| Matter of Holland v Holland |
| 2011 NY Slip Op 00054 [80 AD3d 807] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Matthew J. Holland, Respondent, v Amy K.Holland, Appellant. |
—[*1] Scott B. Nadel, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredAugust 6, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, to hold respondent in willful violation of a prior order.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are married withtwo children (born in 2005 and 2007). In September 2008, Family Court issued a custody ordergranting the mother sole custody of the children and the father visitation two days out of theweek. On the day in question, the father went to the mother's residence in order to pick up thechildren for a scheduled visitation, but found that the mother had moved with the childrenwithout informing him of her new address. The father subsequently filed a petition requestingthat Family Court find the mother in willful violation of the custody order. Family Court foundthat the mother had willfully violated the custody order and imposed a suspended 30-day jailsentence. Contending that Family Court erred by holding her in contempt since the order did notspecify where the children were to be picked up, nor did it require her to provide the father withher address, the mother appeals.
In order for there to be a finding of contempt for violating a court order, the petitioner mustshow by clear and convincing evidence that (1) Family Court issued a valid, clear and explicitorder, (2) the party alleged to have violated the order actually knew the conditions of that [*2]order, and (3) the alleged violation prejudiced some right of thepetitioner (see Matter of Joseph YY. vTerri YY., 75 AD3d 863, 867 [2010]; Matter of Omahen v Omahen, 64 AD3d 975, 977 [2009]; Matter of Aurelia v Aurelia, 56 AD3d963, 964 [2008]). Further, the petitioner must establish that the respondent's allegedviolation was willful (see Matter of Omahen v Omahen, 64 AD3d at 977; Matter of Blaize F., 48 AD3d1007, 1008 [2008]), which ultimately depends on the credibility of the testimony presented(see Matter of Cobane v Cobane, 57AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]).
Here, the record reflects that Family Court issued a custody order on September 26, 2008granting the father visitation with the parties' children on Mondays and Thursdays from afterwork until 9:30 p.m. Pursuant to that order, if the father did not have to work on one of thosedays, then "pick up time shall be as early as 7:00 a.m. as the parties may agree." The motherconceded that she was aware of the order and that, due to his work schedule, the father hadvisitation scheduled with their children on the morning of the date at issue. She admitted tomoving out of the residence with the children prior to that date without informing the father, andconceded that she had no intention of providing him with her new address, although she testifiedthat she attempted to reach the father by telephone to arrange a neutral pickup point. Based onthis testimony and giving deference to Family Court's determination that the mother's testimonywas not credible, Family Court did not err by holding the mother in contempt after finding thatshe had willfully violated the September 2008 custody order (see Judiciary Law §753 [A] [3]; Family Ct Act § 156; Matter of Jones v Jones, 75 AD3d 786, 788 [2010], lvdismissed 15 NY3d 866 [2010]; Matter of Omahen v Omahen, 64 AD3d at 977;Matter of Cobane v Cobane, 57 AD3d at 1323; Matter of Aurelia v Aurelia, 56AD3d at 966; Matter of Blaize F., 48 AD3d at 1008-1009).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.