| Matter of Philie v Singer |
| 2010 NY Slip Op 09514 [79 AD3d 1041] |
| December 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Jennifer Philie, Respondent, v Michael Singer,Appellant. |
—[*1] McGuire Condon, P.C., Huntington, N.Y. (Karen D. McGuire of counsel), forrespondent.
In a visitation proceeding pursuant to Family Court article 6, the father appeals from an order of theFamily Court, Suffolk County (Lynaugh, J.), dated March 1, 2010, which, after a hearing, granted themother's petition to hold him in civil contempt for violating a visitation order of the same court datedJanuary 5, 2006, and a corrected visitation order of the same court dated February 2, 2009, anddirected that he be incarcerated for 60 days, which directive was suspended for one year on thecondition that the father complies with all orders issued by the Family Court.
Ordered that the order dated March 1, 2010, is affirmed, with costs.
" 'A motion to punish a party for civil contempt is addressed to the sound discretion of the [hearing]court' " (Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78AD3d 626, — [2d Dept 2010], quoting Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946 [2009]). Tosustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful orderwhich clearly expressed an unequivocal mandate, and that, as a result of the violation, a right or remedyof a party to the litigation was prejudiced (see Judiciary Law § 753 [A] [3]; McCainv Dinkins, 84 NY2d 216 [1994]; Astrada v Archer, 71 AD3d 803 [2010]; Matter of Kraemer v Strand-O'Shea, 66AD3d 901 [2009]; Casavecchia vMizrahi, 57 AD3d 702 [2008]). The party moving for such relief must establish contempt byclear and convincing evidence (see Matter ofKraemer v Strand-O'Shea, 66 AD3d 901 [2009]; Rienzi v Rienzi, 23 AD3d 447, 449 [2005]). It is not necessary that thedisobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, issufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party(see Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, 78 AD3d 626,— , 2010 NY Slip Op 07875, *1 [2010]; Astrada v Archer, 71 AD3d 803 [2010]; Casavecchia v Mizrahi, 57 AD3d 702[2008]).
Here, the Family Court providently granted the mother's petition to hold the father in civil contemptsince the father received notice, as of January 14, 2009, that the mother scheduled a vacation with thechild, to commence on Monday, February 16, 2009. The father was also advised that the mother [*2]had booked a flight for herself and the child, which was scheduled todepart at 6:59 p.m. on that date. Despite this notice and the Family Court's issuance of a correctedorder, dated February 2, 2009, which clarified that the mother was entitled to four weeks vacation withthe child at any time during the calendar year, as opposed to four weeks limited to summer vacation,the father willfully failed and refused to return the child to the mother on Sunday, February 15, 2009,and did not do so until Monday afternoon, causing the mother to delay her flight plans until February17, 2009. The father's conduct in this regard prejudiced the mother's right to her properly designatedvacation time with the child, which took precedence over any scheduled visitation time with the father.The father was aware of the clear and unequivocal terms of the several orders issued by the FamilyCourt that addressed vacation time and visitation time, but nonetheless violated them. The Family Courtprovidently determined that such conduct did defeat, impair, impede, and prejudice the mother's rightsand remedies.
The father's remaining contentions are without merit. Rivera, J.P., Florio, Belen and Austin, JJ.,concur.