This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 90
Jacqueline El-Dehdan,
Respondent,
v.
Salim El-Dehdan, Also Known as
Sam Reed,
Appellant.
Donna Aldea, for appellant.
Karina E. Alomar, for respondent.
RIVERA, J.:
Defendant challenges a determination of civil contempt for
his failure to comply with a January 2010 order issued in the
course of the parties' matrimonial proceeding. That order
requires him to deposit in escrow the proceeds of the sale of
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properties which are the subject of a prior equitable
distribution determination in favor of plaintiff.
We conclude that plaintiff met her burden in support of her
motion for civil contempt by establishing that defendant violated
a lawful, clear mandate of the court, of which he had knowledge,
and that such violation resulted in prejudice to her rights. We
reject defendant's contentions that a civil contempt
determination requires a finding of a contemnor's wilful
violation of the underlying order, and that Supreme Court could
not draw a negative inference from defendant's invocation of his
Fifth Amendment right against self-incrimination at the contempt
hearing.
We, therefore, conclude that the evidence adduced at the
hearing established a sufficient basis for the civil contempt
judgment. Accordingly, we answer in the affirmative the certified
question as to whether the Appellate Division properly affirmed
Supreme Court.
I.
Defendant, Salim El-Dehdan, a/k/a Sam Reed, concedes that he
has not complied with an order issued in a matrimonial proceeding
commenced by plaintiff Jacqueline El-Dehdan, defendant's former
spouse. To address the specific issue of the propriety of the
contempt order challenged in this appeal, we begin with a review
of the somewhat tortuous procedural history of the parties'
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matrimonial action.
A. The Matrimonial Action for Divorce and Equitable
Distribution
In October 2008, plaintiff commenced an action for divorce
and equitable distribution, and thereafter moved by order to show
cause for pendente lite relief seeking, in part, to restrain
defendant's transfer of any real property held jointly or
individually by the parties. The signed order to show cause set
a hearing date on the motion, but did not include a restraint on
the transfer of defendant's property. Soon thereafter defendant
cross moved to dismiss the matrimonial action as barred on res
judicata grounds, claiming the parties were divorced pursuant to
a Lebanese judgment, and furthermore, that plaintiff's prior New
York divorce action was dismissed with prejudice.
At an initial court appearance in January 2009, Supreme
Court indicated that another hearing would likely be necessary on
the question of the legality of the Lebanese divorce. The record
of the hearing demonstrates that the court and the parties were
under the impression that the October 2008 order to show cause
mandated a restraint on defendant's properties, and that the
court intended to extend that restraint into the future. Before
adjourning to permit additional submissions by the parties, the
following colloquy ensued.
THE COURT: I get the feeling I'm going to
need a hearing. I get the feeling you're
going to need a lot of different people
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coming in to testify. But I'm going to keep
the status quo. All restraints will remain
in full force and effect pending further
order of this Court.
* * *
DEFENDANT'S COUNSEL: Just for Clarification,
as far as restraining orders, what is being
restrained?
THE COURT: All their assets.
DEFENDANT'S COUNSEL: Joint assets, your
Honor?
THE COURT: Anything you have. Bank accounts,
you can't close out any accounts. Any
buildings, you can't sell, mortgage, can't do
anything. And don't violate my order.
THE DEFENDANT: Of course. I have nothing
anymore, your Honor. I have no business
anymore, because I been [sic] recovering from
the expenses that I paid for the year 2000.
THE COURT: Okay. We're going to see what
expenses were paid.
Notwithstanding defendant's statements that he would comply
with the court's directive and that he did not have any property
that would be subject to restraint, within two weeks of this
court appearance, defendant contracted to transfer one of his
real properties, which he then sold the following month. Two
weeks later, he contracted to sell another property.
Specifically, he entered into a contract to sell 171 Ainslie
Street, Brooklyn, New York, a/k/a 254/256 Leonard Street, on
February 23, 2009, and then transferred this property on March
31, 2009. He also contracted to sell and transferred 60-17 60th
Road, Maspeth, New York on April 6, 2009. Defendant would later
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concede that he transferred the Brooklyn property for $950,000,
and the Maspeth property for no consideration.
At the next hearing, held on February 4, 2009 and attended
by defendant and his counsel, the court informed the parties that
it was sending the legal validity of the Lebanese divorce and the
equitable distribution matters to a referee for a hearing and
recommended determination. The court then referenced property in
defendant's control, saying, "I think there's some money out
there. But right now, you want to hold on to your money, that's
fine." The court continued, "[w]e are going to go for a hearing.
