Misakyan v. Misakyan

Casey, J. Appeal from an order of the Supreme Court at Special Term (Lee, Jr., J.), entered September 24, 1985 in Broome County, which granted defendant’s motion to find plaintiff in contempt of court. Plaintiff was held in contempt of an order entered in the pending matrimonial action, which required plaintiff to provide defendant with access to the marital abode for the purpose of removing her personal belongings, including jewelry. It is undisputed that plaintiff permitted access to the marital abode, but defendant was unable to locate several items of jewelry. Defendant’s motion to find plaintiff in violation of the order and in contempt of court resulted in a hearing at which plaintiff denied the existence of most of the jewelry, while defendant, her son and two family friends testified to its existence and value. Defendant and her son also testified that the jewelry was located in a safe in the marital abode at the time defendant moved out. Additional testimony was presented by defendant establishing that plaintiff had made certain statements indicating his intent to deprive defendant of some or all of the jewelry. Special Term found that the jewelry existed and that it remained in plaintiff’s possession and control after defendant moved out of the marital residence. Based upon these findings and the evidence as to plaintiff’s intent to keep the jewelry [897] from defendant, Special Term concluded that plaintiff violated the court order directing him to give defendant access to the jewelry, found plaintiff in contempt of court and gave him 10 days to purge himself of the contempt by delivering the jewelry to defendant. We reverse the order of contempt. "In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed * * * Moreover, the party to be held in contempt must have had knowledge of the court’s order” (Matter of McCormick v Axelrod, 59 NY2d 574, 583). When Special Term issued the order directing plaintiff to provide defendant with access to the marital home so that she could remove her personal belongings, the court made no finding that the jewelry at issue was actually in the marital home or that plaintiff otherwise had possession and control of the jewelry. Although the proof at the subsequent hearing on defendant’s contempt motion supports a finding that the jewelry was in the marital home when defendant moved out, there is no proof that plaintiff still had possession and control some three months later when the court issued its order directing plaintiff to provide access to the jewelry. Had plaintiff disposed of the jewelry during the period following defendant’s move from the marital home and prior to defendant’s motion for an order directing plaintiff to provide access to the jewelry, plaintiff obviously could not have complied with the order. While such conduct might constitute conversion or other wrongful act, it cannot serve as the basis for a finding of contempt with respect to an order not yet issued by the court. At this stage of the proceedings, and upon the proof in this record, it does not appear with reasonable certainty that plaintiff disobeyed the court’s order. Order reversed, on the law and the facts, without costs, and motion denied. Mahoney, P. J., Main, Casey and Harvey, JJ., concur.