ES v NS

Supreme Court, Richmond County

Decided on May 8, 2026

Index No. REDACTED

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 008) numbered 156-165, 167-179 were read on this motion. Pursuant to CPLR § 2219 [a], the following papers were considered in connection with Plaintiff's Order to Show Cause, dated March 23, 2026, seeking, inter alia, an adjudication of civil contempt against Defendant for alleged violations of the parties' Stipulation of Settlement and Judgment of Divorce, enforcement of parenting-time provisions, counsel fees, and related relief: the Order to Show Cause (NY St Cts Filing [NYSCEF] Doc No. 162); the Affirmation of Emanuel Kataev, Esq. (NY St Cts Filing [NYSCEF] Doc No. 157); the Affirmation of Plaintiff ES (NY St Cts Filing [NYSCEF] Doc No. 160); the Affirmation of non-party MS (NY St Cts Filing [NYSCEF] Doc No. 161); Affidavit of Defendant NS in opposition (NY St Cts Filing [NYSCEF] Doc No. 168); and memorandum of law in opposition (NY St Cts Filing [NYSCEF] Doc No. 169) with annexed exhibits; together with the exhibits annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 158-159; 170-179).

II. Findings of Fact

The parties were divorced pursuant to a Judgment of Divorce entered on November 21, 2025. (NY St Cts Filing [NYSCEF] Doc No. 150). In connection therewith, the parties executed a Stipulation of Settlement dated October 1, 2025 (NY St Cts Filing [NYSCEF] Doc No. 135), resolving issues relating to custody, parenting time, and ancillary matrimonial matters.

The Stipulation provides that Defendant shall maintain primary residential custody of the parties' minor child, AS, while the parties shall share joint legal custody. The Stipulation further provides that "[e]ach party shall exert every reasonable effort to maintain free access and unhampered contact between the other party and the Child," and further provides that Defendant "agrees to be reasonable in accommodating any desires of the Husband for visitation with the Child." The agreement additionally states that Plaintiff "shall have visitation with AS from Thursday afternoon until Monday morning every weekend." (see id at Article VIII).

Plaintiff now moves by Order to Show Cause seeking to hold Defendant in civil contempt pursuant to Judiciary Law § 753 [A], alleging that Defendant repeatedly interfered with and denied his parenting time beginning in February 2026. (NY St Cts Filing [NYSCEF] Doc No. 160 at ¶10). Specifically, Plaintiff alleges that on February 6, 2026, Defendant denied him parenting access without justification. (see id at ¶11). Plaintiff further alleges that on February 13, 2026, Defendant initially represented that visitation would occur but subsequently refused to produce the child and asserted that Plaintiff was required to provide advance notice not contemplated by the Stipulation. (see id at ¶12).

Plaintiff additionally avers that further efforts to arrange visitation during February 2026 through telephone calls, text messages, and social-media communications were either ignored or refused by Defendant. (see id at ¶14-¶17). Plaintiff alleges that on February 28, 2026, Defendant asserted that the child was ill but failed to consult with Plaintiff regarding the child's condition despite provisions within the Stipulation requiring parental consultation concerning illness and visitation. (see id at ¶18-¶19). Plaintiff further alleges that he subsequently learned the child attended daycare during the same period Defendant claimed the child was too ill for visitation. [*2](see id at ¶20).

The motion papers additionally allege that Plaintiff's mother traveled to Defendant's residence to retrieve the child and check upon her welfare, but Defendant refused to open the door or permit the child to leave the residence. (see id at ¶22-¶23). The police were thereafter summoned and a report was generated concerning the incident. (see id at ¶24). Plaintiff contends that Defendant's conduct deprived him of approximately sixteen overnights and sixteen days of parenting time. (see id at ¶37).

In opposition, Defendant sharply disputes Plaintiff's characterization of the parties' conduct and the practical implementation of the parenting schedule. (NY St Cts Filing [NYSCEF] Doc No. 168). Defendant contends that Plaintiff does not personally exercise parenting time and instead delegates transportation and visitation responsibilities to third parties, including family members and other non-parties. (see id). Defendant additionally asserts that Plaintiff resides in Florida during periods of purported visitation and that disputes arose concerning the child's travel, location, and Plaintiff's alleged failure to provide itinerary information required under the Stipulation. (see id). Defendant further maintains that Plaintiff's application is procedurally defective and substantively meritless and seeks counsel fees pursuant to Domestic Relations Law §§ 237 and 238 and 22 NYCRR § 130-1.1. (see id; NY St Cts Filing [NYSCEF] Doc No. 169).

The record additionally reflects that Plaintiff seeks counsel fees in the amount of $15,000.00 in connection with the instant application. Plaintiff's counsel affirms that his office expended in excess of fifteen hours preparing the application and anticipates additional time related to responsive submissions and oral argument.

III. Conclusions of Law

Judiciary Law § 753 [A] [1] authorizes a court of record to punish, by fine or imprisonment, a party whose misconduct defeats, impairs, impedes, or prejudices the rights or remedies of another through disobedience of a lawful mandate of the Court.

A party seeking to hold another in civil contempt bears the burden of establishing by clear and convincing evidence "that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, that the order was disobeyed and the party disobeying the order had knowledge of its terms, and that the movant was prejudiced by the offending conduct" (see Casler v Casler, 131 AD3d 664 [2d Dept 2015]; Lundgren v Lundgren, 127 AD3d 938 [2d Dept 2015]; El-Dehdan v El-Dehdan, 114 AD3d 4 [2d Dept 2013]; Rocco v Rocco, 90 AD3d 886 [2d Dept 2011]; Lopez v Ajose, 33 AD3d 976 [2d Dept 2006]).