If, in fact, you are divorced, then we will move on to the next
issue of equitable distribution. If you are not divorced, we are
here anyway."
Defendant failed to appear at the scheduled April 2009 date
for the referee's hearing. At that time, defendant's counsel
moved to be relieved from the case, and stated that she had told
defendant that his appearance at the hearing was required, and
that counsel would seek to be relieved. Supreme Court granted
counsel's motion.
The court then held defendant in default for failure to
appear, and denied, with prejudice, defendant's pending motion to
dismiss plaintiff's matrimonial proceeding. The court adjourned
the referee's inquest on equitable distribution, and modified the
assignment to include consideration of plaintiff's grounds for
divorce.
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Although served with notice, defendant failed to appear at
the October 2009 rescheduled referee's inquest. Nevertheless,
the referee proceeded with the inquest, issued a decision
granting plaintiff's motion for divorce on grounds of cruel and
inhuman treatment, awarded plaintiff exclusive title to the
Brooklyn and Maspeth properties and awarded title to defendant in
property located in Glendale, New York, and a dry cleaning
business he owned and operated.
Supreme Court subsequently denied defendant's motions to
vacate the April 2009 denial of his cross motion to dismiss
plaintiff's matrimonial action, as well as the referee's decision
granting a divorce and equitable distribution. The Appellate
Division dismissed defendant's appeal from this decision.
B. Plaintiff's Motion for Civil Contempt and Deposit
of the Transfer Proceeds
After plaintiff's attorney learned defendant had transferred
the Brooklyn and Maspeth properties, she filed an order to show
cause seeking, inter alia, that defendant be held in civil
contempt for violation of the October 2008 order, and that he be
required to deposit the proceeds from the transfers with
plaintiff's attorney. Thereafter, in January 2010, Supreme Court
signed the order to show cause, which in addition to scheduling a
hearing on plaintiff's contempt motion, directed defendant to
immediately deposit with plaintiff's counsel the net proceeds of
the transfers, reduced by broker's fees, taxes and mortgage
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payments.1 Defendant was personally served with this order to
show cause.
As is clear from the record of the contempt hearing, the
court and all the parties were under the mistaken belief that the
October 2008 order to show cause prohibited the transfers.
Supreme Court found defendant in contempt and ordered him
incarcerated until he paid $150,000 and returned the deeds and
ownership of the Brooklyn and Maspeth properties and the dry
cleaning business to the marital estate. Defendant remained
incarcerated for two weeks, until defendant's new counsel
discovered that the October 2008 order to show cause contained no
restraint provision and brought the matter to the court's
attention, whereupon the court ordered defendant's immediate
release.
C. Plaintiff's Motion for Civil and Criminal Contempt
Based on the January 2010 Order
In August 2010, plaintiff filed a motion to hold defendant
in civil and criminal contempt for his failure to deposit the
1
The order also placed a restraint on the business of
defendant and on the Glendale, New York property; required
defendant to provide plaintiff's attorney with copies of the
contract and all closing documents for the transfers of the
Brooklyn and Maspeth properties; restricted defendant from
accessing any bank account or other financial account or fund
that might be in his name or the name of his business or an
agent; ordered defendant to submit his passport to the court; and
ordered that defendant would be responsible for all tax
consequences of the transfers of the Brooklyn and Maspeth
properties.
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proceeds with plaintiff's attorney as required by the January
2010 order. Defendant cross moved to vacate that order, arguing
that it was void because it was obtained by plaintiff's fraud
upon the court, namely her misrepresentations that the October
2008 order prohibited defendant's transfer of the properties.
Although defendant conceded he sold the Brooklyn property, he
disputed the amount of the proceeds, claiming he received
$561,046.21, not $950,000 as plaintiff alleged. He further
asserted that he no longer had any of these funds. With respect
to the Maspeth property, he claimed he received no money for the
transfer, never had possession of the property, and, in fact, he
only took title as a favor to friends so that they could secure a
new mortgage. He also claimed that the property since had been
transferred back to the owners through their son. He further
contended that he did not act in wilful disobedience of a
judicial mandate because no order was in place when he actually
transferred the properties.
At the hearing before the referee assigned to consider the
parties' motions, defendant's counsel stipulated that defendant
was served with a copy of the January 2010 order in February
2010, and that defendant failed to deposit the funds in
plaintiff's counsel's escrow account as required by that order.
