IN RE: DARLA WILCE (2011)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: DARLA WILCE, PETITIONER-RESPONDENT, v. STEPHEN SCALISE, RESPONDENT-APPELLANT.
IN RE: STEPHEN SCALISE, PETITIONER-APPELLANT, v. DARLA WILCE, RESPONDENT-RESPONDENT.

CAF 09-01266

Decided: February 18, 2011

PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Respondent father appeals from an order finding him in civil contempt for violating the visitation provisions of a custody order and imposing a fine of $500 as a sanction, to be applied against the amount of child support arrears owed to the father by petitioner mother. We agree with the father that the order fails to set forth the required findings that his conduct was calculated to, or actually did, impair, impede or prejudice the mother's rights or remedies (see Biggio v. Biggio, 41 AD3d 753; Oppenheimer v. Oscar Shoes, 111 A.D.2d 28, 29). In addition, although the record contains testimony from the mother that, if credited, could support a finding that the father violated the visitation provisions of the custody order, the court also failed to specify the testimony that it found to be credible to support the finding of civil contempt. Thus, we cannot merely modify the order by adding the requisite language (cf. Biggio, 41 AD3d at 754). Under the circumstances of this case, we reverse the order and dismiss the petition.

Patricia L. Morgan

Clerk of the Court

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