State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 17, 2015 520418
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In the Matter of PATRICK R.
ELLER,
Respondent,
v MEMORANDUM AND ORDER
MARYNA ELLER,
Appellant.
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Calendar Date: November 19, 2015
Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.
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Susan Patnode, Rural Law Center of New York, Albany
(Cynthia Feathers of counsel), for appellant.
Lisa A. Burgess, Indian Lake, for respondent.
Gerald Ducharme, Canton, attorney for the child.
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Rose, J.
Appeal from an order of the Supreme Court (Richards, J.),
entered December 18, 2014 in St. Lawrence County, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to find respondent in willful violation of a prior
order of custody and visitation.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the divorced parents of a child
(born in 2004). In a June 2012 order, the mother was awarded
sole custody of the child, with visitation to the father. The
order further provided that each party was required to provide
the other party with "timely notice" of the child's medical
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appointments and that neither party could enroll the child in any
organized activity that would take place during the other party's
custodial or parenting time without the prior consent of that
party. The father commenced this violation petition, alleging
that the mother had willfully violated the order by, among other
things, failing to provide timely notice of one of the child's
dental appointments and enrolling the child in a summer reading
program that took place during the father's parenting time
without his prior consent. Following a hearing, Supreme Court
determined that the mother had willfully violated the order.
Supreme Court sentenced the mother to 60 days in jail, but
suspended the sentence on the condition that she not further
violate the order for six months. The mother now appeals.
In support of his petition, the father "must show by clear
and convincing evidence that there was a lawful court order in
effect that clearly expressed an unequivocal mandate, that the
[mother] had actual knowledge of its terms, and that . . . her
actions or failure to act defeated, impaired, impeded or
prejudiced [the father's rights]" (Matter of Omahen v Omahen, 64
AD3d 975, 977 [2009] [internal quotation marks and citation
omitted]; see Matter of Lagano v Soule, 86 AD3d 665, 666 [2011]).
Moreover, the father must show that the mother's alleged
violation was willful (see Matter of Constantine v Hopkins, 101
AD3d 1190, 1191 [2012]; Matter of Yishak v Ashera, 90 AD3d 1184,
1185 [2011]).
Although we agree with the mother that Supreme Court erred
in finding that she willfully violated the 2012 order by failing
to give the father timely notice of the child's dental
appointment, we nevertheless affirm the order, inasmuch as the
record supports Supreme Court's finding that the mother willfully
violated the order by enrolling the child in the reading program
without the father's consent. The mother testified that she
first informed the father about the program in an email, in which
she stated that she had already enrolled the child in the program
and that it was scheduled to take place weekdays from 8:15 a.m.
to 12:25 p.m., including days that fell within the father's
summer parenting time. Although the mother testified that she
did not believe that the provision in the order applied to the
reading program, this created a credibility issue for Supreme
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Court to resolve (see Matter of Teri v Elliott, 122 AD3d 1092,
1094 [2014]; Matter of Yeager v Yeager, 110 AD3d 1207, 1210
[2013]). Moreover, contrary to the mother's contention, the fact
that the father brought the child to the program during his
scheduled parenting time did not relieve her of the obligation
under the order to obtain his consent prior to enrolling the
child. Accordingly, we cannot conclude that Supreme Court abused
its discretion in finding that the mother willfully violated the
order by failing to obtain the father's consent prior to
enrolling the child in the program (see Matter of Hissam v
Hissam, 84 AD3d 1513, 1515 [2011], lv dismissed and denied 17
NY3d 855 [2011]; Matter of Cobane v Cobane, 57 AD3d 1320, 1322-
1323 [2008], lv denied 12 NY3d 706 [2009]).
Peters, P.J., Lahtinen, Garry and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court