The application by order to show cause filed by petitioner's counsel, Sandra M. Prowley, Esq., seeking an order holding petitioner in contempt for her refusal to comply with this court's order and judgment, dated July 9, 2012, is granted.

On May 3, 2011, petitioner commenced this proceeding seeking to be appointed the guardian of the person and property of her husband, E.L.P. a/k/a E.P. Thereafter, on July 19, 2011, a cross-petition was filed in opposition to petitioner's application. After a hearing held over the course of two days, this court granted petitioner's application. By decision and order dated July 6, 2012, this court denied cross-petitioner's application to vacate this court's decision appointing petitioner as guardian. An order and judgment appointing petitioner as guardian of the person and property was signed by this court on July 9, 2012. The order and judgment includes a provision directing petitioner to remit the sum of $9,840.00 from Mr. P.'s funds to Ms. Prowley for legal fees.

Ms. Prowley asserts that petitioner has refused to pay her court ordered legal fees as she has already paid her the sum of $6,000.00 pursuant to a retainer agreement. Ms. Prowley maintains that she advised petitioner before she signed the retainer agreement that she would submit an invoice to the court for additional payment. Ms. Prowley avers that petitioner is angry with her because cross-petitioner misrepresented a material fact to the court.

This court did not receive any papers in opposition to the instant motion.

Judiciary Law § 753(A) provides that a court "has the power to punish, by fine or imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced in any of the following cases A party to the action or special proceeding, an attorney, counselor, or other person, for the non-payment of the sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law [*2]and rules; or for any other disobedience to a lawful mandate of the court."

"A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone.'" Jaffe v. Jaffe, 44 AD3d 825, 826 (2nd Dept. 2007), quoting Bowie v. Bowie, 182 AD2d 1049, 1050 (3rd Dept. 1992). In order to hold a party in civil contempt, there must be showing by clear and convincing evidence that 1) a lawful judicial order expressing a clear directive was disobeyed; 2) the contemnor had knowledge of the order; and 3) the contemnor's disobedience prejudices the rights of a party. McCain v. Dinkins, 84 NY2d 216 (1994); McCormick v. Axelrod, 59 NY2d 574 (1983). The mere act of disobedience is enough to sustain a finding of civil contempt, provided that the disobedience defeats, impedes, or impairs the rights of a party. See, Torah v. Kesher Intl. Trading Corp., 246 AD2d 538 (2nd Dept. 1998); Cannizzaro v. Cannizzaro, 186 AD2d 776 (2nd Dept. 1992); Yalkowsky v. Yalkowsky, 93 AD2d 834 (2nd Dept. 1983).

Fines for civil contempt must be "remedial in nature and effect" and devised "solely to compensate or indemnify private complainants." State of New York v. Unique Ideas, Inc., 44 NY2d 345, 349 (1978). The aggrieved party must prove actual damages as a result of the contemnor's disobedience. Absent such proof, "the court may only impose a fine which does not exceed the complainant's costs and expenses, plus an additional $250." Berkowitz v. Astro Moving & Storage Co., 240 AD2d 450, 452 (2nd Dept. 1997); Judiciary Law § 773.

There is no dispute that the July 9, 2012 order and judgment clearly directed petitioner to pay the sum of $9,840.00 from Mr. Pearson's funds. There is also no dispute that petitioner knew of this directive and failed to comply with the order and judgment. Ms. Prowley has met her burden of establishing that petitioner disobeyed this court's clear mandate and the disobedience thereof prejudiced her right to receive compensation. In her application, Ms. Prowley did not specifically request to recover for an actual loss or injury and no evidence was submitted in support thereof. As such, Ms. Prowley is only entitled to recover her actual costs and expenses, including attorney's fees, plus the statutory maximum fine of $250.00. See, Hunter v. National Transp. Co., 273 A.D.487 (1st Dept. 1948); Federal Deposit Ins. Corp. v. Richman, 98 AD2d 790 (2nd Dept. 1983).

Accordingly, Sandra M. Prowley, Esq.'s application for an order holding petitioner in contempt is granted. With respect to the civil contempt adjudication, Ms. Prowley is entitled to her actual costs and expenses, including attorney's fees, plus the statutory maximum fine of $250.00. This matter shall be set down for an inquest to determine the costs and expenses incurred by movant in proving petitioner's contempt.

This constitutes the decision and order of this court.

Dated:August 6, 2013

ENTER: [*3]

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J.S.C.