| Matter of John SS. v Amy SS. |
| 2009 NY Slip Op 03429 [61 AD3d 1305] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of John SS., Appellant, v Amy SS.,Respondent. |
—[*1] Victor B. Carrascoso, Cooperstown, for respondent. Sheila M. Hurley, Law Guardian, Catskill.
Kavanagh, J. Appeal from an order of the Family Court of Otsego County (Burns, J.),entered July 25, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to hold respondent in willful violation of a prior order.
Pursuant to an order issued by Family Court that was stipulated by the parties in September2006 (hereinafter the stipulated order), respondent (hereinafter the mother) was required to sendphotographs of the parties' three-year-old child to petitioner (hereinafter the father) four timeseach year. The father, who was incarcerated, was required, pursuant to the stipulated order, tokeep his attorney informed of his address, who would then pass on the address to the mother soshe could comply with that order. In January 2008, the father commenced this proceedingalleging that the mother had failed to send him the photographs of the child as required by thestipulated order and, as a result, she was in willful violation of its terms and conditions. At thefact-finding hearing, the father testified that since the entry of the stipulated order, he receivedtwo photographs of his child from the mother in 2006 and two more in 2007. He also claimedthat when he was transferred to the Oneida Correctional Facility in Oneida County in August2007, he informed his attorney in writing of his new address and the [*2]attorney, in turn, notified the mother.[FN1]
At the close of the father's testimony, the mother moved for a directed verdict dismissing thepetition arguing that there was insufficient evidence to show that she had willfully violated thestipulated order because no proof had been presented that the father had advised his attorney ofhis new mailing address each time that he had been transferred within the state's correctionalsystem. Family Court, while denying the motion for a directed verdict, decided to dismiss thepetition with a finding on the merits that the mother had not willfully violated the stipulatedorder. The father now appeals and we affirm.
In deciding the mother's motion for a directed verdict, Family Court was required to "acceptthe [father's] evidence as true and afford the [father] every favorable inference that couldreasonably be drawn from that evidence, including resolving all credibility questions in the[father's] favor" (Matter of David WW.v Laureen QQ., 42 AD3d 685, 686 [2007]; see Matter of Stone v Wyant, 8 AD3d 1046, 1046 [2004]). Thefather's testimony established that he did not receive the photographs as required by thestipulated order. However, the father admitted that on at least one occasion when he wastransferred, he was not able to inform his attorney of his new address so that the attorney could,in turn, notify the mother where she should send the photographs as required by the order.Without such a showing, the father could not establish by clear and convincing evidence that themother willfully violated the stipulated order (see Matter of Cobane v Cobane, 57 AD3d 1320, 1322 [2008]; Matter of Aurelia v Aurelia, 56 AD3d963, 964 [2008]; Matter of BlaizeF., 48 AD3d 1007, 1008 [2008]), and, therefore, Family Court properly dismissed thepetition.[FN2]
To the extent not specifically addressed herein, the father's remaining contentions have beenreviewed and found to be without merit.
Rose, J.P., Kane, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Petitioner was originallyincarcerated at Collins Correctional Facility in Erie County. He was transferred to OneidaCorrectional Facility in August 2007 and then to Franklin Correctional Facility in FranklinCounty in February 2008.
Footnote 2: We note that, while not part ofthis appeal, the mother also filed a petition to modify the stipulated order so as to no longerrequire her to send the father pictures of the child. In the transcript of the hearing on thatpetition, which was heard the same day as the hearing on the instant petition and has beenincluded in the record on this appeal, Family Court granted the mother's petition and amendedthe stipulated order.