He further stipulated to submission of the recorded deed that
evidenced the transfer of the Brooklyn property.
Plaintiff testified on her own behalf that she received none
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of the proceeds from the transfer of the Brooklyn property and
submitted into evidence proof of the transfer, including
defendant's contract of sale and closing. Plaintiff further
submitted into evidence an affidavit of personal service for the
January 2010 order. Plaintiff also called defendant as a witness.
During his testimony he refused to answer any questions related
to the proceeds from the transfer, and invoked his Fifth
Amendment right against self-incrimination. Specifically, he
refused to explain what he did with the proceeds from the
transfer and whether he was currently in possession of the money.
The referee found that defendant had actual knowledge of the
terms of the January 2010 order, he dissipated marital assets
after the commencement of the matrimonial action, namely the
Brooklyn and Maspeth properties, and had not deposited the
proceeds from the transfer. The referee found specifically that
less than one month after he filed his affidavit in support of
his motion to dismiss plaintiff's action for divorce, defendant
executed a contract of sale for the Brooklyn property for
$950,000, received a $150,000 deposit for the sale, wired
$516,046.21 to a bank from the sale proceeds, and that the deed
was thereafter recorded. However, the referee concluded that
plaintiff failed to establish that defendant could deposit the
funds after the order was issued, and therefore recommended
denial of the motion for civil contempt. The referee also
recommended denial of the motion for criminal contempt, finding
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that plaintiff failed to establish defendant's wilful violation
of the January 2010 order.
In September 2011, Supreme Court granted plaintiff's motion
to set aside the referee's report, concluding that the referee's
findings were not supported by the record. After finding that
all the elements of civil contempt were satisfied in this case,
the court noted that the Fifth Amendment did not relieve
defendant of the usual evidentiary burden in a civil proceeding,
and also found that defendant's actions were wilful. Supreme
Court thus found defendant in contempt of court for failing to
comply with the January 2010 order, and provided that he "could
purge himself of the contempt" by depositing his passport and the
proceeds from the Brooklyn property transfer within 20 days of
the contempt order. Failure to do so would result in his
incarceration.
The Appellate Division unanimously affirmed, treating
Supreme Court's decision as, in effect, granting only plaintiff's
motion for civil contempt because the court did not impose a
definite jail term without opportunity to purge the contempt (114
AD3d 4 [2d Dept 2013]). In a comprehensive and insightful
opinion, the Appellate Division broadly addressed and clarified
the burdens of proof where the contemnor invokes the Fifth
Amendment privilege against self-incrimination, as well as what
the court considered to be inconsistencies in the case law
regarding the elements of civil contempt. The Appellate Division
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granted defendant leave to appeal, and certified the question
whether its opinion and order was properly made. (2d Dept, May
14, 2014, index No. 56786/08.)
II.
Defendant challenges the Appellate Division's decision on
three grounds: plaintiff failed to establish the necessary
elements of civil contempt, including defendant's wilful
violation of a lawful court order;2 he was denied the opportunity
to collaterally attack the January 2010 order; and in the context
of a hearing on a joint civil and criminal contempt motion,
Supreme Court may not draw a negative inference from defendant's
invocation of his Fifth Amendment right to remain silent. We are
unpersuaded by these arguments, and address each of them in turn.
A. Evidence of Defendant's Civil Contempt
1. Elements of Civil Contempt and Plaintiff's Burden
of Proof
Under Judiciary Law § 753, "[a] court of record has power to
punish, by fine and imprisonment, or either, a neglect or
violation of duty, or other misconduct, by which a right or
remedy of a party to a civil action or special proceeding,
2
Defendant does not challenge the Appellate Division's
determination that Supreme Court granted only the civil contempt
branch of plaintiff's motion, and requests specifically that we
reverse and vacate the civil contempt judgment. Our review is
therefore limited to the matter as briefed by defendant.
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pending in the court may be defeated, impaired, impeded, or
prejudiced" (Judiciary Law § 753 [A]; see generally
People v Sweat, 24 NY3d 348, 353-354 [2104] [discussing Judiciary
Law Section 753]). In Matter of McCormick v Axelrod (59 NY2d 574
[1983]), this Court described the elements necessary to support a
finding of civil contempt. First, "it must be determined that a
lawful order of the court, clearly expressing an unequivocal
mandate, was in effect" (id. at 583). Second, "[i]t must appear,
with reasonable certainty, that the order has been disobeyed"
(id.). Third, "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" (id.).
