Garry v. Garry
| Decision Date | 30 September 1983 |
| Citation | 121 Misc.2d 81,467 N.Y.S.2d 175 |
| Parties | Robert T. GARRY, Plaintiff, v. Judith K. GARRY, Defendant. |
| Court | New York Supreme Court |
Robert M. Rosen, Garden City, for plaintiff.
David M. Schwartz, Brooklyn, for defendant.
A husband charged with breaking into his wife's apartment in violation of a judgment awarding her exclusive possession may not avoid a contempt citation by a collateral attack upon the judgment itself. For such a judgment carries with it justified expectations of privacy and personal security, the preservation of which are perhaps the most important objectives of our governmental system. To countenance a breach of these expectations is to invite not only disrespect for the court, but a loss of faith in government itself. United States v. United Mine Workers, 330 U.S. 258, 312, 67 S.Ct. 677, 705, 91 L.Ed. 884 (Frankfurter, J., concurring). No judicial act could have more far-reaching consequences than repudiation of the power of its own decree. 1
For the reasons which follow, then, plaintiff is found to be in civil contempt, is ordered to pay $1,000 to defendant, and is ordered to return identified property or face further sanctions.
In this matrimonial action, a judgment was entered on March 18, 1983 dismissing plaintiff husband's complaint for divorce after trial, and granting defendant's counterclaim for support and other relief based upon an oral agreement of the parties dictated into the trial record.
The judgment specifically provided, pursuant to the parties' agreement, that "the defendant and children of the marriage shall have exclusive occupancy" of a condominium apartment in Westhampton jointly owned by the parties. 2 The judgment also provided that "plaintiff releases to the defendant any claim that he may have" to "the contents of ... the [Westhampton] condominium apartment...."
Defendant now moves by order to show cause to hold plaintiff in contempt for willfully violating the above quoted provisions of the judgment. She asserts that "sometime between March 25, 1983 and March 31, 1983, the latter date being the time when I arrived at the aforesaid condominium apartment with my children, I ascertained that the door locks to said apartment were changed, and upon entering thereto I ascertained that the following personal property had been removed therefrom:
(a) one color television from children's room;
(b) one Hoover vacuum;
(c) one enamel etching on an easel (beach scene);
(d) one boat model kit;
(e) one oil lamp;
(f) one ocean surf fishing rod and reel;
(g) one Royal Copenhagen ash tray; and
(h) miscellaneous items, including lobster bouys."
Defendant states further that "on a tape recorder at the condominium apartment, the plaintiff brazenly left a message for the defendant acknowledging that he had entered the apartment and changed the locks." As relief, defendant seeks an order punishing plaintiff for contempt, directing him to return the personal property taken, and awarding reasonable counsel fees.
In response to the motion, plaintiff's attorney submits an affirmation admitting that plaintiff entered the apartment and left a taped message for defendant. Nevertheless, the attorney asserts, first, that a motion for contempt "cannot be granted on motion papers." Second, he argues that plaintiff should not be held in contempt since the stipulation underlying the judgment awarding defendant exclusive occupancy of the apartment "is void and unenforceable." Although the attorney admits that, after the date plaintiff entered the apartment, a motion to vacate the judgment based upon the claim that the stipulation was improperly executed was rejected by Mr. Justice Pantano, he asserts that "the Court did not have the power to sign the Judgment" and urges that it should be vacated.
With regard to the personal property defendant claims was taken from the apartment, the attorney states, without an affidavit from his client denying that he has taken the property, that defendant's affidavit "is much too cryptic and leaves open a question as to whether or not the plaintiff removed the marital property or whether the premises were burglarized prior to the plaintiff entering the marital premises."
Under the Judiciary Law, this court has the power to punish both criminal and civil contempts. Judiciary Law §§ 750, 753. "[T]he main line distinction between criminal and civil contempt is that the one is an offense against public justice, the penalty for which is essentially punitive, while the other is an invasion of private right, the penalty for which is redress or compensation to the suitor." King v. Barnes, 113 N.Y. 476, 480, 21 N.E. 182 (1889).
Criminal contempt requires proof beyond a reasonable doubt that a party willfully violated a court order. See Powell v. Clauss, 93 A.D.2d 883, 461 N.Y.S.2d 413 (2d Dept.1983); Yorktown Central School District v. Y.C.T., 42 A.D.2d 422, 348 N.Y.S.2d 367, 372 (2d Dept.1973). In contrast, "willful disobedience of the court's mandate is not a requisite for civil contempt." Benson Realty Corp. v. Walsh, 73 Misc.2d 889, 343 N.Y.S.2d 55, 62 (Sup.Ct.N.Y.Co.1973); accord, McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Great Neck Pennysaver, Inc. v. Central Nassau Publications, Inc., 65 A.D.2d 616, 409 N.Y.S.2d 544, 546 (2d Dept.1978); see also 21 NY Jur 2d, Contempt § 9.
