inclusive of the detailed procedure they adopted with the assistance of counsel which is incorporated in the judgment of divorce. In the event the residence is not sold according to that protocol within one hundred twenty (120) days from the date of this decision and order, the Court hereby appoints attorney Donald D. Brown, Jr., Esq., 272 Mill Street, Poughkeepsie, New York 12601, (845) 452-7400, as auctioneer (Party 36 eligibility list) to advertise and sell it at the parties' cost and expense [*4]to be shared equally at public auction for the best available price. The plaintiff's attorney is directed to notify the auctioneer in writing if this contingency is realized.

Branch (4) of the motion is denied based upon the court's directive concerning branch (3).

Branch (5) of the motion is denied.

Counsel for the plaintiff and defendant are directed to forthwith retrieve the physical evidence introduced at trial within ten (10) days of the date of this decision and preserve the same through completion of the appellate process.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

April 18, 2013

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

041713 decision & order