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PEOPLE STATE NEW YORK EX REL. HOFFER KABACK v. MARGO SCHAB (12/01/94)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


December 1, 1994

THE PEOPLE OF THE STATE OF NEW YORK EX REL. HOFFER KABACK, O/B/O CAXTON KABACK, PETITIONER-APPELLANT,
v.
MARGO SCHAB, RESPONDENT-RESPONDENT.

Ellerin, J.p., Wallach, Asch, Nardelli, Tom, JJ.

Judgment, Supreme Court, New York County (Jacqueline Silbermann, J.), entered on or about January 13, 1994, inter alia, denying petitioners' motions to hold respondent in civil and criminal contempt and for an appointment of a law guardian/forensic psychiatrist, unanimously affirmed, with costs.

On an earlier appeal (187 A.D.2d 50, app dismissed 81 N.Y.2d 1006, app den 82 N.Y.2d 654, rearg denied 82 N.Y.2d 803), we affirmed the trial court's award of permanent and sole custody of the child to respondent along with the sole and exclusive power with respect to him and ordered petitioner's visitation to be supervised. Thereafter, petitioner father brought on five orders to show cause to, inter alia, hold respondent mother in contempt for purportedly intentionally violating the terms of the custody/visitation order and to again seek the appointment of a law guardian and forensic psychiatrist for the child, who is apparently still suffering the effects of the protracted custody battle. In view of plaintiff's failure to establish that respondent's conduct was willful and contumacious, the court properly denied petitioner's request to hold respondent in contempt. Moreover, the court did not err in ruling without holding an evidentiary hearing since no factual dispute existed which could not be resolved on the papers alone. (see, Matter of Benny v Benny, 199 A.D.2d 384, 388, 605 N.Y.S.2d 311).

Furthermore, the court did not abuse its discretion in denying petitioner's request for the appointment of either a forensic psychiatrist or law guardian (see, Lee v Halayko, 187 A.D.2d 1001, 590 N.Y.S.2d 647).

We have considered petitioner's remaining contentions and find them without merit.

ENTERED: DECEMBER 1, 1994

19941201

© 1998 VersusLaw Inc.



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