Mcnelis v. Carrington

• Decision Date: 16 April 2014
• Citation: 983 N.Y.S.2d 438,116 A.D.3d 858,2014 N.Y. Slip Op. 02589
• Parties: In the Matter of John McNELIS, respondent, v. Susan M. CARRINGTON, appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 858

983 N.Y.S.2d 438

2014 N.Y. Slip Op. 02589

In the Matter of John McNELIS, respondent,

v.Susan M. CARRINGTON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 16, 2014.

Law Offices of K.D. Rothman, P.C., Nanuet, N.Y., for appellant.

Montalbano Condon & Frank, P.C., New City, N.Y. (Martin Butcher of counsel), for respondent.

In related child custody proceedings pursuant to Family Court Act article 6 and related family offense proceedings pursuant to Family Court Act article 8, the mother appeals from stated portions of an order of the Family Court, Rockland County (Warren, J.), entered January 10, 2013, which, inter alia, found her in civil contempt for violating a prior order of the same court dated July 22, 2011, and granted the father an order of protection.

ORDERED that the order entered January 10, 2013, is affirmed insofar as appealed from, without costs or disbursements.

To find a party in civil contempt of court pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, “ ‘(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct’ ” ( El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 16–17, 978 N.Y.S.2d 239, quoting Bernard–Cadet v. Gobin, 94 A.D.3d 1030, 1031, 943 N.Y.S.2d 164;see Judiciary Law § 753[A]; McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132;Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 513 N.E.2d 706;Pereira v. Pereira, 35 N.Y.2d 301, 308, 361 N.Y.S.2d 148, 319 N.E.2d 413;Miller v. Miller, 61 A.D.3d 651, 877 N.Y.S.2d 148). Here, we conclude that the Family Court properly found the mother in contempt for violating an order dated July 22, 2011, by engaging in written communication with the parties' children.

Further, the Family Court correctly awarded the father an attorney's fee, payable by the mother. Judiciary Law § 773 permits recovery of an attorney's fee from the offending party by a party aggrieved by contemptuous conduct ( see Vider v. Vider, 85 A.D.3d 906, 925 N.Y.S.2d 189;Schwartz v. Schwartz, 79 A.D.3d 1006, 913 N.Y.S.2d 313;Children's Vil. v. Greenburgh Eleven Teachers' Union Fedn. of Teachers, Local 1532, AFT, AFL–CIO, 249 A.D.2d 435, 671 N.Y.S.2d 503;Judiciary Law § 773). The court correctly determined that the father was entitled to an award of an attorney's fee flowing from the mother's contemptuous behavior.

Further, we reject the mother's contention that there is no...