State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 2, 2016 521310 

520476

_________________________________

In the Matter of CINDY A. KHAN,

Respondent,

v MEMORANDUM AND ORDER

FAISAL Z. KHAN,

Appellant.

(And Another Related Proceeding.)

_________________________________

Calendar Date: April 28, 2016

Before: McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

__________

Michelle I. Rosien, Philmont, for appellant.

Richard E. Doling, Albany, for respondent.

Christopher Hammond, Cooperstown, attorney for the child.

__________

McCarthy, J.P.

Appeals (1) from an order of the Family Court of Montgomery

County (Cortese, J.), entered August 4, 2014, which granted

petitioner's application, in a proceeding pursuant to Family Ct

Act article 6, to find respondent in willful violation of a prior

order of visitation and awarded counsel fees, and (2) from an

order of said court, entered September 29, 2014, which, among

other things, granted petitioner's application, in a proceeding

pursuant to Family Ct Act article 6, to modify a prior order of

visitation.
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520476 

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 order actually knew the conditions of that order,

and (3) the alleged violation prejudiced some right of the

petitioner" (Matter of Holland v Holland, 80 AD3d 807, 808

[2011]; see Matter of Paul A. v Shaundell LL., 117 AD3d 1346,

1347-1348 [2014], lv dismissed 24 NY3d 937 [2014]). A

1 The father has abandoned any argument regarding the

September 2014 order by not challenging the order in his brief

(see Matter of Justyce HH. [Andrew II.], 136 AD3d 1181, 1182

[2016]; Matter of Ryan v Lewis, 135 AD3d 1135, 1136 n 2 [2016]).
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520476 

determination regarding a party's contempt will be overturned

only if it is an abuse of discretion (see Matter of Paul A. v

Shaundell LL., 117 AD3d at 1348; Matter of Aurelia v Aurelia, 56

AD3d 963, 964 [2008]). 

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]).

2 At this visitation hearing, the father had an Urdu

interpreter available to him. Family Court informed the father

that the interpreter was available at any point that the father

did not understand something that was occurring. The father did

not avail himself of the interpreter's services at the hearing. 
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520476 

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,

Judiciary Law § 773 permits that "a fine may be imposed, not

exceeding the amount of the complainant's costs and expenses, and

[$250] in addition thereto (see Family Ct Act § 156). A fine

pursuant to this section may include counsel fees (see Vider v

Vider, 85 AD3d 906, 908 [2011]; Matter of Jones v Jones, 75 AD3d

786, 788 [2010], lv dismissed 15 NY3d 866 [2010]). On this

record, we find that Judiciary Law § 773 permits reimbursement

for the six hours of work that counsel performed and documented

and an additional $250. However, the mother's further

submissions of "anticipated" counsel fees did not constitute

proof of costs and expenses that the mother had actually

incurred, and those fees were not properly awarded (compare

Matter of Claydon, 103 AD3d 1051, 1054 [2013]). Thus, the

counsel fee award is reduced to $2,050. The father's remaining

contentions have been considered and are without merit. 

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. 

ENTER:

Robert D. Mayberger

Clerk of the Court