Opinion
2001-10960, 2002-00106
Argued May 14, 2002.
September 10, 2002.
In a matrimonial action in which the parties were divorced by judgment dated June 15, 2001, (1) the mother appeals from so much of an amended order of the Supreme Court, Nassau County (Marano, J.), dated December 3, 2001, as denied her cross motion, inter alia, to relocate with the parties' children to Chester, granted that branch of the father's motion which was for an award of an attorney's fee to the extent of directing her to pay 50% of the father's attorney's fee, and directed her to pay 100% of the Law Guardian fee, and the father cross-appeals from so much of the same amended order as denied that branch of his motion which was to hold the mother in contempt, and granted that branch of his motion which was for an award of an attorney's fee only to the extent of directing the mother to pay 50% of his attorney's fee, and (2) the father separately appeals from stated portions of an order of the same court, dated November 21, 2001.
Linda L. Mellevold, New York, N.Y., for Radmila Kasal.
Posner Gaier, Hempstead, N.Y. (Stephen Posner and Phyllis Gaier of counsel), for Jan Kasal.
Susan D. Levering, Hicksville, N.Y., Law Guardian for the children.
Before: MYRIAM J. ALTMAN, J.P., HOWARD MILLER, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
ORDERED that the appeal from the order dated November 21, 2001, is dismissed as that order was superseded by the amended order dated December 3, 2001; and it is further,
ORDERED that the amended order is modified, on the law, by (1) deleting the provision thereof denying that branch of the father's motion which was to hold the mother in contempt and substituting therefor a provision granting that branch of the motion, and (2) deleting the provision thereof granting that branch of the father's motion which was for an award of an attorney's fee only to the extent of directing the mother to pay 50% of his attorney's fee and substituting therefor a provision granting that branch of the motion in its entirety and directing the mother to pay 100% of the father's attorney's fee; as so modified, the amended order is affirmed insofar as appealed and cross-appealed from, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings on that branch of the father's motion which was to hold the mother in contempt; and it is further,
ORDERED that one bill of costs is awarded to the father.
The parties executed a so-ordered stipulation, dated January 26, 2001, which was incorporated but not merged into the judgment of divorce dated June 15, 2001. Under the terms of the stipulation, the parties were awarded joint custody of the subject children, with physical custody to the mother and liberal visitation to the father. Further, the stipulation indicated that "[n]either party shall relocate his or her residence outside of the counties of Nassau and/or Queens, without prior permission of the Court or written consent of the other party." The mother subsequently remarried and relocated with the children from Nassau County approximately 80 miles away to her new marital residence in Chester, without court permission or the father's written consent.
The father subsequently moved, inter alia, to hold the mother in contempt for violating the terms of the so-ordered stipulation and for an award of an attorney's fee for enforcement of the stipulation. The mother cross moved, inter alia, for permission to relocate the children to Chester.
After a hearing, the Supreme Court, inter alia, concluded that it was in the children's best interest to strictly enforce the parties' stipulation, and, therefore, denied the mother's request to relocate with the children to Chester. Although the Supreme Court found that the mother had knowingly and intentionally violated the terms of the so-ordered stipulation by relocating with the children, the court denied that branch of the father's motion which was to hold her in contempt. The Supreme Court also directed the mother to pay 100% of the law guardian's fee, but only 50% of the father's attorney's fee.
The Supreme Court providently exercised its discretion in determining that, under the totality of circumstances, the best interests of the children required enforcement of the custody arrangement negotiated by the parties, and, accordingly, denying the mother's request, inter alia, for relocation (see Matter of Tropea v. Tropea, 87 N.Y.2d 727; Eschbach v. Eschbach, 56 N.Y.2d 167).
However, the Supreme Court's denial of that branch of the father's motion which was to hold the mother in contempt was in error, as the court directly contradicted its own findings of fact, which had a sound and substantial basis in the record (see Matter of Fishel v. New York State Div. of Hous. Community Renewal, 172 A.D.2d 835, 837-838). Moreover, pursuant to Judiciary Law §§ 770 and 773, incarceration is not the exclusive punishment to be imposed upon a finding of contempt.
Further, the Supreme Court also erred in only partially granting that branch of the father's motion which was for an award of an attorney's fee by directing the mother to pay only 50% of such fee in light of her admitted violation of the so-ordered stipulation. The Supreme Court's findings required the court to award the father 100% of his attorney's fee incurred in this matter (see Green v. Green, 288 A.D.2d 436, 437).
The mother's remaining contentions are without merit.
ALTMAN, J.P., H. MILLER, CRANE and COZIER, JJ., concur.