Lackwood v. Lackwood

Lackwood v Lackwood 2026 NY Slip Op 05730 October 6, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Confidence Lackwood, Plaintiff-Respondent, v Michael Lackwood, Defendant-Appellant. Decided and Entered: October 06, 2026 Index No. 320024/24|Appeal No. 7158-7159|Case No. 2025-06094 2026-01239| Before: Moulton, J.P., Gesmer, Shulman, Hagler, Parker-Raso, JJ. Schwartz, Sladkus Reich Greenberg Atlas LLP, New York (Matthew C. Kesten of counsel), for appellant. Pryor Cashman LLP, New York (Caitlin Connolly of counsel), for respondent. [*1] Order, Supreme Court, New York County (Linda M. Capitti, J.), entered on or about September 29, 2025, which, to the extent appealed from as limited by the briefs, granted in part plaintiff wife's cross-motion for civil contempt, and directed defendant husband to pay $15,717 in child support and $8,000 in spousal support, counsel fees in the amount of $75,000 plus interest to plaintiff's counsel, counsel fees of $64,618.54 incurred in connection with plaintiff's contempt motion, and $13,016.00 in mortgage payments for the parties' apartment, unanimously affirmed, without costs. Order, same court and Justice, entered on or about March 6, 2026, in which the court declined to sign the husband's proposed order to show cause seeking assignment of counsel and poor person relief, unanimously affirmed, without costs. In a prior appeal, we affirmed Supreme Court's order directing the husband to pay 100% of the carrying costs of both the marital residence and the downstairs investment apartment; $1,000 a month in pendente lite spousal maintenance and $1,643.54 monthly in pendente lite child support; and $75,000 in interim counsel fees to plaintiff wife's attorneys, subject to reallocation after trial (see Lackwood v Lackwood, 245 AD3d 598 [1st Dept 2026]). It is undisputed that the husband failed to make all the ordered payments. The wife subsequently cross-moved for an order adjudging the husband in civil contempt for disobeying the court's order. Supreme Court properly granted the wife's cross-motion without a hearing. The wife proved by clear and convincing evidence that a lawful order of the court expressing an unequivocal mandate was in effect, that the husband had knowledge of its terms and disobeyed it, and that the wife and child were prejudiced by the husband's failure to pay the ordered amounts (see Parada v Herron, 223 AD3d 532, 533 [1st Dept 2024]; Sang Cheol Woo v Spackman, 196 AD3d 433, 433 [1st Dept 2021]). In opposition, the husband failed to raise a factual dispute as to the elements of civil contempt, or the existence of a defense, including the inability to pay. Therefore, the court was not required to hold a hearing (see Anonymous v Anonymous, 247 AD3d 489, 491 [1st Dept 2026]). "The bare conclusory claim of inability [to pay] . . . unsupported by tax returns or other documentation, [is] insufficient to warrant a hearing" (Farkas v Farkas, 209 AD2d 316, 317-318 [1st Dept 1994]; see Marcus v Marcus, 4 AD3d 257, 258 [1st Dept 2004]). Here, the documentation submitted by the husband's counsel raised no factual dispute "that could not be resolved on the papers alone" (Farkas, 209 AD2d at 318). Indeed, counsel acknowledged that if the motion to renew the underlying pendente lite order was denied, the husband would be in contempt. [*2] Because the order declining to sign the husband's order to show cause was not predicated on a motion made upon notice, it is not appealable as of right (CPLR 5701[a]; see Sholes v Meagher, 100 NY2d 333, 335 [2003]). However, in our discretion, we deem the husband's notice of appeal a request for leave to appeal and grant leave for determination on the merits (CPLR 5701[c]; see Matter of Gliklad v Deripaska, 185 AD3d 512, 512-513 [1st Dept 2020]). The court providently exercised its discretion in declining to sign the husband's order to show cause seeking assignment of counsel and poor person relief. At the time the husband made his application, there was no pending motion for contempt or an ancillary request for incarceration, and custody and parenting issues had been resolved by so-ordered stipulation (Family Court Act § 262[a]; Judiciary Act § 35[8]). There is also no absolute right to assignment of counsel in a matrimonial action (see Merkle v Merkel, 186 AD2d 67, 68 [1st Dept 1992]), and Judiciary Law § 770 renders assignment of counsel discretionary. Moreover, the husband had been represented by counsel during those prior proceedings. We further observe that, contrary to the husband's claims, the court had reviewed and considered the husband's representations about his income, assets, and expenses on the record the day before the husband filed his order to show cause (cf. Matter of Pugh v Pugh, 125 AD3d 663, 664 [2d Dept 2015]). We have considered the husband's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 6, 2026