Skripek v. Skripek

• Decision Date: 19 May 1997
• Citation: 658 N.Y.S.2d 62,239 A.D.2d 488
• Parties: Judi Rolin SKRIPEK, Respondent, v. Joseph P. SKRIPEK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 62

658 N.Y.S.2d 62

239 A.D.2d 488

Judi Rolin SKRIPEK, Respondent, v. Joseph P. SKRIPEK, Appellant.

Supreme Court, Appellate Division Second Department.

May 19, 1997.

Brinton & January, White Plains, (Derick C. January, of counsel), for appellant.

Before BRACKEN, J.P., and SULLIVAN, SANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Orange County (DiBlasi, J.), dated March 22, 1996, which, upon his failure to comply with certain provisions of a prior order of the same court dated July 17, 1995, inter alia, adjudged him guilty of criminal contempt and imposed a $1000 fine and a term of imprisonment of 30 days.

ORDERED that the order is affirmed, with costs.

Initially, where as here, there is no allegation that the Trial Justice is legally disqualified from presiding over the proceeding (see, Judiciary Law § 14), disqualification is only appropriate where the court's impartiality might reasonably be questioned (see, Matter of Johnson v. Hornblass, 93 A.D.2d 732, 461 N.Y.S.2d 277). On the record before this court, we conclude that the Trial Justice did not improvidently exercise his discretion in concluding that his recusal was not warranted (see, Matter of D'Alessio v. Gilberg, 208 A.D.2d 625, 618 N.Y.S.2d 222).

Further, notwithstanding a party's good faith belief that a court's order raises a conflict and irrespective of how misguided and erroneous the court's order may be, a party is not free to disregard it and decide for himself the manner in which to proceed (see, Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590-91, 42 L.Ed.2d 574; Matter of Balter v. Regan, 63 N.Y.2d 630, 479 N.Y.S.2d 506, 468 N.E.2d 688, cert. denied 469 U.S. 934, 105 S.Ct. 333, 83 L.Ed.2d 269; Matter of Village of St. Johnsville v. Triumpho, 220 A.D.2d 847, 848, 632 N.Y.S.2d 263; Sprecher v. Port Washington Union Free School Dist., 166 A.D.2d 700, 561 N.Y.S.2d 284). Courts have repeatedly held that criminal contempt proceedings do not fall within the scope of the automatic stay under section 362(a) of the United States Bankruptcy Code (11 U.S.C. § 362[a]; see, Matter of Maloney, 204 B.R. 671; Matter of Moon, 201 B.R. 79, 84-85; Matter of Newman, 196 B.R. 700, 704; Matter of Campbell, 185 B.R. 628; Matter of Kearns, 168 B.R. 423; Matter of Rook,102 B.R. 490, 493-494; see also, Scully v. Iowa Dist. Ct. for Polk County, 489 N.W.2d 389, 392-393 [Iowa] ).

In the case herein, where the order appealed from clearly served to punish the defendant for disregarding a prior order of the court dated July 17, 1995, the order appealed from was issued to protect the dignity and the power of the court to regulate proceedings before it. Accordingly, the defendant was not at liberty to disregard the earlier order, where at the time it was issued, that order was facially valid and sufficiently clear (see, 11 U.S.C. § 362[b][1], [4]; Matter of Rivera v. Smith, 63 N.Y.2d 501, 516, 483 N.Y.S.2d 187, 472 N.E.2d 1015; Sigmoil Resources N.V. v Fabbri, 228 A.D.2d 335, 644 N.Y.S.2d 503 [1st Dept.]; Kampf v. Worth, 108...