Eshleman v. Eshleman

155 A.D.2d 792, 548 N.Y.S.2d 69, 1989 N.Y. App. Div. LEXIS 14194

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1989
• Status: Published

Opinion

— Mikoll, J.

Appeal from an order of the Family Court of Broome County (Ray, J.), entered February 23, 1988, which dismissed petitioner’s application pursuant to Family Court Act § 651 alleging respondent to be in willful violation of a prior custody order.

Petitioner filed a petition in Family Court alleging a violation of a prior custody order of the court concerning visitation. The incident giving rise to the violation concerned respondent’s claim that the two children, aged eight and nine, should spend Christmas eve night with her at her residence and be returned to petitioner’s custody at 9:00 a.m. Christmas day. A dispute occurred in front of the children over this proposed arrangement on Christmas eve morning.

The custody order provided, among other things, that respondent was to have custody from 9:00 a.m. until 9:00 p.m. on Christmas eve and that she was to have custody on alternating holidays. Christmas eve is specified as a holiday as was Christmas day. Respondent explained that petitioner had custody of the children overnight on Christmas eve the prior year and that, thus, she should have them overnight this Christmas eve holiday. She said that was what she believed Family Court had intended.

In dismissing the violation petition from the bench, Family Court found that respondent violated the court’s order but that the violation was not willful. Petitioner appeals from the order of dismissal contending that Family Court erred in not finding the violation willful and petitioner in contempt. We disagree.

On this record, Family Court could properly conclude that respondent did not willfully violate the court’s order. Family Court noted in its bench decision that respondent was wrong her interpretation of the order and accepted a portion of the blame, implying that the wording of the order was deficient and in some way contributed to respondent’s misinterpretation of it.

Order affirmed, without costs. Mahoney, P. J., Kane, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.