| Matter of Romanello v Davis |
| 2008 NY Slip Op 02161 [49 AD3d 652] |
| March 11, 2008 |
| Appellate Division, Second Department |
| In the Matter of Doreen Romanello, Appellant, v James J.Davis, Respondent. |
—[*1] Rosemary Rivieccio, New York, N.Y., for respondent. Cynthia Holfester-Neugebauer, Glen Head, N.Y., Law Guardian.
In a proceeding pursuant to Family Court Act article 6 to modify visitation, the motherappeals, by permission, from an order of the Family Court, Nassau County (McCormack, J.),dated July 10, 2006, which, after a hearing, granted the father's motion to hold her in civilcontempt of a prior order of the same court (Robbins, J.), dated December 9, 2005, and directedher to pay him $5,050 in costs and expenses pursuant to Judiciary Law § 773 within 90days.
Ordered that the order is reversed, on the law and the facts, without costs or disbursements,and the father's motion is denied.
On November 10, 2005 the Family Court, Nassau County (Robbins, J.), directed that thefather "shall have supervised therapeutic visitation as agreed upon" by the parties, supervised bya therapist "to be agreed upon by the parties." On December 9, 2005 the parties agreed in opencourt that the "mother's counsel will advise [the father's counsel] by next Friday which isDecember 16th as to the selection of the supervisor or therapist" from a list of two therapists. Thecourt responded "Okay. That is fine." The parties' next court appearance was scheduled forFebruary 10, 2006.
The father's attorney received notification of the mother's choice of therapists to supervisevisitation on December 21, 2005. Although the chosen therapist was available to start supervisedvisitation in January 2006, the mother refused to permit visitation until new allegations of sexualabuse committed by the father were investigated. At the parties' next scheduled court appearance[*2]on February 10, 2006 the Family Court granted the mother'smotion to suspend visitation until the completion of an investigation by Child Protective Servicesof the allegations of sexual abuse.
By order to show cause dated February 22, 2006, the father moved to hold the mother in civilcontempt of the orders dated November 10, 2005 and December 9, 2005, respectively. During thecontempt hearing, the suspension of visitation was lifted, and supervised visitation began. At theconclusion of the contempt hearing, the Family Court found the mother in civil contempt of theorder dated December 9, 2005 on the ground that she refused to allow supervised visitation inJanuary 2006 without seeking a protective order from the Family Court. The mother was directedto pay the father $5,050 in counsel fees as costs and expenses pursuant to Judiciary Law §773 within 90 days.
Civil contempt is defined as "disobedience to a lawful mandate of the court" whichprejudices the rights or remedies of another party to the litigation (see Judiciary Law§ 753 [A] [3]; Hinkson vDaughtry-Hinkson, 31 AD3d 608 [2006]; Riverside Capital Advisors, Inc. v First Secured Capital Corp., 28 AD3d455, 456 [2006]). The contempt must be proven by clear and convincing evidence (see Riverside Capital Advisors, Inc. v FirstSecured Capital Corp., 28 AD3d 455, 456 [2006]).
In the instant case, the father failed to meet that burden. The delay in notifying the father'sattorney of the choice of therapists to supervise visitation was brief, and was not cited by theFamily Court as a ground for holding the mother in civil contempt. The mother's decision torefuse visitation until allegations of sexual abuse, which surfaced in early January 2006, wereinvestigated, was ratified by the Family Court when it suspended supervised visitation pendinginvestigation of those allegations. Under the circumstances, it cannot be said that the mother'sconduct prejudiced the father's rights and remedies (see Matter of A.F. v N.F., 156 AD2d750, 752 [1989]).
Since the finding of civil contempt was not supported by the required clear and convincingevidence, the father was not entitled to counsel fees (see Kiperman v Steinberg, 234AD2d 518 [1996]).
The parties' remaining contentions need not be addressed in light of our determination.Fisher, J.P., Miller, McCarthy and Chambers, JJ., concur.