Parker v. Parker

Appellate Division of the Supreme Court of New York, First Department · 2024 · Family Law

Family Lawcontemptso-ordered stipulationrenewalCPLR 2221(e)mortgagecarrying costsmarital apartment

Facts

The parties were litigating over the marital apartment, including payment of its mortgage and carrying costs pending sale. Plaintiff sought contempt based in part on defendant's failure to pay half of those expenses, but the mortgage arrears were cured when the parties jointly released sufficient funds from a jointly held account. Defendant sought renewal of a prior request to have plaintiff pay the apartment's mortgage and carrying costs from marital assets held solely in her name, supported by evidence that plaintiff had nearly all of the parties' liquid assets and had unilaterally stopped paying the mortgage and maintenance in November 2022. The record also reflected plaintiff's litigation position that the apartment was her separate property, her efforts to delay the sale, the court's authorization for defendant to retain a broker to sell the property, and two prior contempt findings against defendant for similar violations of the June 13, 2018 stipulation.

Issue

Whether the motion court properly denied plaintiff's contempt request as to unpaid mortgage and carrying costs, properly granted defendant leave to renew and directed payment of those costs from marital assets in plaintiff's sole name pending sale, properly denied plaintiff's request to compel refinancing, and properly declined to hold defendant in contempt for violating the June 13, 2018 so-ordered stipulation. A further issue was whether plaintiff could appeal from the denial of her motion labeled as one to renew and reargue.

Rule

A contempt request is moot when the complained-of default has been cured. Leave to renew may be granted under CPLR 2221(e) where the movant presents new evidence reflecting a development that could not have been presented earlier, and the court may direct payment of mortgage and carrying costs from marital assets under the circumstances shown. A court may deny a request to compel refinancing under Domestic Relations Law § 234 where the movant does not explain why refinancing is necessary or what the new terms would be, especially when sale has been ordered and sufficient assets exist to continue current payments. Where repeated similar violations of a so-ordered stipulation persist despite prior contempt findings, declining to hold the violator in contempt is an improvident exercise of discretion. Denial of what is in substance a motion to reargue is not appealable.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a divorce action in Manhattan, Dana Iqbal moved to hold Leo Mercer in contempt for failing to pay his court-ordered half of the condo mortgage and common charges. Before the motion was decided, both spouses authorized the release of enough money from their joint brokerage account to bring the loan fully current.

How should the court rule on Dana's contempt request based on that payment default?

Explanation. The majority opinion treats a contempt request tied to a mortgage-and-carrying-cost default as moot once the parties cure the default by releasing joint funds to satisfy the arrears. Because the complained-of nonpayment no longer exists, that branch of the contempt application is no longer a live controversy. (Derived from Parker v. Parker (n.d.).)