Further, "[i]n order to sustain a finding of civil contempt, it 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 of a party" (Cannizzaro v Cannizzaro, 186 AD2d 776 [2d Dept 1992], quoting Walter Doors v Greenberg, 151 AD2d 550 [2d Dept 1989]).

The Court finds that the Stipulation of Settlement incorporated into the Judgment of Divorce constitutes a lawful mandate clearly expressing Plaintiff's parenting-time rights. The provisions concerning parenting access are facially unequivocal and impose affirmative obligations upon both parties to foster free and unhampered parental access.

The Court further finds that Plaintiff's submissions establish a prima facie basis [*3]warranting judicial inquiry into whether Defendant interfered with Plaintiff's parenting time in contravention of the Stipulation and Judgment of Divorce. The motion papers allege repeated denied visitations over several consecutive weekends, ignored communications, refusal to facilitate exchanges, and unilateral restrictions upon parenting access.

However, Defendant's opposition papers materially dispute the operative factual allegations underlying the contempt application. Defendant contests the parties' historical visitation practices, disputes Plaintiff's characterization of the exchange arrangements, challenges whether Plaintiff personally exercised parenting time, and raises issues concerning travel, transportation, and compliance with provisions governing out-of-state visitation and disclosure obligations.

These disputed issues are neither peripheral nor ministerial. Rather, they go directly to whether Defendant knowingly violated a clear and unequivocal mandate of the Court and whether any such conduct constituted actionable interference sufficient to warrant the extraordinary remedy of contempt. Resolution of these matters necessarily requires credibility determinations and factual findings incapable of proper determination upon papers alone.

Indeed, the authorities relied upon by Plaintiff recognize that a hearing may be dispensed with only where the alleged contemnor fails to contradict the movant's showing (see Rocco v Rocco, 90 AD3d 886 [2d Dept 2011]; Lopez v Ajose, 33 AD3d 976 [2d Dept 2006]). Here, Defendant has squarely contradicted Plaintiff's allegations and presented competing factual assertions concerning the parties' implementation of the parenting schedule and communications relating thereto. Under such circumstances, an evidentiary hearing is required before the Court may properly determine whether contempt sanctions are warranted.

The Court additionally finds that interim enforcement relief is appropriate pending the hearing. Whatever disputes presently exist between the parties, neither parent may unilaterally modify or disregard the parenting provisions embodied within the parties' Stipulation and Judgment of Divorce.

With respect to counsel fees, Domestic Relations Law § 238 authorizes the Court, in its discretion, to award counsel fees in proceedings brought to enforce matrimonial judgments and orders (Rudman v Rudman, 40 Misc 3d 1204[A] [Sup Ct, Nassau County 2013]). However, in light of the Court's determination that a hearing is necessary and in the absence of findings following testimonial development, determination of counsel fees shall likewise be reserved pending the hearing and final disposition of the contempt application.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby

ORDERED, that the branch of Plaintiff's motion seeking to hold Defendant NS in civil contempt pursuant to Judiciary Law § 753 is held in abeyance pending a framed-issue evidentiary hearing on the issues of whether Defendant violated the parenting provisions of the parties' Stipulation of Settlement and Judgment of Divorce, whether any such violation was knowing, and whether Plaintiff suffered prejudice thereby; and it is further

ORDERED, that pending the hearing and determination of this application, both parties shall strictly comply with all parenting-time provisions contained within the parties' Stipulation of Settlement dated October 1, 2025; and it is further

ORDERED, that neither party shall interfere with the other party's parenting access or [*4]communications concerning the child except as expressly authorized by further order of this Court or the parties' Stipulation of Settlement; and it is further

ORDERED, that the branches of the parties' respective applications seeking counsel fees are held in abeyance pending the hearing and final determination of the contempt application; and it is further

ORDERED, that Parties shall register and commence using a coparenting application for the sole purpose of communication regarding the children no later than close of business today; and it is further

ORDERED, that Parties shall upload proof of registration for coparenting application to be uploaded to NYSCEF by close of business today; and it is further

ORDERED, that Parties shall restrict the child's air travel to no more than one round trip per 60 days; and it is further

ORDERED, that any purported motions regarding the custody of the child to be filed within ten (10) calendar days and fully submitted as per the CPLR no less than 48 hours prior to the hearing date; and it is further

ORDERED, that Parties shall provide to the Court via NYSCEF all required hearing documents, including memorandum of law as to triable issues, updated financial information required under the Uniform Civil Rules Part 202.16, and updated statements of proposed disposition no later than close of business on June 22, 2026; and it is further

ORDERED, Parties shall provide to the Court and opposing counsel a hearing/trial notebook on a flash drive no later than close of business on June 22, 2026; and it is further

ORDERED, Parties shall review the Part Rules in preparation for hearing, provide via NYSCEF witness lists, stipulated facts, and pre-marked exhibits no later than close of business on June 22, 2026; and it is further

ORDERED, that the matter is adjourned for an in-person hearing on July 6, 2026, commencing at 9:15 AM and continuing all day at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further

ORDERED, that all other relief requested and not specifically granted herein is DENIED.

This constitutes the Decision and Order of the Court.

Dated: May 8, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT