EVANS v. EVANS (1997)

 Defendant appeals from an order of Supreme Court that held him in contempt and ordered him incarcerated for four days, based on his violation of a prior custody order.   He contends that the order to show cause was defective because it did not specify whether the alleged offense constituted civil or criminal contempt.   The defect in the order to show cause is not fatal because the ultimate determination whether the alleged offense constitutes civil or criminal contempt is for the court (see, People ex rel. Platt v. Rice, 30 N.Y.S. 457, 80 Hun. 437, affd. on other grounds 144 N.Y. 249, 39 N.E. 88).   Nor is there merit to the contention that reversal is required because the court failed to denominate its contempt order as civil or criminal contempt (see, Bowie v. Bowie, 182 A.D.2d 1049, 1051, 583 N.Y.S.2d 54;  People ex rel. Lohaus v. Lohaus, 19 A.D.2d 549, 240 N.Y.S.2d 1021).  The record further establishes that defendant knowingly violated several unambiguous provisions of the custody order (cf., Matter of Hoglund v. Hoglund, 234 A.D.2d 794, 651 N.Y.S.2d 239;  Kuenen v. Kuenen, 122 A.D.2d 616, 504 N.Y.S.2d 937).

 The record supports the determination that defendant's actions were calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of plaintiff (see, Judiciary Law § 753[A][3] ).   Thus, the court properly held defendant in civil contempt.   The penalty imposed, however, is excessive and, in the exercise of our discretion, we reduce the penalty to time served.

Order unanimously modified in the exercise of discretion and as modified affirmed with costs to plaintiff.

MEMORANDUM: