        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

475
CA 14-01003
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


LOTFI BELKHIR, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SOUAD AMRANE-BELKHIR, DEFENDANT-RESPONDENT.


LOFTI BELKHIR, PLAINTIFF-APPELLANT PRO SE.

LEONARD A. ROSNER, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County
(William F. Kocher, A.J.), entered May 30, 2014 in a divorce action.
The order granted defendant’s motion to hold plaintiff in civil
contempt of court.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the motion is
denied.

     Memorandum: On appeal from an order that, inter alia, held him
in contempt of court for failing to comply with a provision of an
amended divorce decree obligating him to pay defendant $75,000,
plaintiff contends that defendant failed to meet her burden of proof
on her motion. We agree. “In order to prevail on a motion to punish
a party for civil contempt, the movant must demonstrate that the party
charged with contempt violated a clear and unequivocal mandate of the
court, thereby prejudicing the movant’s rights . . . The movant has
the burden of proving contempt by clear and convincing evidence”
(Wolfe v Wolfe, 71 AD3d 878, 878; see El-Dehdan v El-Dehdan, 114 AD3d
4, 10). Here, the provision in the amended divorce decree stating
that defendant is entitled to $75,000 “did not provide any time for
payment and therefore, did not constitute a clear and unequivocal
mandate” (Rienzi v Rienzi, 23 AD3d 447, 449; see Wolfe, 71 AD3d at
878; Massimi v Massimi, 56 AD3d 624, 624-625). In addition, the
amended divorce decree contemplates that plaintiff’s obligation to pay
$75,000 to defendant may be satisfied from plaintiff’s share of the
proceeds of the sale of the marital residence, and the marital
residence had not been sold at the time of the instant motion.
Finally, the motion should not have been granted inasmuch as
“defendant failed to show that [s]he had exhausted less drastic
enforcement remedies, or that resort to such remedies would be
ineffectual” (Wolfe, 71 AD3d at 879; see Domestic Relations Law § 245;
                                 -2-                   475
                                                 CA 14-01003

Klepp v Klepp, 35 AD3d 386, 387-388).




Entered:   May 1, 2015                  Frances E. Cafarell
                                        Clerk of the Court
