Milton v. Dennis

99 A.D.2d 565, 471 N.Y.S.2d 392, 1984 N.Y. App. Div. LEXIS 16799

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1984
• Status: Published

Opinion

Appeal from an order of the Family Court of Broome County (Whiting, Jr., J.), entered February 25, 1983, which held respondent in contempt for willfully violating the terms of a visitation order. Pursuant to court order, respondent’s visitation with his daughter Natasha includes from 11:00 a.m. Saturday to 2:00 p.m. Sunday, full alternate weekends in July and August, and Tuesdays at 6:00 p.m. to Wednesday at 8:00 a.m. It is out of this last period that the violation respondent is charged with is alleged to have arisen. On Wednesday, January 5,1983, respondent took his daughter directly to school instead of returning her to the mother’s home. Petitioner mother testified that although she was hospitalized at the time, she had arranged for her sister to care for Natasha. She further stated that she had not told respondent to vary from the terms of the Family Court order and take Natasha straight to school, which commenced at 9:00 a.m. Petitioner also claimed that respondent consistently returned the child late on Wednesdays. After an acrimonious cross-examination of his ex-wife (the parties elected to appear without counsel) and testimony from a witness who attested to respondent’s presence at school with Natasha on the morning of January 5, respondent declined on the stand to offer any explanation or justification whatsoever for his failure to bring Natasha home at 8:00 a.m. Now, on appeal, he asserts that he acted as he did because the child’s mother was in the hospital. As other arrangements had been made for the child’s care, this hardly excuses noncompliance with the court’s order. Furthermore, the record discloses that respondent demanded that the mother strictly adhere to the provisions of the visitation order by insisting on his visitation even when Natasha was ill. By exacting similarly strict compliance from respondent, Family Court acted quite properly. Accordingly, the order of Family Court finding respondent in contempt, sentencing him to 30 days in the Broome County Jail and suspending that sentence upon condition that respondent fully comply in the future with the court’s order concerning visitation should be affirmed. Order affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.