In the Matter of CHRISTINE L. WESKO, Appellant,
TERRY M. HOLLENBECK SR., Respondent.
Calendar Date: February 17, 2017
Jeffrey L. Zimring, Albany, for appellant.
Bridget A. O'Connor, Binghamton, for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Family Court of Broome County (Pines,
J.), entered September 25, 2015, which dismissed
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.
(hereinafter the mother) and respondent (hereinafter the
father) are the parents of a son (born in 1999). Pursuant to
a 2007 Family Court order, the mother enjoyed sole custody of
the child and the father had no visitation rights. On April
9, 2015, the child left the mother after she gave the child
permission to leave the hospital, where the mother was
attending an appointment, in order to go home and shower.
Thereafter, the child could not be located until April 17,
2015. Based upon allegations that the child was with the
father during that period, the mother petitioned Family Court
for the father to be held in contempt of court and, at a
hearing, also sought the issuance of an order of protection
against him in favor of her and the child. After the hearing,
Family Court dismissed the petition and declined to issue an
order of protection. The mother now appeals,  and we
sustain a finding of civil contempt for a violation of a
court order, a petitioner must show by clear and convincing
evidence "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 A.D.3d 1088,
1089  [internal quotation marks and citation omitted];
see Judiciary Law § 753 [A]; Family Ct Act
§ 156; Matter of Eller v Eller, 134 A.D.3d
1319, 1320 ). "Further, the petitioner must
establish that the [party's] alleged violation was
willful" (Matter of Holland v Holland, 80
A.D.3d 807, 808  [citations omitted]). This Court will
apply deference to Family Court's credibility
determinations (see Matter of Rodriguez v
Delacruz-Swan, 100 A.D.3d 1286, 1289 ; Matter
of Taylor v Fry, 63 A.D.3d 1217, 1219 ), and the
determination of whether or not to hold a party in contempt
will not be disturbed absent an abuse of discretion (see
Howe v Howe, 132 A.D.3d at 1090; Davis-Taylor v
Davis-Taylor, 4 A.D.3d 726, 727-728 ).
hearing, the only evidence introduced was the testimony of
the mother and that of her paramour. The mother and the
paramour's testimony, which conveyed the conclusion that
the child was with the father for the period that he was
missing, was based on the recitation of out-of-court
statements made by persons who did not testify . In other
words, the witnesses did not testify as to any direct
knowledge of the child's whereabouts or interactions
during the relevant period. Although Family Court's
findings of fact make clear that it generally found that the
child and the father had some contact at some point during
the relevant time period - "a technical violation"
of the visitation order - it also found that much of the
testimony provided was "not credible in the least."
Deferring to that credibility determination, and in the
absence of any credible evidence further establishing the
circumstances leading to the contact between the father and
the child, or the nature of said contact, we cannot conclude
that Family Court abused its discretion in finding that the
mother failed to prove by clear and convincing evidence that
the violation of the visitation order by the father was
willful (see Matter of Prefario v Gladhill, 140
A.D.3d 1235, 1236 ; Davis-Taylor v
Davis-Taylor, 4 A.D.3d at 728; compare Matter of
Eller v Eller, 134 A.D.3d at 1320).
Jr., Lynch, Devine and Clark, JJ., concur.
that the order is affirmed, without costs.
 On appeal, the mother does not challenge
the denial of her request for an order of protection against