This Decision and Order is being entered following post-judgment issues raised in motion practice, and the relief sought within which were referred to hearing.

On August 21, 2019, this matrimonial action was commenced with the filing of a summons with notice wherein Plaintiff sought the entry of a judgment of divorce dissolving the parties' marriage on the grounds of cruel and inhuman treatment, adultery, and irretrievable breakdown of the marriage, along with ancillary relief.

On September 5, 2019, the parties entered into a stipulation of settlement, (hereinafter "Stipulation of Settlement"), resolving all of the issues arising out of the requested dissolution of the parties' marriage, including the custody and support of the two children of the marriage being: (1) J.M.B. (D.O.B.: XX/XX/XXXX) (hereinafter "J.M.B."); and (2) J.F.B. (D.O.B.: XX/XX/XXXX) (hereinafter "J.F.B.") (hereinafter collectively "Children").

Article 1 of the Stipulation of Settlement included a no molestation provision (hereinafter "No Molestation Provision") directing:

"LIVING SEPARATE AND APART: It shall be lawful for the parties at all times to live separate and apart from each other and to reside from time to time at such place or places [*2]as either of them may see fit and to contract, carry on and engage in any employment, business or trade, which either of them may deem fit, free from control, restraint, or interference, direct or indirect, by the other in all respects as if each were sole and unmarried."

Article 5(B) of the Stipulation of Settlement (hereinafter "Escrow Provision") provided the parties' agreement as to the equitable distribution of the parties' former marital domicile, XXXX (hereinafter "Marital Domicile"):

"The real property known as XXXX is titled in the name of the HUSBAND.

* * *

The WIFE agrees to, and shall, surrender her entire right, title and interest, if any, in and to the subject marital residence to the HUSBAND. In exchange for waiving her right in and to said real property, the HUSBAND shall pay to the WIFE the sum of $317,000.00.

* * *

The HUSBAND shall pay the aforesaid sum of $317,000.00 to the WIFE as follows:

* * *

The sum of $10,000.00 shall be held in escrow by the HUSBAND's attorney and applied towards the WIFE's one-half (1/2) liability for the parties' marital debt and tax liability as set forth in Section 6 hereof. Should any monies of said $10,000.00 be remaining after the payments towards said debts, same shall be remitted to the WIFE by the HUSBAND's attorney. Should any additional monies be due and owing, the WIFE shall remit her ½ share to the HUSBAND within five (5) days of the demand."

Article 6(d) of the Stipulation of Settlement addressed the manner within which the parties would satisfy their marital debt (hereinafter "Debt Provision"):

"Notwithstanding the aforesaid provisions, the parties have incurred credit card and other marital debt during the marriage solely in the name of the HUSBAND. Said debt is as follows:

Apple Bank for Savings

Chase Card (#XXXXXXXX)

Chase Card (#XXXXXXXX)

Direct TV

The aforesaid debts are reflected in the HUSBAND's credit profile, a copy of which is attached hereto as Exhibit "A". Attached as Exhibit "B" are copies of pay-off/settlement status of the two (2) aforesaid Chase credit card debts, totaling $5,579.72, and which has been paid by the HUSBAND to date and for which the WIFE owes a [a] sum equal to one-half thereof. Upon the execution hereof, the parties agree to, and shall, pay off the aforesaid debts in equal shares thereof."

Article 6(e) of the Stipulation of Settlement addressed the manner within which the parties would prepare and file their income tax returns for the years 2016, 2017 and 2018 (hereinafter "Tax Filing Provision"):

"Notwithstanding the aforesaid provisions, it is acknowledged by the parties that they have incurred debts and liabilities during the marriage, which same are with the NYS Department of Taxation & Finance and the Internal Revenue Service, as regarding [*3]income tax as well as tax liability by virtue of the operation of the HUSBAND's business, and the failure on the part of the parties to file income tax returns for same as well as the failure to file personal income tax returns for the 2016, 2017 and 2018 calendar years. As set forth hereinafter, the parties shall cooperate with each other as to the immediate filing of all said returns and shall equally share the costs of all filings and equally share the cost of all taxes, interest and penalties due thereafter. (i) as to the tax liabilities as afore stated, the amounts tentatively due and owing, subject to adjustments for penalties, interest, etc are as follows: 2016 - $3,992.00 2017 - $3,293.00 2018 - $2,975.00 The parties hereby acknowledge that they have been advised and each has consulted with tax professionals as to said indebtedness."

Article 10(D) of the Stipulation of Settlement addresses the obligation of the Defendant to maintain life insurance (hereinafter "Life Insurance Provision"):

"The WIFE currently maintains two (2) life insurance policies on her behalf with Massachusetts Mutual Insurance Company, Policy #XXXXXX and #XXXXXXXX, in the total face values of $350,000.00. A copy of the life insurance statements are attached hereto as "Exhibit C". The WIFE shall continue to maintain said insurance policy, and shall not take any loans thereupon or receive any monies therefrom, and shall change the policy to reflect that the parties' children are the equal beneficiaries of same. The WIFE shall designate the unemancipated children of the parties' marriage as the irrevocable beneficiaries of said life insurance/death benefit and the HUSBAND shall be the Trustee of said policy. The WIFE shall deliver to the HUSBAND proof of said designation, and further agree that she shall, upon the reasonable request of the HUSBAND, execute and deliver to the other whatever instruments, documents, or letters of authorization which may be requested to enable him to evidence that she has complied with the provisions of this paragraph.

* * *

The parties' obligation to provide the aforesaid life insurance shall terminate upon the emancipation of the parties' children."

Article 10(E) of the Stipulation of Settlement sets forth the parties' agreement as to the payment of college expenses of the Children (hereinafter "College Provision"):

"Though it is their desire and intent that the subject children of the marriage attend college, the parties hereto are making no provision for the payment of college expenses at this time. Nevertheless, should they agree upon each child's respective attendance at a particular college, then it is agreed by the parties that each will contribute no more than one-half (1/2) each of the cost of the reasonable college education of the parties' children at the time of such college attendance, but in no event shall each parties' obligation to contribute to either child's college expenses be in an amount greater than a maximum of one-half (1/2) the rate of the most expensive college/university in the State University of New York (SUNY) system for an in-state resident at the time of such attendance. "College expenses" shall be defined to include, but not limited to, application and registration fees, tuition, room and board, books, laboratory, library, usage, student and athletic fees and equipment, the cost of testing and college test-prep courses, and any other required expenditure in connection with the child's course requirements (e.g. lab [*4]fees, material fees and the like)."

Article 10(E)(ii) of the Stipulation of Settlement addresses the manner within which savings bonds are to be utilized and distributed (hereinafter "Savings Bond Provision"):

"The WIFE has obtained savings bonds for each of the parties' children, copies of which are attached hereto as EXHIBIT "D". It is agreed that said bonds shall be used solely for the children's college education and shall be applied t[o] the cost of same prior to the determination of the parties' contribution, and if at all, to the cost of same as above set forth. The WIFE shall not cash in said bonds, or otherwise use same, for anything other than the children's college education, and solely upon the consent of the HUSBAND. The WIFE shall account for the subject bonds upon the reasonable request of the HUSBAND at any time. Should either child not attend college, then the bonds shall be delivered to said child when he reaches the age of twenty-five (25) years."

Exhibit D annexed to the Stipulation of Settlement, includes copies of thirty-two United States Series EE Savings Bonds including the following (hereinafter "Savings Bonds"):

Article 12 (l) & (m) of the Stipulation of Settlement provides the manner within which a party must proceed in the event of a default of the other, and the payment of counsel fees in such event (hereinafter "Default Provision"):

"Should either party have any claim against the other arising from an alleged breach of this Agreement, and should such alleged breach continue for ten (10) days after written notice of the alleged breach is sent to him or her, then in any action or proceeding commenced by either party against the other in which a judicial determination is made, the successful party shall recover from the other party all reasonable counsel fees and expenses incurred by such successful party in connection with such action or proceeding.