Fourth, "prejudice to the right of a party to the litigation must
be demonstrated" (id.; see Karg v Kern, 125 AD3d 527, 528-529
[1st Dept 2015] [contempt requires a showing of a violation of a
clear and unequivocal court mandate and that the movant was
thereby prejudiced]; Matter of Vernon D., 119 AD3d 784, 784 [2d
Dept 2014] [civil contempt was properly found where the contemnor
did not obey a clear and unequivocal order]; N. Tonawanda First
ex rel. Kern v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept
2012] [order violated must be an unequivocal mandate]; Conners v
Pallozzi, 241 AD2d 719, 719 [3d Dept 1997] [evidence proving with
a reasonable certainty that a prior court order has been violated
will support a finding of civil contempt]; N.A. Dev. Co. Ltd. v
Jones, 99 AD2d 238, 242 [1st Dept 1984] [movant must establish a
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reasonable certainty]; Power Auth of State of NY v Moeller, 57
AD2d 380, 382 [3d Dept 1977] [personal service is not necessary
if the party has actual knowledge of the order], lv denied 42
NY2d 806 [1977]).
In order to carry her burden, plaintiff had to establish by
clear and convincing evidence defendant's violation of the
January 2010 order (Town of Southampton v R.K.B. Realty, LLC, 91
AD3d 628, 629 [2d Dept 2012]) [the movant bears the burden of
establishing contempt with clear and convincing evidence]; Tener
v Cremer, 89 AD3d 75, 78 [1st Dept 2011] [same]; Town of Copake v
13 Lackawanna Properties, LLC, 73 AD3d 1308, 1309 [3d Dept 2010]
[civil contempt requires clear and convincing evidence], lv
denied 20 NY3d 857 [2013]; Dietrich v Michii, 57 AD3d 1527 [4th
Dept 2008] [same]; Raphael v Raphael, 20 AD3d 463, 463-464 [2d
Dept 2005] [same]; Graham v Graham, 152 AD2d 653, 654-655 [2d
Dept 1989] [same]).
2. Plaintiff's Evidence
Here, there is no genuine dispute that plaintiff
established, by clear and convincing evidence, defendant's
requisite knowledge of the order and noncompliance. Defendant's
counsel stipulated at the contempt hearing before the referee
that defendant was previously served with the January 2010 order,
and also admitted that defendant had not complied. Indeed, now
five years after the order was signed and issued defendant has
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yet to comply.
Plaintiff also easily established that defendant's failure
to deposit the proceeds was prejudicial to her interests.
Defendant's conduct denied plaintiff equitable distribution in
accordance with the 2009 determination awarding her title to the
Brooklyn and Maspeth properties.
The real dispute between the parties centers on whether "a
lawful order of the court, clearly expressing an unequivocal
mandate, was in effect" (McCormick, 59 NY2d at 583). We conclude
that the January 2010 order constitutes the lawful order which
defendant failed to comply with, and defendant's efforts to
distract our analysis from that central and obvious conclusion
are without legal or record factual support.
The signed January 2010 order explicitly states that the
defendant
"shall deposit immediately with the
Plaintiff's attorney the sum of nine hundred
fifty thousand ($950,000.00) dollars which is
the sum of money he purportedly received from
the transfer of [the property] 171 Ainslie
Street, Brooklyn, New York and 64-17 60th
Road, Maspeth, New York, minus the money paid
for [the] real estate broker, transfer taxes
and payment of the underlying mortgage."
This unambiguous directive, describing the property and the exact
amount of the proceeds, and directing defendant to immediately
deposit those funds with counsel, left no doubt as to its
requirements and time frame, and, therefore, constitutes "a
lawful order of the court, clearly expressing an unequivocal
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mandate, [that] was in effect" (McCormick, 59 NY2d at 583).
Nevertheless, defendant claims that the January 2010 order
is not lawful. According to defendant, the order is a nullity
because it was procured based on plaintiff's attorney's
misrepresentations, and in violation of his due process rights to
notice and a hearing. In essence what defendant seeks to do is
excise from the January 2010 order its mandatory language that he
deposit the proceeds of the transfer. However, the fact that the
January 2010 order contains plaintiff's request for contempt does
not negate the order's clear directive that defendant deposit the
proceeds. That portion of the order did not seek to penalize
defendant but rather to preserve funds for plaintiff's benefit.
