The Precise Terms of the Stipulation Were Not Demonstrated to Have Been Violated—Contempt Finding Improper

The Third Department determined the wife was improperly held in contempt re: a stipulation about refinancing the marital residence. The stipulation required that the wife make a good faith effort to refinance, but did not address the consequences of a failed attempt. By finding the wife in contempt for failing to refinance, the court improperly re-wrote the stipulation:

“To sustain a civil contempt finding based upon the violation of a court order, it must be established that there was a lawful court order in effect that clearly expressed an unequivocal mandate, that the person who allegedly violated the order had actual knowledge of its terms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party” … . Such violation, in turn, “must be established by clear and convincing evidence” … . “The decision of whether to hold in contempt a party who fails to comply with a court order rests within the court’s sound discretion” … .

Here, a review of the underlying order makes clear that Supreme Court found the wife to be in contempt of the parties’ April 2012 stipulation based upon her failure to refinance the marital residence “as agreed or otherwise take action to remove [the husband’s] name from the existing mortgage.” The parties’ stipulation, however, did not require the wife to successfully refinance the marital residence and remove the husband’s name from the existing mortgage; rather, the stipulation only imposed upon her the obligation to “make a good faith effort to obtain [such] financing . . . and remove [the husband’s] name from the mortgage within 45 days after receiving the [quitclaim deed].” Notably, the stipulation was silent as to the parties’ respective rights and obligations in the event that the wife attempted — but did not actually succeed — in obtaining such financing … and, by directing the sale of the marital residence in the event that the wife did not obtain refinancing within a specified time period, Supreme Court essentially revised the parties’ agreement to supply a solution to a problem that, on the face of the agreement, the parties themselves apparently did not contemplate. Howe v Howe, 2015 NY Slip Op 07709, 3rd Dept 10-22-15