For the purpose of this Agreement, it is understood and agreed that in the event either party shall institute a suit or other proceeding against the other to enforce any provision of this Agreement, and after the institution of such action or proceeding and before judgment is or can be entered, the defaulting party shall substantially comply with such provision of the Agreement, the suit, motion or proceeding shall be deemed to have resulted in a judgment, award, decree, or order in favor of the complaining party entitling the complaining party to the reimbursements described in the proceeding paragraph."

On November 4, 2019, this Court [Giacomo, G] entered a judgment of divorce (hereinafter "Judgment of Divorce")^[FN3] which included the following provision pertaining to the [*7]Stipulation of Settlement:

"ORDERED and ADJUDGED, that the Stipulation of Settlement entered into between the parties on September 5, 2019, relative to the custody and visitation of and with the unemancipated child of the parties and relative to the financial issues attendant to their marriage and this action, a copy of which is on file with the Court and also which is attached hereto and incorporated in this Judgment by reference, shall survive and shall not be merged in this Judgment, and the parties hereby are directed to comply with every legally enforceable term and provision of such Stipulation, as if such terms or provisions were set forth in their entirety herein, and this Court, together with the Family Court, shall have the jurisdiction of the matter for the purpose of specially enforcing said provisions of said Settlement Stipulation as are capable of specific enforcement, to the extent permitted by law, and of making such further judgment with respect to maintenance, support, custody or visitation as it finds appropriate under the circumstances existing at the time application for that purpose is made to it, or both; and it is further"

On July 15, 2024, Plaintiff filed a motion by order to show cause (hereinafter "Motion Sequence # 1)^[FN4] seeking the entry of an order granting the following relief: (1) Pursuant to Judiciary Law § 753, punishing Defendant for contempt of court for her willful failure to obey the judgment of divorce of this Court entered November 8, 2019, as regarding the obtaining of life insurance and the naming of the parties' children as the beneficiaries thereof and Plaintiff as Trustee of said policy; (2) Pursuant to Judiciary Law § 753, punishing the Defendant for contempt of court, for her willful failure to obey the directive and Order of this Court of November 8, 2012,^[FN5] as regarding the accounting for, and utilization of, certain U.S. savings bonds for the college education costs for the parties' children; (3) Directing the immediate incarceration of the Defendant for her contempt of the aforesaid Order of this Court; (4) Directing that Defendant may only purge herself of her contempt of court by (a) providing an accounting to Plaintiff as to the savings bonds referenced in the parties' Judgment of Divorce, providing an accounting for the college expenses of the parties' children after the offset of grants, scholarships, etc., and cashing in said savings bonds to the extent necessary to reimburse Plaintiff for monies he paid for the college expenses for each child which should have been paid for with the use of the aforesaid savings bond; (b) forthwith obtaining a policy or policies of insurance on her life in the face amount of $350,000.00 and naming the parties' children as the beneficiaries thereof and the Plaintiff as the trustee thereof and providing proof of same to [*8]Plaintiff; (c) paying to Plaintiff's attorney the sum of at least $4,000.00 as and for an award of legal fees; and (d) complying with any other condition imposed by this Court as a condition of the purge; (5) Directing that the Defendant forthwith obtain the policy of insurance heretobefore directed by this Court, or providing proof that same are in effect as required by the parties' Judgment of Divorce; (6) Directing that Defendant pay to Plaintiff's attorney the sum of at least $4,000.00 as and for an award of legal fees and directing the entry of a Judgment for said amount; (7) Directing that the Defendant forthwith change her address as to her bank accounts, cell phone accounts, driver's license, vehicle registrations, insurances, etc from the former marital residence and to her home at Bronx, NY, so as to cease the perpetration of fraud upon NYS, her insurance company, the Plaintiff, etc; and (8) for such other and further relief the Court deems just and proper, together with the costs and disbursements of this motion.

Motion Sequence No. 1 was conformed directing that: (1) Plaintiff serve Defendant with Motion Sequence No. 1 by July 19, 2024; and (2) the return date for Motion Sequence No. 1 be July 29, 2024, at 9:30 a.m., wherein all parties and counsel were directed to appear wherein a briefing schedule would be set if needed.

On July 29, 2024, Defendant filed a cross motion (hereinafter "Motion Sequence No. 2")^[FN6] seeking the entry of an order granting the following relief: (1) Modification of the Child Support Order of November 17, 2019 ("Order") upon a showing by Defendant of (i) a substantial change in circumstances, (ii) that three years have passed since the Order was entered, and/or (iii) there has been a change in either party's gross income by fifteen per cent or more since the Order was entered; (2) Restoration of this action to active status due to the failure of Plaintiff to implement and perform the parties' settlement of this action, as reflected in the Stipulation/Order of November 17, 2019; (3) An award of equitable distribution based upon Plaintiff's diversion of marital assets from bank accounts and other investments, Plaintiff's undisclosed use of marital assets during the marriage to purchase a luxury home in Dutchess County, NY, and award Defendant the use of one of Plaintiff's motor vehicles for use in assisting the transportation needs of the parties' sons and traveling to her employment in Westchester; (4) An award of sanctions and attorney's fees on the motions and as pendente lite relief pending the resolution of this action; and (5) Such other and further relief as may be just, proper and equitable (hereinafter "Defendant's Requested Relief").

On August 15, 2024, Plaintiff's counsel filed opposition to Motion Sequence No. 2.^[FN7]

On September 16, 2024, a Decision and Order pertaining to Motion Sequence No. 1 and No. 2 were filed, both identical (hereinafter collectively "Decision")^[FN8] directing the following:

"Based upon the foregoing, it is hereby

ORDERED that Motion Sequence #1, Motion Sequence #2 and are granted to the extent that all relief requested shall be determined following a hearing to be held before this Court affording both parties the opportunity to submit evidence as to the relief requested; and it is further

ORDERED that a hearing shall be held to address the relief requested in Motion Sequence #1, Motion Sequence #2 and within the Family Court Proceeding, wherein all parties and counsel must be present in person, which shall commence on April 14, 2025, at 9:00 a.m., and continue day-to-day until completion through April 18, 2025, from 9:00 a.m. through 5:00 p.m. each day; and it is further

ORDERED that by March 28, 2025, both parties shall file with the Court (with proof of service) and serve upon each other via overnight delivery the following pre-hearing disclosure: (1) List of Witnesses to be called to testify at the hearing with the understanding that if a witness is not listed they may be precluded from providing testimony at the hearing; (2) List of Exhibits enumerating each exhibit to be utilized at the hearing with the understanding that if an exhibit is not listed it may be precluded from use at the hearing; and (3) Copies of Exhibits listed in the List of Exhibits with the understanding that if an exhibit is not filed and/or disclosed between the parties it may be precluded from use at the hearing; and it is further

ORDERED that Plaintiff shall serve by overnight delivery this Decision and Order with Notice of Entry on Defendant by September 20, 2024, and shall file an Affidavit of Service by September 20, 2024; and it is further

ORDERED that to the extent any relief sought has not been granted, it is expressly denied.

The foregoing constitutes the Decision and Order of the Court."

On September 17, 2024, notices of entry were filed pertaining to the Decision.^[FN9]

A hearing was held on April 14, 2025, through April 17, 2025, and April 21, 2025, through April 25, 2025. At the hearing Plaintiff was represented by Paul William Meyer, Esq., and Defendant was represented by Steven Kent, Esq. Transcripts for the hearing were filed (hereinafter collectively "Hearing Transcript").^[FN10] At the hearing the parties were the only witnesses called to provide testimony and the exhibits admitted into evidence are reflected in the Hearing Transcript copies of which are filed on NYSCEF.

