JENKS v. VALENTINE (2005)

Petitioner father contends that Family Court erred in dismissing, in the interests of justice, his petition seeking, inter alia, civil and criminal contempt sanctions against respondent mother.   Specifically, petitioner contends that there are issues of fact warranting a hearing.   Petitioner does not contend that the court lacked authority to dismiss the petition in the interests of justice, so we do not address the court's authority to do so (see Sega v. State of New York, 60 N.Y.2d 183, 190, 469 N.Y.S.2d 51, 456 N.E.2d 1174;  cf. Matter of Property Clerk of N.Y. City Police Dept. v. Ferris, 77 N.Y.2d 428, 430, 568 N.Y.S.2d 577, 570 N.E.2d 225;  Matter of Kerri H., 193 Misc.2d 238, 239-240, 748 N.Y.S.2d 236;  Matter of Ruffel P., 153 Misc.2d 702, 582 N.Y.S.2d 631).   Because petitioner raises no issues concerning the court's dismissal of that part of the petition seeking visitation, we deem abandoned any appeal from that part of the order (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

We agree with petitioner, however, that there are issues of fact whether respondent disobeyed a lawful mandate of the court (see Judiciary Law § 753 [A] [1];  see generally Labanowski v. Labanowski, 4 A.D.3d 690, 694, 772 N.Y.S.2d 734) and, if so, whether she did so willfully (see § 750[A][3] ).

We therefore modify the order by reinstating that part of the petition alleging civil and criminal contempt, and we remit the matter to Family Court for a hearing on those issues (see Bowie v. Bowie, 182 A.D.2d 1049, 1050, 583 N.Y.S.2d 54;  cf. Matter of Palacz v. Palacz, 249 A.D.2d 930, 672 N.Y.S.2d 575, lv. dismissed 92 N.Y.2d 920, 680 N.Y.S.2d 460, 703 N.E.2d 272).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by reinstating that part of the petition alleging civil and criminal contempt and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Onondaga County, for a hearing.

MEMORANDUM: