Supreme Court, Orange County, April 23, 2008

APPEARANCES OF COUNSEL

Alysia R. Baker, Goshen, for plaintiff.[*2]Victoria B. Campbell, Port Jervis, for defendant.

William J. Giacomo, J.

In the instant matter, plaintiff moves by order to show cause to hold defendant in contempt on account of his failure to abide by certain directives contained in this court's November 7, 2007 pendente lite order. More specifically, the plaintiff complains that the defendant has failed to:

º pay the mortgage, equity loan, taxes, insurance and other carrying costs of the marital home;^[FN1]

º provide the plaintiff with a key to the marital home;^[FN2]

º pay insurance on the plaintiff's car; and

º provide plaintiff with half of the 2007 tax refund.^[FN3]

On the eve of the contempt hearing, April 7, 2008, defendant filed for bankruptcy protection pursuant to chapter 7 of the United States Bankruptcy Code (11 USC).

Thereafter, at their appearances on April 8, 2008, counsel for both parties were directed to make submissions to the court addressing whether or not the contempt hearing was stayed due to the bankruptcy filing. The court has received and reviewed the memorandum submitted by defendant's counsel and the letter submission, with attached decisional case law, submitted by plaintiff's counsel.

After a review of these submissions the court holds that the instant contempt proceeding is stayed.

Pursuant to the provisions of the United States Bankruptcy Code (11 USC §§ 101-1330), a bankruptcy filing does not stay a [*3]matrimonial action in general, but it does stay a court's ability to distribute the marital estate without the permission of the bankruptcy court.^{[FN4]{**20 Misc 3d at 213}} (See 11 USC § 362 [b] [2] [A] [iv].)^[FN5]

The immediate question presented here is whether the contempt proceeding at issue in this case is stayed. Without question, criminal contempt actions are specifically exempted from the application of the automatic stay. (11 USC § 362 [b] [1]; see also In re Maloney, 204 BR 671 [ED NY 1996] [commitment order that is criminal in nature, as it was designed to punish debtor for disregarding state court's prior order, does not implicate the automatic stay].) Nonetheless, and notwithstanding the cases cited by plaintiff, the instant contempt proceeding is in the nature of a civil contempt, not a criminal contempt.

The fact that a contemnor faces incarceration does not in and of itself make the instant application a criminal contempt proceeding. Both civil and criminal contempt proceedings afford the court the power to incarcerate a contemnor^[FN6] and are based on a clear violation of an unequivocal, lawful court order. (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233 [1987].)

What makes a contempt proceeding civil rather than criminal in nature is what or whose authority or rights will be vindicated by the contempt adjudication. Civil contempt has as its main aim vindication of the private right of a party to litigation and any penalty assessed is to compensate that party or to coerce compliance with a court order for that party's benefit. The penalty in a civil contempt proceeding is not to punish or deter, but to compensate. (Matter of Barclays Bank v Hughes, 306 AD2d 406 [2d Dept 2003].) In contrast, the purpose of a [*4]criminal contempt is to punish an offense against judicial authority and to protect the integrity of the judicial process and respect for its mandates. (Skripek v Skripek, 239 AD2d 488 [2d Dept 1997].){**20 Misc 3d at 214}

In the instant proceeding, vindication of the plaintiff's rights, via the payment of arrears, is what plaintiff primarily seeks. Furthermore, any finding of contempt may be purged by payment of those arrears. Simply, the defendant shall not face incarceration absent his failure to purge his contempt via payment of the mortgage, equity loan, taxes, insurance and other carrying costs of the marital home as well as the payment of insurance premiums relating to the plaintiff's car.

Accordingly, this court holds that the instant matter constitutes a civil contempt proceeding. Although this court has the inherent power to enforce its orders through civil contempt, actions for civil contempt are considered private collection devices and are within the ambit of the automatic stay. (In re Newman, supra.)

On account of the foregoing, the instant motion to hold defendant in contempt of court is stayed.^[FN7] Nonetheless, the parties shall proceed with discovery and prepare this matter for trial.