OPINION OF THE COURT
In this matrimonial action, the Supreme Court held the defendant in contempt of court for disobeying a court order dated January 29, 2010, which required him to deposit with the
The parties were married in Lebanon in 1982 and have two adult children. Throughout their lengthy marriage, the parties acquired substantial marital property and had a dry cleaning business. Two parcels of real property are relevant to the issues in this appeal: a parcel on Ainslie Street in Brooklyn (hereinafter the Brooklyn property), and a parcel on 60th Road in Maspeth, Queens (hereinafter the Queens property).
In 2008, the plaintiff commenced this action and moved for pendente lite relief. The defendant cross-moved to dismiss the action on the ground of res judicata based on a judgment entered in Lebanon in 2000 and a Kings County divorce action allegedly dismissed with prejudice in 2001. At a hearing on February 4, 2009, the Supreme Court informed the defendant that, regardless of its ultimate determination on the validity of the Lebanese divorce, that judgment did not resolve issues of equitable distribution, which would be submitted to a referee for an evidentiary hearing. Shortly thereafter, unbeknownst to the court or the plaintiff, the defendant transferred ownership of the two subject parcels of real property. On February 24, 2009, the defendant entered into a contract to sell the Brooklyn property for $950,000 to Zackmaxie, LLC (hereinafter Zackmaxie), and the transfer was completed by deed dated March 31, 2009 (hereinafter the March 2009 transfer). On April 6, 2009, he transferred the Queens property by deed to Mustafa Othman, apparently without consideration (hereinafter the April 2009 transfer).
Thereafter, when the defendant failed to appear for further proceedings, the court denied his motion to dismiss and referred the matter to the referee for an inquest on the grounds for divorce and equitable distribution. Prior to the inquest, an In
On December 4, 2009, the referee issued findings of fact and a determination which awarded the plaintiff a divorce on the ground of cruel and inhuman treatment and provided for equitable distribution, awarding her, among other things, the Brooklyn and Queens properties. Shortly thereafter, the plaintiff learned of the March 2009 transfer and the April 2009 transfer. On January 29, 2010, on the plaintiffs motion, the Supreme Court issued an order (hereinafter the January 2010 order), which directed the defendant to “deposit immediately” with the plaintiffs attorney the net proceeds of the March 2009 transfer, that is, “the sum of nine hundred fifty thousand ($950,000.00) dollars . . . , minus the money paid for real estate broker, transfer taxes and payment of the underlying mortgage.” It is undisputed that the defendant failed to deposit the proceeds of the March 2009 transfer with the plaintiffs attorney. In August 2010, the plaintiff moved to hold the defendant in civil and criminal contempt for violating the January 2010 order.
In determining the contempt motion, the Supreme Court considered, among other things, the plaintiffs testimony at the inquest, documents, and exhibits which established the following. The parties initially acquired the Brooklyn property as tenants by the entirety in 1989; they satisfied the first mortgage in 1997; the defendant forged the plaintiff’s signature and transferred the property to himself alone in 1998; the defendant transferred the property to his sister and nephew in 1999; the sister and nephew transferred it back to the defendant in 2002; the defendant executed a deed from himself, as “Salim Dahdan,” to himself, as “Sam Reed,” in 2003; he obtained a $250,000 mortgage loan from Emigrant Mortgage Company, Inc., in 2007; and the final tax assessment roll for 2009 listed the defendant as the owner. The defendant acquired the Queens property in his name alone in 1999; he executed a deed from himself, as “Salim Dahdan,” to himself, as “Sam Reed,” in 2003; and the final tax assessment roll for 2009 listed Mustafa Othman as the owner.
With respect to the March 2009 transfer of the Brooklyn property, the closing statement of the purchaser’s attorney, dated March 31, 2009, showed that the defendant received net proceeds in the sum of $776,046.21, comprising the initial down
In opposition to the plaintiffs motion to hold him in contempt, the defendant submitted an affidavit, in which he averred that he no longer possessed the proceeds of the March 2009 transfer.
