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Decided on April 9, 2013
Supreme Court, Monroe County

2009/07533
Kenneth R. Fisher, J.
This is defendant Sandra E. St. Martin's [FN1] post divorce motion seeking a finding of contempt and that plaintiff be punished with a fine or incarceration. Defendant avers that, pursuant to a divorce judgment of this court dated September 18, 2009, she was awarded the marital residence. Further, a comprehensive Separation and Property Settlement Agreement made defendant responsible for paying the first mortgage and plaintiff responsible for paying the second mortgage on the marital residence. The Judgment of Divorce incorporated, but did not merge the Agreement. Defendant brought a similar motion for contempt on these grounds and the court found defendant in contempt and levied a fine of $250. See Decision and Order, May 8, 2012, Fisher, J. Pursuant to the May 8, 2012, Decision and Judgment, the court found that the parties' Separation and Property Settlement Agreement was incorporated by reference into the parties' Judgment and that, by virtue thereof, "Husband agrees to payment [sic] of the second mortgage in his name," held by Bank of America, at least on a monthly basis as it becomes due. Defendant's affidavit on this application avers that plaintiff still has not made any payments on the second mortgage.
Plaintiff has not responded to this motion in writing, but at oral argument conceded that he has not made any payment and contends that, following his bankruptcy in May 2012, he is no longer obligated to pay the second mortgage. Plaintiff also maintains that, following last year's decision, he duly paid the $250 fine and that that decision required him to do nothing more. In particular, he points to the language in that decision (at pp. 3-4) which the court found did not unequivocally require plaintiff to "pay off" the second mortgage in a lump sum. He extrapolates from this that the court found that it was ambiguous whether plaintiff was obligated at all to make payments on the second mortgage in his name.
As explained to him at oral argument, he is in error on the latter point. The court found in that decision that the language in the Agreement - - "The husband agrees to payment [sic] the second mortgage in his name" - - "supports the view that husband was to continue making the monthly payments on the second mortgage, . . ." (at p. 3). The court further found that it was "sufficiently clear and unequivocal that husband was responsible for the mortgage payments, [*2]either monthly or by complete payoff" (at p. 4). A finding of contempt was made from the uncontroverted fact that he had made no payments since the "catch up" payments he made shortly after entry of the judgment. As stated, plaintiff does not contest defendant's allegation that no payments have been made since the May 2012 decision. Indeed, it appears from documents handed up in open court that the Bank of America, in a letter dated January 10, 2013 (hereby made a part of), gave notice of its intent to accelerate unless $9,115.17 was paid to it by February 19, 2013. Since that did not occur, the threatened foreclosure process has presumably begun.
Domestic Relations Law

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New York Law