As the referee's report on the contempt motion explained, part of
the intent of the January 2010 order was "to preserve funds to
protect the plaintiff's rights to equitable distribution as
decided by the undersigned in the decision issued" in December
2009.
We further note that defendant's description of plaintiff's
request for relief undermines his current argument that the
January 2010 order sought only to address a violation of a
(nonexistent) restraint provision in the October 2008 order. In
his brief to this Court, defendant declares that plaintiff's
order to show cause "sought multiple layers of relief--including
(A) contempt, and (B) an immediate deposit of money," leading
Supreme Court to "address[] only the first issue--namely, whether
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Mr. Reed should be held in contempt. It never addressed the
separate and immediate order for Mr. Reed to convey money to
Plaintiff's attorney." Thus, defendant, in actuality, recognizes
that the provisions of the January 2010 order reflect different,
compartmentalized directives.
With respect to defendant's due process argument, the record
does not support defendant's claim that he was denied notice and
a hearing. To the contrary, the record establishes that he
received notice of the hearing as he was personally served with
the January 2010 order. Furthermore, his arguments in opposition
to the motion for contempt, and in support of his cross motion to
vacate the January 2010 order, were fully submitted and
considered by Supreme Court prior to issuance of its civil
contempt order.
To the extent defendant complains that the January 2010
order is invalid because it was issued ex parte, the law is clear
that a court is authorized to issue an order to preserve marital
property, both in advance of, and upon, a determination of
equitable distribution. In accordance with Domestic Relations
Law § 234, in an action for divorce the court may "(1) determine
any question as to the title to property arising between the
parties, and (2) make such direction, between the parties,
concerning the possession of property, as in the court's
discretion justice requires having regard to the circumstances of
the case and of the respective parties" (see also CPLR § 2214 [d]
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[a "court in a proper case may grant an order to show cause, to
be served in lieu of a notice of motion"]; CPLR § 6313 [a]
[allowing for a temporary restraining order]; 22 NYCRR 202.7 [f]
[permitting the court to grant temporary injunctive relief upon
an affirmation demonstrating significant prejudice to the party
seeking the restraining order if prior notice is given to the
adverse party]). Therefore, the January 2010 order to deposit the
proceeds from the transfer was well within the court's authority
(see e.g. Nederlander v Nederlander, 102 AD3d 416 [1st Dept 2013]
["in order to protect (the) expectancy (of spouses in marital
property) pending equitable distribution, to maintain the status
quo, and to prevent the dissipation of marital property, the
court must be able to issue orders to ensure that such marital
property is protected should it later become the subject of
equitable distribution"]; Maillard v Maillard, 211 AD2d 963, 964
[3d Dept 1995] ["Domestic Relations Law § 234 allows courts to
issue preliminary injunctions aimed at the preservation of
marital assets pending equitable distribution. . . . Proper cause
may be shown to exist by the admission . . . that there was a
conversion and/or dissipation of marital assets"] [internal
citations omitted]; Nebot v Nebot, 139 AD2d 635 [2d Dept 1988]
[as defendant's only claim to a property purchased with the
separate funds of the plaintiff was to any part of the
appreciation she might have contributed to, it was appropriate
for the court to require that half of the proceeds of the sale be
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placed in escrow while the determination was pending]; Palitz v
Palitz, 111 AD2d 119 [1st Dept 1985] [court found it appropriate
to deposit half the assets of a dissolved corporation in an
escrow account while the determination was made as to whether the
corporation was marital property, and to allow for "other prudent
investments yielding substantially greater returns"]; Monroe v
Monroe, 108 AD2d 793, 794 [2d Dept 1985] [Domestic Relations Law
§ 234 allows courts to issue preliminary injunctions outside of
the requirements of CPLR article 63]; Leibowits v Leibowits, 93
AD2d 535, 535-536 [2d Dept 1983] ["Section 234 of the Domestic
Relations Law provides the authority for the issuance of an order
restraining disposition of marital assets during the pendency of
a divorce action. Therefore, compliance with the formalities and
jurisprudential requirements of article 63 of the CPLR relative
to preliminary injunctions is not a prerequisite to an order of
restraint"]; Perry v Perry, 79 AD2d 851 [4th Dept 1980] ["[i]n an
action for divorce the court may determine any question as to the
title to property arising between the parties"]; Weinstock v
Weinstock, 8 Misc 3d 221, 223 [Sup Ct 2005] ["Section 234 of the
Domestic Relations Law specifically empowers the court to
determine any question as to the title or possession of property
as between the parties in a matrimonial action . . . . This power
. . . necessarily includes the power to prevent a party from
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frustrating such delivery by improper disposition of assets"]).3
Defendant is also foreclosed from arguing to this Court that
the equitable distribution determination itself is invalid.
Having previously unsuccessfully challenged that decision,
defendant should not be given a "second bite at the apple" in
this appeal from the civil contempt judgment. Moreover, inasmuch
as the court awarded plaintiff the Brooklyn and Maspeth
properties in its equitable distribution determination the
propriety of which is not at issue on this appeal it was
perfectly lawful for the court to require defendant to deposit
the proceeds of his transfer of those properties with plaintiff's
counsel, regardless of whether the initial transfer of the
properties violated any court order.
3
In 2009, the New York legislature amended the Domestic
Relations Law to provide upon commencement of a divorce action
for automatic orders restraining the parties from transferring or
disposing of marital assets, without written consent of the other
party or consent of the court (Domestic Relations Law § 236 [B]
[2] [b]). As described in a letter from the Chair of the
Assembly Judiciary Committee to the Governor, the automatic
orders were intended to address the hardship to one spouse caused
by unilateral dissipation of marital assets upon commencement of
divorce proceedings.
"Having standardized orders automatically in
effect from the commencement of a case would
ensure timely prevention of dissipation of
assets and would eliminate the expense and
delays involved in making applications for
temporary restraining orders. It is not
uncommon for parties to dissipate assets as
soon as divorce papers are served. This
results in extreme hardship to one party in
the divorce action"
(New York Bill Jacket, 2009 A.B. 2574, Ch. 72.)
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3. Wilfulness is Not a Required Element of Civil
Contempt
Defendant argues that Supreme Court's finding of contempt is
not supported by the record because the evidence failed to
establish that he wilfully disobeyed the January 2010 order.
According to defendant our case law establishes that wilful
conduct is a necessary element of both civil and criminal
contempt, and that what distinguishes the two is merely the level
of a contemnor's wilfulness. Defendant's arguments are
contradicted by statute as well as our prior holdings (McCormick,
59 NY2d at 583).
Turning to the relevant statutory provision, nowhere in
Judiciary Law § 753 [A] [3] is wilfulness explicitly set forth as
an element of civil contempt (Judiciary Law § 753 [A] [3]; see
also McCain v Dinkins, 84 NY2d 216, 226 [1994]). Indeed the only
mention of wilfulness for civil contempt is in § 753 [A] [1],
which is not at issue in this case as it applies only to "[a]n
attorney, counsellor, clerk, sheriff, coroner," or someone
otherwise selected or appointed for judicial or ministerial
service. In contrast, Judiciary Law § 750, the criminal
contempt provision, permits a court to impose punishment for
criminal contempt only for "wilful disobedience to its lawful
mandate" (Judiciary Law § 750 [A] [3]; see also Sweat, 24 NY3d at
353-354). This statutory language makes clear that where the
legislature intended to require wilfulness, it knew how to do so,
and any omission of such element is intentional (Statutes Law
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§ 74 [McKinney]; Pajak v Pajak, 56 NY2d 394, 397 [1982] ["[t]he
failure of the Legislature to include a matter within a
particular statute is an indication that its exclusion was
intended"]). We are, of course, not at liberty to read into the
statute what is not mandated by the Legislature (Statutes Law §
94 [McKinney]; Lederer v Wise Shoe Co., 276 NY 459, 465 [1938]
["[w]e do not by implication read into a clause of a rule or
statute a limitation for which we find no sound reason and which
would render the clause futile"]).
Apart from the statute, this Court has not imposed a
wilfulness requirement for civil contempt (McCain,84 NY2d;
McCormick, 59 NY2d). Nevertheless, defendant relies on McCormick
and McCain v Dinkins, to persuade us that, absent a finding of
wilfulness, civil contempt cannot be imposed. However, those
cases stands for the opposite proposition.
In McCormick this Court explained that civil contempt seeks
"the vindication of a private right of a party to litigation and
any penalty imposed upon the contemnor is designed to compensate
the injured private party for the loss of or interference with
that right" (McCormick, 59 NY2d at 583, citing State of New York
v Unique Ideas, 44 NY2d 345 [1978]). Whereas, criminal contempt
"involves vindication of an offense against public justice and is
utilized to protect the dignity of the judicial system and to
compel respect for its mandates" (id., citing King v. Barnes, 113
NY 476 [1889]). This Court then stated that "the element which
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serves to elevate a contempt from civil to criminal is the level
of willfulness with which the conduct is carried out" (id.).
