The Plaintiff moves by Order to Show Cause dated January 24, 2022 (Motion Sequence No.: 001) seeking an Order: (a) holding Defendant in Contempt for failing to comply with the terms of the parties' Stipulation of Settlement dated August 28, 2019, and Judgment of Divorce, signed on March 10, 2020 and entered with the Nassau County Clerk on March 12, 2020 by failing to remain current on the mortgage payments on the property located at XXXX, New York 11520; (b) ordering that the court accelerate the four year time period for the wife to refinance or remove the Husband's name from the mortgage as per the agreement of the parties and ordering that the house be placed on the market for sale and providing for a distribution of the net proceeds accounting for the increase in the mortgage based on the Defendant's failure to pay same solely from her portion of the net proceeds; (c) ordering that the Defendant reimburse the Plaintiff the sum of ONE THOUSAND FIVE HUNDRED EIGHTY DOLLARS and NINETY-FOUR CENTS ($1,580.94) for medical expenses incurred by Defendant when she was no [sic] eligible to be covered under the health care plan of the Plaintiff; and (d) awarding attorneys fees and costs incurred by Plaintiff in pursuit of the instant application; and (e) granting Plaintiff such other and further relief as this Court shall deem just and proper.

The parties were married on March 30, 2010. There were no children of this marriage. The parties executed a Stipulation of Settlement on August 28, 2019 (hereinafter referred to as [*2]the "Stipulation"). The parties were subsequently divorced by Judgment of Divorce dated March 10, 2020 (Hon. Thomas Rademaker, J.S.C.) (hereinafter referred to as the "Judgment"). The Judgment incorporates by reference the Stipulation.

The Plaintiff, in support of his application, argues that the Stipulation provided in sum and substance that the Defendant had four years from execution of the Stipulation to refinance the premises located at XXXX, Huntington Station, New York (hereinafter referred to as the "Huntington Station Residence") and to remove the Plaintiff's name therefrom and to pay him 50% of the net equity. He argues that the Stipulation further provided that the Defendant was to have exclusive use and occupancy of that Residence, and that she assumed responsibility for all costs, carrying charges and expenses and liabilities of said Huntington Station Residence, including but not limited to, the mortgage, property taxes and insurance. He further argues that the Stipulation provides that if the Defendant fails to make timely payments on the mortgage or any of the carrying charges, and if she fails to cure her defect within ten (10) days of receipt of notice of her default, the four year period was to be accelerated and that he was permitted to apply for an immediate sale. He argues that the Defendant continues to reside at the Huntington Station Residence, that she is not current on the mortgage, that she has not been current for some time, and that, after contacting the mortgage company, he received documentation reflecting that the mortgage payments were not brought current. The Plaintiff also argues that the Defendant continued utilizing his medical insurance after the parties were divorced, and that he received documentation from his union that the Defendant incurred $1,580.94 in medical expenses, and that the invoice was sent to him. He further argues that in November of 2021, his counsel sent the Defendant notice as required by the Stipulation, and that, as of the filing of his application, he has received no response thereto. He argues that he paid his counsel a $3,500 retainer, and that he should be awarded legal fees for having to bring this application.

The Defendant, in opposition, concedes that it was "agreed that I would keep the mortgage payments current and in the event that there was a default on the payments I would agree to have the marital property sold and split the proceeds with the Plaintiff". She argues that in March of 2020, New York issued a mandatory quarantine for everyone unless they were an essential worker, and at that time, she was a self-employed housekeeper, and, due to the COVID-19 pandemic, she was out of work and unable to pay the mortgage. She argues that she made payments to the mortgage, but admits that it was not in the "full amount". She argues that after contacting the mortgage lender (SPS), they placed the loan into forbearance, that SPS did not send a negative report for the mortgage to the parties' credit bureaus, and that once she was able to work, she started making the full mortgage payments. She states that the mortgage is up to date, that the past due balance has been deferred, and that "...I fully understand that I am responsible for the deferred payment..." She argues that because she was unable to work through no fault of her own, and that acceleration of the sale and refinance is not necessary. Her counsel argues that the pandemic was nothing that the Defendant could plan for or foresee, and that the Defendant, because she was unable to work, was unable to make the full mortgage payment. Her [*3]counsel further argues that the Plaintiff's motion fails to demonstrate that he suffered any prejudice. With respect to the medical bill, she argues that she did not know she was under the Plaintiff's insurance, that she went to a medical provider in March of 2020,^[FN1] and she only became aware after receiving a letter from Plaintiff's counsel that the visit was billed to Plaintiff's insurance, and that she has "...no issue paying the medical bill...", but she takes exception to the full payment of $1,580.94. In this respect, she seeks relief (informally) that the Plaintiff's share of the QDRO be deducted from what she owes with respect to the medical bill. Her counsel argues that it was the Plaintiff's duty to inform his employer that a Judgment of Divorce was entered, and that duty was not incumbent upon the Defendant.

