Faina P. v. Alexander S.

2023 NY Slip Op 50346(U)

Faina P., Plaintiff, v. Alexander S., Defendant.

No. 2023-50346

Supreme Court, Kings County

March 30, 2023

Unpublished Opinion

Brian D. Perskin, Esq., Gabrielle H. Hagege, Esq., Attorney for Plaintiff

Alexander S., Esq., Defendant, pro se

Jeffrey S. Sunshine, J.

The following e-filed papers read herein: NYSCEF Nos.:

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed #196; #194; #154; #199 #250; #296; #298; #365; #394

Opposing Affidavits (Affirmations) #297; #376; #393; #411

Reply Affidavits (Affirmations) #412; #438; #439

PROCEDURAL HISTORY

The parties entered into two stipulations on November 12, 2019 - one resolving custody and parenting time [NYSCEF #6] and the other resolving finances and all ancillary issues between them [NYSCEF #7] - these stipulations were duly executed and subsequently incorporated but not merged into a Judgment of Divorce signed on February 28, 2020 [NYSCEF #5] and entered in the Office of the Clerk of the County of Kings on March 3 2020. There is one child of the marriage: a son, Z, who is (7) years old (DOB December 2015).

Plaintiff is employed as a sale administrator earning approximately $48,000 annually. She is represented by private counsel.

Defendant is employed as an attorney at a New York City law firm earning approximately $89,000 annually. He appeared self-represented throughout most of this post-judgment litigation but was represented for a brief period of time by Yuri Yaroslavskiy, Esq. The Court has made extensive records on each court appearance where both parties were present as to the right to counsel and the risks of proceeding self-represented. The Court has found that the defendant is not eligible for the assignment of counsel.

Defendant was found in contempt for failure to pay basic child support for over a year which resulted in a written decision, dated April 18, 2022 [NYSCEF #101; motion sequence #3 and #4]. That written decision must be read together with this decision. After the finding of contempt, plaintiff retained counsel in May 2022. That counsel filed a notice of appeal [NYSCEF #116].

The formal order of contempt was signed August 1, 2022 [NYSCEF #174]. The matter was scheduled for purge or sentencing for September 13, 2022.

The defendant did not purge his contempt prior to September 13, 2022. At sentencing on September 13, 2022, defendant sought an adjournment: the Court granted defendant's counsel's request, on consent of plaintiff after defendant made partial payment towards the child support arrears and adjourned the purge/sentence - and the other outstanding motions, including plaintiff's application for counsel fees - to October 24, 2022.

After receiving an adjournment from September 13, 2022 and October 3, 2022 to purge, defendant discharged his attorney on September 20, 2022 [NYSCEF #251] and on September 29, 2022 defendant filed - pro se - another order to show cause for contempt against plaintiff for alleged violation of the "foster good will" provision of the parties' stipulation of settlement because she filed an enforcement action to collect child support arrears from him which ultimately resulted in the contempt finding against him. The Court will fully address this novel "theory" herein below. Inasmuch as the matter was scheduled for purge or sentencing, this order to show cause filed by defendant was held in abeyance.

On the morning of October 3, 2022, defendant appeared pro se for the purge and sentencing of his contempt but sought yet another adjournment to seek counsel. Plaintiff's counsel notified the Court the defendant had not purged his contempt. Given that defendant's purge or sentencing had already been adjourned once before the Court granted defendant's request for an adjournment and recalled the case on the afternoon calendar. When this matter was recalled in the afternoon, defendant appeared with an attorney from the law firm where he is employed. That attorney sought an adjournment to become familiar with the matter. The Court granted that attorney's application and adjourned the matter from October 3, 2022 to October 24, 2022; however, thereafter, defendant did not formally retain that attorney or any other attorney in the interim.

On October 24, 2022, defendant appeared without counsel. The Court allocuted the defendant thoroughly again, recited the risks of representing oneself on the record even though defendant is an attorney licensed to practice law in the State of New York; however, the defendant represented that he had not retained counsel and was choosing to represent himself [NYSCEF #294, 10/24 22 transcript].

The parties notified the Court that the defendant had purged his contempt [NYSCEF #294: transcript of 10/24/22 record] pursuant to the terms of the contempt order. As such, there was no sentencing.

