Labanowski v. Labanowski

• Decision Date: 26 February 2004
• Docket Number: 93742.
• Citation: 2004 NY Slip Op 01280,772 N.Y.S.2d 734,4 A.D.3d 690
• Parties: AMY B. LABANOWSKI, Appellant-Respondent, v. JEFFRY E. LABANOWSKI, Respondent-Appellant. ROBERT M. KELLY, as Law Guardian, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 690

772 N.Y.S.2d 734

2004 NY Slip Op 01280

AMY B. LABANOWSKI, Appellant-Respondent, v. JEFFRY E. LABANOWSKI, Respondent-Appellant ROBERT M. KELLY, as Law Guardian, Appellant-Respondent.

93742.

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

February 26, 2004.

Cross appeals from an order of the Supreme Court (Aulisi, J.), entered April 22, 2003 in Warren County, which, inter alia, granted defendant's motions to hold plaintiff in contempt.

SPAIN, J.P.

Plaintiff (hereinafter the mother) and defendant (hereinafter the father) are the parents of three children, Cassandra (born in 1983), Vatoria (born in 1988) and Joshua (born in 1990). The parties separated in March 2000 and thereafter Family Court, Warren County, ordered joint custody of the children with primary physical custody and residence with the mother and specified overnight visitation with the father, all apparently on consent. In May 2000, the mother commenced a divorce action in Supreme Court.¹ Because the children were resistant to visitation from the outset, Family Court ordered the family to participate in therapeutic counseling with two specified therapists to "facilitate the father's visitation." In November 2001, due to the children's continuing and adamant refusal to visit with their father over an 18-month period, the court issued a supplemental order directing, among other things, that the two younger children (then ages 12 and 11) and both parents participate in "therapeutic visitation" counseling with a new therapist for at least one-half hour each week.² That order further directed that, after one month of therapeutic visits, the father would have unsupervised visits two hours per week at a neutral site, and it required the parents to engage in individual counseling, and reflected that "[t]he parties agree that each shall strive to facilitate such visitation, and that the children should not refuse to take part in the visitation, nor should there be interference in any way with such visitation." Within a month, Thomas Osika, a clinical psychologist, began the therapeutic visits at his office between the children and the father, but they were unsuccessful as the children refused to cooperate and their mother remained unwilling to facilitate and lend supportive approval to the court's directive. The unsupervised visitation was likewise not accomplished.

As a result of the repeated breakdown in visitation, the father filed three motions in Supreme Court primarily seeking a change in custody and that the mother be held in contempt. The contempt charges stemmed from the mother's violation of the court's visitation orders by, among other things, failing to cooperate in the therapeutic visitation counseling between the children and the father and failing to bring the children to the home of the father's parents in August 2002 for a family reunion visit. Following a three-day hearing in September and October 2002 focused on facts surrounding the alleged contempt, Supreme Court issued a decision and order finding no legitimate reason for the children's refusal to visit with their father and concluding that the mother had knowledge of the court's directives and willfully violated its orders, "either by omission or commission." As a sanction for the mother's contempt, Supreme Court "pendente lite" transferred custody of the children to the father with physical custody in the Warren County Department of Social Services for placement in foster care. The court further directed that the mother have visitation with the children only in the presence of the children's counselor, initially for no more than one hour per week, and that the mother's parents not have any visitation with the children pending further instructions from the court. The court also ordered that the father's initial visits with the children be in the presence of their counselor for two hours per week, terminated the father's child support obligation with respect to Cassandra, the oldest child, and awarded him counsel fees. The mother, father and the children—through their Law Guardian³—have all appealed.⁴

To summarize, despite the initial Family Court joint custody order and supplemental orders of visitation, the children have refused to visit with their father since shortly after the parties' separation. Repeated and persistent attempts by the father, the court and several professionals have been unsuccessful. As a result, in the last four years there has been little, if any, genuine visitation and virtually no relationship between the father and his children. The father insists on being given the opportunity to have a meaningful relationship with his children and nothing contained in the record supports the ongoing denial of that right. The children, now 15 and 13, have expressed that they do not love their father and do not want to visit with him and, even when they have physically appeared in a therapeutic setting, they have nearly always refused to talk to him. When on a number of occasions during the summer of 2002, under court order and threat of contempt, the mother delivered them to a neutral visitation site, they either refused to get out of her car or, if they did get out of the car and remained in his presence during the visitation period, they openly expressed hostility or did not speak at all.⁵

According to the therapists, there is no justifiable reason for the children to be so resistant to visiting with their father and he represents absolutely no danger to them. Moreover, despite a full opportunity during the course of the hearing, neither the children nor the mother have articulated any justifiable reasons for the children's refusal to see their father. In our view, there is ample evidence in the record to support the conclusion that, throughout the more than three years leading up to the contempt hearing, the mother did very little, if anything, to genuinely or affirmatively encourage the children to comply with the court orders and visit with their father; rather, she communicated to them, verbally and otherwise, that she was not happy with visitation being imposed upon them and allowed the children to decide themselves whether to comply with the court orders.⁶

The father's initial allegation in his contempt request was that the mother violated the clear mandate of the November 2001 order when she failed to encourage the children to keep their appointments with Osika, and refused to schedule or consent to appointment dates for the children for continuing therapeutic visitation. Osika's testimony and report demonstrated that in mid-December 2001, when he attempted to schedule two consecutive weekly appointments for the children, the mother "became very difficult" and refused to disrupt their schedules, which resulted in no further appointments that year. At a scheduled appointment on January 2, 2002, the father appeared with Christmas presents for the children—not having seen them during the holidays—and the mother showed up alone reporting that the children had refused to come, that she would have had to physically put them in her vehicle. Consequently, Osika stopped scheduling visits and sent his report to the court. The evidence, including the mother's testimony, supports a finding that she was not willing to alter their schedules, made no attempt to reschedule these dates, and allowed them to decide whether to comply with the court order.

In the other alleged violation, an ex parte order of Supreme Court dated August 29, 2002 directed the mother to drive the children to the father's parents' home in Orange County for a family reunion visit by noon on August 31, 2002 and the father was to return them that night. The mother had notice of the court's decision several days in advance. However, on the morning of the reunion visit, the mother's father called his treating physician and longtime friend, a medical doctor, and arranged for the mother to bring the children to the doctor's office. After listening to their complaints and examining them, the doctor concluded that they were "emotionally upset," recommending against the trip. The mother thereafter informed the father by phone that the children would not be making the trip. Notably, the doctor had been aware of the difficulties between the mother and father through conversations socially and professionally with the maternal grandparents and with the mother who had recently become his patient. Supreme Court, justifiably, gave little weight to the doctor's diagnoses.

"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]). It must also be demonstrated that the offending conduct or failure to act "defeated, impaired, impeded or prejudiced" a right or remedy of the moving party (Judiciary Law § 753 [A]; see Paulmann v Paulmann, 224 AD2d 891, 893 [1996]; Matter of Frandsen v Frandsen, 190 AD2d 975, 976 [1993]). "Although it is not necessary that the order actually have been served upon that party, actual notice is an essential predicate to a contempt order" (Graham v...