| Matter of Jones v Jones |
| 2010 NY Slip Op 06021 [75 AD3d 786] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey A. Jones, Respondent, v Diette D. Jones,Also Known as Diette D. Jones-Webman, Appellant. |
—[*1] Catherine Charuk, Kingston, for respondent. Claire Sullivan, Monticello, attorney for the child.
Rose, J. Appeals (1) from an order of the Family Court of Ulster County (McGinty, J.),entered May 1, 2009, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to hold respondent in violation of a prior order of visitation, and (2) from anorder of said court, entered June 22, 2009, which partially granted petitioner's motion for anaward of counsel fees.
Pursuant to an order entered in 2002, petitioner (hereinafter the father) and respondent(hereinafter the mother) shared joint legal custody of their daughter (born in 1992), with themother having primary physical custody and the father having weekly visitation. In 2006, whenthe daughter refused to visit with the father after an incident in which the daughter was accusedof having had sexual contact with the father's six-year-old stepdaughter, Family Court modifiedthe parties' custody order by staying its visitation provisions and directing the father and thedaughter to engage in therapeutic visitation under the supervision of Lenora Bruce, a licensedclinical social worker. The modified order also required the daughter to continue in individualtherapy with another therapist, Richard Silverman, regarding the alleged sexual contact, and itdirected both parents to follow Bruce's recommendations regarding visitation and to cooperate inthe daughter's separate counseling.[*2]
In November 2007, the father commenced this violationproceeding on the ground that the mother had willfully violated the modified order. During theresulting hearings, the mother requested that Family Court either permit her to call the daughteras a witness or conduct a Lincoln hearing. Family Court denied the mother's request andultimately found that she had willfully violated the modified visitation order. Based upon thatfinding, the father moved for an order directing the mother to pay counsel fees and expenses.Family Court reduced the amount requested by the father and partially granted his motion. Themother appeals from both orders, and we now affirm.
The 2006 modified visitation order unequivocally mandated the mother's obligationsregarding the daughter's visitation with the father and separate individual counseling concerningthe daughter's alleged sexual contact with his stepdaughter. Given the direction in Family Court'sorder that she "participate as the therapeutic provider reasonably requests" and "ensure that thechild timely attends individual therapy," the mother knew or should have known that she wasrequired to follow Bruce's instructions as to the conduct of visitation and have the childseparately counseled regarding the incident with the father's stepdaughter (see Matter of Bronson v Bronson, 37AD3d 1036, 1037 [2007]; Labanowski v Labanowski, 4 AD3d 690, 694 [2004]).
The evidence supports Family Court's conclusion that the mother was not credible inclaiming that she did everything she could to facilitate visitation. Bruce was aware of thedaughter's resistance to visitation and gave the mother specific instructions for dealing with thedaughter, yet the testimony established that the mother did not follow those instructions. Brucetestified that the mother's cooperation was very superficial, the mother was not committed tohealing the relationship between the daughter and the father, and the mother improperlycancelled therapy appointments. Bruce also testified that even though she had advised the motherof the vital importance of separate counseling regarding the daughter's incident with the father'sstepdaughter, the mother limited Silverman's therapy to the child's relationship with the father.According deference to Family Court's credibility determinations, we will not disturb its findingof a willful violation here (see Matter ofCobane v Cobane, 57 AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009];Matter of Aurelia v Aurelia, 56AD3d 963, 964 [2008]).
Nor will we overturn Family Court's refusal to permit the mother to call the parties' daughteras a witness. The mother sought to do so in order to corroborate her claim that the daughter'srefusal alone had defeated the therapeutic visitation. The record, however, supports FamilyCourt's determination that it was unnecessary to call the daughter as a witness, as the child'stestimony would have been irrelevant to the issue of whether the mother's own actionsconstituted a willful violation of the court order (see Matter of Thomas v Osborne, 51 AD3d 1064, 1068 [2008]; Posporelis v Posporelis, 41 AD3d986, 991 [2007]).
Finally, we find no abuse of discretion in Family Court's award of reduced counsel fees tothe father (see Family Ct Act § 156; Judiciary Law § 773; Matter of Meier v Key-Meier, 36AD3d 1001, 1004 [2007]).
Peters, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.