On February 4, 2011, at the contempt hearing before the referee who was appointed to hear the issue, the defendant conceded that he had received a copy of the January 2010 order and that he had not deposited any money with the plaintiffs attorney pursuant to that order. He stipulated to the admission into evidence of all relevant documents and evidence concerning the Brooklyn property and the March 2009 transfer, including the closing statement. The defendant invoked his constitutional privilege against self-incrimination in response to all questions relating to the proceeds of the March 2009 transfer, and whether he owned an account at Washington Mutual.
The referee made findings that the defendant had dissipated marital assets and may have transferred assets without fair consideration after the plaintiff commenced this action, but recommended denial of the motion on the ground that the plaintiff had failed to meet her burden of establishing either civil or criminal contempt. In an order dated September 12, 2011, the Supreme Court granted the plaintiffs motion to set aside the referee’s report and recommendation, determining that the referee’s findings were not supported by the record and that the defendant was in contempt of court by failing to abide by the terms of the January 2010 order. The court found that
The Elements of Civil Contempt and the Burden of Proof
The defendant contends that the plaintiff failed to satisfy her burden of establishing civil contempt because the March 2009 transfer did not violate any court order and the plaintiff failed to adduce evidence that the defendant still possessed the proceeds of the March 2009 transfer when he received the January 2010 order, such that he had the ability to comply. The plaintiff responds that she made a prima facie showing satisfying all elements of civil contempt, at which point the burden shifted to the defendant to show his inability to comply with the January 2010 order, and that he failed to meet that burden.
“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 the contempt by clear and convincing evidence” (Matter of Hughes v Kameneva,
Notably, for civil but not criminal contempt, there must be a finding that a “right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced” (Judiciary Law § 753 [A]). An order of civil contempt must include an express finding that this element has been satisfied (see Stempler v Stempler,
Another notable distinction between the two kinds of contempt is that subdivision (3) of the civil contempt statute, at issue here, does not include the words “wilful” and “wilfully,” which are included in the criminal contempt statute (compare
“[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” (McCormick,59 NY2d at 583 [emphasis added]).
The wording of this formulation is subject to various interpretations. It might suggest that, while willfulness is an element of criminal contempt only, the willfulness must rise to a certain “level” in order to be punishable by a penal sanction. The language might also suggest that a lower “level” of willfulness is an element of civil contempt, while a higher “level” is an element of criminal contempt.
In context, however, it appears that the Court was opining, consistent with statutory language, that willfulness was only an element of criminal contempt. First, in support of the statement, the Court cited Judiciary Law §§ 750 (A) (3) and 753 (A) (3), as well as a decision of the Appellate Division, First Department, which held that, “without a finding of willful disobedience, the alleged contempt must be considered to have been civil in nature” (Matter of Sentry Armored Courier Corp. v New York City Off-Track Betting Corp.,
“In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court’s order, although itis not necessary that the order actually have been served upon the party. Finally, prejudice to the right of a party to the litigation must be demonstrated” (id. at 583 [citations omitted]).
More than a decade later, in McCain v Dinkins (
Prior to McCormick, cases from this Court involving civil contempt consistently excluded any mention of willfulness. “Intent or willfulness is not required to hold a party in contempt for disobeying a court order or subpoena” (Yalkowsky v Yalkowsky,
Subsequent to McCormick, one line of cases from this Court continued to hold that willfulness was not an element of civil contempt, using language similar to that employed in Yalkowsky (see e.g. Gomes v Gomes,
However, another line of cases developed after McCormick, which held: “To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court’s order, with knowledge of that order’s terms, thereby prejudicing the movant’s rights” (Suiss v Baron,
This development in the case law is apparently explained by the divergent interpretations of the language in McCormick and McCain, one of which ascribes an undefined “level of willfulness” to civil contempt. One critic of the language in McCormick has noted this interpretation and posed the rhetorical question, “How can one be more or less willful than willful?” (Lawrence N. Gray, Criminal and Civil Contempt § 1.21 at 94-95 [2d ed 2012]). The answer might lie in the many ways in which the term is used in the law, leading to a perception that different “levels” of willfulness do, indeed, exist. The United States Supreme Court has noted that “[t]he word ‘willfully’ is sometimes said to be a word of many meanings whose construction is often dependent on the context in which it appears. Most
Moreover, neither the Judiciary Law nor the case law offers a definition of the term “willful.”