In reply, the Plaintiff, through submission of an Affirmation from his counsel, states that the Stipulation is clear inasmuch as if the Defendant does not make timely payment of the mortgage, she has ten days to cure her default, and that if she did not cure within that time frame, the four year period of exclusive occupancy is accelerate and the house is to be sold. He argues that notice was sent. He argues that there is no factual dispute, given that the Defendant acknowledged in her Affidavit that she was "unable to pay the mortgage" and only paid the mortgage, but "not in the full amount". He argues that no prejudice is required to be shown inasmuch as the Stipulation does not mandate prejudice be shown. He argues in reply that the Defendant acknowledges that the $1,580,.94 is owed with respect to the medical costs that she incurred.

ANALYSIS

Motion Sequence No.: 001:

CONTEMPT OF COURT

A contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto, 120 AD2d 337, 501 N.Y.S.2d 835 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Co. Ltd., 174 AD2d 487, 571 N.Y.S.2d 264 (1st Dept. 1991).

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, 96 AD3d 845, 846 [2d Dept 2012]). Contempt is a drastic remedy and in order to find it 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 it is 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." (El-Dehdan v. El-Dehdan, 978 NYS2d 239, 246 [2d Dept 2013]; quoting Matter of McCormick v. Axelrod, 59 NY2d 574, 583 [1983]). As the Court of Appeals held, "...[a]s these cases establish, wilfulness is not an element of civil contempt. We, therefore, agree with the Appellate Division that civil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order "defeats, impairs, impedes, or prejudices the rights or remedies of a party..." El-Dehdan v. El-Dehdan, 26 NY3d 19 (2015).

Civil contempt is punishable by a fine in an amount sufficient to indemnify the aggrieved [*4]party for an actual loss, including counsel fees, and/or by imprisonment until the fine is paid for up to six months. Judiciary Law §§ 773, 774. A finding of civil contempt requires the violation of a clear and unequivocal mandate set forth in an order or judgment of the court. Additionally, the moving party bears the burden of proof and "the contempt must be established by clear and convincing evidence." (see, Judiciary Law § 753[A][3]); Matter of Rothschild v. Edwards, 63 AD3d 744, 745 [2d Dept 2009]). For civil contempt, "it is not necessary that the disobedience be willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights or remedies of a party (Judiciary Law §753[A]; see El-Dehdan, 978 NYS2d at 250).

This Court notes the amendments made to Domestic Relations Law § 245, effective September 29, 2016, which eliminated the requirement that the party seeking contempt in an action for divorce must show that he or she has exhausted other enforcement remedies. See also: Cassarino v. Cassarino, 149 AD3d 689 (2d Dept 2017). Once the movant has made a prima facie showing that the party against whom a contempt citation is sought has failed to pay a sum of money as ordered, the burden then shifts to the obligor to adduce some competent, credible evidence of his inability to make the required payments, in order to show that the failure to pay was not willful. See: Christine L.M. v. Wlodek K., 45 AD3d 1452, 846 N.Y.S.2d 849 (4th Dept. 2007).

However, the element of prejudice to a party's rights is essential to civil contempt, which aims to vindicate the rights of a private party to litigation, but not criminal contempt, which aims to vindicate the authority of the court (El-Dehdan, 978 NYS2d at 246). 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 or remedies of a party. See generally Gomes v. Gomes, 106 AD3d 868 (2d Dept. 2013) (emphasis added).

In pertinent part, the parties' Stipulation, which was incorporated into their Judgment, provides that:

"3.Effective as of the date that the parties sign this Stipulation, (a) the Wife shall have exclusive use and occupancy of the marital residence and the Husband shall give the Wife all keys and garage door openers to the marital residence in his possession and/or control, and (b) except as otherwise stated herein, the Wife shall thereafter be solely responsible for any and all costs, carrying charges, expenses and liabilities related to the marital residence, including the existing mortgage, including but not limited to property taxes, insurance...If the Wife fails to make a timely payment of the mortgage payments or any of the carrying charges listed above, she shall have ten days from receiving notice from the Husband to cure said default. If she fails to cure said default within ten days of notice, the four year time period shall be accelerated and the husband can apply for an immediate sale or buy-out of the residence..."

The Court finds by clear and convincing evidence that the Defendant has violated a clear and unequivocal order of the Court, expressing an unequivocal mandate, to wit: directing the Defendant to timely make payment of the mortgage payments on and associated with the Huntington Station Residence. The Court further finds that the Judgment is currently in effect and unmodified and has been disobeyed inasmuch as the Defendant actually admits that she was [*5]unable to pay the mortgage and that when she paid the mortgage, she admits that it was not in the "full amount". The Court further finds that the Defendant has (and had) knowledge of the Judgment inasmuch as the Defendant admits to being divorced by Judgment, and she admits to signing the Stipulation, which was incorporated into the Judgment.

