| Eaton v Eaton |
| 2007 NY Slip Op 10311 [46 AD3d 1432] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Nancy A. Eaton, Respondent, v Edward M. Eaton,Appellant. |
—[*1]
Appeal from a decision of the Supreme Court, Cattaraugus County (Larry M. Himelein,A.J.), dated July 15, 2005 in a matrimonial action. The decision found defendant in civilcontempt of an order and sentenced him to a term of incarceration of 30 days.
It is hereby ordered that said appeal be and the same hereby is unanimously dismissedwithout costs.
Memorandum: Supreme Court sua sponte made a summary finding that defendant was incivil contempt of its order based on his alleged failure to transfer to plaintiff certain maritalproperty pursuant to the stipulation entered into by the parties in their divorce action (seeJudiciary Law § 756), and the court sentenced defendant to a 30-day term of incarceration(see generally § 755). "The mandate that a contempt order be reduced to writing isan indispensable requirement" (Matter of Loeber v Teresi, 256 AD2d 747, 749 [1998];see §§ 755, 770), and here the record establishes that no order was reducedto writing. Inasmuch as defendant purports to appeal from a transcript of the court proceedingsrather than from an order, the appeal must be dismissed (see CPLR 5512 [a]; Blaine vMeyer, 126 AD2d 508 [1987]; Matter of Solano v Martin, 55 AD2d 620 [1976]). Wenote that, although the statute of limitations may have expired with respect to defendant's right tochallenge the contempt proceeding by way of a proceeding pursuant to CPLR article 78(see Judiciary Law § 755; CPLR 217 [1]; Loeber, 256 AD2d at 748-749),defendant may nevertheless obtain an order of commitment or an order implementing the court'scontempt finding and sentence and appeal from such order (see CPLR 5513 [a]).Present—Scudder, P.J., Smith, Centra, Lunn and Peradotto, JJ.