Opinion
2012-12-19
In the Matter of Antonio C. CUNHA, respondent, v. Rosa E. URIAS, appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant. Jessica Sin, Little Neck, N.Y., attorney for the child.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant. Jessica Sin, Little Neck, N.Y., attorney for the child.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL and SYLVIA HINDS–RADIX, JJ.
In a custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals from an order of commitment of the Family Court, Nassau County (Eisman, J.), dated November 21, 2011, which, after a hearing, in effect, adjudged her to be in contempt of court and committed her to the custody of the Nassau County Correctional Facility for a term of imprisonment of six months. By decision and order on motion dated December 14, 2011, this Court stayed enforcement of the order of commitment, pending hearing and determination of the appeal.
ORDERED that the order of commitment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof committing the mother to the custody of the Nassau County Correctional Facility for a term of imprisonment of six months, and substituting therefor a provision committing the mother to the custody of the Nassau County Correctional Facility for a term of imprisonment of 30 days; as so modified, the order of commitment is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for the issuance of an amended order of commitment in accordance herewith.
By contesting the father's contempt petition on the merits without objecting that it did not comply with the notice and warning requirements of Judiciary Law § 756, the mother waived any objections to the validity of the petition based upon those requirements ( see Matter of Rappaport, 58 N.Y.2d 725, 726, 458 N.Y.S.2d 911, 444 N.E.2d 1330;Matter of Laland v. Edmond, 13 A.D.3d 451, 785 N.Y.S.2d 718;Matter of Restivo v. Cincu, 11 A.D.3d 621, 782 N.Y.S.2d 867).
Moreover, contrary to the mother's contention, the Family Court properly, in effect, adjudicated her in contempt for willfully failing to obey the visitation provision of a prior order ( see Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508). However, under the circumstances of this case, the punishment imposed was excessive to the extent indicated herein ( see Matter of Rjeoutski v. Mavrina, 100 A.D.3d 908, 955 N.Y.S.2d 95).
The mother's remaining contentions are either without merit or unpreserved for appellate review.