Both parties represented that they were ready to proceed to oral argument on the motions that had been held in abeyance pending defendant's purge or sentencing. ^[1] The Court then heard argument on defendant's order to show cause seeking to renew and reargue the finding of contempt against him [mot. seq. #7] and plaintiff's request for counsel fees for enforcement [mot. seq. #9].

Subsequent to oral argument on motion sequences #7, #9 and #10, on December 16, 2022, plaintiff filed a motion seeking a money judgment [mot. seq. #11]. In response, on January 13, 2023, defendant filed an order to show cause seeking to disqualify plaintiff's counsel [mot. seq. #12]. The Court heard oral argument on motion sequences #11 and #12 on January 26, 2023.

Delayed January 26, 2023 Transcript

The Court heard oral argument on motions #11 and #12 on January 26, 2023 and ordered the parties to share the cost of the transcript and to provide it to the Court. Chambers staff sought a status update on the transcript by e-mail dated February 15, 2023 and via e-mails between plaintiff's counsel and defendant on notice to all parties chambers learned that defendant had not paid his share of the transcript allegedly because he believed plaintiff should pay for it, in effect, to reimburse him for prior transcript costs which the court has not made direction about payment. Chambers staff responded that the Court's direction as to the parties obtaining and sharing the cost of the January 26, 2023 transcript stood independent of any prior transcript costs. Thereafter, defendant paid his share of the cost and the transcript was provided to the Court [NYSCEF #440] and the decision on motion sequences #7, #9, #10, #11 and #12 were marked sub judice for decision on February 17, 2023.

Motion Sequence #7

On August 12, 2022, defendant through counsel ^[2] filed an order to show cause [NYSCEF #196] seeking a finding, inter alia, of contempt against plaintiff as well as the following relief:

A. Pursuant to CPLR 2221 (d) and (e), granting leave to renew and reargue the Decision and Order of this Court dated April 18, 2022;

B. Pursuant to CPLR 2221 (d) and (e), granting leave to renew and reargue the Order of Contempt of This [ sic ] Court dated August 1, 2022;

C. Staying the Decision and Order of This [ sic ] Court dated April 18, 2022;

D. Staying the Order of Contempt of This Court dated August 1, 2022;

E. Pursuant to DRL 236(B)(9)(b), modifying the Judgment of Divorce dated February 2, 2020 and granting Defendant, [REDACTED], downward modification of child support;

F. Awarding Defendant [REDACTED] said downward modification of child support nunc pro tunc effective January 25, 2021, and recalculating child support arrears accordingly;

G. Granting Defendant [REDACTED] such other relief as this Court may deem just and proper.

Motion Sequence #9

On September 13, 2022, plaintiff filed an order to show cause [Mot. Seq. #9; NYSCEF #250] ^[3] seeking an order for the following:

A. Ordering that Defendant pay counsel fees to Plaintiff's attorneys in the amount of $55,616, representing the costs in connection with the post judgment action; and

B. Awarding such other and further relief as this Court deems just and proper.

Motion Sequence #10

On September 28, 2022, defendant pro se filed another order to show cause [motion seq. #10] seeking an order for the following:

A. adjudging and punishing Plaintiff, FAINA [P.], for contempt of Court for her violation of the following provisions in the November 12, 2019 Custody and Parenting Agreement involving the parties' child against the best interests of the child:

i." 'a spirit of cooperation' between the parties is 'essential,' and they acknowledge that it is in the best interests of the child that they 'work cordially and collaboratively with each other.'

ii. the Mother and Father shall 'foster a feeling of love and respect between them and the other party.' ''

iii. Jeopardizing the child's school grades against the best interests of the child; iv. Jeopardizing the child's enrollment in school against the best interests of the child;

B. adjudging and punishing Plaintiff, FAINA [P.], for contempt of Court for her violation of the Jewish faith provisions in the November 12, 2019 Custody and Parenting Agreement involving the parties' child:

C. enjoining and prohibiting Plaintiff from any further violations of the above mentioned provisions in the November 12, 2019 Custody and Parenting Agreement against the best interests of the child; and

D. for such other and further relief as this Court may deem just and proper under the circumstances.

Oral Argument #1 [October 24, 2022]

Application to Renew

CPLR 2221(e) allows for leave to renew based on new facts which were unavailable at the time of the prior motion. The issue that defendant seeks leave to renew and/or reargue is whether he was in contempt for...