Opinion
783 CAF 21-00848
12-23-2022
In the Matter of Victor MCRAE, Jr., Petitioner-Respondent-Appellant, v. Qasheeka S. BROWN, Respondent-Petitioner-Respondent.
SCOTT T. GODKIN, WHITESBORO, FOR PETITIONER-RESPONDENT-APPELLANT. STEPHANIE R. DIGIORGIO, UTICA, FOR RESPONDENT-PETITIONER-RESPONDENT. LAWRENCE BROWN, BRIDGEPORT, ATTORNEY FOR THE CHILDREN.
SCOTT T. GODKIN, WHITESBORO, FOR PETITIONER-RESPONDENT-APPELLANT.
STEPHANIE R. DIGIORGIO, UTICA, FOR RESPONDENT-PETITIONER-RESPONDENT.
LAWRENCE BROWN, BRIDGEPORT, ATTORNEY FOR THE CHILDREN.
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner-respondent father appeals from an order that, inter alia, granted respondent-petitioner mother's petition seeking to hold the father in contempt for violating the provisions of the parties’ order of custody. Contrary to the father's contention, Family Court did not err in granting the mother's petition. "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" ( Matter of Mauro v. Costello , 162 A.D.3d 1475, 1475, 78 N.Y.S.3d 531 [4th Dept. 2018] [internal quotation marks omitted]). "In addition, it must be established that the offending conduct defeated, impaired, impeded, or prejudiced a right or remedy of the complaining party" ( id. [internal quotation marks omitted]; see Judiciary Law § 753 [A] ; Family Ct Act § 156 ). "A court's determination finding a party in contempt of an order will not be disturbed absent an abuse of discretion" ( Matter of Beesmer v. Amato , 162 A.D.3d 1260, 1261, 79 N.Y.S.3d 334 [3d Dept. 2018] ; see Rech v. Rech , 162 A.D.3d 1731, 1732, 80 N.Y.S.3d 780 [4th Dept. 2018] ). Here, the order of custody provided the father with visitation every other weekend and continued a provision permitting "such other and further visitation as the parties may agree [on]." The mother established that she and the father agreed to extend one of his weekend visitations with one of the children until Monday morning. The father conceded that the child was not returned to the mother at the agreed time, and the mother established that she was required to obtain an order to show cause as well as police assistance in order to regain custody of the child several days later. Thus, the mother established by clear and convincing evidence that the father violated the order of custody (see Rech , 162 A.D.3d at 1732, 80 N.Y.S.3d 780 ).
The father's contention that the court erred in failing to grant him primary physical custody of the children is unpreserved inasmuch as he did not seek primary physical custody of the children (see Matter of Mountzouros v. Mountzouros , 191 A.D.3d 1388, 1389, 140 N.Y.S.3d 343 [4th Dept. 2021], lv denied 37 N.Y.3d 902, 2021 WL 2153106 [2021] ; see generally Matter of Pontillo v. Johnson-Kosiorek , 196 A.D.3d 1163, 1165, 152 N.Y.S.3d 204 [4th Dept. 2021] ; Matter of Colleen GG. v. Richard HH. , 135 A.D.3d 1005, 1006-1007, 22 N.Y.S.3d 629 [3d Dept. 2016] ).