Fuerst v. Fuerst

• Decision Date: 01 June 1987
• Citation: 131 A.D.2d 426,515 N.Y.S.2d 862
• Parties: Louis FUERST, Appellant-Respondent, v. Judith FUERST, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 862

515 N.Y.S.2d 862

131 A.D.2d 426

Louis FUERST, Appellant-Respondent, v. Judith FUERST, Respondent-Appellant.

Supreme Court, Appellate Division,

Second Department.

June 1, 1987.

Rose and Koerner, Brooklyn (Ronald J. Koerner, of counsel), for appellant-respondent.

Rudnick & Sheps, New York City (Elaine R. Sheps and Alan D. Scheinkman, of counsel), for respondent-appellant.

Before MANGANO, J.P., and THOMPSON, KUNZEMAN, and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by judgment dated September 9, 1981, (1) the plaintiff father appeals from stated portions of an order of the Supreme Court, Nassau County (Morrison, J.), dated September 30, 1985, which, inter alia, after a hearing, granted those branches of the defendant wife's cross motion which were to suspend his visitation and to direct him to resume payment of child support and maintenance and granted that branch of his motion which was to cancel certain arrears of child support and maintenance only to the extent of canceling child support arrears accruing after January 6, 1983; and (2) the defendant mother cross-appeals from stated portions of the same order, which, inter alia, granted those branches of the plaintiff's motion which were to adjudicate her guilty of contempt and to cancel child support arrears and denied that branch of her cross motion which was for counsel fees.

ORDERED that the order is modified, on the law, the facts, and as an exercise of discretion, by (1) deleting the provision thereof suspending the father's visitation rights set forth in a certain stipulation entered into on January 6, 1983, and (2) adding a provision thereto canceling any arrears in maintenance which accrued from January 6, 1983, until the day he was directed to resume child support and maintenance payments; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new hearing as to when, and under what circumstances, visitation should resume, which hearing shall be conducted with all convenient speed.

Contrary to the mother's contentions on her cross appeal, we find that she was properly adjudged to be in civil contempt of a lawful mandate of the court under Judiciary Law § 753.

We find no merit to the mother's claim that the January 6, 1983 stipulation of the parties read into the record in open court cannot provide the basis for her adjudication of contempt. The court's "so order[ing]" the stipulation without objection, pursuant to the request of the father's attorney, dispensed with the necessity for a written order to be served with notice of entry. As stated in the case of Matter of Wiggins v. Ithaca Journal News, 57 Misc.2d 356, 363, 292 N.Y.S.2d 920, "[t]he fact that an oral direction was given in open court has been held to be just as binding upon those who heard it as if it were written" (cf., Gingold v. Gingold, 48 A.D.2d 623, 367 N.Y.S.2d 791). We also note that under an earlier order of the same court dated June 10, 1982 (Becker, J.), provision was also made with respect to scheduling certain visitation by the father with the infant children.

Based upon the evidence adduced at the hearing, the trial court properly concluded that the mother willfully and repeatedly impeded the father's right to visit with his daughters, who were at the time of the hearing aged 11 years old and almost 13 years old, respectively (see, Young v. Young, 129...