A. Compliance With Default Provision

As the Default Provision of the Stipulation of Settlement sets forth the manner within which each party is to address alleged defaults of the other arising out of the agreement, and that such Default Provision includes a ten-day cure period prior to the defaulting party being required to provide payment of the other's legal fees to cure such default, a review of compliance of both parties under this provision is necessary, as each seek relief from this Court arising out of alleged defaults of the Stipulation of Settlement including an award of counsel fees from the other.

Turning first to Plaintiff, the Affirmation of Plaintiff's Attorney indicates that prior to filing Motion Sequence No. 1, written demands were made upon Defendant for compliance.^[FN11] In support of this claim, Plaintiff submitted correspondence from Plaintiff's counsel to Defendant dated: (1) November 9, 2023; (2) November 27, 2023; and (3) December 23, 2023.^[FN12] These notices clearly seek to compel Defendant to comply with the terms of the Stipulation of Settlement as to many of the asserted defaults of the Defendant made in Motion Sequence No. 1. Notably, review of Defendant's submissions to this Court prior to and at hearing, do not reflect any assertion that Plaintiff failed to comply with the Default Provision.

As to Defendant, this Court has been provided with nothing that it would determine to be a notice of default in compliance with the Default Provision, regarding the affirmative relief sought by Defendant in Motion Sequence No. 2, or any asserted defaults of Plaintiff arising out of the Stipulation of Settlement. However, review of Plaintiff's submissions reflects no assertion that Defendant failed to serve any required notices of default, as required under the Default Provision.

The Court further finds that to the extent that the Default Provision of the Stipulation of Settlement sets forth a condition precedent to either party seeking Court intervention to address an alleged default, only following the services of a notice of default and failure to cure by the defaulting party, or to seek counsel fees in a post-judgment litigation pertaining to the alleged defaults of the other party, that such condition precedent has been met by both parties. The Court makes this determination pertaining to Plaintiff acknowledging Plaintiff's service of the Default Notices and Defendant having failed to refute that such service was effectuated and as to Defendant, due to Plaintiff's failure to claim that such service was not made pursuant with the Default Provision (U.S. Bank National Association v. Kissi, 219 AD3d 1551 [2d Dept 2023]).

B. Defendant' Withdrawal of Relief

As a preliminary matter, during the hearing Defendant's counsel advised the Court that Defendant was withdrawing from Defendant's Requested Relief the following:^[FN13]

1. Modification of the Child Support Order of November 17, 2019 ("Order") upon a showing by defendant of (i) a substantial change in circumstances, (ii) that three years have passed since the Order was entered, and/or (iii) there has been a change in either party's gross income by fifteen per cent or more since the Order was entered; and

2. An award of equitable distribution based upon Plaintiff's diversion of marital assets from bank accounts and other investments, Plaintiff's undisclosed use of marital assets during the marriage to purchase a luxury home in Dutchess County, NY, and award Defendant the use of one of Plaintiff's motor vehicles for use in assisting the transportation needs of the parties' sons and traveling to her employment in Westchester (hereinafter "Withdrawn Relief").

"[A] motion which is withdrawn in the presence of the court is no longer pending even in the absence of the entry of an order (Matter of Kesten [Cooper], 25 Misc 2d 760, 206 N.Y.S.2d 424 [Sullivan Cnty. Ct. 1960]; 60 C.J.S., Motions & Orders, § 41). The effect of a withdrawal of a motion is to leave the record as it stood prior to its filing as though it had not been made (Altsman v. Kelly, 336 Pa. 481 [1939]; Farne v. Pennsylvania Lighting Co., 275 Pa. 444 [1923]; People v. Steinhoff, 38 Mich. App. 135 [1972])" (Stoute v City of New York, 91 AD2d 1043 [2d Dept 1983]).

Accordingly, the Court accepts Defendant's counsel's statements at the hearing that the Withdrawn Relief, withdrawn in the presence of the Court, is no longer pending before this Court, and the remainder of the Defendant's Requested Relief will be addressed herein.

C. Witness Credibility

As determinations of credibility depend in large part on the court's assessments of the character, temperament, and sincerity of the parties, the trial court's determination should be accorded deference, and its determination should not be disturbed unless it lacks a sound and substantial basis in the record (Sanchez v. Rexhepi, 138 AD3d 869 [2d Dept 2016]). "In matters of this character 'the findings of the nisi prius court must be accorded the greatest respect'" (Eschbach v. Eschbach, 56 NY2d 167 [1982], quoting, Matter of Irene O., 38 NY2d 776 [1975]).

"The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record" (Barnet v. Cannizzaro, 3 AD2d 745 [2d Dept 1957]).

[1] Plaintiff

With respect to Plaintiff, the Court determined him not to be entirely credible and while not disregarding his testimony entirely, provided it with the appropriate weight. The Court made this determination following direct observation of Plaintiff's testimony during the hearing, which at times included answers to questions which were not responsive and at times appeared evasive. In addition, the Court took into consideration Plaintiff's character which included his admission to conduct that appears to have been non-compliant with applicable laws. Specifically, Plaintiff confirmed that he had opened parcels of mail addressed to Defendant,^[FN14] which appears to be non-compliant with applicable federal law.^[FN15] While Plaintiff asserts that he inadvertently opened mail [*9]addressed to Defendant,^[FN16] his testimony was not compelling as he had acknowledged having done so on more than one occasion.

Moreover, Plaintiff sought the production and disclosure of records from the United States Postal Service (hereinafter "USPS") in apparent violation of the applicable law. Through counsel, Plaintiff made four requests for disclosure of information from the USPS by filing four requests for Change of Address or Boxholder Information Needed for Service of Legal Process each of which were admitted into evidence as Plaintiff's Exhibit #7.^[FN17] Each seeks the address of Defendant, notes that the request is made in compliance with the Code of Federal Regulations and includes just above the signature of the requestor the following warning in all capital letters:

"THE SUBMISSON OF FALSE INFORMATION TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN CONNECTION WITH ACTUAL OR PROSPECTIVE LITIGATION COULD RESULT IN CRIMINAL PENALTIES INCLUDING (1) A FINE OF UP TO $10,000.00 OR IMPRISONMENT OR (2) TO AVOID PAYMENT OF THE FEE FOR CHANGE OF ADDRESS INFORMATION OF NOT MORE THAN 5 YEARS, OR BOTH (Title 18 U.S.C. Section 1001)."

A review of each of the four requests provides that all but the first identify this litigation as the court which the case has been or will be heard, identifying the index number for this action including:

(1) Request dated October 20, 2023, (hereinafter "USPS Request #1), seeks the address of Defendant; listing Defendant's address as XXXX;

(2) Request dated February 8, 2024, (hereinafter "USPS Request #2), seeks the address of Defendant, listing Defendant's address as XXXX (hereinafter "Defendant's Residence");

(3) Request dated August 12, 2024, (hereinafter "USPS Request #3), seeks the address of Defendant, listing Defendant's address as XXXX;

(4) Request dated February 3, 2025, (hereinafter Request #4), seeks the address of Defendant, listing Defendant's address as XXXX, (hereinafter collectively "USPS Requests").

While the USPS Requests assert that they are seeking the address of Defendant for service of process, the documents submitted to the Court and testimony received at hearing in this action lead this Court to determine that the USPS Requests were not filed for that purpose, but instead used as a discovery tool. Plaintiff's own testimony confirms that as of the date of USPS Request #1, he knew Defendant resided at the XXXX (hereinafter "Bronx Address").^[FN18] This fact is confirmed by the use of this address by Plaintiff's counsel to communicate with her though written correspondence prior to all but the first dated USPS Request.^[FN19] Accordingly, the USPS Requests were not needed to secure Defendant's address for service of process and Plaintiff's own testimony confirms the true use of the USPS Requests:

"Q. Okay. Did—was this, Plaintiff's Exhibit 7, submitted to the post office in order to develop evidence so that on your Order to Show Cause you could make these claims about the use of your marital residence at XXXX? Was that the Purposes of it?

