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Defendant Alleged a Possible Defense to His Failure to Comply with an Order that He Pay Temporary Maintenance and Child Support (Inability to Work Due to Medical Problems)—Hearing Was Required Before a Civil Contempt Finding Could Be Made

The Second Department determined Supreme Court should not have held defendant in civil contempt for his failure to comply with an order that he pay temporary maintenance and child support without first conducting a hearing. The defendant’s opposition papers raised a factual dispute about whether there was a defense (inability to work due to medical problems).  In the context of a civil contempt proceeding, a question of fact about the existence a defense requires a hearing:

To prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence ” (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” … . “Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order” … . A hearing is required “if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense” … . Lundgren v Lundgren, 2015 NY Slip Op 03135, 2nd Dept 4-15-15

 

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