IN RE: Thomas E. DONAHUE

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

IN RE: Thomas E. DONAHUE, Respondent, v. Michelle L. BUISCH, Appellant.

Decided: February 25, 1999

Before:  MIKOLL, J.P., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Charles E. Andersen, Elmira, for appellant.

Appeals (1) from two orders of the Family Court of Schuyler County (Callanan Sr., J.), entered September 30, 1996 and October 11, 1996, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Court Act article 6, for sole custody of the parties' children, and (2) from an order of said court, entered October 18, 1996, which granted petitioner's application to hold respondent in contempt of court.

The parties are the parents of two children who are the subject of a bitterly contested custody dispute.   When respondent failed to show up for a scheduled custody hearing, Family Court granted petitioner sole custody.   The court also found respondent in contempt of court for failing to produce the children for a scheduled visitation and to appear at the hearing.   It has come to this court's attention that Family Court issued a subsequent order which, inter alia, granted custody of one of the children to respondent and the other to petitioner.   The propriety of this order is the subject of separate appeal before this court in which respondent is represented by Brendan O'Donnell.

 With respect to the instant appeal of Family Court's orders granting sole custody to petitioner and finding respondent in contempt of court, respondent's counsel contends that there are no nonfrivolous issues that can be raised on appeal and seeks to be relieved from representing her.   While it does appear that the appeal from the contempt order is moot inasmuch as respondent has apparently purged herself of the contempt (see, Matter of Calvi v. Knutson, 195 A.D.2d 828, 831, 600 N.Y.S.2d 804), there may be nonfrivolous issues concerning the initial custodial determination.   Consequently, respondent's counsel is relieved of his assignment and O'Donnell, in conjunction with his representation of respondent in the subsequent appeal, is assigned to address any appealable issues that this record may disclose.

ORDERED that the decision is withheld, application to be relieved of assignment granted and Brendan O'Donnell assigned as new counsel.

CARPINELLO, J.

MIKOLL, J.P., MERCURE, PETERS and SPAIN, JJ., concur.

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