DECISION + ORDER ON MOTION Plaintiff T.H. (“Husband”) moved, by Order to Show Cause, for an order finding Defendant M.B. (“Wife”) in contempt of court for willful non-compliance with the Court’s orders directing her to pay monthly pendente lite child support and maintenance. By Decision and Order dated March 30, 2023, this Court found, pursuant to Judiciary Law Section §753(3), the Wife guilty of civil contempt for her willful non-compliance with the terms of the orders of this Court by failing to pay monthly pendente lite spousal support in the amount of $13,212 ($734 per month from August 1, 2021 through January 1, 2023) and pendente lite child support in the amount of $38,367 ($1,827 per month from August 1, 2021 through April 1, 2023), amounting in all to $51,579, less a credit of $3,050 for support paid, for total arrears due in the sum of $48,529 ($51,579-$3,050). The Court gave the Wife until April 28, 2023, to purge her contempt by paying the Husband the sum of $24,264.50, or half of the full arrears due, or be subject to further sanction, including arrest. This matter reconvened on April 28, 2023, and the Wife did not fully purge her contempt. She paid a total of $3,500. On the same day, this Court issued an Order of Commitment committing the Wife to the Custody of the Sheriff of New York County for delivery to the New York City Department of Corrections to be held for a maximum term of THREE (3) weeks commencing April 28, 2023, unless she purged herself of her contempt by payment of the sum of $20,764.50 to the Husband. By Amended Order of Commitment dated May 16, 2023, the Court modified the Wife’s incarceration term to NINETEEN (19) DAYS, commencing April 28, 2023 and ending on May 17, 2023. On May 17, 2023, the Wife was discharged from the custody of the New York City Department of Corrections. The Court now finds that the Wife has satisfied her purge amount of $20,764.50 by completing her incarceration period of nineteen days. It is well-settled that “[i]n civil contempt [proceedings], the civil contemnor is said to hold the keys to the prison because they have the ability to end the incarceration upon compliance with the Court’s order” (Crocker C. v. Anne R., 58 Misc3d 1221(A), 1222 [Sup Ct Kings County 2018]). Thus, the court will permit the contemnor “to purge his contempt and thereby avoid incarceration by paying [the] child support arrears [due]” (see Avraham v. Avraham, 155 AD3d 931 [2d Dept 2017], citing Matter of Rubackin v. Rubackin, 62 AD3d 11, 16 [2d Dept 2009] [finding that the period of incarceration will cease if the contemnor commits the affirmative act required by the purge condition]; S.M.S. v. D.S., 54 Misc3d 779, 783 [Sup Ct Richmond County 2016]). Here, the Wife was ordered to comply with a lawful order of pendente lite support. She had an opportunity at any time in the month prior to her incarceration to purge her contempt by paying the purge amount, but she did not. Even while incarcerated, she again had the opportunity to purge her contempt, but she did not. At all times the Wife held the keys to her imprisonment in her own pocket to end her incarceration prior to her scheduled release date, but she failed to do so. Since the Wife failed to purge her contempt, the Court is now presented with the question: does the full incarceration period satisfy the purge amount of $20,764.50? The Court has examined the controlling law but found no case directly answering this question. Rather, of the cases found on this issue, the party has paid the purge amount prior to the full term of incarceration resulting in their release, and in some cases, a money judgment was entered for additional arrears due (see generally Cutroneo v. Cutroneo, 140 AD3d 1006 [2d Dept 2016] [defendant purged contempt and was released from incarceration and the court then entered a money judgment for additional arrears]; see generally Zullo v. Hom, 10 AD3d 614, 616 [2d Dept 2004] [defendant released after full payment of child support arrears]). Thus, the Court is without guidance as to the proper outcome where, as here, a party has failed to satisfy a purge amount but nevertheless satisfied the full incarceration period. The Court recognizes, on the one hand, that the purpose of child support is “to assist [the] custodial parent in providing the child with shelter, food, and clothing” (Rubin v. Salla, 107 AD3d 60 [1st Dept 2013]). The Court also recognizes the importance of enforcing its own orders especially child support orders. On the other hand, however, the Court is troubled by the punitive nature of depriving the Wife of her liberty for failing to pay the civil contempt purge amount and then entering a money judgment against her that includes the same sum. The outcome is then punitive rather than remedial, contrary to the purpose and goal of civil contempt (see New York City Tr. Auth. v. Transport Workers Union of Am., AFL-CIO, 35 AD3d 73, 86 [2d Dept 2007] ["contempt sanction is viewed as civil if it is 'remedial,' and for the benefit of the complainant"; "Contempt sanctions may involve imprisonment or fines" and imprisonment for fixed term with opportunity to purge contempt "and obtain early release…is a coercive, civil penalty"]; Wheeler-Brown v. Brown, 20 Misc3d 211 [Sup Ct Orange County 2008] citing Matter of Barclays Bank v. Hughes, 306 AD2d 406 [2d Dept 2003]) ["a civil contempt proceeding is not to punish or deter, but to compensate"]). This Court set the Wife’s purge amount based on her total pendente lite arrears due in the sum of $48,529. The purge amount, consisting of only half of the total arrears due, was a “coercive, civil penalty” meant to induce compliance with the court’s Order, thereby avoiding incarceration and compensating the Husband. However, the Wife did not purge her contempt during the period of incarceration and served the entire duration of her commitment term. By serving the full term, the Wife has effectively satisfied the purge amount of $20,764.50. The Court does not reach this decision lightly, but finds it is manifestly unjust to enter a money judgment against the Wife for the purge amount following her completed incarceration period. It is either one or the other, not both. According, it is hereby ORDERED that the Wife has purged her contempt of court and satisfied the $20,764.50 purge amount by way of serving her entire incarceration period; and it is further ORDERED that the balance of the Wife’s pendente lite child support and maintenance arrears in the sum of $24,264.50 under this Court’s March 30, 2023, Decision and Order remains due and payable by the Wife to the Husband; and it is further ORDERED that the Husband is entitled to a money judgment against the Wife in the sum of $24,264.50, representing the balance due on the total arrears amount of $48,529. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: May 17, 2023
