SHORT FORM ORDER

NEW YORK SUPREME COURT - QUEENS COUNTY

P R E S E N T :
            HON. PHYLLIS ORLIKOFF FLUG              MM PART 52                  Justice.

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                                            Index No. l2097/95
MARIE MICELI
                           Plaintiff,          Calendar No. ---

            - against -                      Motion Date 8/23/99

SAMUEL MICELI                              Motion No. 5
                            Defendant.
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The following papers numbered l to ll read on this motion:

                                            Papers Numbered
Ptf's OSC - Affidavits - Exhibits ......... l - 3
Deft's OSC - Affidavits - Exhibits ........ 4 - 6
Ptf's Affidavit/Opposition - Exhibits ..... 7 - 8
Deft's Affidavit in Reply ................. 9
Ptf's Reply Affidavit ..................... l0
Other Papers - Report of Peter J.
Favaro, Ph.D. of "Smart Parenting" Center
    submitted 6/24/99 ........................ ll

In this post-Judgment motion, the plaintiff-mother is seeking to enforce a Stipulation of Settlement which resolved "all financial aspects of the within pending matrimonial matter" (Affid., pg. l). The Judgment of Divorce entered into by this Court on November 27, l998 incorporated that Stipulation. Plaintiff claims defendant is in breach of the terms with regard to the payment of certain monies. Defendant cross-moves for an order of contempt alleging, inter alia, that the plaintiff has failed to comply with the terms of the Judgment of Divorce regarding visitation between the defendant and the infant children.

In essence, this Court is revisiting a situation wherein the parties have once again demonstrated that they are incapable of putting aside their own emotional "hang ups" in order to provide for the best interests of their infant children.

It is quite clear to the Court that the plaintiff has failed to allow supervised Court-ordered visitation and has willfully and unilaterally discontinued family counseling, also ordered by the Court. The defendant's request that in light of these actions he be granted unsupervised visitation is not only untenable but illogical and certainly not in the best interests of the children. His application to adjudge the defendant in contempt is in addition specious.

His failure to fulfill all his financial obligations, which triggered this motion, clearly reveals that the plaintiff is in no position to pay a fine for contempt. It is further preposterous to seek imprisonment of the plaintiff, who is the primary caregiver of these young children (see, Legal and Mental Health Perspectives on Child Custody Law: A Deskbook for Judges, West Group, l998, 'l9.9).

Based on plaintiff's admitting cessation of all visitation since last November, the Court does indeed find her action "contemptuous" and will not acquiesce in such unwarranted conduct.

Accordingly, the Court finds the plaintiff has forfeited her right to claim arrears and counsel fees under the Stipulation of Settlement and Judgment of Divorce. This situation is most analagous to a recent decision, R.B v S.B., NYLJ 3/3l/99, col. 5, (Silbermann, J.), wherein the Court exercised its authority and discretion to eliminate an award of maintenance where a parent had been guilty of alienation of the children's relationship with their father.