Justice Daniel Palmieri

No retroactive fine or suspension of maintenance is to be  imposed against a wife who violated her so-ordered stipulation not to allow her paramour into the marital residence. Instead, suspension of maintenance and a fine would only be imposed prospectively and only until the wife complied with that stipulation. Civil contempt fines are not intended to punish the wrongdoer, but to secure future compliance with court orders.

Such was the holding of the Appellate Decision, Second Department, in its May 22, 2013 affirmance of Nassau County Supreme Court Justice Daniel Palmieri‘s order in Ruesch v. Ruesch.

For the pendency of this divorce action, the wife had been awarded exclusive possession of the marital home, temporary custody of the parties’ children, maintenance and child support.

At some point, the wife had permitted her alleged paramour to move into the marital home. In a so-ordered stipulation, the wife agreed that her paramour would be barred from entering the marital home absent further order of the court. A month later, the husband moved to hold the wife in contempt of that so-ordered stipulation because the paramour was continuing to reside in the marital residence.

Upon the wife’s admission that she permitted her paramour to continue to reside in the marital residence, Justice Palmieri held the wife in contempt pursuant to Judiciary Law §753. Justice Palmieri prospectively and temporarily suspended maintenance payments and imposed a fine of $250 for each day the wife remained in violation until the wife purged her contempt by demonstrating compliance with the so-ordered stipulation. Justice Palmieri denied the husband’s request for a counsel fee.

On appeal, the husband  contended that Justice Palmieri should have suspended maintenance payments and imposed a fine retroactive to the first day the wife violated the so-ordered stipulation.

The Second Department affirmed. Justice Palmieri had properly recognized that civil contempt fines are remedial in nature and not punitive. In the absence of a monetary loss for the husband, the contempt fine would be designed only to secure future compliance  with the so-ordered stipulation.

The appellate court held that unlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The fine for a civil contempt should be formulated not to punish an offender, but solely to compensate or indemnify private complainants. Thus, a fine is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss. The violator must be given the opportunity to comply, and thereby purge the violation.

Here, where the [husband] failed to prove an actual loss, any penalty that punished the [wife] for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication. Accordingly, the Supreme Court did not err in suspending maintenance payments and imposing a fine only prospectively.

The Second Department also held there was no merit to the husband’s appeal of the denial of his application for an award of counsel fees.

In divorce actions, it is not uncommon for one party to be made the financial obligor, and the other to perform some action. If the power of the court is to be administered even-handedly, its remedies must be balanced.

Should our stipulations themselves state what the remedy will be for a violation? Will a liquidated damages provision be upheld?

If Ms. Ruesch can avoid even a slap on the wrist by finally complying with the order she had violated for four months, is respect for the court’s orders truly being promoted? Indeed, with the denial of even a counsel fee, what is the lesson to be learned here?

The husband was represented on the appeal by Edward K. Blodnick, Thomas R. Fazio, and Steven R. Talan of Blodnick, Fazio & Associates, P.C., of Garden City.

Palmieri.jpgResolving the rights and obligations of a couple incident to their divorce often involves the delicate balancing of property rights, spousal and child support, and custody and parenting issues. Attempting an orderly resolution in different forums simultaneously may be impossible.

The July 26, 2012 decision of Nassau County Supreme Court Justice Daniel Palmieri in Loike v. Kletenik, shows just how messy things can get. That decision resolved a husband’s application to vacate the award of a Jewish tribunal, a “Beth Din,” and to downwardly modify a Consent Order of support entered October 25, 2010 before Nassau County Family Court Support Magistrate Neil Miller. That order directed the husband to pay bi-weekly support for the three minor children of the marriage.

In the subsequently commenced Supreme Court divorce action, Justice Jeffrey S. Brown issued a pendente lite order that denied a request for temporary child support because the Consent Order was in place. This, Justice Palmieri opined, lent additional judicial force to the terms of the Consent Order and effectively adopted it in lieu of a separate order for temporary child support.

The wife thereafter moved to hold her husband in contempt for his failure to comply with the temporary support order.  However, that contempt motion was withdrawn on March 7, 2011 when the parties entered into a written agreement to arbitrate their financial and other issues before the Beth Din.

After the parties entered that agreement, the Family Court on June 7, 2011 issued a Final Order of Custody and Parenting Time (Stacey D. Bennett, FCJ). However, even though the parties had earlier entered their agreement to arbitrate, the Beth Din arbitrators were not empowered to make final and enforceable decisions about custody and visitation. New York’s public policy requires that such decisions only be made by the secular courts.

On that basis, Justice Palmieri vacated that portion of the Beth Din award that provided that unresolved disputes concerning the children would be referred to a named Rabbi.

A party gives up substantial rights under both substantive law and procedure when electing to arbitrate. Appellate review is all but completely absent.

Here, having participated in the Beth Din arbitration and failing to raise objections to the panel, the husband waived any claim that the process was tainted or was biased against him. Quoting the  of Appeals in Matter of Silverman (Benmore Coats), 61 N.Y.2d 299 (1984), Justice Palmieri held:

The only basis upon which an award can be vacated at the behest of a party who participated in the arbitration. . . Is that the rights of that party were prejudiced by corruption, fraud or misconduct in procuring the award, partiality of an arbitrator, that the arbitrator exceeded his power or failed to make a final and definite award, or a procedural failure that was not waived.

The husband’s claims that the arbitrators exceeded their powers must rest on the fact that the award violated a strong public policy, was irrational, or clearly exceeded a specific limitation on the arbitrators’ powers.

Continue Reading Substantial Legal and Procedural Rights Are Lost in Divorce Arbitration Before Jewish Beth Din Panel

Gavel 2.jpgElevating substance over form, Supreme Court Monroe County Acting Justice Richard A. Dollinger allowed a husband to amend his complaint in a 2009 divorce action to add a no-fault claim under D.R.L. §170(7), effective October 12, 2012.

Justice Dollinger in his April 16, 2012 decision in G.C. v. G.C. (pdf), noted New York’s public policy is to freely grant permission to amend complaints. The wife objected, noting that the Legislature expressly limited no-fault claims to actions commenced after its effective date.

D.R.L. §170(7) permits a divorce to be granted upon the sworn declaration of a party that the marriage has been “irretrievably broken down for a period of six months.” Justice Dollinger stated that the Legislature’s limitation of such a no-fault ground to actions commenced after the October 12, 2010 effective date of the statute, was satisfied by requiring that no such claim could be raised by amended complaint until six months after the effective date.

When the husband moves to amend his complaint to add a cause of action under Section 170(7), he does not violate the language of the statute or the intention of the Legislature, Instead, he seeks to. invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken.

Continue Reading Judge Allows No-fault Divorce Claim to be Added to Pre-No-fault Case