Rechberger v. Rechberger

Appellate Division of the Supreme Court of New York

Rechberger v. Rechberger

139 A.D.2d 906, 528 N.Y.S.2d 452, 1988 N.Y. App. Div. LEXIS 4071

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

DecidedApril 8, 1988

DocketAppeal No. 1

StatusPublished

Cited by7 cases

This text of 139 A.D.2d 906 (Rechberger v. Rechberger) 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

Rechberger v. Rechberger, 139 A.D.2d 906, 528 N.Y.S.2d 452, 1988 N.Y. App. Div. LEXIS 4071 (N.Y. Ct. App. 1988).

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Opinion

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The [907]*907court properly found defendant in contempt for failing to comply with certain provisions of the amended judgment of divorce, and we agree with all of the provisions contained in the order except insofar as it imposed a fine of $50 per day for each day that defendant failed to comply with the order. The fine in a civil contempt proceeding is designed to compensate the plaintiff, not to punish the defendant (Matter of McCormick v Axelrod, 59 NY2d 574, 583). Where the party asking for a contempt finding proves monetary damages as a result of the contemptuous conduct, that party may recover those damages. Where the party fails to prove the amount of damage suffered, the court may award that party only costs and attorney’s fees, plus $250 "in addition thereto” (Judiciary Law § 773; State of New York v Unique Ideas, 44 NY2d 345, 349; Rosenblitt v Rosenblitt, 121 AD2d 375). Inasmuch as no actual damages were proven by plaintiff as a result of defendant’s lack of compliance, the court’s order should be modified to delete the imposition of a fine of $50 per day for 30 days, and replaced with a definite fine of $250. This $250 would be in addition to plaintiff’s costs and attorney’s fees, determined by the court to be $1,500.

Defendant also appeals from the court’s denial of his motion "to reopen, reconsider and vacate” the earlier in-court stipulation of the parties, basically a motion to reargue. The court heard extensive argument of counsel on this motion, reserved decision and wrote a thoughtful memorandum denying the motion. Procedurally, we regard the matter as one where the court did grant reargument and then adhered to its original determination wherein it denied defendant’s cross motion for the same relief in the contempt proceedings. We agree with the court’s determination for the reasons stated in its memorandum decision. (Appeal from order of Supreme Court, Wyoming County, Feeman, J. — civil contempt.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.

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— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The [907]*907court properly found defendant in contempt for failing to comply with certain provisions of the amended judgment of divorce, and we agree with all of the provisions contained in the order except insofar as it imposed a fine of $50 per day for each day that defendant failed to comply with the order. The fine in a civil contempt proceeding is designed to compensate the plaintiff, not to punish the defendant (Matter of McCormick v Axelrod, 59 NY2d 574, 583). Where the party asking for a contempt finding proves monetary damages as a result of the contemptuous conduct, that party may recover those damages. Where the party fails to prove the amount of damage suffered, the court may award that party only costs and attorney’s fees, plus $250 "in addition thereto” (Judiciary Law § 773; State of New York v Unique Ideas, 44 NY2d 345, 349; Rosenblitt v Rosenblitt, 121 AD2d 375). Inasmuch as no actual damages were proven by plaintiff as a result of defendant’s lack of compliance, the court’s order should be modified to delete the imposition of a fine of $50 per day for 30 days, and replaced with a definite fine of $250. This $250 would be in addition to plaintiff’s costs and attorney’s fees, determined by the court to be $1,500.

Defendant also appeals from the court’s denial of his motion "to reopen, reconsider and vacate” the earlier in-court stipulation of the parties, basically a motion to reargue. The court heard extensive argument of counsel on this motion, reserved decision and wrote a thoughtful memorandum denying the motion. Procedurally, we regard the matter as one where the court did grant reargument and then adhered to its original determination wherein it denied defendant’s cross motion for the same relief in the contempt proceedings. We agree with the court’s determination for the reasons stated in its memorandum decision. (Appeal from order of Supreme Court, Wyoming County, Feeman, J. — civil contempt.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.

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139 A.D.2d 906, 528 N.Y.S.2d 452, 1988 N.Y. App. Div. LEXIS 4071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rechberger-v-rechberger-nyappdiv-1988.

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