Couture v. Garland

105 A.D.2d 1158, 482 N.Y.S.2d 182, 1984 N.Y. App. Div. LEXIS 21289

Opinion

Order unanimously modified, on the facts, and, as modified, affirmed, without costs, and matter remitted to Erie County Family Court for further proceedings in accordance with the following memorandum: On the record before us, the court erred in denying defendant’s application to modify plaintiff’s visitation privileges. Although the findings of fact of the nisi prius are entitled to great weight, we find the testimony of defendant’s expert to be compelling and to warrant exclusion of overnight visitation. The child’s welfare is the prime concern of the courts in visitation applications (Weiss v Weiss, 52 NY2d 170, 174; Matter of Ebert v Ebert, 38 NY2d 700, 702). The fifth ordering paragraph must be vacated and the following substituted therefor: “Ordered that plaintiff’s visitation rights shall be modified to exclude overnight visitation.”

The court also erred when, after finding defendant in contempt of the court, it expanded plaintiff’s visitation privilege as punishment to defendant. Only a fine or imprisonment are authorized dispositions upon a contempt determination (Judiciary Law, § 753, subd A; § 770).

The order is otherwise affirmed to the extent it is not inconsistent herewith. (Appeals from order of Supreme Court, Erie County, Mintz, J. — divorce, contempt.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.