Schoonheim v. Schoonheim

92 A.D.2d 474, 459 N.Y.S.2d 56, 1983 N.Y. App. Div. LEXIS 16677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1983
• Status: Published

Opinions

— Order (in form of the transcript of the proceedings, marked “So Ordered”), Supreme Court, New York County (Gabel, J.), dated July 28, 1982, directing visitation and requiring plaintiff husband to post a $25,000 bond, is modified, on the law and the facts, and in the exercise of discretion, to the extent of striking the direction that if the husband fails to appear with his daughter at the mother’s residence as directed by the court that the bond be forfeited and his attorneys be directed to turn “it” (the bond or collateral) over to the mother or her attorney on five days’ written notice of the default, and the order is otherwise affirmed, without costs. Under the circumstances which confronted Special Term, we find that the court properly directed the posting of a bond to condition compliance with the order directing a nine-day period of visitation by the daughter with her mother, from August 16 through August 24, 1982. In light of the several prior actions by the husband father, in continuing flagrant and deliberate disregard of court orders as to the visitation rights of the wife mother, we conclude that Special Term did exercise its discretion properly by requiring that a bond be posted by him to ensure the appearance of the child in accordance with the direction of the court. The record reflects several prior applications to enforce the visitation rights of the mother, which were rendered necessary because of plaintiff’s arrogant defiance of court orders. The posting of a bond, under the circumstances of this case, was warranted. However, we are. in agreement that the forfeiture aspect of the bond, as directed by Special Term, was an improvident exercise of discretion and, accordingly, we strike so much of the order as directed a forfeiture thereof upon plaintiff’s failure to comply. We disagree with Justice Silverman, .who concludes that the imposition of a bond conflicted with the statutory scheme to punish for contempt. To the contrary, the posting of a bond in marital actions to safeguard and ensure custody and visitation rights has been approved in this court and in others. In Meltzer v Meltzer (54 AD 2d 633), we reduced from $25,000 to $10,000 the bond to be posted under a modified decree, after finding that a bond was necessary to ensure the return of the child following visitation with the mother. (See, also, Matter of Reinhart v Reinhart, 33 Mise 2d 80, 82.) In Lyritzis v Lyritzis (55 AD2d 946), the Appellate Division, Second Department, deleted from the order awarding custody and fixing visitation rights, a direction that the father post a performance bond as a condition to removal of the son from the United States during visitation, concluding only that such a direction was unwarranted on the record there. A bond may be directed in a proper case in conjunction with the disposition by the court on the issue of custody and visitation. Such a direction, where appropriate, may be made in conformity with the judicial obligation imposed by subdivision 1 of section 240 of the Domestic Relations Law, which provides that “the court must give such direction, between the parties, for the custody, care, education and maintenance of any child of the parties, as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child.” Under the circumstances here, faced with plaintiff’s clear record of ignoring judicial mandates, Special Term properly ordered a bond to preserve the visitation rights of the mother, in accordance with the judgment of divorce and consistent with the court’s responsibility under the statute. To conclude otherwise would permit the father to enjoy the benefits of the divorce decree which conferred upon him custody of the daughter, while at the same time, frustrating the visitation rights of the mother (cf. Sipos v Sipos, 73 AD2d 1055, where the court conditioned the obligation of continued support upon the mother’s compliance with the decreed visitation rights of the father). As to the question of the purpose of the bond and what is to be encompassed thereunder, it is intended to be security for nonperformance by the party posting the undertaking and, upon the occurrence of such nonperformance, then the court may determine the scope of the contempt, fine or damages to be paid therefrom. We disagree with Justice Silverman’s conclusion that such a bond must be in the nature of a quid pro quo. The court may direct that it be posted to act as a form of guarantee of performance, as it determines, in accordance with the clear mandate of subdivision 1 of section 240 of the Domestic Relations Law. Finally, we note that respondent’s brief violates established appellate procedures in that it contains a number of pages of purported statements of fact with no record references, and as to which appellant states that these purported facts are not in the record at all. However, as these non-record-supported statements have not played a part in our decision, we see no useful purpose to be served at this stage by directing the striking of these portions of the brief. Concur — Kupferman, J. P., Carro, Fein and Kassal, JJ.