159 A.D.3d 174
N.Y. App. Div.2018Background
- Sharon Spencer sued Dwayne Spencer for divorce; after an 18‑day trial a judgment of divorce was entered on November 30, 2015.
- During the pendency of the action (while trial was underway) the defendant sold a marital warehouse in Brooklyn without plaintiff’s consent or court approval.
- The sale occurred while the statutory/court “automatic orders” (DRL §236(B)(2)(b) and 22 NYCRR 202.16‑a) prohibiting disposition of marital property during litigation were in effect.
- After learning of the sale post‑judgment, plaintiff moved (via order to show cause) to hold defendant in civil contempt under Judiciary Law §753, seeking a purge payment and weekend incarceration if not paid.
- Supreme Court found defendant in civil contempt, ordered a $150,000 purge payment or weekend incarceration; defendant appealed and enforcement of incarceration was stayed by this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the automatic orders (DRL §236(B)(2)(b) and 22 NYCRR 202.16‑a) constitute an "unequivocal mandate" enforceable by civil contempt during the pendency of the action | The automatic orders are court mandates that can be enforced by contempt to prevent dissipation of assets | The automatic orders are legislative/administrative and not judicial mandates subject to contempt | Yes. The Court held the automatic orders together constitute unequivocal mandates enforceable by contempt during the action |
| Whether civil contempt is available post‑judgment to remedy a violation of the automatic orders that occurred during the pendency of the action | Plaintiff sought contempt after the divorce judgment to remedy the earlier violation and obtain compensation/enforcement | Defendant argued contempt is unavailable after entry of final judgment; relief must be sought through other postjudgment remedies | No. The Court held civil contempt is not available after entry of a divorce judgment for violations of the automatic orders; other postjudgment remedies apply |
Key Cases Cited
- McCormick v. Axelrod, 59 N.Y.2d 574 (Court of Appeals) (civil contempt elements and purposes)
- El‑Dehdan v. El‑Dehdan, 26 N.Y.3d 19 (Court of Appeals) (standard of proof and elements for civil contempt)
- Xiao Yang Chen v. Fischer, 6 N.Y.3d 94 (Court of Appeals) (res judicata and finality of divorce judgments)
- Nicodemus v. Nicodemus, 124 A.D.3d 849 (App. Div.) (final judgment settles parties' rights beyond issues litigated)
- Pollack v. Pollack, 3 A.D.3d 482 (App. Div.) (civil contempt not available post‑judgment to enforce pendente lite maintenance; other remedies exist)