Philie v. Singer

• Decision Date: 21 December 2010
• Citation: 79 A.D.3d 1041,913 N.Y.S.2d 745
• Parties: In the Matter of Jennifer PHILIE, respondent, v. Michael SINGER, appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 745

79 A.D.3d 1041

In the Matter of Jennifer PHILIE, respondent,

v.Michael SINGER, appellant.

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

Dec. 21, 2010.

Michael Singer, Hicksville, N.Y., appellant pro se.

McGuire Condon, P.C., Huntington, N.Y. (Karen D. McGuire of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

In a visitation proceeding pursuant to Family Court article 6, the father appeals from an order of the Family Court, Suffolk County (Lynaugh, J.), dated March 1, 2010, which, after a hearing, granted the mother's petition to hold him in civil contempt for violating a visitation order of the same court dated January 5, 2006, and a corrected visitation order of the same court dated February 2, 2009, and directed that he be incarcerated for 60 days, which directive was suspended for one year on the condition that the father complies with all orders issued by the Family Court.

ORDERED that the order dated March 1, 2010, is affirmed, with costs.

" 'A motion to punish a party for civil contempt is addressed to the sound discretion of the [hearing] court' " ( Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, 78 A.D.3d 626, 910 N.Y.S.2d 174 [2d Dept. 2010], quoting Chambers v. Old Stone Hill Rd. Assoc., 66 A.D.3d 944, 946, 889 N.Y.S.2d 598). To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order which clearly expressed an unequivocal mandate, and that, as a result of the violation, a right or remedy of a party to the litigation was prejudiced ( see Judiciary Law § 753[A][3]; McCain v. Dinkins, 84 N.Y.2d 216, 616 N.Y.S.2d 335, 639 N.E.2d 1132; Astrada v. Archer, 71 A.D.3d 803, 898 N.Y.S.2d 149; Matter of Kraemer v. Strand-O'Shea, 66 A.D.3d 901, 886 N.Y.S.2d 641; Casavecchia v. Mizrahi, 57 A.D.3d 702, 869 N.Y.S.2d 604). The party moving for such relief must establish contempt by clear and convincing evidence ( see Matter of Kraemer v. Strand-O'Shea, 66 A.D.3d 901, 886 N.Y.S.2d 641; Rienzi v. Rienzi, 23 A.D.3d 447, 449, 808 N.Y.S.2d 113). It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party ( see Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, 78 A.D.3d 626, 910 N.Y.S.2d 174 [2d Dept. 2010]; Astrada v. Archer, 71 A.D.3d 803, 898 N.Y.S.2d 149; Casavecchia v. Mizrahi, 57 A.D.3d 702, 869 N.Y.S.2d 604).

Here, the Family Court providently granted the mother's petition to hold the father in civil contempt since the father received notice, as of January 14, 2009, that the mother scheduled a vacation with the child, to commence on Monday, February 16, 2009. The father was also advised that the mother had booked a...