| Matter of Carol S. (Christine T.\MMary AA.) |
| 2009 NY Slip Op 09138 [68 AD3d 1337] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carol S., Alleged to be an Incapacitated Person.Christine T., Appellant; Mary AA. et al., Respondents. |
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Lahtinen, J. Appeal from an order and judgment of the Supreme Court (O'Connor, J.),entered October 7, 2008 in Ulster County, which, in a proceeding pursuant to Mental HygieneLaw article 81, granted respondents' motion to find petitioner in willful violation of prior courtorders.
The strained relationships of the surviving children of Carol S. (hereinafter decedent) haveresulted in repeated recourse to the courts. Briefly stated, in late 2003, petitioner began residingwith decedent, her elderly mother, and, in April 2005, she petitioned pursuant to Mental HygieneLaw article 81 to be appointed guardian of the person and property of decedent. Respondents,two of petitioner's sisters, opposed the petition. In September 2005, Supreme Court (Bradley, J.)appointed petitioner as temporary guardian of the person of decedent and appointed respondentMary AA. as temporary guardian of decedent's property. Mary AA. was unable to complete afinal accounting of decedent's property allegedly because she discovered, immediately afterdecedent's death in October 2006, that petitioner had moved and/or secreted significant portionsof decedent's property. A series of orders ensued in which Supreme Court (O'Connor, J.)directed, among other things, that petitioner [*2]return theproperty and do so in a manner that would allow Mary AA. to prepare a final accounting.
Alleging repeated noncompliance with these orders, respondents moved for an order ofcontempt. Following two days of hearings commencing in December 2007, at which all foursurviving children of decedent testified, Supreme Court rendered a written decision describingthe "long and tortured history in which there has been a lack of compliance by [petitioner]." Thecourt found the testimony of Mary AA. and respondent Inez BB. to be credible and concludedthat petitioner had disobeyed clear mandates of its prior orders. As a penalty, the court directedpetitioner to pay the counsel fees ($40,080.20) and costs ($4,569.21) incurred by respondents inseeking to compel petitioner's compliance with the court's orders. Petitioner appeals.
The elements of civil contempt include a lawful judicial order in effect that expresses anunequivocal mandate, disobedience of the order, knowledge of the order by the disobeying partyand prejudice sustained by the other party (see McCain v Dinkins, 84 NY2d 216, 226[1994]; Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983], amended 60NY2d 652 [1983]). The credibility determinations of the trial court are accorded deference (see Matter of Omahen v Omahen, 64AD3d 975, 977 [2009]; Matter of Rebecca O. v Todd P., 309 AD2d 982, 984[2003]). "[C]ounsel fees and disbursements may be awarded against the contemptuous party"(Matter of Lembo v Mayendia-Valdes, 293 AD2d 789, 790 [2002]; see JudiciaryLaw § 773).
We are unpersuaded by petitioner's argument that Mary AA.'s obligation to inventorydecedent's property terminated upon decedent's death and, thus, could not provide a basis for thefinding of contempt. "The death of an incapacitated person does not require a guardian'simmediate discharge . . . where . . . there is a dispute regarding thepreservation of the incapacitated person's property pending distribution" (Matter of RoseBB., 262 AD2d 805, 807 [1999], appeal dismissed and lv dismissed 93 NY2d 1039[1999] [citations omitted]). The duties of the guardian of the incapacitated person's property topreserve and then deliver such property to the person legally entitled thereto implicates thenecessity of an accurate inventory (see Mental Hygiene Law § 81.20 [a] [6] [ii],[v]). Mary AA. was attempting to complete such an inventory and her efforts were thwarted bypetitioner's repeated failure to adhere to court orders. Under the circumstances, it was notinappropriate for Supreme Court to retain jurisdiction and resolve the issues implicated bypetitioner's actions (see Matter of Burns, 287 AD2d 862, 863 [2001]).
The fact that Mary AA. had been able to complete an inventory by the time the contempthearing commenced in December 2007 does not, as urged by petitioner, require reversal. Bysuch time there had been repeated noncompliance with court orders by petitioner resulting inlegal expenses incurred by Mary AA. in her efforts to compel petitioner's compliance. In short,the elements of contempt existed and the belated compliance did not deprive the court of thepower to consider the contempt, as well as an appropriate penalty therefor (see Ferraro vFerraro, 272 AD2d 510, 512 [2000] ["delayed compliance does not render the contemptproceeding academic"]).
We find no merit in petitioner's assertion that the underlying orders were ambiguous.Petitioner's proffered explanation that she was acting consistent with the orders because she wasmerely attempting to secure the property from potential theft was not credited by Supreme Courtand we defer to that credibility determination (see Matter of Rebecca O. v Todd P., 309AD2d at 984). Accepting the credibility determinations of Supreme Court, the record reveals thatall the elements of civil [*3]contempt were adequatelyestablished.
With respect to the amount of counsel fees and costs awarded, that issue was not raisedbefore Supreme Court and thus is not properly preserved for our review (see generallyDeMeo v DeMeo, 281 AD2d 662, 664 [2001]). Supreme Court stated in its decision that,despite being afforded two opportunities to challenge those amounts, petitioner submitted noopposition thereto. The remaining issues have been considered and are either unpreserved orunavailing.
Peters, J.P., Spain, Kane and Malone Jr., JJ., concur. Ordered that the order and judgment isaffirmed, without costs.