MR. MEYER: Objection, Judge.

THE COURT: Overruled.

A. I would believe so."^[FN20]

Accordingly, the filing of the USPS Requests appear to have been in violation of 39 C.F.R. § 265.14.^[FN21]

[2] Defendant

With respect to Defendant, the Court determined her not to be entirely credible and while not disregarding her testimony entirely, provided it with the appropriate weight. The Court made this determination following direct observation of Defendant's testimony during the hearing which at times included answers to questions presented to her which were not responsive. In addition, the Court took into consideration Defendant's character which included her admission to conduct that appears non-compliant with applicable law, with respect to the filing of her income tax returns, filing of student aid applications, and use of false address for the registration and insurance of her vehicle.

Turning first to Defendant's income tax filings, it appears that for a continuous period of several years Defendant engaged in conduct intended to evade the payment of New York City Tax.^[FN22] Despite residing, from 2019 to present, in the City of New York at the Bronx Address,^[FN23] Defendant testified that for her income tax returns filed for 2021, 2022 and 2023, she utilized a [*10]Westchester County address being XXXX (hereinafter "Hartsdale Address").^[FN24] Notably, for these years Defendant confirmed that while she filed complete Federal and State income tax returns,^[FN25] she only provided the first page of the Federal returns.^[FN26]

When presented with Defendant's Exhibit 60, she confirmed that these were her 2024 New York State and Federal income tax returns,^[FN27] and confirmed that she utilized the Bronx Address as her stated residence.^[FN28] When directed to section E of the New York State Tax Return requesting "Did you or your spouse maintain living quarters in NYC (this includes the Bronx, Brooklyn, Manhattan, Queens, and Staten Island) during 2024?", she confirmed that this is marked no but claimed it was a mistake and that she didn't even see that portion of the return.^[FN29] When then asked about line 50 of the return pertaining to "Part-year NYC Residence Tax" listing $1,552.00, when asked if she filed a Form IT-360.1, she responded that she did not know and confirmed that she resided at the Bronx Address for the entirety of the 2024 tax year.^[FN30] When asked why this line was completed for part year residence, she responded that while she signed and filed the return, she did not complete the document or look at all of "these line items" and that the company who prepared the returns had made the mistake.^[FN31]

Defendant confirmed that she had utilized the Hartsdale Address as her residence with her employer,^[FN32] and further confirmed that she likely provided her employer with the Marital Domicile as her address for 2021 and 2022.^[FN33] She testified that she did not pay New York City income tax for the 2022 tax year, because she did not use the Bronx Address on her income tax returns, despite residing at that location, acknowledging that she did this to avoid payment of [*11]NYS Income Taxes.^[FN34] She confirmed that she engaged in the same conduct with respect to her 2023 income tax filings.^[FN35] Despite the Court being provided with no proof by Defendant, when asked if she paid her New York City Taxes for 2024, she responded that she will and is on a payment plan.^[FN36]

Defendant also appears to have engaged in misconduct with respect to the registration of her vehicle.^[FN37] Defendant confirmed that despite her residing continuously at the Bronx Address since leaving the Marital Domicile, that she registered her vehicle at the Hartsdale Address and surrendered the plates in 2023.^[FN38] Similarly, by utilizing the Hartsdale Address rather than her actual residence at the Bronx Address for her vehicle insurance, it appears that Defendant may have also violated New York State law in that regard.^[FN39]

It further appears that Defendant engaged in misconduct with respect to the filing of student aid applications for at least one of the Children,^[FN40] a concern raised by Plaintiff in Motion Sequence No. 1.^[FN41] Defendant confirmed that she completed a Free Application for Federal Student Aid ("FAFSA") application for J.M.B. each year since starting college listing both Children as her Dependents,^[FN42] despite confirming that the Settlement Agreement indicates Plaintiff having physical custody of both Children,^[FN43] asserting that she was the "acting custodial parent."^[FN44]

Further, testimony confirms that in text message communication with Plaintiff, Defendant directed Plaintiff not to declare the children as dependents in his income tax filings in order to advance her own agenda pertaining to her FAFSA filing:

"Q. Now, looking at what we marked as Plaintiff's Exhibit 38, if you can go to the fourth page, those are text message between you and J.B. in November and December of 2023?

A. Yes.

Q. There is a message you sent to J.B. on December 1, 2023?

A. Yes.

Q. And that indicates, Do not file income taxes for the boys, that would affect financial aid grants I would get for both of them, correct?

A. Yes.

Q. So if J.B. filed tax returns for the boys, J.M.B. was working at the time, J.F.B. was working, that would have affected the amount of money of grants they would have received?

A. No, I would have had to go back and redo the whole document and I — up until that point, I still hadn't had any of the taxes. They were seven years late by that time. If I had the taxes in 2020, I would have included all of that — been able to include that on the financial aid form."^[FN45]

Notably, it appears that Defendant engaged in the submission of false or misleading information on the Children's student loan applications not only to seek enhanced student aid for the Children, but further to benefit herself, as she is now asking that the Plaintiff provide her with payment of half of the value of the student aid received by the Children asserting that they were received solely due to her efforts.^[FN46]

Defendant's above-referenced conduct appears to be intentional and calculated to advance her own financial interests, and not due to mistakes of Defendant or others as Defendant consistently testified to throughout the hearing. Defendant is a sophisticated individual who confirmed that she had operated Plaintiff's business during the marriage handling installations, customer service, being the point of contact for regional managers and vice-presidents for regional contracts, obtaining insurance and assisting with the billing.^[FN47] Accordingly, the Court must take these concerns into consideration when determining the credibility and veracity of Defendant.

D. Plaintiff's Request to Hold Defendant In Contempt

Whereas civil contempt, pursuant to Judiciary Law § 753, seeks "the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right," (McCormick v. Axelrod, 59 NY2d 574 [1983]), pursuant to Judiciary Law § 750, criminal contempt "involves vindication of an offense against public justice and is utilized to protect the dignity of the judicial system and to compel respect for its mandates." (Id. [internal citations omitted]). "Although the line between the two types of contempt may be difficult to draw in a given case, and the same act may be punishable as both a civil and a criminal contempt, the element which serves to elevate a contempt from civil to criminal is the level of willfulness with which the conduct is carried out" (Id. [internal citations omitted]).

Pursuant to Judiciary Law § 750(A)(3), a court can punish a person for criminal contempt [*12]for "willful disobedience of its lawful mandate." Pursuant to Judiciary Law § 751(1), as punishment for criminal contempt, the court can impose a fine on the contemnor in an amount not exceeding one thousand dollars or imprisonment not exceeding thirty (30) days. The standard of proof for such a violation is beyond a reasonable doubt, as it is a criminal proceeding and charge (Matter of Figueroa-Rolon v. Torres, 121 AD3d 684 [2d Dept. 2014]). A hearing is required only if the opposition papers raise a factual dispute as to the elements of contempt or the existence of a defense (Wood v. Wood, 134 AD3d 1028 [2d Dept 2015]; El-Dehdan v. El-Dehdan, 114 AD3d 4 [2d Dept 2013]).

"A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving contempt by clear and convincing evidence." (Matter of Hughes v. Kameva, 96 AD3d 845 [2d Dept. 2012]; see Cassarino v. Cassarino, 149 AD3d 689 [2d Dept. 2017]). The movant must establish that: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct (See Judiciary Law § 753[A][3]; El-Dehdan v. El-Dehdan, 26 NY3d 19 [2015]). "Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" (Toranzo v. Toranzo, 185 AD3d 621, 623 [2d Dept. 2020]). The Appellate Division clarified that "[i]t is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party" (see Cutroneo v. Cutroneo, 140 AD3d 1006 [2d Dept 2016] quoting Gomes v. Gomes, 106 AD3d 868 [2d Dept 2013]).

