SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
111
CAF 09-01266
PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ.
IN THE MATTER OF DARLA WILCE,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
STEPHEN SCALISE, RESPONDENT-APPELLANT.
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IN THE MATTER OF STEPHEN SCALISE,
PETITIONER-APPELLANT,
V
DARLA WILCE, RESPONDENT-RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.
Appeal from an order of the Family Court, Monroe County (Patricia
E. Gallaher, J.), entered May 6, 2009 in proceedings pursuant to
Family Court Act article 6. The order, among other things, found that
respondent father willfully violated an order of custody and
visitation.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.
Memorandum: Respondent father appeals from an order finding him
in civil contempt for violating the visitation provisions of a custody
order and imposing a fine of $500 as a sanction, to be applied against
the amount of child support arrears owed to the father by petitioner
mother. We agree with the father that the order fails to set forth
the required findings that his conduct was calculated to, or actually
did, impair, impede or prejudice the mother’s rights or remedies (see
Biggio v Biggio, 41 AD3d 753; Oppenheimer v Oscar Shoes, 111 AD2d 28,
29). In addition, although the record contains testimony from the
mother that, if credited, could support a finding that the father
violated the visitation provisions of the custody order, the court
also failed to specify the testimony that it found to be credible to
support the finding of civil contempt. Thus, we cannot merely modify
the order by adding the requisite language (cf. Biggio, 41 AD3d at
-2- 111
CAF 09-01266
754). Under the circumstances of this case, we reverse the order and
dismiss the petition.
Entered: February 18, 2011 Patricia L. Morgan
Clerk of the Court