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.