[1] Life Insurance

"A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation" (Meccio v. Meccio, 76 NY2d 822 [1990]). Where a settlement agreement that is incorporated but not merged into a judgment of divorce is "clear and unambiguous on its face," the parties' intent will be determined "from within the four corners of the instrument" (Id.). "An ambiguity exists only if the contract is susceptible to more than one reasonable interpretation" (Nappy v. Nappy, 40 AD3d 825 [2d Dept 2007]). "A court's fundamental objective in interpreting a contract is to determine the parties' intent from the language employed and to fulfill their reasonable expectations" (Landmark Ventures, Inc. v. H5 Tech., Inc., 152 AD3d 657 [2d Dept 2017]). An unambiguous agreement "must be enforced according to the plain meaning of its terms" (MHR Capital Partners LP v. Presstek, Inc., 12 NY3d 640 [2009]).

Here, the Stipulation of Settlement, which was incorporated but not merged into the Judgment of Divorce, includes the Life Insurance Provision providing unambiguous requirements on Defendant to maintain a life insurance policy designating the Children as irrevocable beneficiaries and Plaintiff as trustee, and to provide proof of compliance to Plaintiff upon demand. In Motion Sequence 1, Plaintiff asserted Defendant had failed to provide proof of such compliance.^[FN48] Alternatively, Defendant's response asserted that she is being victimized through frivolous litigation having fully complied with her obligations, directing the Court to a [*13]document noted in her submission as Exhibit B.^[FN49] However, the identified Exhibit B is a letter dated July 22, 2024, from Mass Mutual to Defendant pertaining to her life insurance policy. The letter specifically noted that Plaintiff was designated as the primary beneficiary and Children as contingent beneficiaries.^[FN50] This misrepresentation of Defendant's compliance with the Life Insurance Provision is further asserted in the Affirmation of Defendant's counsel, filed in opposition to Motion Sequence No. 1, which states, "The Life Insurance Policy Declaration Page issued on the life of V. F., with a face value of $350,000, naming as beneficiaries J.M.B. and J.M.B., a copy of which is annexed as Ex. 'B'".^[FN51]

At hearing, Defendant confirmed that she initially secured life insurance in 2005,^[FN52] that the insurance was initially in the form of two separate policies for a face amount of $100,000.00 and $250.000.00 respectively,^[FN53] and that in 2006 these policies were combined for a total face amount of $350,000.00.^[FN54] Defendant confirmed that initially, Plaintiff was named beneficiary of her life insurance policy with the Children designated as contingent beneficiaries.^[FN55] Defendant further testified that following being served with Motion Sequence No. 1, she changed the life insurance policy to reflect the Children as equal beneficiaries, indicating that this change was not made due to her intent to comply with the terms of the Life Insurance Provision, but that she felt as her older child was emancipated it was acceptable to designate the Children as beneficiaries.^[FN56] Thereafter, Defendant referenced proof of this change.^[FN57]

During the closing arguments Defendant's Counsel, despite having throughout this post-judgment litigation taken the position that his client had not violated the Life Insurance Provision, seemingly then acknowledged that his client was not compliant. In doing so he argued that if named as primary beneficiary, Plaintiff would be situated in a better position than as trustee on the life insurance policy of Defendant, indicating that there could be no finding of contempt as no prejudice had occurred.^[FN58] Notably, at hearing this Court was provided with no [*14]proof, by testimony or otherwise, prior to or during the hearing, that Defendant's life insurance policy is compliant with the Life Insurance Provision by designating the Children as irrevocable beneficiaries nor that Plaintiff has been designated as the trustee.

Here, Plaintiff has met his burden of proof for a finding of civil contempt of Defendant arising out of her failure to comply with the Life Insurance Provision contained in the Stipulation of Settlement and Judgment of Divorce. It is without question that a lawful order of the Court was in effect which expressed an unequivocal mandate set forth in the Life Insurance Provision. It is further clear that Defendant disobeyed the Life Insurance Provision by failing to designate Plaintiff as the trustee and the Children as the irrevocable beneficiaries thereby prejudicing Plaintiff as will be set forth below, without Defendant showing any evidence of a defense such as inability to comply with the order.

With respect to the finding that Plaintiff was prejudiced by Defendant's default of the Life Insurance Provision, it is without question that authority exists for trial courts to require the purchase of life insurance by a party in a matrimonial action to collateralize support obligations.^[FN59] Here, while the life insurance requirement of Defendant was not ordered by the Court, it was agreed upon between the parties in the Stipulation of Settlement, the terms of which were incorporated into the Judgement of Divorce being an order of the Court. Defendant's failure to designate the Children as irrevocable beneficiaries prevented Plaintiff from protecting the Children's interest in Defendant's life insurance policy, and utilizing statutory authority to prevent Defendant's non-compliance with the Life Insurance Provision through New York State Insurance Law § 3113, which provides:

"In any case where a policy owner has, pursuant to an order of separation or divorce, designated his or her spouse or children as the irrevocable beneficiary of a policy of insurance subject to the provisions of section three thousand two hundred three of this chapter, and a copy of such order has been served, by registered mail, on the home office of the insurer specifying the name and mailing address of the spouse or children, such insurer shall:

(a) prohibit the policy holder from borrowing from the cash value or changing the named beneficiary of such insurance policy without the written consent of the irrevocable beneficiary; and

(b) provide written notification to the irrevocable beneficiary in the event that such insurance policy is scheduled to lapse due to non-payment of premium."^[FN60]

The legislative intent behind New York State Insurance Law § 3113 set forth in the bill jacket was clearly to address the limitations that the Courts then faced with respect to parties who defaulted on their life insurance obligations to provide support to their spouse or children:

"PURPOSE OR GENERAL IDEA OF BILL: To ensure that a policy holder who has purchased the policy under a court order of divorce or separation for the benefit of a [*15]spouse and/or children does not borrow against the policy, change the beneficiary, or let the policy lapse without the knowledge and consent of the beneficiary.

SUMMARY OF SPECIFIC PROVISIONS: Adds new section 3113 to the insurance law to require written consent of the irrevocable beneficiary before the policy holder can borrow against the cash value of the policy or change the beneficiary and to require the insurer to notify the beneficiary if such policy is scheduled to lapse due to non-payment of the premium. Amends 236 B(8)(a) of the domestic relations law to require that a copy of a court order requiring a party to purchase insurance for a spouse or children be served by registered mail on the home office of the insure specifying the name and address of the beneficiary.

JUSTIFICATION: It is common as part of a divorce or separation order that the party charged with support of a spouse or children be required to take out a life insurance policy to continue support payments in the event of his/her death. Requiring written consent of value or change of the beneficiary and notification to the beneficiary of non-payment of premiums will ensure that the promised support is indeed available."^[FN61]

However, the limitations of the protections afforded by New York State Insurance Law § 3113 arising from the failure to designate life insurance beneficiaries as "irrevocable" have been recognized:

"The statute also only applies when the spouse and/or children is designated as "irrevocable" beneficiary. If the beneficiary status of a spouse or children is revocable, or at least is not made irrevocable, then the statutory protection appears to be inapplicable.

* * *

As a result, where life insurance is directed, the spouse or parent who is to be protected must keep a watchful eye to assure that the policy is procured and maintained. In separation agreements, it is common for life insurance provisions to contain clauses requiring the insured spouse to provide copies of documents to the beneficiary spouse. The court, to implement the authority to require life insurance, should have the ability to require the obligor parent to keep the beneficiary spouse or parent, as trustee for the children, informed about the status of the policy and to provide copies of notices and payments. The court should also not hesitate to use its contempt powers to make sure that the obligor parent keeps up the insurance, since the court may not create a lien in the event of noncompliance."^[FN62]

In this matter, it is without question that Defendant was required to designate the Children as irrevocable beneficiaries and Plaintiff as trustee of her life insurance policy but failed to do so. Shockingly, even after being served with Motion Sequence No. 1, Defendant and her counsel continued to assert that no default existed, annexing to their answering submissions a document which confirmed that Defendant was not in compliance having designated Plaintiff as beneficiary. Thereafter, and as noted above, following that submission Defendant did change the beneficiary designation to the Children as beneficiaries, but this Court has not been presented with confirmation that the children are designated irrevocable beneficiaries and Plaintiff is designated trustee. Accordingly, Plaintiff remains prejudiced due to his inability to utilize the safeguards afforded by New York State Insurance Law § 3113.

