WHEELER v. WHEELER (2011)

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered August 12, 2010, which, insofar as it held defendant-father in contempt of an order entered December 8, 2008, unanimously affirmed, with costs. Appeal from so much of the August 12, 2010 order as awarded plaintiff-mother temporary sole custody of the parties' child and ordered that defendant-father's visitation with the child be supervised, unanimously dismissed, without costs, as academic. Order, same court and Justice, entered on or about November 9, 2010, which, insofar as it held defendant-father in contempt of the December 8, 2008 order and ordered that he be sentenced to 45 days of incarceration, unanimously affirmed, with costs. Appeal from so much of the November 9, 2010 order as ordered that defendant-father's visitation with the parties' child be supervised, unanimously dismissed, without costs, as academic.

The father's request that the Justice presiding over the matter of contempt be recused and a new Justice assigned is improperly raised for the first time on appeal (see Yoda, LLC v. National Union Fire Ins. Co. of Pittsburgh, Pa., 63 AD3d 424, 425 [2009] ). Were we to consider the father's request, we would conclude that recusal is unwarranted (Liteky v. United States, 510 U.S. 540, 555–56 [1994]; see R & R Capital LLC v. Merritt, 56 AD3d 370 [2008] ).

Furthermore, the court properly exercised its discretion in finding the father in contempt of the December 8, 2008 order, insofar as it forbade the parties from introducing their child to anyone with whom he or she was having a “romantic relationship,” and sentencing him to a period of incarceration. The order was not vague or ambiguous, indeed, it resulted from a motion originally made by the father (see Matter of McCormick v. Axelrod, 59 N.Y.2d 574 [1983] ), and the court only sentenced him upon discovery of a second violation of the order.

We have considered the father's remaining contentions and find them without merit or academic, as set forth above.