In the instant case, the motion papers do not specify whether defendant is seeking civil contempt, criminal contempt, or both. The court must therefore determine the appropriate nature of the proceeding by examining the reason for which resort to the court's contempt power is undertaken. See Matter of Anthony N., 106 Misc.2d 213, 430 N.Y.S.2d 1012, 1016 (Family Ct., Richmond Co.1980).
It is clear that the thrust of defendant's motion is for civil contempt. The order to show cause appears to have been drafted to conform to the procedural requirements for a motion for civil contempt, see Judiciary Law § 756, and the relief sought--namely, return of the property taken and an order awarding counsel fees--is remedial and compensatory in nature, rather than punitive.
In addition, nowhere in the order to show cause does defendant suggest that she is seeking criminal contempt. Both under the Judiciary Law, § 751(1), and as a matter of fundamental due process, an alleged contemnor is entitled to know that criminal contempt is being sought before the imposition of criminal sanctions may be considered. See Bloom v. Illinois, 391 U.S. 194, 198, 88 S.Ct. 1477, 1480, 20 L.Ed.2d 522 (1968) (); Gompers v. Buck Stove & Range Co., 221 U.S. 418, 446, 31 S.Ct. 492, 500, 55 L.Ed. 797 (); see also Spector v. Allen, 281 N.Y. 251, 256, 22 N.E.2d 360 (1939). Accordingly, the court declines to construe the motion as raising a claim for criminal contempt, and turns to consider whether civil contempt has been established.
For a party to be held in civil contempt, the mandate alleged to have been violated must be clear and explicit, and the violation must be established with reasonable certainty. Coan v. Coan, 86 A.D.2d 640, 447 N.Y.S.2d 29, 30-1 (2d Dept.), app. den., 56 N.Y.2d 804 (1982); Cleary v. Kenny Scow Co., 57 A.D.2d 313, 394 N.Y.S.2d 710, 714 (2d Dept.1977). The court must also find that the contemnor's actions "were calculated to or actually did defeat, impair, or prejudice the rights or remedies of the complainant." Powell v. Clauss, supra, 93 A.D.2d 883, 461 N.Y.S.2d 413; Planning Board v. Zoning Board of Appeals, 75 A.D.2d 686, 426 N.Y.S.2d 871, 873 (3d Dept.1980); Great Neck Pennysaver v. Central Nassau Pubs, supra, 65 A.D.2d 616, 409 N.Y.S.2d at 545-46; see also Judiciary Law §§ 753A, 754, 770.
Judged by these standards, defendant has made out a proper claim for civil contempt. The judgment upon which defendant relies explicitly provides that she is to have "exclusive occupancy" of the condominium apartment and provides further that plaintiff has no right to the contents of the apartment. Plaintiff's actions in entering the apartment, changing the locks, and removing certain property, are clearly prohibited by the terms of the judgment and equally clearly have the immediate effect of defeating defendant's rights as established by the judgment.
Contrary to plaintiff's contention that he cannot be held in contempt without a hearing, a hearing is unnecessary where the facts are not in dispute. See State v. Unique Ideas, Inc., 56 A.D.2d 295, 392 N.Y.S.2d 12, 14 (1st Dept.1977) modified on other grounds 44 N.Y.2d 345, 405 N.Y.S.2d 656, 376 N.E.2d 1301 (1977); Friendly Ice Cream Corp. v. Great Eastern Mall, Inc., 51 A.D.2d 883, 381 N.Y.S.2d 368, 369 (4th Dept.1976), app. dism. 39 N.Y.2d 1032, 387 N.Y.S.2d 248, 355 N.E.2d 303 (1976); cf. McDonnell v. Frawley, 23 A.D.2d 729, 257 N.Y.S.2d 689, 691 (1st Dept.1965). While it would be improper for the court to decline to order a hearing if any genuine factual disputes existed, see Powell v. Clauss, supra, 93 A.D.2d 883, 461 N.Y.S.2d 413, in this case plaintiff was ordered to show cause why he should not be held in contempt, and he has failed to do so.
By admitting the claim that plaintiff entered the apartment and by not denying that he changed the locks to the apartment, plaintiff's attorney has conceded the validity of these charges. Moreover, the attorney's speculation that plaintiff may not have removed...
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