PEOPLE SMULCZESKI SMULCZESKI v. SMULCZESKI (2005)

In a habeas corpus proceeding to obtain custody of the parties' daughter, Marie, the mother appeals (1) from a so-ordered transcript of the Supreme Court, Suffolk County (Whelan, J.), dated June 17, 2004, and (2), as limited by her brief, from so much of an order and judgment (one paper) of the same court, dated July 28, 2004, as, without a hearing, granted the father's motion to hold her in contempt, committed her to 30 days incarceration, directed her to pay an award of an attorney's fee in the amount of $3,500, and denied her cross motion, inter alia, for recusal.

ORDERED that the appeal from the so-ordered transcript is dismissed, without costs or disbursements (see CPLR 7011;  Matter of Wilkes v. Wilkes, 212 A.D.2d 719, 622 N.Y.S.2d 608);  and it is further,

ORDERED that the order and judgment is modified, on the law, by deleting the provisions thereof granting the father's motion to hold the mother in contempt, committing her to 30 days incarceration, and directing her to pay an award of an attorney's fee in the amount of $3,500, and substituting therefor a provision directing a hearing on the motion;  as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the mother, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing in accordance herewith, and a new determination of the motion thereafter.

 A hearing must be held on a motion to adjudicate a party in contempt if issues of fact are raised (see Mulder v. Mulder, 191 A.D.2d 541, 595 N.Y.S.2d 94;  Judiciary Law § 772).   Here, the motion papers presented issues of fact as to whether the mother willfully failed to comply with the Supreme Court's order directing her to return the parties' daughter Marie to the father.   Accordingly, the Supreme Court erred in holding the mother in contempt without first conducting an evidentiary hearing (see DeMeo v. DeMeo, 281 A.D.2d 662, 721 N.Y.S.2d 420;  Sidhu v. Sidhu, 274 A.D.2d 465, 711 N.Y.S.2d 901;  Village of Westhampton Beach v. Suffolk Asphalt Supply, 253 A.D.2d 425, 676 N.Y.S.2d 643).   At the conclusion of the hearing, the father may renew that branch of his motion which was for an award of an attorney's fee, if appropriate.

 Contrary to the mother's contention, there is no basis for the court's recusal.   Absent a ground for disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of whether recusal is warranted.  “[T]his discretionary decision is within the personal conscience of the court” (People v. Moreno, 70 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200;  see People v. Grier, 273 A.D.2d 403, 709 N.Y.S.2d 607).   The mother failed to set forth any proof of bias or prejudice.   Therefore, the Supreme Court providently exercised its discretion in denying that branch of the mother's cross motion which was for recusal (see Matter of Susan B., 264 A.D.2d 478, 694 N.Y.S.2d 454;  Muller v. Muller, 221 A.D.2d 635, 634 N.Y.S.2d 190).

The mother's remaining contentions are either not properly before this court or are without merit.