State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 521847 

________________________________

In the Matter of DANIEL P.

GERBER,

Respondent,

v MEMORANDUM AND ORDER

KIMBERLY GERBER,

Appellant.

________________________________

Calendar Date: October 12, 2016

Before: Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

__________

Theresa M. Suozzi, Saratoga Springs, for appellant.

Mark A. Kassner, Glenville, attorney for the children.

__________

Lynch, J.

Appeal from an order of the Family Court of Saratoga County

(Jensen, J.), entered September 1, 2015, 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 custody.

Petitioner (hereinafter the father) and respondent

(hereinafter mother) are the divorced parents of three teenaged

boys (born between 1998 and 2002).1 Pursuant to an October 16,

2014 custody order, Family Court suspended all contact between

the mother and the children for a period of six months, with

1 The eldest son turned 18 while this appeal was pending,

rendering this custody dispute moot as to him.
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therapeutic visitation to then resume, in light of "overwhelming

evidence that the mother was manipulating the children in ongoing

efforts to alienate them from the father" (Matter of Gerber v

Gerber, 141 AD3d 901, 902 [2016]). The court also ordered the

mother to pay $500 in fines to the father by a specified date.

On December 3, 2014, the father commenced this proceeding

alleging that the mother violated the terms of that order by

having continued contact with the children. The litigation

expanded in January 2015, when the mother petitioned pro se for

modification of the 2014 order, contending that the father's

placement of the children in a new school district caused them

undue stress. Family Court sua sponte dismissed the mother's

petition in March 2015, an order that this Court recently

affirmed (id.). Following a hearing on the father's application,

Family Court found that the mother willfully violated the October

16, 2014 order, granted the father's petition and, among other

things, continued the no-contact order between the mother and the

children for an additional six-month period. This appeal by the

mother ensued.

We affirm. "To sustain a civil contempt finding based upon

the violation of a court order, it must be established 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 AD3d

1088, 1089 [2015] [internal quotation marks and citations

omitted]). Such violation must be established by clear and

convincing evidence and, absent an abuse of discretion, it will

not be overturned (see Matter of Aurelia v Aurelia, 56 AD3d 963,

964 [2008]).

The father testified that the tracking device placed on the

oldest son's car indicated that the car was in front of the

mother's house or in her neighborhood 29 times between November

2014 and January 2015, and those occasions coincided with dates

that the oldest son was tardy for or absent from school. 

Further, the father testified that items from the mother's home,

such as shirts, cell phones and toys, suddenly were in the boys'
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possession. Family Court discredited the mother's testimony that

she did not see the children and was unaware that the children

were at her house – except on three occasions when she

immediately notified either the police or the father.

The evidence also established that the mother, despite

having her own email, used her youngest son's email account to

dispute and obtain a refund for some Internet charges made by

that son, explaining to the company that her son had been

"kidnapped" on October 16, 2014. The mother also posted an

article regarding her dissatisfaction with the prior custody

proceedings. The inappropriate information disseminated by the

mother was accessible to, and read by, her youngest son while on

the Internet. Family Court further discredited the mother's

proffered excuse that she was unaware that her son continued to

access his email account, as well as her denial that her conduct

was an attempt to communicate with the children. The mother also

wrote to Family Court alleging a breakdown in communication and

lack of trust between the children and the attorney for the

children, which, as Family Court observed, was information that

could only be obtained from the mother's communication with the

children. Finally, the mother acknowledged that she failed to

timely pay the court-ordered fine. Giving due deference to

Family Court's credibility determinations (see Matter of Taylor v

Fry, 63 AD3d 1217, 1219 [2009]; Matter of Moran v Cavanaugh, 39

AD3d 954, 955 [2007]), and notwithstanding the opposition of the

attorney for the children, we find no abuse of discretion in

Family Court's determination that the evidence established by

clear and convincing evidence that the mother willfully violated

the October 16, 2014 custody order.

Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur.
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ORDERED that the order is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court