The following e-filed documents listed on NYSCEF (Motion No. 006) numbered 250-268, 283-286, 295-307 were read on this motion.

Upon the Order to Show Cause filed by the Plaintiff, AW, dated April 14, 2025, seeking an adjudication of civil contempt against the Defendant, RW, for alleged noncompliance with this Court's directive issued on March 18, 2025; and upon the accompanying Affidavit of the Plaintiff in support thereof; and upon the sworn Affidavit of the Defendant dated May 12, 2025, together with the Affirmation in Opposition submitted by Defendant's counsel; and after careful and deliberate examination of the submissions presented, the Court renders the following findings of fact and conclusions of law.

The underlying matrimonial litigation between AW (Plaintiff) and RW (Defendant) has spawned extensive and protracted post-judgment motion practice. The specific relief at issue in the instant motion emanates from a Court Order rendered on March 18, 2025, which established a series of financial directives incumbent upon the Defendant, all of which were to be satisfied within twenty (20) days of said Order.

The March 18, 2025 Order, inter alia, mandated the following:

1. That Defendant remit to Plaintiff the sum of Seven Thousand Four Hundred Dollars ($7,400.00) as reimbursement for (i) her share of the 2023 federal tax refund, and (ii) expenses incurred for pest remediation services at the former marital residence performed by Empire Termite Control;

2. That Defendant tender his 80% pro rata share of costs associated with the minor child, NW (born XXX XX, 2017), including her enrollment and participation in extracurricular activities, notably gymnastics, tumbling, and summer camp;

3. That Defendant satisfy his 80% pro rata obligation for unreimbursed medical expenses incurred on behalf of the subject children, NW and RXW;

4. That Defendant pay to Plaintiff's counsel interim legal fees in the amount of Seven Thousand Five Hundred Dollars ($7,500.00) pursuant to the Order of March 18, 2025;

Plaintiff avers, and it is uncontested, that as of the filing date of the instant motion, Defendant has failed to make any of the aforementioned payments. Plaintiff further alleges that Defendant has prioritized personal indulgences over judicial mandates, including engaging in international travel while ignoring his Court-ordered financial obligations. Plaintiff attaches supporting documentation including her retainer agreement, net worth statement, and billing invoices.

In opposition, Defendant does not deny noncompliance. Rather, he raises the affirmative defense of involuntary financial incapacity. Defendant attests that his present financial condition renders him incapable of discharging the ordered obligations, and attributes his insolvency in part to the Plaintiff's alleged fiscal mismanagement and refusal to contribute to marital debts.

Defendant's financial averments include:

• Monthly expenses exceeding $3,950.00, inclusive of $2,246.99 in temporary spousal maintenance and $2,246.88 in temporary child support;

• Accumulated credit card debt in excess of $10,000.00;

• Pending civil litigation initiated by Midland Credit Management regarding an unpaid Synchrony Bank debt of $2,083.00;

• A denial of a personal loan application from TD Bank, evidenced by a Notice of Adverse Action;

• A claimed forthcoming 2024 tax refund of $10,000.00, which he represents as potential partial payment toward his obligations.

Defendant further asserts that tuition obligations for the parties' child were satisfied by a third party—his mother—and alleges that Plaintiff has refused to cooperate in granting him access to obtain school billing records or medical invoices necessary to confirm the specific amounts owed.

Additionally, Defendant states that he, through counsel, attempted to negotiate an extension or partial payment with Plaintiff's counsel, but received no constructive engagement.

"A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court" (see Matter of Mendoza-Pautrat v Razdan, 160 AD3d 963 [2d Dept 2018] citing Cassarino v Cassarino, 149 AD3d 689 [2d Dept 2017]; Matter of Hughes v Kameneva, 96 AD3d 845 [2d Dept 2012]; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944 [2d Dept 2009]).

The movant in a civil contempt motion bears the burden of proof. (see id citing Vujovic v Vujovic, 16 AD3d 490 [2d Dept 2005]; Rupp-Elmasri v. Elmasri, 305 AD2d 394 [2d Dept 2003]).