However, the Court does not find that prejudice has befallen the Plaintiff and finds that his rights have not been impeded, impaired and defeated by the Defendant's noncompliance with the Judgment inasmuch as the Defendant admits and acknowledges that she is responsible for the deferred balance on the mortgage (which is addressed herein, infra). Therefore, the Court does not find that the drastic remedy of contempt of court to be appropriate at this time. Any inequity in the lack of a contempt finding (which could have resulted in a fine or imprisonment, or both) is ameliorated by this Court's directives herein with respect to the balance of the mortgage, as ordered herein, infra

Accordingly, based upon the Defendant's admission that she is responsible for the deferred balance of the mortgage; this Court's ordering that the Defendant be responsible for the deferred balance on the mortgage, infra; and upon considering the prevailing case-law that contempt is a drastic remedy and prejudice must be suffered, it is hereby:

ORDERED that Branch (a) of the Plaintiff's Order to Show Cause dated January 24, 2022 be and is hereby DENIED.

A matrimonial settlement is a contract subject to principles of contract interpretation (See Girardin v. Girardin, 281 AD2d 457 [2d Dept., 2001]). The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent (see Slatt v. Slatt, 64 NY2d 966, 967, rearg denied 65 NY2d 785 [1985]). "The best evidence of what parties to a written agreement intend is what they say in their writing" (Slamow v. Del Col, 79 NY2d 1016, 1018 [1992]). Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms (see e.g. R/S Assoc. v. New York Job Dev. Auth., 98 NY2d 29, 32, rearg denied 98 NY2d 693 [2002]; W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162 [1990]).

Extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide (see W.W.W. Assoc. v. Giancontieri, supra at 162). A contract is unambiguous if the language it uses has "a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Breed v. Insurance Co. of N. Am., 46 NY2d 351, 355 [1978], rearg denied 46 NY2d 940 [1979]). Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity (see e.g. Teichman v. Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996]; First Natl. Stores v. Yellowstone Shopping Ctr., 21 NY2d 630, 638, rearg denied 22 NY2d 827 [1968]).

This court also cannot, under the guise of contractual interpretation, rewrite the parties stipulation. See W.T. v. E.T., 2016 NY Misc. LEXIS 119, 2016 NY Slip Op 50049(U), 50 Misc 3d 1209(A), 28 N.Y.S.3d 651 (Supreme Court Cayuga County 2016). See also Matter of Nelson [*6]v Nelson, 48 AD3d 688, 850 N.Y.S.2d 915 (2d Dept. 2008) (a court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction and it may not construe the language in such a way as would distort the contract's apparent meaning).

The elements of a claim for breach of contract are the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages. See Harris v. Seward Park Hous. Corp., 79 AD3d 425 (1st Dept. 2010). See also Morris v. 702 E. Fifth St. HDFC, 46 AD3d 478 (1st Dept. 2007).

The Court finds that the parties' Stipulation expressly, clearly and unambiguously provides that:

"...[i]f the Wife fails to make a timely payment of the mortgage payments or any of the carrying charges listed above, she shall have ten days from receiving notice from the Husband to cure said default. If she fails to cure said default within ten days of notice, the four year time period shall be accelerated and the husband can apply for an immediate sale or buy-out of the residence..."

Here, the Court finds the existence of a contract, i.e., the parties' Stipulation of Settlement. Second, the Court finds the Plaintiff's performance under the contact, i.e., he vacated the Huntington Station Residence and performed thereunder by not re-entering the Huntington Station Residence and sent a notice of default when the Defendant did not either timely or pay the mortgage in the full amount. Third, the Court finds the breach thereunder, namely, her admission of not paying the full amount of the mortgage, and her failure to refute the Plaintiff's allegations that she was not, in sum and substance, current with mortgage payments. She also fails to deny receiving notice of her default as required by the terms of the Stipulation.^[FN2] The Court, therefore, accepts those allegations as true (see generally Cooper v. Pullar, 2015 NY Misc. LEXIS 5085, 2015 NY Slip Op 52015(U), 53 Misc 3d 1219(A), 48 N.Y.S.3d 265 (Supreme Court Rensselaer County 2015) (writing that "...[f]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted...").

However, this Court does not find that the Plaintiff has suffered damages as a result of the Defendant's breach inasmuch the Plaintiff has not set forth or provided proof that his credit has been adversely affected, or that foreclosure proceedings have been initiated against the Huntington Station Premises. This Court is cognizant of the Defendant's employment and that she was, in all likelihood, out of work for some time as a result of the stay at home mandates caused by the unforseen COVID-19 global health crisis/pandemic, which was likely a proximate result of her inability to pay the full amount of the mortgage. The Court therefore finds that an acceleration of the four (4) year period and ordering the immediate sale of the house, which would vacate the Defendant from her home, to be a drastic remedy. This Decision and Order should, in no way, be taken by the Defendant to absolve her of her breach of the terms of the Stipulation, but rather a reminder of her contractual obligations.

