IN RE: Eden J. LOBB (2021)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the father appeals from (1) an order of commitment of the Family Court, Westchester County (Arlene A. Gordon–Oliver, J.), dated August 30, 2019, and (2) an order of commitment of the same court (Gail B. Rice, J.), dated September 5, 2019.  The order of commitment dated August 30, 2019, inter alia, committed the father to the Westchester County Jail until September 5, 2019.  The order of commitment dated September 5, 2019, after a hearing, in effect, found that the father willfully violated the terms of a temporary order of protection dated August 29, 2019, and committed him to the Westchester County Jail for a period of six months.

ORDERED that the appeal from the order of commitment dated August 30, 2019, is dismissed, without costs or disbursements;  and it is further,

ORDERED that the appeal from so much of the order of commitment dated September 5, 2019, as committed the father to the Westchester County Jail for a period of six months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Becker v. Guenther, 150 A.D.3d 985, 55 N.Y.S.3d 148);  and it is further,

ORDERED that the order of commitment dated September 5, 2019, is reversed insofar as reviewed, on the law, without costs or disbursements.

The father and the mother have a child in common.  On August 30, 2019, the mother commenced this proceeding alleging that the father violated a temporary order of protection dated August 29, 2019.  On the date that the proceeding was commenced, the Family Court committed the father to the Westchester County Jail until September 5, 2019.  On September 5, 2019, after a hearing, the court found that the father willfully violated the subject order of protection and committed him to the Westchester County Jail for a period of six months.  The father appeals.

Initially, the appeal from the order of commitment dated August 30, 2019, must be dismissed, as that order was superseded by an amended order of commitment dated September 11, 2019, and the father did not appeal from that order (see Matter of Hutchinson v. Hutchinson, 188 A.D.3d 1208, 132 N.Y.S.3d 811;  Matter of Dykes v. Rago, 225 A.D.2d 696, 639 N.Y.S.2d 937).  The appeal from so much of the order of commitment dated September 5, 2019, as committed the father to the Westchester County Jail for a period of six months must be dismissed as academic, as the period of incarceration has ended (see Matter of Solomon v. Fishman, 162 A.D.3d 1051, 1052, 80 N.Y.S.3d 134;  Matter of Savas v. Bruen, 154 A.D.3d 859, 860, 62 N.Y.S.3d 475;  Matter of Becker v. Guenther, 150 A.D.3d at 985, 55 N.Y.S.3d 148;  Matter of Pace v. Douglas, 141 A.D.3d 530, 530, 35 N.Y.S.3d 241).  However, in light of the enduring consequences which could flow from the determination that the father violated the subject temporary order of protection, the appeal from so much of that order of commitment as, in effect, found that the father wilfully violated the subject temporary order of protection is not academic (see Matter of Solomon v. Fishman, 162 A.D.3d at 1052, 80 N.Y.S.3d 134;  Matter of Pace v. Douglas, 141 A.D.3d at 530, 35 N.Y.S.3d 241).

Pursuant to Family Court Act § 846–a, if it is established by competent evidence that a respondent willfully failed to obey a lawful court order issued under Family Court Act article 8, the court may, among other things, commit the respondent to jail for a period not to exceed six months.  Contrary to the mother's contention, where, as here, “an individual is incarcerated as a punitive remedy for violating an order of protection issued under Family Court Act article 8, the proceeding is one involving criminal contempt” (Matter of Rubackin v. Rubackin, 62 A.D.3d 11, 21, 875 N.Y.S.2d 90;  see Matter of DeSiena v. DeSiena, 167 A.D.3d 1006, 1007, 91 N.Y.S.3d 175).  “In order to sustain a finding of criminal contempt, there must be proof beyond a reasonable doubt that the contemnor willfully failed to obey an order of the court” (Matter of Rubackin v. Rubackin, 62 A.D.3d at 15, 875 N.Y.S.2d 90;  see Matter of DeSiena v. DeSiena, 167 A.D.3d at 1007, 91 N.Y.S.3d 175).

“To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect,” and also that “the party charged ․ had knowledge of the court's order” (Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 513 N.E.2d 706).  Here, the father correctly contends that the evidence at the hearing failed to demonstrate that he was either served with a copy of the subject temporary order of protection or made aware of its contents (see People v. John, 150 A.D.3d 889, 53 N.Y.S.3d 377;  People v. Bulgin, 105 A.D.3d 551, 964 N.Y.S.2d 19).  We note that the transcript of the proceeding where the subject temporary order of protection was issued was not admitted into evidence, and that there was no testimony or other competent evidence demonstrating that the father was on notice of the prohibited conduct.  Accordingly, we reverse so much of the order of commitment dated September 5, 2019, as, in effect, found that the father willfully violated the subject temporary order of protection.

In light of our determination, we need not reach the father's remaining contentions.

RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.