Defendant argues the Court must have meant that both forms
of contempt require wilfulness, just in varying degrees. We
reject this interpretation because it depends on reading the
language in isolation, rather than as an integral part of the
Court's entire analysis. Read in context, it is clear that the
language does not mean that wilfulness is required. Indeed, the
Court's analysis is devoid of any mention or application of
wilfulness as a necessary element of civil contempt. Instead,
the Court granted the motion for civil contempt, despite its
conclusion that there was no evidence of wilfulness to support a
finding of criminal contempt.
The meaning to be attached to the Court's "level of
wilfulness" language is that the contemnor's action must connote
an intentionality not otherwise indicative of wrongfulness
(McCormick, 59 NY2d at 583). In other words, the contemnor must
have a consciousness that reflects an awareness of the act that
is other than "unwitting conduct" (Bryan v United States, 524 US
184, 191 [1998]. See also Black's Law Dictionary 1630 [8th ed
2004] [defining willfulness as "[v]oluntary and intentional"]).
This Court again upheld a finding of civil contempt without
requiring willfulness in McCain (84 NY2d at 226-227). In that
case, the Court cited to McCormick's distinction between criminal
and civil contempt as based on "the level of willfulness associated
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with the conduct" and, just as in McCormick, engaged in a civil
contempt analysis without reference to wilfulness as a necessary
element (id. at 226). As 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, 114 AD3d at 17 [internal citations omitted]).
4. Defendant's Response
Once plaintiff met her burden and established that defendant
violated the order to deposit the proceeds from the transfer, it
was incumbent upon defendant to proffer evidence of his inability
to pay. Defendant's argument to the contrary is unpersuasive
because, as the contemnor, he is the party who is charged with
violating the court's order, and also the party with access to
the relevant financial information regarding his ability to pay.
Nonetheless, defendant failed to submit evidence that he
could not pay due to a lack of sufficient funds, economic
distress or financial hardship, or some other obstacle to his
compliance with the January 2010 order to deposit the proceeds.
Instead, he submitted an affidavit containing bald face
statements that by January 29, 2010, he "was no longer in
possession of the proceeds of the March, 2009 sale," that he
received less from the sale of the Brooklyn property than
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evidenced by the transfer documents, and that he received nothing
from the transfer of the Maspeth property as he was merely
holding it in his name for friends. Such "[v]ague and conclusory
allegations of . . . inability to pay or perform are not
acceptable" (Matter of Storm, 28 AD2d 290, 294 [1st Dept 1967]).
Rather, courts have required a more specific showing of the
contemnor's economic status (see e.g. Yeager v Yeager, 38 AD3d
534, 534-535 [2d Dept 2007] [plaintiff husband met his burden of
showing his inability to comply with the judgment by establishing
he had no additional source of funds after accounting for
payments made in accordance with the pendente lite order and his
reasonable needs, and where his investment account was frozen
pursuant to court order]; Ovsanikow v Ovsanikow, 224 AD2d 786,
787 [3d Dept 1996] [an undocumented assertion of the inability to
pay without any evidentiary support, will not suffice to provide
the defense of a financial inability to pay]; Bowie v Bowie, 182
AD2d 1049, 1051 [3d Dept 1992] [contemnor failed to establish
inability to pay where papers consisted of a brief two-page
affidavit wherein he summarily denied the arrearages and asserted
financial inability to pay, but lacked current documentation
supporting his claims]; Lake v Schuner, 106 AD2d 893, 894 [4th
Dept 1984] [record established that plaintiff was impoverished
and therefore unable to comply with his support order]; and
compare Kainth v Kainth, 36 AD3d 915, 916 [2d Dept 2007] ["[t]he
evidence adduced at the hearing established that the father's
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income for the 12 months preceding the hearing was insufficient
to permit payments in accordance with the order of support.
Further, the father's loss of higher paying employment was not
self-imposed, and the record contains evidence of his active, but
unsuccessful, pursuit of similar employment"], lv dismissed 8
NY3d 1003 [2007]).
B. Collateral Attack on the January 2010 Order
Defendant's argument that he was entitled to collaterally
challenge the January 2010 order in the contempt proceeding is
simply another version of his claim that the October 2008 order
did not prohibit his transfer of the properties. Defendant,
however, ignores the fact that the October 2008 order is not the
subject of the civil contempt order, and, consequently, the
contents of the October order are not material to the issues
before us.
