| Galanos v Galanos |
| 2007 NY Slip Op 09553 [46 AD3d 507] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Louis Galanos, Respondent, v Suzanne Galanos,Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated June 16,2006, as, after a hearing, in effect, granted that branch of the plaintiff's motion which was to holdher in contempt for a willful violation of an order of the same court dated January 30, 2004, anddirected her incarceration for a period of 30 days without an opportunity to purge the contempt.
Ordered that the appeal from so much of the order as directed the defendant's incarcerationfor a period of 30 days without the opportunity to purge the contempt is dismissed as academic;and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
In order to prevail on a motion to punish a party for civil contempt, the movant mustdemonstrate that the party charged with the contempt violated a clear and unequivocal mandateof the court, thereby prejudicing the movant's rights (see Judiciary Law § 753 [A][3]; McCain v Dinkins, 84 NY2d 216, 226 [1994]; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2006]; Raphael v Raphael, 20 AD3d 463,464 [2005]). The movant "bears the burden of proving contempt by clear and convincingevidence" (Dankner v Steefel, 41AD3d 526, 528 [2007]). In addition, "the party to be held in contempt must have hadknowledge of the order" (McCain v Dinkins, 84 NY2d at 226). Here, the plaintiff met hisburden of proving, by clear and convincing evidence, that the defendant violated a lawful andunequivocal mandate, to wit, an explicit directive contained in the order dated January 30, 2004,of which she had knowledge, and, in so doing, prejudiced the plaintiff's rights (see Biggio [*2]v Biggio, 41 AD3d 753, 754 [2007]; Raphael vRaphael, 20 AD3d at 464).
Contrary to the defendant's contention, the order of contempt contained a description of theacts she committed constituting the contempt, and set forth the required recital that thecontemptuous conduct was "calculated to, or actually did, defeat, impair, impede, or prejudicethe [plaintiff's] rights or remedies" (Judiciary Law § 770; see Judiciary Law§ 753 [A]; Biggio v Biggio, 41 AD3d at 754; Raphael v Raphael, 20 AD3dat 464).
The appeal from so much of the order dated June 16, 2006, as directed the defendant'sincarceration for a period of 30 days without the opportunity to purge the contempt must bedismissed as academic in light of the fact that the defendant has already completed the period ofincarceration. Spolzino, J.P., Dillon, Angiolillo and Dickerson, JJ., concur.