For completeness, this Court is well aware of the Appellate Division, Second Department's holding within Casler v. Casler, 131 AD3d 664 (2d Dept 2015) and finds that the facts of the subject matter are clearly distinguishable from that case. In Casler, a former wife's motion for civil contempt,^[FN63] based on her former husband's failure to show proof of life insurance procurement, was denied as the Court found the wife failed to show prejudice suffered as an essential element of civil contempt. Id. at 665. The issue in Casler was not if the insurance had been procured, but rather if proof of insurance had been provided by the husband, pursuant to the requirements of the parties' stipulation of settlement. In the case at bar, there was an unequivocal failure by the Defendant to actually procure the insurance required by the Life Insurance Provision of the Stipulation of Settlement, not that she had complied with the agreement, but simply failed to provide proof. As a result of this distinction, this Court does not find Casper applicable herein (Id.).

Therefore, Defendant is determined to be in contempt for her failure to comply with the Life Insurance Provision of the Stipulation of Settlement and Judgment of Divorce. By June 27, 2025, Defendant shall file with this Court proof of compliance with the Life Insurance Provision in the form of a letter from her insurance carrier confirming that: (1) she maintains a life insurance policy or policies with a face value totaling $350,000.00, for which the premiums are current; (2) that these policies designate as irrevocable beneficiaries the Children; (3) that these policies designate Plaintiff as trustee; and (4) that the insurance carrier acknowledges receipt of the Stipulation of Settlement, Judgment of Divorce and a copy of New York State Insurance Law § 3113.

[2] Savings Bonds

In Motion Sequence No. 1, Plaintiff asserted that he has requested Defendant provide an accounting of the Savings Bonds for which Defendant has refused in violation of the Savings Bond Provision, and that Plaintiff be provided with information pertaining to all financial aid and college expenses for the Children, in order to obtain compliance with the Savings Bond Provision and College Provision.^[FN64] Defendant's answering submission confirms that she [*16]completed financial aid applications for J.M.B.^[FN65] and J.F.B,^[FN66] and asserts that an accounting of her use of the Savings Bonds was provided to Plaintiff directing the Court to Exhibit C.^[FN67] This misrepresentation is further asserted in the Affirmation of Defendant's counsel, filed in opposition to Motion Sequence No. 1, which states, "The accounting for the use of the Savings Bonds and letters showing no taxes or other offsets due to offset the $10,000 escrow, copies of which are annexed as Ex. 'C.'"^[FN68] However, a review of Exhibit C, with a heading "Bonds (rough estimate and backup)" reflects no such accounting as no specific information is provided pertaining to the status of each bond (i.e.: [1] if bond was cashed in and if so, when, for what amount, what the funds were used for; and [2] if bond was not cashed in, the current location).

At hearing, Defendant's counsel confirmed that the Savings Bond Provision was fair and not being challenged.^[FN69] Defendant testified that the Savings Bonds had a collective total face value of $6,500.00.^[FN70] Defendant confirmed that she utilized the Savings Bonds when she didn't have money,^[FN71] for J.F.B.'s tutor,^[FN72] for J.F.B. housing deposit,^[FN73] and provided a $500.00 bond to J.F.B. for emergency use by the child for an unspecified purpose.^[FN74] For the Savings Bonds utilized, Defendant confirmed that she cashed them in for less than face value,^[FN75] that she did not have any records pertaining to the cashing of the bonds,^[FN76] and that she did not seek Plaintiff's consent to utilize the Savings Bonds.^[FN77] Defendant further testified that she utilized the Savings Bonds for the Children's education,^[FN78] and that she provided Plaintiff with an accounting for such [*17]use,^[FN79] which Plaintiff denied.^[FN80] When presented with Defendant's Exhibit 51, Defendant identified this document as her written accounting of the Savings Bonds, which mirror the Exhibit C annexed to her answering submission to Motion Sequence No. 1, noted above.^[FN81] Defendant's counsel asserted in his closing statement that Defendant's conduct may have been a mistake, she may have been defrauded, that there is no basis to challenge the use of the Savings Bonds and the use of same resulted in no prejudice to Plaintiff.^[FN82]

Here, Plaintiff has met his burden of proof for a finding of civil contempt of Defendant arising out of her failure to comply with the Savings Bond Provision contained in the Stipulation of Settlement and Judgment of Divorce. It is without question that a lawful order of the Court was in effect which expressed an unequivocal mandate set forth in the Savings Bond Provision. It is further clear that Defendant disobeyed the Savings Bond Provision by failing to obtain Plaintiff's consent for the use of the Savings Bonds and to provide an accounting for such use. Defendant's conduct prejudiced Plaintiff as the provision notes in part, "It is agreed that said bonds shall be used solely for the children's college education and shall be applied t[o] the cost of same prior to the determination of the parties' contribution, and if at all, to the cost of same as above set forth" as delineated in the College Provision. Therefore, Defendant's conduct prevented Plaintiff from actively participating in the decision-making with respect to the Savings Bonds and to the extent his consent for the use of the Savings Bonds was provided, to confirm application of such funds received from the bonds were applied to permitted education expenses of the children prior to any contribution by the Plaintiff. Finally, by unilaterally negotiating the Savings Bonds prior to their maturity date, Defendant caused a portion of the value of the Savings Bonds to be dissipated, reducing the amount of funds available from the bonds for application to the permitted education expenses of the children prior to Plaintiff's required contribution. However, the extent of this dissipation remains unclear as Defendant has provided no real accounting for her use of the Savings Bonds.

Therefore, Defendant is determined to be in contempt for her failure to comply with the Savings Bond Provision of the Stipulation of Settlement and Judgment of Divorce. By June 27, 2025, Defendant shall turn over to Plaintiff any remaining Savings Bonds by traceable overnight delivery, filing a copy of the bonds with an Affidavit of Service and copy of the overnight tracking slip. Upon receipt, Plaintiff shall utilize these bonds in accordance with the Savings Bond Provision.

By June 27, 2025, Defendant shall file with this Court in accord with the Savings Bond Provision, a written accounting (hereinafter "Accounting") providing the following information, itemized for each of the Savings Bonds annexed to the Stipulation of Settlement and noted hereinabove:

1. Confirmation if the Savings Bond was cashed or remains not having been negotiated.

2. If the Savings Bond has been cashed, the following:

a. When the Savings Bond was cashed;

b. For what amount the Savings Bond was cashed;

c. Where the Savings Bond was cashed (i.e. name of financial institution);

d. What the funds received from the Savings Bond were used for, indicating any portion that was used for expenses of the Children; and

e. To the extent Plaintiff provided any payment towards expenses of the Children, the amount of such expenses, the amount of Plaintiff's contribution and, to what extent, if any, that Plaintiff received a credit for the use of the Savings Bond.

With this Accounting, Defendant shall annex supporting documentation including: (1) documentation from any financial institutions where any Savings Bonds were cashed; (2) documentation corresponding with any use of the funds received from the Savings Bonds; and (3) copies of all financial aid applications filed by Defendant and supporting documents pertaining to the Children, along with documentation pertaining to any student aid awarded to the children.

By July 15, 2025, Plaintiff shall file and serve upon Defendant's counsel via overnight traceable delivery a response to the Accounting indicating: (1) what, if any, expenses listed in the Accounting for which he now provides his consent, and to the extent he provided payment towards these expenses and did not receive a credit requesting a credit, pursuant to the terms of the Savings Bond Provision and College Provision (hereinafter "Savings Bonds Credit"); and (2) for such expenses listed in the Accounting for which he does not consent, requesting a return of the face value for any Savings Bonds used for the payment of such expenses (hereinafter "Savings Bonds Replenishment"). By that date, Plaintiff shall file proof of service of same with a copy of the tracking slip.

By July 31, 2025, Defendant shall file and serve upon Plaintiff's counsel, via overnight traceable delivery a certified check for the Savings Bond Credit, if any, and a second certified check for the Savings Bonds Replenishment, if any. By that date, Defendant shall file proof of service of same with a copy of the tracking slip and copy of the check/checks. To the extent that Defendant fails to provide payment to Plaintiff pursuant to this provision, Plaintiff has leave of the Court to submit, with notice of settlement served upon Defendant and Defendant's counsel, a proposed money judgment for the then amount due.

E. Plaintiff's Request Pertaining To Defendant's Address

In Motion Sequence No. 1, Plaintiff requested that Defendant be directed to change her address from the Marital Domicile, asserting that despite relocating from the home following the entry of the Judgment of Divorce she has utilized the Marital Domicile as her address to perpetrate fraud,^[FN83] directing the Court to Exhibit C.^[FN84] The answering submissions of Defendant are devoid of any cognizable defense to the allegations.

At hearing, Plaintiff testified that Defendant relocated from the Marital Domicile to the [*18]Bronx Address on November 4, 2019,^[FN85] has never resided at the Hartsdale Address,^[FN86] and continued to utilize the Marital Domicile as her address following her relocation.^[FN87] When presented with Plaintiff's Exhibit 8,^[FN88] Plaintiff testified that he received the following documents addressed to the Marital Domicile following Defendant's relocation addressed to Defendant: (1) Progressive Insurance Policy Correspondence dated June 8, 2022; (2) Internal Revenue Service (hereinafter "IRS") Correspondence dated March 24, 2023; and (3) New York State Department of Motor Vehicles Car Registration dated October 23, 2023.^[FN89] When presented with Plaintiff's Exhibit 17,^[FN90] Defendant testified, identifying these documents as Defendant's W-2 forms from her employer for the years 2021 and 2022, listing the Marital Domicile as Defendant's address, and for the years 2023 and 2024 listing the Hartsdale Address as Defendant's address.^[FN91]

When asked why Progressive sent insurance information pertaining to her vehicle to the Marital Domicile, Defendant responded that she had a prior policy with the company while in that location and believes it was sent there accidentally,^[FN92] but confirmed that she purchased the subject vehicle years following her relocation ^[FN93] and that she had resided at the Bronx Address since 2021, being the date the Progressive correspondence indicated she began as a customer.^[FN94] When questioned as to how the vehicle registration listed the Marital Domicile years after she had left the residence, she responded that this was likely a registration renewal that she obtained online and was probably a mistake.^[FN95] With respect to the IRS correspondence, she confirmed that she was not residing at the Marital Domicile in March of 2023 when the correspondence was dated.^[FN96]

When asked about the Citibank correspondence, Defendant testified that she never [*19]utilized the Marital Domicile as an address on her bank accounts after November of 2019,^[FN97] and that she opened an account with Citibank in 2022 or 2023 and wasn't aware of why the bank would send correspondence to the Marital Domicile.^[FN98] However, when presented with Plaintiff's Exhibit 28,^[FN99] she confirmed that this was an image of a check for her Citibank checking account dated July of 2022 listing the Marital Domicile as her address, which she asserted was a mistake.^[FN100]

"The essential elements of a cause of action to recover damages for breach of contract are "the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (Cruz v. Cruz, 213 AD3d 805 [2d Dept 2023], quoting, Klein v. Signature Bank, Inc., 204 A.D3d 892 [2d Dept 2022] [internal citations omitted]). A party has been determined to have been in breach of contract with respect to a no molestation provision upon a finding that their unacceptable intrusion into the life of their former spouse had disturbed and troubled the former spouse as it interfered with their life (Weiner v. Weiner, 27 Misc 3d 111 [Sup. Ct. New York Cnty. 2010]).

Here, Plaintiff has established that Defendant has engaged in breach of contract with respect to the No Molestation Provision of the Stipulation of Settlement and Judgment of Divorce. This provision required each party to be permitted to live apart "free from control, restraint, or interference, direct or indirect, by the other in all respects as if each were sole and unmarried." Nonetheless, credible testimony and evidence was presented for this Court to make a finding that Defendant engaged in a course of conduct, without justification and in an apparent intentional effort to advance her own financial interests, wherein she consistently utilized the Marital Domicile as her address despite Plaintiff having purchased her interest in the property pursuant to the terms of the Stipulation of Settlement and her having relocated from that residence. Defendant's conduct interfered with Plaintiff's life and the Court did not find credible Defendant's testimony that multiple mistakes were the cause of the correspondence.

While an award of damages is the remedy at law usually invoked following a breach of contract, when damages are inadequate the equitable remedy of specific performance may be applied (Wirth & Hamid Fair Booking v. Wirth, 265 N.Y.214 [1934]). Here, the Court determines that an award of damages would be inadequate and instead directs specific performance in that Defendant is hereby directed to comply in all respects with the No Molestation Provision of the Stipulation of Settlement and Judgment, including but not limited to, ceasing all use of the Marital Domicile as her address.

F. Defendant's Request Pertaining to Restoration of this Action

In Motion Sequence No. 2, while acknowledging that she has never received the tax [*20]returns to be completed pursuant to the Stipulation of Settlement,^[FN101] Defendant seeks the return of the ten thousand dollars being held in escrow by Plaintiff's Counsel.^[FN102] In his answering submission Plaintiff's counsel asserts that Defendant's contentions regarding the submission of prior tax returns of the parties is without merit, and while the parties were to complete the missing tax returns together, Defendant did so alone.^[FN103]

At hearing, the Plaintiff testified that prior to the parties' divorce Defendant would assist in organizing information for the preparation of the parties' income tax returns;^[FN104] and, that the parties' then accountant Lionel Lewis had prepared income tax returns for 2016, 2017 and 2018, but he never received a copy;^[FN105] and, that following the illness of the accountant's wife he became unavailable with the income tax returns never having been provided.^[FN106] Plaintiff testified that the estimated taxes due for the missing years was prepared by Defendant ^[FN107] and that the Stipulation of Settlement included escrow funds being held for the payment of the taxes due.^[FN108] Plaintiff testified that Defendant failed to cooperate in the preparation of the returns when asked,^[FN109] failed to provide documents upon request,^[FN110] and failed to sign them when they had been prepared.^[FN111] He testified that not having the records made it difficult to find an accountant to prepare the returns,^[FN112] that he retained accountant Lolita Gilberg in 2023 to assist with the preparation of the returns,^[FN113] that Ms. Gilberg prepared the returns for 2017 and 2018,^[FN114] that she [*21]did not prepare the returns for 2016,^[FN115] and that only the returns for 2017 were filed.^[FN116] Defendant confirmed that she had estimated the amounts due on for the returns not filed and that these figures were placed within the Stipulation of Settlement.^[FN117] Defendant further testified that the parties were required to cooperate in the filing of the missing returns and that she provided Plaintiff with all of the documents she organized in January of 2019.^[FN118]

Notably, at hearing, for the 2016 and 2018 tax years, neither party provided the Court with any testimony that estimated income taxes were paid to the local, state and federal tax authorities, nor were any extensions for such filings obtained. As to the 2017 tax year, while Plaintiff asserts that he filed the return, it is unclear how he did so unilaterally for both parties as he testified he lacked the necessary information to do so, and the parties were directed to cooperate in the filings for all of the missing tax years including 2016, 2017 and 2018. Accordingly, it is unclear what local, state and Federal income taxes are due for 2016, 2017 and 2018; and if 2017 will need to be amended to the extent it was filed without Defendant's consent. As these filings are many years past due, in addition to any income taxes due, it is possible, if not probable, that the parties will be required to pay substantial late fees, fines, penalties and interest.

