Matter of Michalak v. Perez

2021 NY Slip Op 02667, 143 N.Y.S.3d 241, 193 A.D.3d 1367

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 2021
• Docket: 439 CAF 19-02374
• Status: Published

Opinion

Matter of Michalak v Perez (2021 NY Slip Op 02667)

Matter of Michalak v Perez

2021 NY Slip Op 02667

Decided on April 30, 2021

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 30, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.

439 CAF 19-02374

[*1]IN THE MATTER OF TODD MICHALAK, PETITIONER-RESPONDENT,

v

MELISSA PEREZ, RESPONDENT-APPELLANT. ——————————————————- IN THE MATTER OF MELISSA PEREZ, PETITIONER-APPELLANT, TODD MICHALAK, RESPONDENT-RESPONDENT.

CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.

LAW OFFICE OF PETER P. VASILION, WILLIAMSVILLE (PETER P. VASILION OF COUNSEL), FOR PETITIONER-RESPONDENT AND RESPONDENT-RESPONDENT.

MICHELE A. BROWN, BUFFALO, ATTORNEY FOR THE CHILD.

Appeal from an order of the Family Court, Erie County (Mary G. Carney, J.), entered December 9, 2019 in proceedings pursuant to Family Court Act article 6. The order, inter alia, granted sole custody of the subject child to petitioner-respondent.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent-petitioner mother appeals from an order that, inter alia, granted a petition of petitioner-respondent father for modification of a prior order by awarding him sole custody of the subject child and denied the mother's violation petition against the father. We affirm for reasons stated in the decision at Family Court. We write only to note that, under the correct legal standard, the court did not abuse its discretion in refusing to find the father in civil contempt of court for disobeying the prior order inasmuch as the mother failed to establish by clear and convincing evidence the elements necessary to support such a finding (see Matter of White v Stone, 165 AD3d 1641, 1642 [4th Dept 2018], lv denied 32 NY3d 913

[2019]; see generally El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]).

Entered: April 30, 2021

Mark W. Bennett

Clerk of the Court