The doctrine of civil contempt, as codified in Judiciary Law § 753 [A] [3], authorizes the Court to impose sanctions upon a party who fails to comply with a clear and unequivocal judicial mandate. To prevail on an application for civil contempt, the movant must establish, by clear and convincing evidence, the following essential elements:

1. A lawful and explicit order of the Court expressing an unequivocal mandate;

2. Knowledge of the order by the party against whom contempt is sought;

3. Prejudice to the rights of a party resulting from the failure to comply;

4. Willfulness or contumacious disobedience of the Court's directive.

Here, the first three prongs are readily satisfied. The Order of March 18, 2025 was unambiguous in its directives. The Defendant received actual notice and acknowledged the existence of the Order. Plaintiff has established tangible prejudice resulting from non-receipt of funds intended for necessities such as tuition, extracurricular costs, and legal representation.

The core legal inquiry, therefore, centers on the fourth element: whether Defendant's noncompliance was willful—that is, whether it arose from a voluntary and deliberate refusal to comply rather than from circumstances beyond his control.

"[T]he inability of [a] defendant to obey an order of the court, without fault on his [or her] part, is a good defense to the charge of contempt . . . The contemnor must establish that he [or she] cannot comply, or was unable to do so" (see Matter of Reese v Reese, 176 AD3d 949 [2d Dept 2019]).

The defense of inability to pay, while not dispositive, is recognized in New York jurisprudence as a valid defense to contempt, provided it is supported by credible, competent evidence (see Cassarino v Cassarino, 149 AD3d 689 [2d Dept 2017]; Barreca v Barreca, 77 AD2d 793 [4th Dept 1980]). Moreover, where the opposing party's submission raises a genuine issue of material fact regarding their capacity to comply, the Court is compelled to conduct an evidentiary hearing (Roffey v Roffey, 217 AD2d 864 [3d Dept 1995]).

Defendant's opposition is not devoid of substance. He annexes financial documentation, references existing debts and judgments, and identifies a failed loan application as demonstrative of his impaired financial standing. Notably, his ongoing support obligations are substantial and exceed $4,400 monthly. While Plaintiff characterizes his actions as cavalier, and notes his participation in an international vacation, Defendant rebuts that the trip was a birthday gift and not a voluntary expenditure of his own funds.

Importantly, Plaintiff offers no rebuttal evidence suggesting that Defendant has access to undisclosed income or liquid assets, nor does she demonstrate that the Defendant has refused to make partial payments or otherwise defied judicial orders with malice or disregard. The record indicates at least some measure of communicative effort from Defendant's counsel to resolve the obligations consensually.

Further, while Plaintiff contends that enforcement alternatives have been exhausted, the record lacks sufficient evidence that other less drastic remedies, such as income executions or money judgments, would be ineffectual. The availability of such remedies, as contemplated by Domestic Relations Law § 245, weighs against an immediate finding of contempt in the absence of demonstrated futility.

This Court is loath to endorse the continued disregard of its mandates. Nevertheless, the remedy of contempt is a grave one and must not be invoked absent clear, deliberate disobedience. On the record before the Court, there exists a bona fide dispute as to the Defendant's present ability to comply, and the Court is constrained to conclude that a factual hearing is warranted to adjudicate the truth and substance of his claimed financial incapacity.

Accordingly, it is hereby:

ORDERED, that Plaintiff's motion to hold Defendant in contempt is DENIED at this time, without prejudice; and it is further

ORDERED, that the Court shall conduct an evidentiary hearing on the issue of Defendant's alleged willful noncompliance with the Order dated March 18, 2025; and it is further

ORDERED, that Plaintiff's application for interim counsel fees incurred in connection with the instant motion is held in abeyance, pending determination following the hearing; and it is further

ORDERED, that the parties shall appear before this Court on a date to be scheduled forthwith for the purpose of conducting said hearing.

This shall constitute the Decision and Order of the Court