Couture v. Garland

—Order unanimously vacated, without costs. Memorandum: In the original contempt proceeding out of which the present matter arises, Special Term specifically rejected the sanction of imprisonment against defendant stating: "the question, of course, then becomes how do we deal with this conduct which I find existed which is contemptuous. It’s certainly not going to do Mr. Couture any good or Ms. Garland any good or the children any good if I send her to jail. So, it’s this court’s determination that the finding of contempt *345will stand and that based upon my calculations as to the time lost by Mr. Couture, that time will be made up by additional rights that he will have to * * * access to the children.” The court then ordered that, as punishment to defendant for her contempt, plaintiff be awarded an additional three weeks of visitation privileges with his children to be exercised during Christmas week of 1983 and two additional weeks in the summer of 1984. All further proceedings were then transferred to Erie County Family Court where, it appears, extensive proceedings have been conducted ever since.

On appeal to this court, insofar as is relevant to the instant proceeding, we held that the court erred in expanding plaintiff’s visitation privilege as punishment to defendant for her contempt. "Only a fine or imprisonment are authorized dispositions upon a contempt determination (Judiciary Law, § 753, subd A; § 770)” (Couture v Garland, 105 AD2d 1158, 1159, appeal dismissed 64 NY2d 1040). We did not find it necessary to vacate the disposition because by that time the expanded visitation had already been exercised by plaintiff and the error in the mode of punishment could not be remedied.

Following our order, upon application by plaintiff for an appropriate contempt citation against defendant, Special Term ordered defendant imprisoned for 30 days to be served on consecutive weekends. This was error. While the punishment originally imposed by the court was inappropriate, it was, nevertheless, punishment and the price has been paid. The effect of the order appealed from herein imposes the additional punishment of imprisonment for the same contempt. (Appeal from order of Supreme Court, Erie County, Mintz, J. —contempt of court.) Present—Doerr, J. P., Boomer, O’Donnell, Pine and Schnepp, JJ.