Ainsley v. Parke

2023 NY Slip Op 01993

In the Matter of Jermain Ainsley, appellant, v. Lisa M. Parke, respondent.

Nos. 2022-02471, 2022-02473, Docket Nos. V-1873-16/21A, V-2298-16/21A

Supreme Court of New York, Second Department

April 19, 2023

Kyle Sosebee, Brooklyn, NY, for appellant.

Austin I. Idehen, Jamaica, NY, for respondent.

Karen P. Simmons, Brooklyn, NY (Louise Feld and Janet Neustaetter of counsel), attorney for the child.

BETSY BARROS, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from (1) an amended order of the Family Court, Kings County (Michele Titus, J.), dated April 11, 2022, and (2) an order of the same court (Nisha Menon, Ct. Atty. Ref.) dated April 13, 2022. The amended order, after a hearing, denied the father's motion to hold the mother in civil contempt for violating a certain provision of a temporary order of parental access of the same court (Nisha Menon, Ct. Atty Ref.) dated December 17, 2020. The order, upon the amended order, dismissed the father's petition to enforce the subject provision of the temporary order of parental access.

ORDERED that the amended order and the order are affirmed, without costs or disbursements.

The parties are the parents of a child born in 2009. On February 19, 2021, the father commenced a proceeding to enforce a provision of a temporary order of parental access dated December 17, 2020 (hereinafter the December 2020 order) permitting the father to have a video call with the child once a week on Sunday at 4:00 p.m. and directing the mother to provide the father with a video link by 2:00 p.m. on Sunday. The father alleged that the mother failed to provide him with the requisite video link on January 10, 17, and 24 and February 7 and 14, 2021. The father separately moved to hold the mother in contempt for violating the subject provision of the December 2020 order. After a hearing, at which both parties testified, the Family Court denied the father's motion to hold the mother in civil contempt and dismissed the father's petition. The father appeals.

A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court (see Cassarino v Cassarino, 149 A.D.3d 689, 690). To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753(A)(3), the movant is required to prove by clear and convincing evidence that a lawful order of the court clearly expressing an unequivocal mandate, was in effect that the order was disobeyed and the party disobeying the order had knowledge of its terms, and that the movant was prejudiced by the offending conduct (see id.; El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29; Matter of Herbst v Palange, 193 A.D.3d 859, 859). Prejudice is shown where the party's actions "were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party" (Matter of Mendoza-Pautrat v Razdan, 160 A.D.3d 963, 964 [internal quotation marks omitted]; see Matter of Figueroa-Rolon v Torres, 121 A.D.3d 684, 685). In order for contempt sanctions to be imposed pursuant to Judiciary Law § 753(A), willfulness need not be shown (see El-Dehdan v El-Dehdan, 26 N.Y.3d at 33-35)....