While both parties assert that the other is at fault for the lack of filing of these returns, by his own admission in his submissions and testimony, Plaintiff only retained Ms. Gilberg to prepare these returns in 2023 and she still has not prepared any returns for 2016. Meanwhile, Defendant also appears to have taken no meaningful action with respect to this issue prior to the filing of Motion Sequence No. 2, wherein she seeks the release of the funds being held in escrow despite her acknowledgement that these returns have not been filed, and the very reason for the escrow funds was to secure these funds towards her payment of her portion of any income taxes due for these returns, along with the other marital debt set forth in the Debt Provision.

Upon review of the Stipulation of Settlement, three terms work in concert including the Escrow Provision, Debt Provision and Tax Filing Provision, each of which are clear and unambiguous. The Escrow Provision requires the escrow with Plaintiff's counsel $10,000.00 of the funds due to Defendant for Plaintiff's purchase of her share of the Marital Domicile to be used towards Defendant's portion of the parties' marital debt and for tax liability. The Debt Provision sets forth the marital debt referenced in the Escrow Provision. The Tax Filing Provision acknowledges that the parties have failed to file income tax returns for 2016, 2017 and 2018, and requires that they cooperate with such filings and share in the cost of all filings, as well as taxes, interests and penalties due thereafter.

Here, both parties have engaged in breach of contract with respect to the Tax Filing Provision of the Stipulation of Settlement and Judgment of Divorce. As noted above, both parties failed to cooperate with each other to ensure the timely filing of the missing income tax [*22]returns following the execution of the Stipulation of Settlement and waited approximately five years to seek court intervention. Beyond causing harm to each other and themselves, the parties have failed to comply with the legal requirements for individuals to file local, state and Federal income tax returns.

The Court determines that an award of damages would be inadequate for many reasons including that both parties have engaged in the same breach and instead directs specific performance in that the parties are both directed to comply with the Tax Filing Provision of the Stipulation of Settlement and Judgment of Divorce. By June 27, 2025, both parties shall file: (1) a notice with the Court advising the Court and opposing party of the New York State Certified Public Accountant who they have retained individually, with both working together or jointly, with the filing of the 2016, 2017 and 2018 income tax returns, which shall include the review of any returns filed by either party during that period; and, (2) copies of any documents pertaining to tax filings made by either party during that period and copies of any records or information that would assist in the preparation of income tax returns for 2016, 2017, and 2018. By July 31, 2025, both parties shall file confirmation with the Court that the parties have filed local, state and Federal income tax returns for 2016, 2017, and 2018, with complete fully executed copies of same (returns, with all schedules and worksheets). By July 31, 2025, Plaintiff's counsel shall file an escrow distribution accounting setting forth from the $10,000.00 held in escrow pursuant to the Escrow Provision, the manner within which the funds were distributed with copies of the checks.

G. Requests Pertaining to An Award of Attorneys' Fees

The Appellate Division Second Department has noted how trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:

"In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 AD3d 1304, 84 N.Y.S.3d 786; Patete v Rodriguez, 109 AD3d 595, 599, 971 N.Y.S.2d 109). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 AD3d 1252, 1253, 945 N.Y.S.2d 409; Finnan v. Finnan, 95 AD3d 821, 943 N.Y.S.2d 559; Prichep v. Prichep, 52 AD3d 61, 64—65, 858 N.Y.S.2d 667).

In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 AD3d 1304, 84 N.Y.S.3d 786; Chesner v. Chesner, 95 AD3d 1252, 945 N.Y.S.2d 409; Prichep v. Prichep, 52 AD3d at 64—65, 858 N.Y.S.2d 667)."

(Brockner v Brockner, 174 AD3d 567 [2d Dept. 2019]).

When seeking an award of attorneys' fees, parties are required to submit itemized billing statements as proof of the attorneys' fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the "extent and value of [the] services" rendered (Yakobowitz v. Yakobowicz, 217 AD3d 733 [2d Dept 2023] [internal citations [*23]omitted]).

In Motion Sequence No. 1, Plaintiff requests that Defendant be required to pay his attorneys' fees incurred in litigating the subject application,^[FN119] which Plaintiff's counsel projects will total four thousand dollars. Counsel claims that Plaintiff should be awarded same, due to his credentials and services provided pursuant to his engagement agreement which he annexes as Exhibit F.^[FN120] In Motion Sequence No. 2, Defendant seeks an award of attorneys' fees,^[FN121] and while no specific amount is requested, the Affirmation of Defendant's Counsel annexed his engagement agreement as Exhibit F.^[FN122]

At hearing, Plaintiff's counsel indicated that his legal fees charged to Plaintiff were being billed at an hourly rate of $400.00,^[FN123] and Defendant's counsel advised that he was working on a pro bono basis and billing at an hourly rate of $450.00, only if such funds were derived from a recovery of attorneys' fees awarded to Defendant by Plaintiff.^[FN124] However, during the nearly two week hearing, neither party presented the Court with any billing statements for attorneys' fees accrued during this post-judgment litigation, nor was any testimony provided by the parties or their counsel regarding the engagement agreements entered into or any attorneys' fees accrued. Accordingly, the Court must deny all requests for awards of attorneys' fees by both parties.

H. Requests for Sanctions

The Appellate Division Second Department has noted when the imposition of sanctions is warranted:

"In its discretion, a court may award costs and financial sanctions against an attorney or party resulting from frivolous conduct (See, 22 NYCRR 130—1.1[a]). Conduct is frivolous if "(1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; or (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130—1.1[c][1], [2]). An award of costs or the imposition of sanctions may be upon a motion or by the court sua sponte, after a reasonable opportunity to be heard. "The form of the hearing shall depend on the nature of the conduct and the circumstances of the case" (22 NYCRR 130—1.1[d]). The rule mandates that the award of costs or imposition of sanctions only be made upon a written decision setting forth the offending conduct, why the court finds the conduct frivolous, and why the amount awarded or imposed was appropriate, and it requires that the award of costs or the imposition of sanctions or both be entered as a judgment of the court (see, [*24]22 NYCRR 130—1.2)."

(Breslaw v. Breslaw, 209 AD2d 662 [2d Dept 1994]).

Based upon the submissions filed with the Court, along with the testimony and evidence received at hearing, the Court declines to impose sanctions on either party or their respective counsel.

I. Request for Other Relief

Any relief sought in Motion Sequence No. 1 and Motion Sequence No. 2 specifically not granted or otherwise addressed herein is denied.

Based upon the foregoing, it is hereby

ORDERED that Motion Sequence No. 1 and Motion Sequence No. 2 are decided as set forth above; and it is further

ORDERED that any relief sought in Motion Sequence No. 1 and Motion Sequence No. 2 specifically not granted or otherwise addressed herein is denied; and it is further

ORDERED that Plaintiff's counsel shall serve via NYSCEF filing this Decision and Order with Notice of Entry on Defendant's Counsel by June 18, 2025, and shall file an Affidavit of Service by that date.

The foregoing constitutes the Decision and Order of the Court.

"Q. In addition to receiving that documentation from the United States Postal Service addressed to the defendant at the former marital residence, did you direct a search of the Post Office as to whether or not she was still utilizing the marital residence for her address? A. Yes. Q. I am going to show you what has been marked as Exhibit 7 for identification. A (Witness complies.) Q. You testified that you had authorized a search with the U.S. Postal Service to determine whether or not the Defendant was still utilizing the marital residence, correct? A. Correct. Looking at Exhibit 7.****Q. Are those copies of the documents you authorized to be sent to the United States Postal Service to verify her address. A. Yes."