This Court stands as a Court of equity. And to force the immediate sale of the Huntington Station Residence, when the Defendant acknowledges that she is responsible for the deferred [*7]payment, would be an inequitable, unjust, and draconian remedy in this instance. The Defendant acknowledges that she is responsible for the deferred payment. This Court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party (see generally Trazzera v. Trazzera, 199 AD3d 855 (2d Dept. 2021)). That will be ordered herein so as to ameliorate any prejudice or inequity to the Plaintiff. Any further prejudice suffered by the Plaintiff is further ameliorated by the fact that he is entitled to legal fees for the making of his application, as addressed herein, infra.

Accordingly, in light of the prevailing case-law, the lack of damages asserted by the Plaintiff, and the fact that the Defendant will be liable and responsible for the deferred mortgage balance as ordered herein, it is hereby:

ORDERED, that so much of Branch (b) of the Plaintiff's Order to Show Cause dated January 24, 2022 which seeks the acceleration of the four year time period for the Defendant to refinance or remove the Plaintiff name from the mortgage and which seeks that the Huntington Station Residence be placed on the market for sale be and is hereby DENIED; and it is further

ORDERED, that so much of Branch (b) of the Plaintiff's Order to Show Cause dated January 24, 2022 which seeks that the distribution of the net proceeds account for the increase in the mortgage be and is hereby GRANTED TO THE EXTENT that any deferred balance associated with the SPS mortgage (including any penalties, interest and fees) shall be the sole and individual responsibility of the Defendant; and it is further

ORDERED, that in the event that the Huntington Station Residence is to be sold in accordance with Article 11, Paragraph (a)(7) of the Stipulation, then, in that event, any deferred balance associated with the SPS mortgage (including any penalties, interest and fees) shall be paid from the Defendant's share of the net proceeds of sale, and said deferred balance shall not affect the Plaintiff's share of the proceeds of sale in and to the Huntington Station Residence; and it is further

ORDERED, that in the event that the Wife refinances the Huntington Station Residence in accordance with Article 11, Paragraph (a)(2) of the Stipulation, then, in that event, the money due and owing to the Plaintiff as and for his share in and to the Huntington Station Residence shall not be affected by any deferred balance (including any penalties, interest and fees), and the Plaintiff shall be paid his equity in and to said Huntington Station Residence as if said deferred balance did not exist.

The Defendant, in her opposition papers, does not deny having incurred the medical expense that resulted in the bill of $1,580.94, and she further does not deny that it was billed to the Plaintiff, but she simply objects to the full amount. That fact is therefore deemed admitted (see generally Cooper v. Pullar, 2015 NY Misc. LEXIS 5085, 2015 NY Slip Op 52015(U), 53 Misc 3d 1219(A), 48 N.Y.S.3d 265 (Supreme Court Rensselaer County 2015) (writing that "...[f]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted..."). Her objection is insufficient to this Court, and this Court finds it inequitable to require the Plaintiff to pay for the Defendant's medical expenses incurred subsequent to the execution of the Stipulation. Accordingly, it is hereby:

ORDERED, that Branch (c) of the Plaintiff's Order to Show Cause dated January 24, [*8]2022 be and is hereby GRANTED, and the Defendant shall pay to the Plaintiff the sum of $1,580.94 within thirty (30) days of the service of a copy of this Decision and Order with Notice of Entry; and it is further

ORDERED, that in the event that the Defendant does not make payment to the Plaintiff within said thirty (30) days, the Clerk of the County shall enter a judgment in favor of the Plaintiff, F.J.O., and against the Defendant, M. I.O., in the amount of $1,580.94, with statutory interest as of the date of this Order, without further proceedings.

COUNSEL FEES

The Court finds in light of the Defendant's admitted noncompliance with the Judgment and Stipulation, and in light of her failure to reimburse the Plaintiff for her personal medical costs incurred after the Stipulation, that the Plaintiff is entitled to an award of counsel fees in connection with this enforcement application. However, the Court has reviewed the NYSCEF record and notes the absence of any statements for services rendered, which are required on any application seeking reimbursement of counsel fees. Therefore, in light of the aforesaid, it is hereby:

ORDERED, that Branch (d) of the Plaintiff's Order to Show Cause dated January 24, 2022 be and is hereby DENIED without prejudice and with leave to renew upon the submission of proper papers.

Any other relief not specifically addressed herein is hereby DENIED.

This constitutes the DECISION AND ORDER of this Court.

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Hon. Edmund M. Dane, J.S.C.