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PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff father was required to comply with a court order to post a bond even though the order was modified on appeal to eliminate the bond requirement. However plaintiff provided credible evidence he was not able to obtain the required bond, which is a defense to the contempt action:

In an order dated July 19, 2013 (hereinafter the July 2013 order), the Supreme Court granted the defendant’s motion to require the plaintiff to post a bond in the amount of $150,000, as security for the payment of the parties’ daughter’s private school tuition, to ensure his compliance with the parties’ judgment of divorce. The July 2013 order was later modified by this Court, and the provision thereof requiring the plaintiff to post a bond was deleted… . However, before this Court modified the July 2013 order, the Supreme Court, in the order now appealed from, granted that branch of the defendant’s motion which was to hold the plaintiff in contempt of court for failing to comply with the order by not posting the bond.

The order appealed from, holding the father in contempt for failing to comply with the July 2013 order by not posting a bond, is not subject to reversal based on this Court’s modification of the July 2013 order by deleting the requirement that the plaintiff post a bond, as “[o]bedience to a lawful order of the court is required even if the order is thereafter held erroneous or improvidently made or granted by the court under misapprehension or mistake” … . Moreover, this Court’s modification of the July 2013 order “does not render the instant appeal academic, since a party may be adjudicated in contempt of a court mandate which is later overturned on appeal” … .

Nevertheless, we reverse the order appealed from, since, in response to the defendant’s showing that she was prejudiced by the plaintiff’s knowing disobedience of a lawful order of the court which expressed an unequivocal mandate, the plaintiff proffered credible evidence of his inability to obtain the required bond. Inability to comply with an order is a defense to both civil and criminal contempt … . Lueker v Lueker, 2018 NY Slip Op 07421, Second Dept 11-7-18

CONTEMPT (PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/APPEALS (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/BONDS (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/FAMILY LAW (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))

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