In the Matter of Sandra P. Spicer, appellant,
Richard Spicer, respondent. Docket No. V-5029-17
Submitted - April 27, 2018
Stines, Westbury, NY, for appellant.
Michelle S. Stein, Garden City, NY, for respondent.
Maureen McLoughlin, Garden City, NY, attorney for the child.
WILLIAM F. MASTRO, J.P. MARK C. DILLON FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI, JJ.
DECISION & ORDER
proceeding to hold the father in contempt for violating an
order of custody, the mother appeals from an order of the
Family Court, Nassau County (Christopher Pizzolo, Ct. Atty.
Ref.), dated July 21, 2017. The order, without a hearing,
dismissed the petition.
that the order is affirmed, without costs or disbursements.
parties were divorced by a judgment entered June 16, 2009,
which incorporated, but did not merge, a settlement agreement
providing for joint legal custody of the parties' child,
with the father to have primary residential custody. In an
order entered February 15, 2012 (hereinafter the modification
order), certain provisions of the settlement agreement were
modified, but the parties continued to have joint legal
custody, with primary residential custody to the father.
5, 2017, the mother commenced this proceeding to hold the
father in contempt for violating the joint custody provisions
of the modification order. At the first court appearance, the
father moved pursuant to CPLR 3211(a)(1) to dismiss the
petition based on documentary evidence. At oral argument, he
also informed the Family Court that another proceeding
between the parties was pending before the Supreme Court,
Nassau County, wherein they executed a custody modification
agreement and submitted it to the Supreme Court to be
so-ordered. After argument by the parties regarding the
proceeding in Supreme Court, the Family Court indicated that
it was going to dismiss the petition with leave to replead in
the Supreme Court. In an order dated July 21, 2017, the
Family Court dismissed the petition, without prejudice, for
failure to state a cause of action, a ground not raised by
either party. The mother appeals.
Family Court should not have dismissed the petition on the
ground that it failed to state a cause of action
(see CPLR 3211[a]). The father's motion to
dismiss the petition was not predicated on that ground, and
the parties did not mention that ground in the oral argument
before the court (see McLearn v Cowen & Co., 60
N.Y.2d 686, 689; Matter of Tognino, 87 A.D.3d 1153,
1154-1155). Rather, the parties and the court discussed the
fact that a related proceeding was pending between the
parties in the Supreme Court (see Blumstein v
Menaldino, 144 A.D.2d 412, 413).
the related proceeding, ''[w]here there is a
substantial identity of the parties, the two actions are
sufficiently similar, and the relief sought is substantially
the same, a court has broad discretion in determining whether
an action should be dismissed pursuant to CPLR 3211(a)(4) on
the ground that there is another action pending''
(Scottsdale Ins. Co. v Indemnity Ins. Corp. RRG, 110
A.D.3d 783, 784; see Whitney v Whitney, 57 N.Y.2d
731, 732; Stevens v Law Off. of Blank & Star,
PLLC, 155 A.D.3d 917, 918; Dec v BFM Realty,
LLC, 153 A.D.3d 497). Here, while the parties to both
proceedings were identical, the relief being sought in each
forum was clearly different. Thus, a dismissal of the
petition on the ground of "prior action pending"
would have been inappropriate (see CPLR 3211[a];
Ramsey v Ramsey, 69 A.D.3d 829, 832).
we affirm the order appealed from, on the ground relied upon
by the father in his motion to dismiss. In the petition, the
mother sought to hold the father in contempt for taking the
parties' child to a hospital for a psychiatric
evaluation, and not informing her of the development until
the next day. The modification order required joint
decision-making for the child's medical treatments. An
essential element for any finding of contempt is that the
party alleged to be in contempt violated a lawful order of
the court clearly expressing an unequivocal mandate (see
Matter of Banks v Stanford, 159 A.D.3d 134). In this
case, the lawful order was the modification order. However,
the modification order contains no mechanism for the
parties' joint decision-making process and does not set
forth any time frame during which they must communicate with
each other about the child's medical issues. Under these
circumstances, the father did not violate any clearly
expressed unequivocal mandate when he took the child for a
psychiatric evaluation and thereafter notified the mother the
next day. Further, it is uncontroverted that the father, upon
learning from the child that he was suicidal, promptly texted
the mother asking for a sit-down meeting. The mother refused
this request and effectively forfeited her right to advance
notice of the emergency hospital evaluation. Thus, based upon
the documentary evidence submitted by the father, a contempt
finding was unwarranted and the petition was properly
dismissed (see CPLR 3211[a]; O 'Brien v O
Brien, 115 A.D.3d 720, 723).
mother's remaining contention, that the Family Court
improperly failed to conduct a hearing, has been ...