Kaczor v. Kaczor, 92410.

• Citation: 2004 NY Slip Op 08742,785 N.Y.S.2d 573,12 A.D.3d 956
• Decision Date: 24 November 2004
• Docket Number: 92410.
• Parties: JEFFREY R. KACZOR, Respondent, v. LORI M. KACZOR, Appellant.
• Court: New York Supreme Court Appellate Division

12 A.D.3d 956

785 N.Y.S.2d 573

2004 NY Slip Op 08742

JEFFREY R. KACZOR, Respondent, v. LORI M. KACZOR, Appellant.

92410.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 24, 2004.

Appeal from an order of the Family Court of Fulton County (Jung, J.), entered June 6, 2002, which, inter alia, upon referral of the matter from Supreme Court, awarded sole custody of the parties' child to plaintiff.

Mugglin, J.

At the conclusion of the matrimonial action between these parties, Supreme Court referred issues concerning the custody and support of the child to Family Court. During the pendency of the matrimonial action, Family Court had issued a temporary order of joint custody, defendant having physical custody subject to specifically delineated rights of visitation in favor of plaintiff. Thereafter, as a result of numerous disputes regarding visitation, the parties filed various petitions charging each other with violating the temporary order. Family Court considered all of these issues in one evidentiary hearing and awarded sole custody to plaintiff, the father, subject to visitation for defendant, the mother, held the mother in contempt of the temporary order and dismissed all other petitions. Defendant appeals.

Family Court found that defendant willfully violated the visitation order on two occasions, once when she refused to deliver the child until plaintiff delivered defendant's snowmobile to her and once when she refused to allow the child to accompany plaintiff because his girlfriend's husband was with him. Nevertheless, when plaintiff returned alone, defendant still refused to allow the child to go with him. While Family Court assessed no penalties for these contempts, it did consider them in making the custody determination. "To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and that the person alleged to have violated that order had actual knowledge of its terms" (Graham v Graham, 152 AD2d 653, 654 [1989] [citations omitted]; accord Matter of Hoglund v Hoglund, 234 AD2d 794, 795 [1996]).

Defendant contends that the acts complained of were not proscribed by the order and Family Court's decision lacked a sound basis in the record and was contrary to the weight of the evidence. We find no merit to these arguments. Defendant clearly knew that plaintiff was entitled, unconditionally, to visitation with his daughter on Tuesdays and Thursdays from 6:00 p.m. to 8:00 a.m. and on every other weekend. Nevertheless, she withheld visitation as above set forth. As can be expected, the testimony of the parties differed as to what occurred on those occasions. We discern no basis in this record to disturb Family Court's credibility determinations resolving factual issues in plaintiff's favor. Moreover, contrary to defendant's contention, Family Court's findings are set forth and supported by the record in sufficient fashion to enable appellate review (see Matter of Vezina v Vezina, 8 AD3d 1047, 1048 [2004]; Matter of Miller v Miller, 220 AD2d 133, 136 [1996]).

Defendant also contends that Family Court's award of sole custody to plaintiff lacks a sound and substantial basis in the record and is contrary to the weight of...