State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 1, 2016 521847
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In the Matter of DANIEL P.
GERBER,
Respondent,
v MEMORANDUM AND ORDER
KIMBERLY GERBER,
Appellant.
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Calendar Date: October 12, 2016
Before: Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.
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Theresa M. Suozzi, Saratoga Springs, for appellant.
Mark A. Kassner, Glenville, attorney for the children.
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Lynch, J.
Appeal from an order of the Family Court of Saratoga County
(Jensen, J.), entered September 1, 2015, 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.
Petitioner (hereinafter the father) and respondent
(hereinafter mother) are the divorced parents of three teenaged
boys (born between 1998 and 2002).1 Pursuant to an October 16,
2014 custody order, Family Court suspended all contact between
the mother and the children for a period of six months, with
1
The eldest son turned 18 while this appeal was pending,
rendering this custody dispute moot as to him.
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therapeutic visitation to then resume, in light of "overwhelming
evidence that the mother was manipulating the children in ongoing
efforts to alienate them from the father" (Matter of Gerber v
Gerber, 141 AD3d 901, 902 [2016]). The court also ordered the
mother to pay $500 in fines to the father by a specified date.
On December 3, 2014, the father commenced this proceeding
alleging that the mother violated the terms of that order by
having continued contact with the children. The litigation
expanded in January 2015, when the mother petitioned pro se for
modification of the 2014 order, contending that the father's
placement of the children in a new school district caused them
undue stress. Family Court sua sponte dismissed the mother's
petition in March 2015, an order that this Court recently
affirmed (id.). Following a hearing on the father's application,
Family Court found that the mother willfully violated the October
16, 2014 order, granted the father's petition and, among other
things, continued the no-contact order between the mother and the
children for an additional six-month period. This appeal by the
mother ensued.
We affirm. "To sustain a civil contempt finding based upon
the violation of a court order, it must be established that there
was a lawful court order in effect that clearly expressed an
unequivocal mandate, that the person who allegedly violated the
order had actual knowledge of its terms, and that his or her
actions or failure to act defeated, impaired, impeded or
prejudiced a right of the moving party" (Howe v Howe, 132 AD3d
1088, 1089 [2015] [internal quotation marks and citations
omitted]). Such violation must be established by clear and
convincing evidence and, absent an abuse of discretion, it will
not be overturned (see Matter of Aurelia v Aurelia, 56 AD3d 963,
964 [2008]).
The father testified that the tracking device placed on the
oldest son's car indicated that the car was in front of the
mother's house or in her neighborhood 29 times between November
2014 and January 2015, and those occasions coincided with dates
that the oldest son was tardy for or absent from school.
Further, the father testified that items from the mother's home,
such as shirts, cell phones and toys, suddenly were in the boys'
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possession. Family Court discredited the mother's testimony that
she did not see the children and was unaware that the children
were at her house – except on three occasions when she
immediately notified either the police or the father.
The evidence also established that the mother, despite
having her own email, used her youngest son's email account to
dispute and obtain a refund for some Internet charges made by
that son, explaining to the company that her son had been
"kidnapped" on October 16, 2014. The mother also posted an
article regarding her dissatisfaction with the prior custody
proceedings. The inappropriate information disseminated by the
mother was accessible to, and read by, her youngest son while on
the Internet. Family Court further discredited the mother's
proffered excuse that she was unaware that her son continued to
access his email account, as well as her denial that her conduct
was an attempt to communicate with the children. The mother also
wrote to Family Court alleging a breakdown in communication and
lack of trust between the children and the attorney for the
children, which, as Family Court observed, was information that
could only be obtained from the mother's communication with the
children. Finally, the mother acknowledged that she failed to
timely pay the court-ordered fine. Giving due deference to
Family Court's credibility determinations (see Matter of Taylor v
Fry, 63 AD3d 1217, 1219 [2009]; Matter of Moran v Cavanaugh, 39
AD3d 954, 955 [2007]), and notwithstanding the opposition of the
attorney for the children, we find no abuse of discretion in
Family Court's determination that the evidence established by
clear and convincing evidence that the mother willfully violated
the October 16, 2014 custody order.
Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court