Opinion
No. 2023-00884 Docket Nos. V-7243-20/21B V-7244-20/21B
04-10-2024
In the Matter of Richard Thomas Koska, appellant, v. Shari Jill Koska, respondent.
Thomas J. Butler, Melville, NY, for appellant. Darla A. Filiberto, Islandia, NY, for respondent. Susan A. DeNatale, Bayport, NY, attorney for the child.
Thomas J. Butler, Melville, NY, for appellant.
Darla A. Filiberto, Islandia, NY, for respondent.
Susan A. DeNatale, Bayport, NY, attorney for the child.
BETSY BARROS, J.P. CHERYL E. CHAMBERS HELEN VOUTSINAS LOURDES M. VENTURA, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (James F. Quinn, J.), dated September 9, 2021. The order, without a hearing, upon granting the mother's application, in effect, pursuant to CPLR 3211(a)(7) to dismiss the father's petition alleging that the mother violated an order of the same court dated August 17, 2020, dismissed the father's petition.
ORDERED that the order is affirmed, without costs or disbursements.
The parties are the divorced parents of two children, one born in 2003 and the other in 2007. In 2018, the parties entered into a stipulation in the divorce action resolving issues of custody and parental access, wherein they agreed to share joint custody of the children. On August 17, 2020, in related custody and parental access proceedings, the Family Court issued an order in response to allegations that the younger child had injured the older child (hereinafter the August 2020 order). The court directed "that the [younger child] should not be left alone with [the older child] when in the care or custody of either party." Thereafter, on June 25, 2021, the father filed a petition alleging that the mother violated the August 2020 order. In support thereof, the father asserted that he had obtained a recording of the younger child stating "that he was alone with [the older child]." That same day, the father appeared before the court and provided certain additional details relating to his petition. The father subsequently prepared a document purporting to be a transcript of the recording mentioned in his petition, which was thereafter filed with the court. On September 9, 2021, the parties appeared before the court for a hearing, among other things, on the father's petition. Prior to the commencement of the hearing however, the mother's attorney made an oral application, in effect, pursuant to CPLR 3211(a)(7) to dismiss the father's petition. By order dated September 9, 2021, the court granted the mother's application without a hearing and dismissed the father's petition. The father appeals.
In order to punish a party for civil contempt, "[t]he burden is on the moving party to demonstrate, by clear and convincing evidence, that the accused party violated a clear and unequivocal court order which the accused party knew was in effect, thereby prejudicing a right of another party to the litigation" (Matter of Jean v Washington, 71 A.D.3d 1145, 1146 [internal quotation marks omitted]; see Matter of Kraemer v Strand-O'Shea, 66 A.D.3d 901, 901). Therefore, to establish a "violation of a Family Court order, the petitioner has the burden of proving his or her case by clear and convincing evidence" (Matter of Sicina v Gorish, 209 A.D.3d 658, 658 [internal quotation marks omitted]). In order to demonstrate the requisite prejudice, the petitioner must show that the respondent's acts or omissions "significantly defeated, impaired, impeded, or prejudiced his [or her] rights" (Matter of Perez v Richmond, 104 A.D.3d 692, 692; see Matter of Tonya YY. v James ZZ., 220 A.D.3d 1149, 1150-1151; Matter of Michael F. [Shreeis J.], 152 A.D.3d 770, 771). Indeed, the violation of a court order, standing alone, is insufficient to punish a party for civil contempt (see Matter of Sheehan v Sheehan, 192 A.D.3d 894, 895). If the petitioner "makes the required showing, the burden shifts to the [respondent] to refute that showing, or to offer evidence of a defense such as an inability to comply with the order" (Matter of Mendoza-Pautrat v Razdan, 160 A.D.3d 963, 964). "Further, a hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Matter of Jean v Washington, 71 A.D.3d at 1146 [alterations and internal quotation marks omitted]; see Matter of Brown v Mudry, 55 A.D.3d 828, 829). Moreover, "[a] violation petition is subject to the requirements of CPLR 3013, and thus is required to be sufficiently particular as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action" (Matter of Tonya YY. v James ZZ., 220 A.D.3d at 1149-1150 [alterations and internal quotation marks omitted]; see Matter of Young v Fitzpatrick, 106 A.D.3d 830, 831; Matter of Miller v Miller, 90 A.D.3d 1185, 1186).
"When reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), which is proper" in Family Court proceedings because they "are civil in nature, we afford the petition a liberal construction, accept the allegations contained therein as true, and grant the petitioner the benefit of every favorable inference" (Matter of Cote v Berger, 112 A.D.3d 821, 822 [citation omitted]; see Matter of Sult v Sult, 165 A.D.3d 1152, 1152-1153). Nonetheless, dismissal is warranted where "the allegations in the petition [do] not set forth sufficient facts which, if established at an evidentiary hearing, could afford a basis for" granting the relief sought (Matter of Young v Fitzpatrick, 106 A.D.3d at 831).
By alleging that the mother violated the August 2020 order, the father sought to have the mother held in contempt for violating that order (see Matter of Terry v Oliver, 63 A.D.3d 1079, 1080). However, liberally construing the allegations in the father's petition and granting him the benefit of every favorable inference, the father's allegations, even if established at an evidentiary hearing, could not afford a basis for a finding that the mother violated the August 2020 order (see Matter of Cote v Berger, 112 A.D.3d at 822; Matter of Young v Fitzpatrick, 106 A.D.3d at 831; Matter of Philie v Singer, 79 A.D.3d 1041, 1042). Even assuming the father adequately alleged a violation of the August 2020 order, he failed to set forth facts that could support a finding that the mother "significantly defeated, impaired, impeded, or prejudiced his rights" (Matter of Perez v Richmond, 104 A.D.3d at 692; see Matter of Miller v Miller, 90 A.D.3d at 1186; Matter of Terry v Oliver, 63 A.D.3d at 1080). In any event, the materials the father subsequently submitted in support of his petition provided the Family Court with adequate information to conclude, without a hearing, that the father could not establish a violation (see Matter of Colon v Sawyer, 107 A.D.3d 794, 794-795; Matter of Jean v Washington, 71 A.D.3d at 1146; cf. Matter of Pedicini v Hull, 223 A.D.3d 672, 672-674). Therefore, the court correctly granted the mother's application and dismissed the father's petition (see Matter of Young v Fitzpatrick, 106 A.D.3d at 831; Matter of Morisseau v Morisseau, 27 A.D.3d 651, 652; cf. Matter of Buck v Buck, 154 A.D.3d 1134, 1135).
The father's remaining contention is without merit.
BARROS, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.