Ruesch v Ruesch

[*1] Ruesch v Ruesch 2012 NY Slip Op 52485(U) Decided on June 25, 2012 Supreme Court, Nassau County Palmieri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2012
Supreme Court, Nassau County

Arthur Ruesch, Plaintiff,

against

Wendy Ruesch, Defendant.



203196/10



Attorney for Defendant

Law Office of Peter L. Blodnick, Esq.

316 Jackson Avenue

Syosset, NY 11791

Attorney for Defendant

Bryan L. Salamone & Associates, P.C.

1145 Walt Whitman Road

Melville, NY 11747

Attorney for Child

Tomasina Mastroianni, Esq.

355 Post Avenue

Westbury, NY 11590

Daniel R. Palmieri, J.

The following papers were read on this motion: Order to Show Cause, dated 3-14-12............................................ 1

Affidavit in Opposition, dated , 4-2-12..........................................2

Affidavit in Reply, dated 4-25-12...................................................3

The motion by the plaintiff to adjudge the defendant in contempt of court for her violation of a stipulated conference order dated February 15, 2012 and incarcerating her therefor, to [*2]suspend defendant's driving privileges, suspending or refusing to reissue defendant's passport, granting plaintiff temporary exclusive use and occupancy of the marital residence, and temporary sole residential and legal custody of the children of the marriage, Christopher T. Ruesch, d/o/b 8-26-93, and Samantha M. Ruesch, d/o/b 5-19-96 pending a hearing to determine permanent legal custody, and for attorney's fees, is determined as set forth in this order. All requests for relief not specifically addressed are denied.

Initially, those branches of the motion that are to adjudge the defendant in contempt and to punish her therefor are decided pursuant to applicable provisions of the Judiciary Law only, not Domestic Relations Law § 245, as the basis of the contempt is not failure to pay a sum of money owed.

To sustain a finding of civil contempt based upon a violation of a court order or judgment, a movant must demonstrate the existence of an unequivocal mandate (see, Kawar v Kawar, 231 AD2d 681 [2d Dept. 1996]; Graham v Graham, 152 AD.2d 653, 654 [2d Dept. 1989]), and must establish a wilful violation thereof by clear and convincing proof. See, Bickwid v Deutsch, 229 AD2d 533 (2d Dept. 1966); Bulow v Bulow, 121 AD2d 423 (2d Dept. 1986). There also must be a finding that the conduct complained of was calculated to or actually did defeat, impair or prejudice the rights or remedies of a party to a civil proceeding. Barkan v Barkan, 271 AD2d 466 (2d Dept.2000); Farkas v Farkas, 209 AD2d 316 (1st Dept. 1994). It should be noted that to establish a criminal contempt, which is intended to vindicate the authority of the court, to protect the integrity of the judicial process, or to compel respect for the court's mandates, the movant must advance proof of a wilful violation of a court order that is beyond a reasonable doubt. Rubackin v Rubackin, 62 AD3d 11, 15 (2d Dept. 2009).

Once a finding of civil contempt is made, the court has the discretion to fashion an appropriate remedy. See Collins v Telcoa International Corp., 86 AD3d 549 (2d Dept. 2011) ["The question of whether to then grant a civil contempt motion and, if so, the fixing of the appropriate remedy, is addressed to the sound discretion of the motion court upon consideration of the surrounding circumstances."]; see also Gunn v Gunn, 261 AD2d 360 (2d Dept. 1999); In re Hildreth, 28 AD2d 290 (1st Dept. 1967).

In this case, the defendant has admitted that she has not taken any steps to remove or bar one James Stamos from the marital residence, notwithstanding this Court's direction to do so in its conference order dated February 15, 2012, executed by counsel for the parties and counsel for the children, which direction was reiterated in the temporary relief granted to plaintiff on presentation of the order to show cause that brought on this motion.

Given this admission, the defendant is in danger of facing a criminal contempt charge under the authority set forth above.However, as the plaintiff has brought this application as a civil matter the Court chooses to treat this as a civil contempt, pursuant to Judiciary Law § 753. She is so found to be in contempt of this Court, as her actions and omissions were calculated to and actually did defeat, impair or prejudice the rights or remedies of a party to this civil proceeding. The Court notes that as it has no jurisdiction [*3]over Mr. Stamos it cannot direct him to vacate the marital residence, but it can and has issued a directive to the defendant, who must act in accord with the undersigned's directions.

She may purge her contempt by removing or causing to be removed James Stamos from the marital residence. Until she does so, and in view of her admitted, wilful non-compliance, the Court fines her $250 for each day she remains in continuing violation of the Court's order. See, Orchard Park Central School Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 470 (4th Dept. 1976). This fine shall be paid to the plaintiff, commencing the day after this decision and order.

Moreover, and notwithstanding the Court's denial of so much of the plaintiff's motion to reargue that sought a reduction of his support obligations, decided simultaneously herewith, maintenance payments from the plaintiff to the defendant are suspended until Mr. Stamos leaves the residence. Maintenance payments shall resume, and the $250 fine shall cease, only upon Mr. Stamos's departure, which departure must be established by defendant by proof acceptable to the Court. A copy of such proof must be provided to plaintiff's counsel. Maintenance for any balance of the biweekly period after Mr. Stamos leaves shall be paid pro rata. Child support payments are unaffected and must continue.

All other branches of the plaintiff's motion are denied. Assuming that the defendant purges her contempt and Mr. Stamos is removed, the Court cannot find on this record that the children will be safer and better cared for should defendant mother be removed from the residence and substituted by the plaintiff father, and the best interests of the children must remain paramount in this area. That branch that seeks a change of temporary custody and use of the marital residence is thus denied. See, e.g., Sirabella v Sirabella, 95 AD3d 1296 (2d Dept. 2012). Because prima facie proof is absent that he will be in a better position to meet the children's needs and to encourage a positive relationship with the mother, a hearing is not required to reach this determination. Matter of Leichter-Kessler v Kessler, 71 AD3d 1148 (2d Dept. 2010); Sirabella v Sirabella, supra.

The attorney for the children has not submitted any papers on this motion, and thus has not supported any change to thestatus quo. Indeed, the father asserts in his papers that he has been the victim of parental alienation, which he blames on the wife. While this may have implications for an ultimate custody determination, the Court will not suddenly replace the mother with the father when he himself indicates that his relationship with the children is strained, as such a radical change will likely cause a significant disruption in the lives of the children. Nor does the Court believe that suspending the defendant's driving privileges would be in their best interests, as no special findings of fact are necessary to conclude that preventing the defendant from driving will be detrimental to the children.

That branch of the motion that seeks surrender of defendant's passport or a bar to [*4]her applying for one is denied, as there is no evidence that she is planning to remove the children from the United States. However, the Court hereby issues a directive that they are not to be removed from the State of New York absent consent of the parties and the attorney for the children, and the permission of this Court. This is consistent with this Court's orders in all cases where the custody and welfare of minor children are in dispute, as children should not be placed beyond the jurisdictional reach of the New York courts, even temporarily, unless the parents agree.

Finally, although Judiciary Law § 773 permits the imposition of attorney's fees as a form of "expense" (see, e.g., Davey v Kelly, 57 AD3d 230 [1st Dept. 2008]), the plaintiff has not submitted any proof regarding the actual legal fees expended in bringing on this application. Accordingly, that branch of the motion is denied.

This shall constitute the Decision and Order of this Court.

Dated: June 25, 2012

E N T E R:

___________________________

HON. DANIEL PALMIERI

J.S.C.