The absence of the term “wilful” from paragraph (3) of the civil contempt statute, authorizing sanctions “for any other disobedience to a lawful mandate of the court” (Judiciary Law § 753 [A] [3]), indicates that the legislature, by inference, intentionally omitted or excluded the requirement of willfulness (see Trotta v Ollivier,
Accordingly, we conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct”
The absence of willfulness from this formulation does not result in strict liability, since the proponent of a civil contempt motion must establish the contemnor’s failure to comply with a court order with knowledge of its terms. Nor can civil contempt be founded upon an inadvertent or mistaken failure to comply with a court order since it is the movant’s burden to establish that the court’s mandate was clear and unequivocal (see Bennet v Liberty Lines Tr., Inc.,
Contrary to the defendant’s contention, the fact that he did not disobey an express order of the court in March 2009 when he transferred the Brooklyn property is irrelevant to the issue of whether he disobeyed the clear mandate of the January 2010 order to deposit the proceeds of that sale with the plaintiffs attorney. Nor did the plaintiff have the additional burden of establishing that the defendant still possessed or had control over the proceeds from the March 2009 transfer such that he had the ability to comply with the January 2010 order. Rather, once his failure to comply was established, the burden shifted to the defendant to offer competent, credible evidence of his inability to pay the sum of money as ordered (see Yeager v Yeager,
The defendant failed to meet his burden of establishing his defense of an inability to pay. The plaintiff had adduced evidence that the defendant received net proceeds of $776,046.21 from the March 2009 transfer, less than a year prior to the January 2010 order. In opposition to the contempt motion, the defendant submitted an affidavit in which he averred that he no longer possessed those proceeds, but he provided no evidence in support of that self-serving assertion. Generally, “conclusory, baseless, and self-serving allegations [are] insufficient to raise an issue of fact necessitating a hearing” on a contempt motion (Jaffe v Jaffe,
The Privilege against Self-Incrimination
The defendant contends that he properly invoked his constitutional Fifth Amendment privilege in response to certain questions, and that the Supreme Court improperly drew an adverse inference against him. Specifically, he contends that, since he was potentially facing both civil and criminal contempt sanctions, he was placed in the untenable position of having to make a choice between defending the civil branch of the motion or asserting his Fifth Amendment privilege with respect to the criminal branch of the motion. Therefore, he asserts, his invocation of the privilege against self-incrimination could not be used against him, as it was his right to invoke the privilege in defense of the criminal branch of the proceeding without adverse consequence.
The defendant has failed to cite any case precisely on point with respect to the instant situation, in which the subject motion was pursuant to both Judiciary Law §§ 750 (A) (3) and 753 (A) (3), seeking civil and criminal contempt sanctions. However, the dilemma he asserts is not new to the courts and has arisen in various types of civil proceedings, including those involving a mere risk of incurring potential criminal liability, and those involving a separate, ongoing criminal prosecution for the same subject matter raised in the civil proceeding. We find the defendant’s contentions to be without merit based on well-established principles in analogous cases.
“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” (Baxter v Palmigiano,
“In New York, unlike the rule in a criminal case, aparty’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” (Kuriansky v Bed-Stuy Health Care Corp., 135 AD2d 160 , 178-179 [1988], affd73 NY2d 875 [1988] [holding that a disclosure order in a civil forfeiture action premised upon alleged criminal conduct did not violate the Fifth Amendment]; see Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 42 [1980]; Breen Belgium BVBA v International Foreign Currency, Inc.,37 AD3d 633 , 634 [2007] [based, in part, on the adverse inference arising from invocation of the defendant’s Fifth Amendment privilege, the defendant failed to establish entitlement to judgment as a matter of law dismissing a fraudulent misrepresentation cause of action]).
