Suchomski v. Suchomski

Order unanimously reversed, without costs, and matter remitted to Supreme Court Onondaga County, for further proceedings, in accordance with the following memorandum: The parties executed a separation agreement providing, inter alia, that plaintiff husband have sole and exclusive possession of the marital premises for himself and the children and that at his option when and if it is sold, the defendant shall share equally in the proceeds remaining after satisfaction of the existing mortgage. This agreement was incorporated but not merged in a subsequent uncontested divorce decree. The judgment contained an order adopting the language of the agreement reciting that the plaintiff shall have the option to sell the property at his discretion and when and if it is sold, the defendant shall share in the proceeds. When plaintiff negotiated a bona fide sale, defendant declined to execute the deed unless stated concessions were made. Plaintiff moved to punish defendant for civil contempt for her willful refusal to comply with the decree. In response, defendant asserted plaintiff’s failure to account for rental receipts and inadequate consideration for the sale. Special Term found defendant to be in contempt and it is from that order that she appeals. Contempt may not be granted unless the judgment or order violated is clear and explicit, and unless the act complained of is clearly proscribed (Pereira v Pereira, 35 NY2d 301, 308; Busch v Berg, 52 AD2d 1039 1082). The alleged contempt is the failure of the defendant to execute a deed to effect a transfer of premises. We do not find in the order of the court a mandate with sufficient clarity to warrant the contempt proceeding based on the failure to comply. Accordingly, this matter is remitted to Special Term for a plenary hearing on contempt of the existing order or application for an unequivocal order (Paine, Webber, Jackson & Curtis v Pioneer Warehouse Corp., 61 AD2d 756). (Appeal from order of Onondaga Supreme Court— contempt.) Present — Cardamone, J. P., Hancock, Jr., Schnepp, Callahan and Moule, JJ.