Fisher v. Fisher

Mahoney, P. J.

Appeal from a judgment of the Family Court of Delaware County (Estes, J.), entered April 27, 1989, which granted petitioner’s application to find respondent in civil contempt.

Petitioner sought a contempt order because respondent failed to deliver their child for visitation to the location specified in Family Court’s order. Respondent claims that she had not yet received the Family Court order in the mail. Family Court determined that respondent was aware of the terms of the order even if she had not yet received it and her failure to act in accordance with the order constituted civil contempt. Respondent was fined $100 plus $780 for petitioner’s counsel fees. Respondent appeals.

At oral argument, petitioner, appearing pro se, indicated that he was less concerned about the monetary award than about his ability to exercise his visitation rights and to see his child. Considering petitioner’s position and the apparent confusion over Family Court’s order, we are of the view that the monetary award for civil contempt and counsel fees should be reversed. This disposition should not be construed as condoning respondent’s failure to cooperate to ensure that petitioner’s visitation rights are satisfied. We emphasize that especially in light of the incident giving rise to this appeal, respondent should take extra care to see that petitioner’s visitation rights are not disturbed. We caution respondent that we are not so likely to be as lenient in the future.

Judgment reversed, on the facts, without costs, and petition dismissed. Mahoney, P. J., Kane, Casey, Levine and Mercure, JJ., concur.