SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
945
CA 14-00204
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.
MONICA FERRIS, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
DAVID FERRIS, DEFENDANT-APPELLANT.
BRIAN MICHAEL MIGA, UTICA, FOR DEFENDANT-APPELLANT.
Appeal from an order of the Supreme Court, Oneida County (Joan E.
Shkane, A.J.), dated June 27, 2013. The order, among other things,
directed defendant to pay plaintiff the sum of $16,215.36.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the first, second, and
fourth ordering paragraphs and as modified the order is affirmed
without costs, and the matter is remitted to Supreme Court, Oneida
County, for further proceedings in accordance with the following
Memorandum: Defendant husband appeals from an order that, inter alia,
granted those parts of plaintiff wife’s motion seeking to enforce a
judgment of divorce that incorporated but did not merge the terms of
the parties’ oral stipulation. The judgment provided, inter alia,
that the husband would pay $100,000 to the wife by June 18, 2012 and
would continuously list the marital residence with Assist 2 Sell.
Although the husband contends that the wife failed to meet her
burden of proving contempt, we note at the outset that there is no
finding of contempt against the husband in the order appealed from,
and there is no other order in the record containing such a finding.
“There is thus no appealable civil contempt determination” (Matter of
Mercado v Frye, 104 AD3d 1340, 1342, lv denied 21 NY3d 859). We
reject the husband’s further contention that Supreme Court’s
determination that he willfully failed to comply with the parties’
judgment of divorce when he “fail[ed] to relist the property with
Assist 2 Sell . . . and fail[ed] to renew the listing with a different
agency” is not supported by the record. Having determined that the
husband’s conduct was willful, the court was also required to award
counsel fees in favor of the wife (see Domestic Relations Law § 237
[c]). We agree with the husband, however, that a hearing is required
to determine the amount of reasonable counsel fees (see Ott v Ott, 266
AD2d 842, 842; cf. Beal v Beal, 196 AD2d 471, 473). We therefore
modify the order by vacating the amount of counsel fees awarded, and
we remit the matter to Supreme Court to determine the amount of such
fees following a hearing on that issue.
-2- 945
CA 14-00204
The husband also contends that the court erred in ordering him to
pay interest on the $100,000 owed to the wife based on his failure to
make that payment by June 18, 2012. However, we are unable to
determine on this record whether the court found that the husband’s
failure to pay the wife was willful, to require the award of interest
pursuant to Domestic Relations Law § 244 (see Piacente v Piacente, 93
AD3d 1189, 1190; cf. Goldkranz v Goldkranz, 82 AD3d 699, 700). We
therefore further modify the order by vacating that part awarding such
interest to the wife, and we direct the court on remittal to make a
determination whether the husband’s conduct was willful, to require
the award of interest.
We have considered the husband’s remaining contentions and
conclude that they are without merit.
Entered: October 3, 2014 Frances E. Cafarell
Clerk of the Court