Kephart v. Kephart

84 A.D.2d 644, 444 N.Y.S.2d 294, 1981 N.Y. App. Div. LEXIS 15767

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1981
• Status: Published

Opinion

Appeal from an order of the Family Court of Broome County (Whiting, Jr., J.), entered May 7, 1981, which imposed a penalty of 60 days’ imprisonment for violation of a prior court order of visitation. Initially, it should be noted that counsel for petitioner and the office of the Broome County Attorney did not orally argue the issues raised by respondent or submit briefs. Respondent violated an order that “such visitation *** by the respondent with the children shall not be in the presence of unrelated females”. The record conclusively establishes that contrary to the findings recited in the order appealed from, respondent did not admit all of the allegations of the petition and in particular there is no evidence that he slept in a bedroom with a woman not his wife in the presence of his children. Accordingly, the order must be reversed for legal error. Further, in the absence of some showing of harm to the children or the rights of petitioner, the finding of a “willful” violation of such an order is not factually supported by a simple admission of the presence of “unrelated females”. In any event, the imposition of a penalty of incarceration on this record was an abuse of discretion and the further admonition of the Family Court that a future presence of an unrelated female would result in a punishment of six months’ incarceration was unwarranted. Order reversed, on the law and the facts, and petition dismissed, with costs. Kane, J. P., Casey, Mikoll, Yesawich, Jr., and Herlihy, JJ., concur.