Opinion
2017–08704 Docket Nos. V-4070-12, V-4071-12
11-14-2018
In the Matter of Darren PALMITESTA, Appellant, v. Elizabeth PALMITESTA, Respondent.
Amy L. Colvin, Huntington, NY, for appellant. Carol J. Lewisohn, Cedarhurst, NY, attorney for the children.
Amy L. Colvin, Huntington, NY, for appellant.
Carol J. Lewisohn, Cedarhurst, NY, attorney for the children.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The parties have two children. In a stipulation of settlement dated August 3, 2011, which was incorporated but not merged into the parties' judgment of divorce entered May 18, 2012, the parties agreed that the mother would have custody of the children and that the father would have parental access. In September 2015, the father moved to hold the mother in civil contempt for her failure to comply with the parental access provisions of the stipulation of settlement. Almost two years later, by order dated July 31, 2017, the Family Court, without a hearing, in effect, denied the motion. The father appeals.
The primary purpose of civil contempt is remedial (see Matter of Rubackin v. Rubackin , 62 A.D.3d 11, 16, 875 N.Y.S.2d 90 ). Any penalty imposed "is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate or both" ( Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y. , 70 N.Y.2d 233, 239, 519 N.Y.S.2d 539, 513 N.E.2d 706 ).
Here, at the time the father's motion was decided, the mother was complying with the parties' stipulation. Thus, although the mother may have failed to comply with the stipulation in the past, at the time the father's motion was decided, a civil contempt finding no longer could have served its intended purpose of compelling obedience to the parties' stipulation. The only purpose of a civil contempt sanction at that point would have been to punish the mother, but punishment is the purpose of criminal contempt, not civil contempt. Thus, we agree with the Family Court's determination, in effect, denying the father's motion (see id. at 239, 519 N.Y.S.2d 539, 513 N.E.2d 706 ; Matter of Peer , 50 A.D.3d 1511, 1512, 856 N.Y.S.2d 385 ; Carr v. Decesare , 280 A.D.2d 852, 853, 720 N.Y.S.2d 411 ).
RIVERA, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.