Couture v. Garland

Appellate Division of the Supreme Court of New York

Couture v. Garland

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 7, 1984

StatusPublished

Cited by5 cases

This text of 105 A.D.2d 1158 (Couture v. Garland) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Couture v. Garland, 105 A.D.2d 1158, 482 N.Y.S.2d 182, 1984 N.Y. App. Div. LEXIS 21289 (N.Y. Ct. App. 1984).

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Opinion

Order unanimously modified, on the facts, and, as modified, affirmed, without costs, [1159]*1159and 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.

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Order unanimously modified, on the facts, and, as modified, affirmed, without costs, [1159]*1159and 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.

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Bluebook (online)

105 A.D.2d 1158, 482 N.Y.S.2d 182, 1984 N.Y. App. Div. LEXIS 21289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/couture-v-garland-nyappdiv-1984.

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