| Matter of Sherman v Cook |
| 2011 NY Slip Op 08854 [90 AD3d 1170] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Rickey Sherman, Appellant, v Stephany Cook,Respondent. (And Two Other Related Proceedings.) |
—[*1] Craig Fritzsch, Binghamton, for respondent. Jehed Diamond, Delhi, attorney for the child.
McCarthy, J. Appeals (1) from an order of the Supreme Court (Charnetsky, J.), entered June3, 2010 in Broome County, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to hold respondent in willful violation of a prior order ofvisitation, (2) from an order of said court, entered November 18, 2010 in Broome County, whichpartially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, tohold respondent in willful violation of a prior order of visitation, and (3) from an order of saidcourt, entered November 24, 2010 in Broome County, which dismissed petitioner's application,in a proceeding pursuant to Family Ct Act article 6, to hold respondent in willful violation of aprior order of visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) have a child incommon (born in 2006). Pursuant to a September 2009 order, the mother has sole custody andthe father was granted visitation on alternate weekends. The father filed three petitions allegingthat the mother willfully violated the order by depriving him of visitation during specifiedperiods of time. Supreme Court resolved two of the petitions by finding that the mother willfullyviolated the order, but imposed no punishment. The court dismissed a third petition, finding that[*2]the mother violated the order but her violation was notwillful. The father appeals.
Supreme Court had discretion as to what sanction to impose, if any, for the mother's twowillful violations, and we give deference to its determination in that regard (see Matter ofGlenn v Glenn, 262 AD2d 885, 886 [1999], lv dismissed and denied 94 NY2d 782[1999]; Matter of Wright v Wright, 205 AD2d 889, 892 [1994]). Based upon the court'sability to observe the witnesses and assess their demeanor, as well as the court's history with thisfamily, we cannot say that the court abused its discretion in declining to impose any punishmenthere (compare Matter of Terry vBorggreen, 6 AD3d 1001, 1002-1003 [2004]).
On the third violation petition, Supreme Court found that the mother did prevent the fatherfrom exercising visitation on the one date alleged, but that she did so because she heard a dogbarking in the father's apartment and both parents were aware that the child is allergic to dogs.The court accepted the mother's testimony addressing this occasion and her concern for thechild's health. According deference to the court's credibility determinations, we cannot say thatthe court abused its discretion in holding that the father failed to meet his burden of proving awillful violation by clear and convincing evidence (see Matter of Cobane v Cobane, 57 AD3d 1320, 1322-1323 [2008],lv denied 12 NY3d 706 [2009]; Matter of Rebecca O. v Todd P., 309 AD2d 982,983 [2003]; see also Dwyer v De La Torre, 279 AD2d 854, 857 [2001]).
Rose, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.