                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 22, 2015                    518071
________________________________

DENNIS M. HOWE,
                     Respondent,
     v                                       MEMORANDUM AND ORDER

BRANDY K. HOWE,
                    Appellant.
________________________________


Calendar Date:    September 11, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                              __________


     David M. Brown, Binghamton, for appellant.

      Butler & Butler, PC, Vestal (Matthew C. Butler of counsel),
for respondent.

                              __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Sherman, J.),
entered August 21, 2013 in Tioga County, which, among other
things, conditionally granted plaintiff's motion to hold
defendant in contempt.

      In April 2012, plaintiff (hereinafter the husband) and
defendant (hereinafter the wife) executed a stipulation of
settlement that provided, in relevant part, that the husband
would quitclaim his interest in the marital residence within 60
days of the execution thereof, and the wife, in turn, would "make
a good faith effort" to refinance the property and remove the
husband's name from the mortgage within 45 days of receipt of the
quitclaim deed. The husband tendered the quitclaim deed in open
court on the date of its execution, April 16, 2012, and the
parties' stipulation was incorporated but not merged into their
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May 2012 judgment of divorce.

      In May 2013, the husband moved by order to show cause
seeking to hold the wife in contempt for failing to comply with
the terms of the parties' stipulation relative to the refinancing
of the subject premises. The wife opposed the husband's
application and cross-moved to hold the husband in contempt based
upon his alleged failure to comply with certain unrelated
provisions of the stipulation. Supreme Court granted the husband
a conditional order of contempt requiring the wife to remove the
husband's name from the mortgage within 90 days – either by
refinancing or selling the marital residence – and otherwise
denied the requested relief. This appeal by the wife ensued.1

      "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" (Matter of Paul A. v
Shaundell LL., 117 AD3d 1346, 1347-1348 [2014], lv dismissed and
denied 24 NY3d 937 [2014] [internal quotation marks and citations
omitted]; accord Matter of Aurelia v Aurelia, 56 AD3d 963, 964
[2008]; see Matter of Claydon, 103 AD3d 1051, 1052 [2013]). Such
violation, in turn, "must be established by clear and convincing
evidence" (Matter of Aurelia v Aurelia, 56 AD3d at 964; see
Matter of Paul A. v Shaundell LL., 117 AD3d at 1348). "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" (Davis-Taylor v Davis-Taylor, 4 AD3d 726, 727-728
[2004] [citations omitted]).



    1
        The wife's subsequent motion for a stay pending appeal
was granted by a Justice of this Court. As to the scope of the
appeal, the wife has not briefed the denial of her cross motion
and, therefore, we deem any arguments in this regard to be
abandoned (see Matter of Tompkins v Tompkins, 110 AD3d 1172, 1173
n [2013]).
                               -3-                518071

      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 (cf.
Mullen v Mullen, 80 AD3d 981, 981 [2011]; Aison v Hudson Riv.
Black Riv. Regulating Dist., 54 AD3d 457, 459 [2008]) 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.
While Supreme Court's solution was not necessarily an
unreasonable one, the wife cannot be held in contempt for failing
to comply with a provision of the parties' agreement that did not
in fact exist.

      As for the actual obligation imposed upon the wife under
the terms of the parties' stipulation – namely, to "make a good
faith effort" to obtain the desired refinancing – although
Supreme Court made various factual findings regarding the wife's
efforts, inclinations and/or abilities in this regard, it does
not appear that a hearing was conducted in this matter, and the
record does not contain a transcript of the oral arguments made
upon the competing motions. More to the point, the parties'
written submissions are, in our view, insufficient to determine
the adequacy of the wife's efforts to comply with the terms of
the agreement.2 Under these circumstances, we cannot say that


     2
        For purposes of this appeal, we have not considered the
affidavits or supporting documentation appended to the wife's
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Supreme Court's finding of contempt is supported by clear and
convincing evidence. Accordingly, the underlying order is
reversed to this extent, and this matter is remitted to Supreme
Court for further proceedings.

     McCarthy, J.P., Lynch and Clark, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as conditionally granted
plaintiff's motion; motion denied and matter remitted to the
Supreme Court for further proceedings not inconsistent with this
Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




brief, as such materials were not provided to Supreme Court.