Although a defendant in an ongoing criminal prosecution faces a dilemma whether to defend a civil proceeding involving the same subject matter or to assert the Fifth Amendment privilege, “a court need not permit a defendant to avoid this difficulty by staying a civil action until a pending criminal prosecution has been terminated,” and the fact “that the witness may invoke the privilege against self-incrimination is not ... a basis for precluding civil discovery” (Matter of Astor,
Further, a party to a civil action or proceeding is not relieved of his or her burden of proof simply by invoking the privilege against self-incrimination. In a federal civil contempt proceeding based on a defendant’s failure to produce records or property, where the defendant validly invokes the privilege against self-incrimination in answer to questions concerning the whereabouts of the records or property allegedly in his possession, invocation of the privilege “does not relieve him of his burden to demonstrate a present inability to comply” with the court order (Armstrong v Guccione,
“[w]hile a party may not be compelled to answer questions that might adversely affect his [or her] criminal interest, the privilege does not relieve the party of the usual evidentiary burden attendant upon a civil proceeding; nor does it afford any protection against the consequences of failing to submit competent evidence” (Access Capital v DeCicco,302 AD2d 48 , 51 [2002]; see Matter of Astor,62 AD3d at 869 ).
Here, the defendant had the burden of establishing his defense of an inability to pay the sum required by the January 2010 order (see Yeager v Yeager,
The defendant correctly contends that a party may not be held in criminal contempt solely for a justified assertion of the Fifth Amendment privilege. Thus, in a criminal contempt proceeding, in which willful disobedience is an element, the court may not base a finding of willfulness solely upon the defendant’s justified invocation of the privilege, absent any other evidence of willfulness (see Matter of Solerwitz v Signorelli,
Contrary to the defendant’s contention, the Supreme Court did not hold him in contempt solely for having asserted his Fifth Amendment privilege. Rather, the Supreme Court held him in civil contempt for failing to comply with the January 2010 order. There is a difference (compare United States v Ry-
Exhaustion of Remedies
Finally, the defendant contends that the plaintiff failed to satisfy the mandatory precondition of Domestic Relations Law § 245 that she first exhaust other, less drastic enforcement mechanisms, such as settling a judgment from the equitable distribution order and seeking enforcement of the judgment. The plaintiff responds that section 245 applies only to maintenance and support orders, not an order requiring the deposit of sale proceeds to effect equitable distribution and, in any event, she satisfied the precondition with evidence establishing that other enforcement mechanisms would have been futile.
In an action for a divorce, Domestic Relations Law § 245 grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 756 where the party defaults “in paying any sum of money” required by a judgment or order,
Although the exhaustion precondition is discussed most often in case law involving the nonpayment of maintenance or child support (see e.g. Tarone v Tarone,
However, the plaintiff correctly contends that the record establishes her satisfaction of the exhaustion precondition with evidence demonstrating that less drastic enforcement measures would have been ineffectual. The plaintiff submitted extensive evidence in support of her motion to hold the defendant in contempt, demonstrating his pattern of divesting himself of his assets during the course of the earlier divorce litigation in 2000 through 2002, and during the present litigation; as a result, the defendant no longer held assets in his name against which exe
Accordingly, the record here fully supports the Supreme Court’s order finding the defendant in civil contempt and imposing a civil sanction (see Manning v Manning,
The defendant’s remaining contentions are either not properly before this Court or without merit.
Therefore, the order is affirmed.
Skelos, J.E, Leventhal and Chambers, JJ., concur.
Ordered that the order is affirmed, with costs.
Notes
. We are cognizant of the alternate spellings of “willful” and “wilful” and their derivations. In this opinion, where materials are quoted, the spelling is that used in the original. One commentator, noting the inconsistent meanings of this term in the case law, has remarked that, “[cjourts do not even agree on how many “l’s” are in the word” (Lawrence N. Gray, Criminal and Civil Contempt § 1.21 at 96 [2d ed 2012]).
. Subdivision (A) (1) of the civil contempt statute, which is not at issue in this appeal, contains the only instance of the word “wilful” in that section (Judiciary Law § 753 [A] [1]).
. In addressing the term “willful” here, we do not address the distinct provision in the Family Court Act, which provides certain enforcement mechanisms for a party’s “failure to obey any lawful order of support” (Family Ct Act § 454 [1]; see Family Ct Act § 454 [2]) and additional sanctions, including a jail term, where the court finds that the party “has willfully failed to obey any lawful order of support” (Family Ct Act § 454 [3]; see Matter of Powers v Powers,