Instead, the contempt order defendant challenges on this
appeal is based on his failure to comply with the January 2010
order, which required that he deposit with the plaintiff's
attorney the proceeds from the transfer. Whether his transfer of
the property initially violated any order of the court is beside
the point. Moreover, as we have already discussed, the court was
well within its authority to issue the January 2010 order.
C. Defendant's Invocation of the Fifth Amendment
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Defendant contends that Supreme Court improperly drew a
negative inference from his invocation of his Fifth Amendment
right against self-incrimination during the contempt hearing. He
maintains that by holding one hearing on plaintiff's joint motion
for civil and criminal contempt he was forced to choose between
protecting himself against civil liability by testifying as to
his lack of funds, and exercising his rights under the Fifth
Amendment to remain silent so as to avoid criminal contempt. We
find his argument unpersuasive and conclude that under the
circumstances of this case, where defendant failed to take steps
to avoid the alleged dilemma complained of here, Supreme Court
acted within its authority to draw a negative inference, and in
so doing did not violate defendant's constitutional rights.
The Fifth Amendment of the United States Constitution
provides that "[n]o person shall be . . . compelled in any
criminal case to be a witness against himself." However, the
right against self incrimination does not automatically insulate
a party to a civil action from potential liability. Both the
United States Supreme Court, in Baxter v Palmigiano (425 US 308,
318 [1976]), and this Court, in Marine Midland Bank v Russo
Produce (50 NY2d 31, 42 [1980]), have held that a negative
inference may be drawn in the civil context when a party invokes
the right against self incrimination. Here, defendant could
invoke the privilege, but that did not relieve him of his burden
to present adequate evidence of his financial inability to comply
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with the January 2010 order so as to avoid civil contempt
liability (US v Rylander, 460 US 752, 758 [1983] [invocation of
Fifth Amendment does not "substitute for evidence that would
assist in meeting a burden of production"]; Access Capital Inc. v
DeCicco, 302 AD2d 48, 51 [1st Dept 2002] ["[w]hile a party may
not be compelled to answer questions that might adversely affect
his 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"]). As we
have explained, defendant relied on his conclusory statements
that he no longer has the proceeds of the transfers and that he
has no funds to deposit with the respondent's attorney. He
cannot seek to avoid the consequences of this failure to proffer
sufficient evidence by invoking his Fifth Amendment right.
We might view this case differently if defendant had sought
relief from Supreme Court to avoid the prejudice he now claims
was the result of a joint civil and criminal contempt hearing.
If defendant was concerned about the spill-over effect of
invoking his Fifth Amendment right, he could have sought to
bifurcate the hearing so that the court would first consider
plaintiff's criminal contempt allegations (CPLR § 2201; Britt v
Intl. Bus Services, Inc., 255 AD2d 143, 144 [1st Dept 1998]). He
chose not to do so. Instead, he seeks reversal of the contempt
determination, or, in the alternative, that we grant a new
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hearing solely on civil liability. The latter is essentially a
request for the very remedy he could have sought from Supreme
Court if he had filed a request to bifurcate. Thus, because he
failed to seek this relief before Supreme Court, in the first
instance, he cannot complain that Supreme Court erred in drawing
negative inferences specifically allowed by law.
We are especially reticent in the context of matrimonial
proceedings to issue a decision that may, unintentionally,
undermine legislative efforts to protect parties from
unauthorized unilateral dissipation of marital assets. To permit
defendant to avoid contempt by refusing to answer, even though he
failed to request that the court hold the civil contempt branch
of plaintiff's motion in abeyance pending the outcome of the
criminal contempt branch, would incentivize defendant, and those
similarly situated, to refrain from seeking relief initially
before the contempt court, and later argue on appeal that the
proceeding was constitutionally infirm. We decline to sanction
this conduct where doing so will result in prejudice to those,
like plaintiff, who have established the existence of conduct
evincing civil contempt, and will thereby further delay and
obstruct plaintiff's efforts to secure any remaining marital
assets she may be entitled to under the prior equitable
distribution determination.
III.
Accordingly, the Appellate Division order should be
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affirmed, with costs, and the certified question answered in the
affirmative.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs, and certified question answered in
the affirmative. Opinion by Judge Rivera. Chief Judge Lippman
and Judges Pigott, Abdus-Salaam, Stein and Fahey concur.
Decided October 20, 2015
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