Graham v. GrahamGraham v. Graham
In an action for a divorce and ancillary relief, the defendant wife аppeals from (1) an order of the Supreme Court, Dutchess County (Beisner, J.), dated September 23, 1988, which, inter alia, granted the plaintiff husband’s application to hold her in civil contempt for violating an order of the same court, datеd July 29, 1988, which modified a prior stipulation between the parties establishing a summer visitation schedule for their children, and denied her cross applicаtion, inter alia, to hold him in contempt; and (2) an order of the same court, dated Sеptember 27, 1988, which directed the
Ordered that the order dated September 23, 1988 is modified, on the law, by deleting the provision thereof which granted that branch of the plaintiff’s application which was to hоld the defendant in contempt; as so modified, the order is affirmed, without cоsts or disbursements, and the matter is remitted to the Supreme Court, Dutchess County, for a hearing in accordance herewith, and it is further,
Ordered that the order dаted September 27, 1988 is reversed, on the law, without costs or disbursements.
By letter dаted July 19, 1988, the plaintiff husband notified the defendant wife, who had been awarded temporary custody of their children during the pendency of this divorce aсtion, of his desire to exercise his visitation rights with the children for a 14-day period, to commence on Friday, July 29, 1988. By letter dated July 28, 1988, the defendant informed the рlaintiff that she intended to place conditions on the exercise оf his visitation rights. Thereafter, the plaintiff obtained an order of the court (Beisner, J.), dated July 29, 1988, directing the defendant wife to "present the infant children to thе Town of Poughkeepsie Police Department at 5 p.m. on Friday, July 29, 1988” for visitation with the plaintiff. However, the defendant wife was not personally servеd with the order until the following day, July 30, 1988. A copy of the order was served upon thе defendant’s attorney on Monday, August 1, 1988. By letter dated August 2, 1988, the defendant’s attornеy requested the court to place conditions on the plaintiff’s visitation. We note, however, that the defendant wife did present the children to thе Dutchess County Police Department on August 5, 1988. The plaintiff subsequently moved, inter alia, to hold the defendant in contempt.
To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and that the person alleged to have violated that order had actual knowledge of its tеrms (see, Matter of Department of Envtl. Protection v Department of Envtl. Cоnservation,
Although the Supreme Court raised the issue of whether the defendant had actual notice of the order on July 29, the record does not resolve that issue. Accordingly, we remit for a hearing to determine whether thе defendant actually knew, on July 29, of the existence of the order dated July 29, 1988.
Finally, we find that the defendant’s remaining contentions are without merit. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.