Opinion
April 27, 1987
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order is modified, by (1) deleting the reference to Judiciary Law § 750 from the second decretal paragraph thereof, (2) deleting the third decretal paragraph thereof and substituting therefor a provision directing the incarceration of the plaintiff for a definite period of 15 days, and (3) adding a provision imposing a $250 fine upon the plaintiff; as so modified, the order is affirmed, with costs payable by the plaintiff. The plaintiff's time to pay the $250 fine is extended until five days after service upon him of a copy of this decision and order, with notice of entry.
We find, based upon an independent review of the record, that the plaintiff was properly adjudged to be in civil contempt (see, Judiciary Law § 753). The testimony adduced at the hearing clearly established that the plaintiff's disobedience of the prior order awarding the defendant visitation frustrated and impeded the defendant's right to visit with her son (see, Judiciary Law § 753 [A] [3]; Gordon v Janover, 121 A.D.2d 599; Kampf v Worth, 108 A.D.2d 841, 842). We find no merit to the plaintiff's contention that he was precluded from presenting his son's testimony at the hearing.
However, we cannot sanction the six-month term of imprisonment. We find that a more appropriate punishment is a definite term of imprisonment of 15 days and the imposition of a $250 fine (see, Judiciary Law §§ 773, 774). While the plaintiff claims that he should be given an opportunity to purge himself of his contempt, he cannot purge himself as to the days of visitation already lost to the defendant. Therefore, a definite term of imprisonment is appropriate under the circumstances (see, Matter of Marallo v Marallo, 128 A.D.2d 710; cf., N.A. Dev. Co. v Jones, 99 A.D.2d 238, 240-241).
We have considered the plaintiff's other contentions and find that they do not warrant any further modification of the challenged order. Bracken, J.P., Lawrence, Kunzeman and Spatt, JJ., concur.