| Matter of Lagano v Soule |
| 2011 NY Slip Op 05827 [86 AD3d 665] |
| July 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Marcella M. Lagano, Appellant, v Linda S. Soule etal., Respondents. |
—[*1] Teresa C. Mulliken, Harpersfield, for Linda S. Soule, respondent. Kathleen M. Spann, Greene, for Eric K. Taylor, respondent. Margaret McCarthy, Ithaca, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered July 28, 2010, which, in a proceeding pursuant to Family Ct Act article 6, granted amotion by the attorney for the child to dismiss the violation petition.
Petitioner (hereinafter the mother) and respondent Eric K. Taylor (hereinafter the father) arethe biological parents of a son (born in 2002). In May 2005, respondent Linda S. Soule, thechild's paternal grandmother, was granted custody of the child, and the mother was awardedspecified periods of visitation. The mother thereafter commenced three separate proceedingsseeking to modify the prior award of custody and hold Soule in contempt for failing to complywith the visitation schedule. A hearing ensued as to the modification petitions in February 2006,at the conclusion of which Family Court (Connerton, J.) granted the mother temporary custody ofthe child.[FN1]The mother's attorney was instructed to prepare an order to that effect, which also was [*2]to include a directive that Soule produce the child at the nextscheduled court appearance.[FN2]
When the matter reconvened in April 2006, Soule, who by this time had relocated with thechild out of state, appeared via telephone. Prior to adjourning the hearing due to the absence ofthe then attorney for the child, Judge Connerton advised Soule—repeatedly and in nouncertain terms—that she was required to produce the child on May 2, 2006, and Soule, inturn, indicated that she understood the court's directive. When Soule failed to appear or producethe child as ordered, the court awarded the mother sole legal custody with visitation to the father.
After eventually locating and regaining physical custody of her son in August2009,[FN3]the mother commenced this violation proceeding against Soule and the father. Following ahearing in July 2010, Family Court (Charnetsky, J.) (hereinafter Family Court), upon applicationof the attorney for the child, dismissed the violation petition with prejudice, finding that themother failed to establish that Soule was either served with or otherwise had knowledge of theMay 2006 order. This appeal by the mother ensued.[FN4]
"To sustain a civil contempt finding based upon the violation of a court order, it must beestablished that there was a lawful court order in effect that clearly expressed an unequivocalmandate, that the person who allegedly violated the order had actual knowledge of its terms, andthat his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of themoving party" (Matter of Aurelia vAurelia, 56 AD3d 963, 964 [2008] [citations omitted]; see Dunn v Dunn, 78 AD3d 649,650 [2010]; Matter of Joseph YY. vTerri YY., 75 AD3d 863, 867 [2010]; Matter of Omahen v Omahen, 64 AD3d 975, 977 [2009]). Thisviolation, in turn, must be proven by clear and convincing evidence (see Matter of JosephYY. v Terri YY., 75 AD3d at 867; Matter of Aurelia v Aurelia, 56 AD3d at 964).Accepting the mother's proof as true, affording her the benefit of every favorable inference thatreasonably could be drawn therefrom and resolving all credibility issues in her favor, as we muston a motion to dismiss (see Matter ofNikki O. v William N., 64 AD3d 938, 939 [2009], lv dismissed 13 NY3d 825[2009]; Matter of David WW. v LaureenQQ., 42 AD3d 685, 686 [2007]; Matter of Le Blanc v Morrison, 288 AD2d 768,770 [2001]), we conclude that the mother established a prima facie case of a willful violation asto Soule (see e.g. Matter of Seacord vSeacord, 81 AD3d 1101, 1103 [2011]; Matter of Holland v Holland, 80 AD3d 807, 808 [2011]) and, assuch, Family Court erred in granting the [*3]motion to dismiss tothat extent.
The underlying pro se violation petition—liberally construed (see Family CtAct § 165 [a]; CPLR 3026; Matterof Whitaker v Murray, 50 AD3d 1185, 1186 [2008]; Matter of Mitchell v Childs, 26 AD3d 685, 687[2006])—alleges a violation of both Judge Connerton's written May 2006 order and oralApril 2006 directive, the latter of which ordered Soule to produce the child in court on May 2,2006. Although we agree that there is insufficient evidence to support a finding that Soule hadactual knowledge of the written May 2006 order (see McCain v Dinkins, 84 NY2d 216,226 [1994]; Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]; Graham vGraham, 152 AD2d 653, 654-655 [1989]), there is no question that she had actualknowledge of Judge Connerton's April 2006 oral directive. In this regard, it is clear that "an oral'order' or directive, issued in the contemnor's presence, placed upon the record and transcribedinto the minutes of the proceeding, may be deemed a 'mandate' . . . and, hence, mayform the basis for contempt" (Matter of Betancourt v Boughton, 204 AD2d 804, 808[1994]). And it is equally clear from a review of the April 2006 transcript, of which Family Courttook judicial notice,[FN5]that Soule was repeatedly and unequivocally ordered by Judge Connerton to produce the child atthe May 2006 court appearance, which, despite her acknowledgment of this directive and herexpressed understanding thereof, Soule thereafter failed to do. Further, Soule's defiance of thisclear and lawful mandate, as well as her subsequent conduct in secreting the child's whereaboutsfor the ensuing three years, plainly prejudiced the mother's parental rights and, in our view, wassufficient to establish a willful violation of Judge Connerton's April 2006 order.[FN6]Accordingly, the motion dismissing the violation petition against Soule is denied and the matteris remitted to Family Court for further proceedings not inconsistent with our decision (see Matter of Aaron D., 32 AD3d1220 [2006]).
Spain, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much [*4]thereof asgranted the motion to dismiss the petition against respondent Linda S. Soule; motion denied tothat extent and matter remitted to the Family Court of Broome County for further proceedingsnot inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: Soule was represented bycounsel at this hearing but did not appear in person.
Footnote 2: That order, however, was notsubmitted or entered until after the next court appearance in April 2006.
Footnote 3: The mother had last seen herchild in December 2005.
Footnote 4: The mother has not briefed thedismissal of the violation petition as to the father and, therefore, we deem any argument on thispoint to be abandoned (see Matter ofMiranda HH. [Thomas HH.], 80 AD3d 896, 897 n 1 [2011]). Additionally, although theattorney for the child now asserts that the child was denied the effective assistance of counsel, nonotice of appeal was filed on behalf of the child and, in any event, the child was not aggrieved bythe dismissal of the underlying violation petition (see Matter of Xavier II. [Rahiem II.], 81 AD3d 1222, 1222 [2011];Matter of Carol YY. v James OO.,68 AD3d 1463 [2009]).
Footnote 5: Family Court—withoutobjection—took judicial notice of "all prior proceedings involving [the child at issue]."Contrary to Soule's assertion, the mere fact that the court did so in the context of a separateFamily Court proceeding involving the child is of no moment, as "[a] court may take judicialnotice of prior judicial proceedings though in a different court and involving different parties"(Matter of Justin EE., 153 AD2d 772, 774 [1989], lv denied 75 NY2d 704[1990]; see generally Matter of Kayla J.[Michael J.], 74 AD3d 1665, 1667 [2010]). Family Court also took judicial notice ofJudge Connerton's May 2006 order.
Footnote 6: We note in passing that FamilyCourt unduly curtailed the mother's testimony regarding Soule's repeated relocations with thechild. Such testimony, in our view, is both relevant to the issue of willfulness and constitutescircumstantial evidence thereof (seegenerally Labanowski v Labanowski, 4 AD3d 690, 694 [2004]).