I. Statement Pursuant to CPLR § 2219 [a]

The following papers, numbered as reflected on NYSCEF, were read on Plaintiff's Order to Show Cause, filed June 12, 2025, seeking to hold Defendant in contempt for failure to comply with the Judgment of Divorce dated January 24, 2025:

• Order to Show Cause and Plaintiff's Supporting Affirmation (NY St Cts Filing [NYSCEF] Doc Nos. 175—176; 182);

• Plaintiff's Retainer Agreement and Supporting Exhibits (NY St Cts Filing [NYSCEF] [*2]Doc Nos. 177—181);

• Defendant's Affirmation in Opposition dated August 14, 2025 (NY St Cts Filing [NYSCEF] Doc No. 191);

• Affirmation in Opposition of Defendant's Counsel (NY St Cts Filing [NYSCEF] Doc No. 192);

• The Judgment of Divorce and incorporated Stipulation of Settlement (NY St Cts Filing [NYSCEF] Doc Nos. 146; 193); and

• Defendant's Supporting Exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 194-201).

II. Facts

The parties were married on April 18, 2003. After protracted and contentious litigation spanning nearly two years and involving multiple motion sequences, a Judgment of Divorce was entered on January 24, 2025, incorporating a Stipulation of Settlement dated January 23, 2025. (NY St Cts Filing [NYSCEF] Doc No. 198).

The Judgment obligated Defendant to:

1. Pay child support in the amount of $2,791.67 per month beginning June 1, 2025, or earlier if Plaintiff vacated the marital residence (NY St Cts Filing [NYSCEF] Doc No. 198 at page 31);

2. Pay maintenance in the amount of $2,774.01 per month commencing June 1, 2025, contingent upon his failure to buy out a provision by May 23, 2025 (see id at page 18);

3. Pay Plaintiff a money judgment of $150,000 by May 23, 2025, failing which a Part 36 Order directing sale of the marital residence at XX XXX Court, Staten Island, would automatically be reinstated (see id pages 10-11); and

4. Comply with provisions granting Plaintiff exclusive use and occupancy upon sale, and awarding counsel fees to the prevailing party in contempt proceedings (see id; (NY St Cts Filing [NYSCEF] Doc No. 198 at page 20).

Plaintiff avers that Defendant has wholly failed to pay child support, maintenance, or the $150,000 money judgment, thereby frustrating the ordered sale of the residence, and she seeks exclusive occupancy, counsel fees, and incarceration as sanction.

Defendant, in opposition, asserts:

• The Stipulation and Judgment were procured through fraud, duress, and representation by unauthorized counsel, rendering them invalid;

• Child support is currently being paid through wage garnishment via the Support Collections Unit, as evidenced by paystubs and statements;

• His inability to pay maintenance and the money judgment arises from substantial debts allegedly traceable to Plaintiff's defaults, including HOA arrears, EZ-Pass liabilities, and utilities;

• Plaintiff's claim to exclusive occupancy is unmerited, as she voluntarily withdrew a prior order of protection, and no present threat exists; and

• A contempt finding is premature until validity of the underlying Judgment is adjudicated, and at minimum, a hearing is required.

Civil contempt is governed by Judiciary Law § 753 [A], which permits the Court to [*3]punish by fine or imprisonment a party who willfully disobeys a lawful judicial mandate. "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]). To sustain an application for civil contempt under Judiciary Law § 753 [A] [3], a movant must establish by clear and convincing evidence the following: (1) the existence of a lawful order, clearly and unequivocally expressed; (2) knowledge of the order by the alleged contemnor; (3) a failure to comply; and (4) prejudice to the rights of the party seeking enforcement. The Court of Appeals in El-Dehdan v. El-Dehdan, 26 NY3d 19 [2015], confirmed that willfulness is not an element of civil contempt; rather, the mere act of disobedience, if prejudicial, is sufficient.

"A hearing is required 'if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense'" (see Lundgren v Lundgren, 127 AD3d 938 [2d Dept 2015] quoting El-Dehdan v El-Dehdan, 114 AD3d 4 [2d Dept 2013]; citing Coyle v Coyle, 63 AD3d 657 [2d Dept 2009]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1073 [2d Dept 2008]).

Here, Plaintiff has demonstrated the existence of a duly entered Judgment of Divorce and Defendant's admitted noncompliance with several of its terms. On its face, this satisfies the first three elements of contempt. However, Defendant interposes several defenses which compel closer scrutiny.

A. Validity of the Judgment and Stipulation

Defendant vigorously challenges the validity of the Stipulation of Settlement, alleging fraud, duress, and unauthorized representation. Plaintiff counters with references to Defendant's sworn allocution on January 24, 2025, in which he affirmed his understanding of, and agreement to the settlement. The record thus presents a direct clash of credibility and legal sufficiency. Until such claims are adjudicated, a threshold question remains whether the underlying order is enforceable. Proceeding to punish contempt before resolving validity risks imposing sanction on a possibly void instrument.

B. Child Support Payments

Plaintiff claims Defendant has paid nothing; Defendant annexes proof of wage garnishment reflecting over $4,500.00 in payments between February and June 2025. If substantiated, Plaintiff's allegations of total non-payment are materially inaccurate. Contempt cannot rest upon obligations already satisfied or being enforced through lawful collection.

C. Maintenance and Money Judgment

Defendant concedes non-payment but asserts financial inability, citing burdensome debts including HOA liens, toll penalties, and utility arrears. Inability to pay, if genuine, constitutes a [*4]defense to contempt. Plaintiff has not rebutted these assertions with financial evidence of Defendant's present capacity to comply.

D. Exclusive Use and Occupancy / Removal from Residence

Plaintiff alleges risk of sabotage and safety concerns, particularly upon expiration of firearm and protection provisions in July 2025. Defendant counters that Plaintiff previously withdrew a protection order and presents no current threats. The issue is factual, bearing directly on credibility and imminent risk. A hearing is necessary before ordering ouster or exclusive occupancy.

E. Imprisonment and Sanctions

Incarceration is the most drastic sanction, appropriate only upon clear demonstration of willful defiance without defense. On this record, with unresolved disputes as to validity of the Judgment, actual compliance with child support, and claimed financial incapacity, imprisonment would be premature.

F. Counsel Fees

The Judgment entitles the prevailing party in a contempt proceeding to recover fees. As the motion is not finally determined, and no party yet prevails, counsel fees cannot be awarded at this stage.

IV. Conclusion and Decretal Paragraph

Accordingly, it is hereby:

ORDERED, that Plaintiff's motion to hold Defendant in contempt is held in abeyance pending a hearing; and it is further

ORDERED, that a hearing shall be conducted to determine (1) the validity and enforceability of the Stipulation of Settlement and Judgment of Divorce as challenged by Defendant; (2) the extent and sufficiency of Defendant's child support payments; (3) Defendant's ability to pay maintenance and the $150,000.00 money judgment; and (4) whether Plaintiff is entitled to exclusive use and occupancy of the marital residence pending sale; and it is further

ORDERED, that Plaintiff's request for Defendant's imprisonment, removal from the marital residence, and immediate award of counsel fees is denied without prejudice to renewal following said hearing; and it is further

ORDERED, that the parties shall appear for said evidentiary hearing on a date to be set by the Court by contemporaneous Order upon its determination of an appropriate date for the hearing after consultation with counsel.