| Rubin v Rubin |
| 2010 NY Slip Op 08088 [78 AD3d 812] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Lauren Rubin, Appellant, v Ted Rubin,Respondent. |
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In a matrimonial action in which the parties were divorced by judgment dated March 26,2004, the plaintiff mother appeals from an order of the Supreme Court, Nassau County (Ross, J.),dated May 25, 2010, which, after a hearing, in effect, granted that branch of the motion of thedefendant father which was to hold her in civil contempt for her willful violation of the custodyand visitation provisions in the parties' stipulation of settlement, which was incorporated, but notmerged, into the judgment of divorce, sentenced her to certain weekend incarceration, andgranted that branch of the motion of the defendant father which was for an award of an attorney'sfee. By decision and order on motion dated June 17, 2010, this Court stayed the plaintiff'sincarceration pending hearing and determination of this appeal.
Ordered that the order is modified, on the facts and in the exercise of discretion, by addingthereto a provision suspending the sentence subject to the plaintiff's future compliance with thecustody and visitation provisions in the parties' stipulation of settlement; as so modified, theorder is affirmed, without costs or disbursements.
On October 30, 2003, the parties, who have two young daughters, entered into a stipulationof settlement which was incorporated, but not merged, into their judgment of divorce datedMarch 26, 2004. With respect to custody and visitation, the stipulation of settlement providedthat the parties would share legal custody of the children, that the mother would have solephysical custody of the children, and that the father would have certain visitation. In addition,pursuant to those provisions, each party was specifically prohibited from doing anything thatwould have the effect of alienating the children from the other party.
To prevail on a motion to punish a party for civil contempt, the movant must demonstratethat the party charged with contempt willfully violated a clear and unequivocal [*2]mandate of a court's order, with knowledge of that order's terms,thereby prejudicing the movant's rights (see McCain v Dinkins, 84 NY2d 216, 225-226[1994]; Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]; Katz v Katz, 73 AD3d 1134[2010]; Judiciary Law § 753 [A]). Where, as here, a period of incarceration is imposed tovindicate the authority of the court or to compel respect for the court's mandate, the contemnor'swillful violation of the court's mandate must be proven beyond a reasonable doubt (see Matter of Rubackin v Rubackin, 62AD3d 11 [2009]). The father met this burden. Indeed, at the hearing it was established,among other things, that the mother violated the custody and visitation provisions of thestipulation of settlement by intentionally doing certain things which would have the natural effectof "turn[ing]" the children "away from" the father, and which actually had that effect (Youngv Young, 212 AD2d 114, 115 [1995]; cf. Matter of Darla N. v Christine N., 289AD2d 1012, 1013 [2001]).
However, under the particular facts of this case, a sentence directing the mother's immediateincarceration "would serve no purpose" (Berkman v Berkman, 57 AD2d 542, 542 [1977];cf. Fuerst v Fuerst, 131 AD2d 426, 427 [1987]). Rather, under the circumstances, it isappropriate to suspend the sentence subject to the mother's future compliance with the custodyand visitation provisions of the stipulation of settlement (see Matter of Munster v Munster, 17 AD3d 600 [2005]).
The mother's remaining contentions are without merit. Dillon, J.P., Angiolillo, Hall andRoman, JJ., concur.