| Matter of Brown v Mudry |
| 2008 NY Slip Op 08121 [55 AD3d 828] |
| October 21, 2008 |
| Appellate Division, Second Department |
| In the Matter of Edward L. Brown, Appellant, v Jennifer Mudry,Respondent. |
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In a visitation proceeding pursuant to Family Court Act article 6, the petitioner appeals from anorder of the Family Court, Suffolk County (Hoffman, J.), dated September 21, 2007, which dismissed,without a hearing, his motion to adjudicate the respondent in civil contempt of an order of visitation ofthe same court (Budd, J.) dated April 28, 2006.
Ordered that the order is affirmed, without costs or disbursements.
The Family Court properly dismissed, without a hearing, the motion to hold the respondent in civilcontempt of an order of visitation. The burden is on the moving party to demonstrate, by clear andconvincing evidence, that the accused party violated a clear and unequivocal court order which theaccused party knew was in effect, thereby prejudicing a right of another party to the litigation (seeJudiciary Law § 753 [A] [3]; Matter of McCormick v Axelrod, 59 NY2d 574, 583[1983]; Matter of Romanello v Davis, 49AD3d 652, 653 [2008]; Vujovic vVujovic, 16 AD3d 490, 491 [2005]; Matter of Laland v Edmond, 13 AD3d 451 [2004]). "A hearing is notmandated in every instance where contempt is sought; it need only be conducted if a factual disputeexists which cannot be resolved on the papers alone" (Jaffe v Jaffe, 44 AD3d 825, 826 [2007] [internal quotation marks andcitations omitted]).
Here, the petitioner offered no evidentiary support for his allegation that the respondent failed tocomply with an order of visitation and therefore failed to raise an issue of fact which would necessitate ahearing (see Jaffe v Jaffe, 44 AD3d at 826; Jafri v Jafri, 292 AD2d 425 [2002];cf. Lesesne v Lesesne, 292 [*2]AD2d 510 [2002];McKinley v McKinley, 79 AD2d 603 [1980]). Mastro, J.P., Angiolillo, Carni and Eng, JJ.,concur.