| McGrath v McGrath |
| 2011 NY Slip Op 05029 [85 AD3d 742] |
| June 7, 2011 |
| Appellate Division, Second Department |
| John McGrath, Appellant, v Cheryl McGrath, Now Knownas Cheryl D'Angio, Respondent. |
—[*1] Mark A. Peterson, Smithtown, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated November 29,2004, the plaintiff appeals, as limited by his brief, from so much of an order of the SupremeCourt, Suffolk County (McNulty, J.), dated March 15, 2010, as denied, without a hearing, hismotion, in effect, to hold the defendant in civil and/or criminal contempt.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing onwhether the defendant should be punished for civil and/or criminal contempt.
"To prevail on a motion to punish a party for civil contempt, the movant must demonstratethat the party charged with contempt willfully violated a clear and unequivocal mandate of acourt's order, with knowledge of that order's terms, thereby prejudicing the movant's rights" (Rubin v Rubin, 78 AD3d 812, 813[2010]; see Judiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216,225-226 [1994]; Matter of Philie vSinger, 79 AD3d 1041, 1042 [2010]; Matis v Matis, 17 AD3d 547, 548 [2005]). "To prevail on a motionto punish [a party] for criminal contempt, the movant must establish, beyond a reasonable doubt,the willful disobedience of a court's lawful mandate" (Town of Riverhead v T.S. Haulers, Inc., 68 AD3d 1103 [2009];see Judiciary Law § 750 [A] [3]; § 751; Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]).
After the parties' older child, Michael, left the father's home to live with his mother, thefather moved to hold the mother in civil and/or criminal contempt for violating the clear andunequivocal mandate contained in the custody order in effect at the time, pursuant to which thefather had "sole legal and residential custody" of the parties' children. The father alleged, interalia, that the mother had permitted Michael to move back into her home in violation of theSupreme Court's prior custody order, and then proceeded to file "yet another false allegation ofabuse against [the father], wherein she and Michael called the police and [child protectiveservices] that same day." Under the circumstances, the Supreme Court should have directed ahearing to determine whether the mother violated the custody order then in effect by allegedlycontinuing to undermine the father's relationship with Michael and defeating the father's rightspursuant to the order (see Matter of Smith v Smith, 283 AD2d 1000 [2001]).
The father is correct that the issue regarding whether the mother should be held in [*2]contempt based on the mother's alleged role in Michael leaving hisfather's home on January 5, 2010, was never litigated before, and the Supreme Court erred infinding that it had been. Rivera, J.P., Skelos, Hall and Austin, JJ., concur.