Matter of Khan v. KhanMatter of Khan v. Khan
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a daughter (born in 2003) and a son (born in 2004). As is relevant here, the mother filed an application to hold the father in contempt of a Family Court order based on the allegation that the father violated that order by keeping the children past the end of his scheduled supervised visitation time. The mother also sought an award of counsel fees. After a contempt hearing, Family Court issued a temporary order suspending the father‘s parenting time. In May 2014, the court issued an order that, among other things, granted the mother‘s motion for contempt and sentenced the father to 14 days in jail, suspended so long as he complied with a therapeutic parenting time schedule. The mother subsequently moved to amend the May 2014 order to award her counsel fees. In July 2014, Family Court issued a temporary order that, among other things, granted observed therapeutic parenting time to the father. In August 2014, Family Court granted the mother‘s motion to amend the May 2014 order and, among other things, awarded the mother $3,100 in counsel fees. Eventually, based on both parties’ previous filings of custody modification petitions, Family Court issued a September 2014 order with the parties’ consent that, among other things, adopted the aforementioned therapeutic parenting time schedule. The father appeals from both the August 2014 order and the September 2014 order.1
To establish that a party is in civil contempt for willfully violating a court order, a “petitioner must show by clear and convincing evidence that (1) Family Court issued a valid, clear and explicit order, (2) the party alleged to have violated the
Family Court‘s finding of contempt was not an abuse of discretion. As to the temporary order of custody that was underlying the finding of contempt, Family Court issued the order from the bench reducing the father‘s supervised parenting time to every other Sunday from 10:00 a.m. to 12:00 p.m. and requiring him to transport the children.2 Family Court explicitly stated that the temporary order would apply to the father‘s parenting time on the upcoming Sunday, November 17, 2013 visit. Although the father now argues that he was confused about whether the order would be in effect before he received written confirmation of it, he raised that issue as the court issued the order from the bench. In response, the court again unambiguously informed the father that “[t]he order is in effect immediately.” When later asked—at the contempt hearing—what he understood Family Court to mean by this statement, the father testified that he understood the court to be referring to the “new” order regarding the “[t]en to 12” visitation with the children. On November 17, 2013, the father kept the children from 10:00 a.m. until 5:00 p.m., prejudicing the rights of the mother to have the children returned to her at noon. Affording appropriate deference to the court‘s credibility determinations, we conclude that the court did not abuse its discretion in finding that the mother established, by clear and convincing evidence, that the father willfully violated the temporary custody order (see Matter of Paul A. v Shaundell LL., 117 AD3d at 1348; Matter of Yeager v Yeager, 110 AD3d 1207, 1210 [2013]).
Nonetheless, we agree with the father, to a limited extent, that Family Court erred in awarding the mother $3,100 in counsel fees. Where, as here, no actual loss or injury was sustained,
Garry, Egan Jr., Devine and Aarons, JJ., concur. Ordered that the order entered August 4, 2014 is modified, on the law, without costs, by reducing the counsel fee award to $2,050, and, as so modified, affirmed. Ordered that the ordered entered September 29, 2014 is affirmed, without costs.