| Katz v Katz |
| 2010 NY Slip Op 04551 [73 AD3d 1134] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Robin Katz, Respondent, v Adam Katz,Appellant. |
—[*1] Adam E. Small, Merrick, N.Y., attorney for the children.
In a matrimonial action in which the parties were divorced by judgment dated December 24,2007, the defendant father appeals from an amended order of the Supreme Court, Nassau County(Ross, J.), dated October 23, 2009, which, after a hearing, denied his motion to hold the plaintiffmother in civil contempt for her willful violation of the parenting time provisions in the parties'separation agreement, which was incorporated, but not merged, into the judgment of divorce.
Ordered that the amended order is affirmed, with costs.
On October 12, 2005, the parties entered into a separation agreement which wasincorporated, but not merged, into their judgment of divorce dated December 24, 2007. Theseparation agreement provided for, inter alia, certain periods of parenting time for the father withthe parties' children. The father moved to hold the mother in civil contempt for her willful failureto produce the parties' youngest child for his parenting time.
To prevail on a motion to punish a party for civil contempt, the movant must demonstrate byclear and convincing evidence that the party charged violated a clear and unequivocal courtorder, thereby prejudicing a right of another party to the litigation (see Judiciary Law§ 753 [A] [3]; Rienzi v Rienzi, 23 AD3d 447, 449 [2005]; Vujovic vVujovic, 16 AD3d 490, 491 [2005]; Rupp-Elmasri v Elmasri, 305 AD2d 394, 395[2003]). Moreover, the movant must establish that the alleged violation was willful (seeDimino v Dimino, 39 AD3d 799, 800 [2007]; Matter of McMillian v Rizzo, 31AD3d 555, 556 [2006]). Here, the father did not meet his burden (see Matter of Omahen vOmahen, 64 AD3d 975, 977 [2009]). Accordingly, the denial of his motion to hold themother in civil contempt was proper. Mastro, J.P., Santucci, Chambers and Roman, JJ., concur.