KACZOR v. KACZOR, 12 A.D.3d 956 [3d Dept 2004]
785 N.Y.S.2d 573
JEFFREY R. KACZOR, Respondent, v. LORI M. KACZOR, Appellant.
92410
Appellate Division of the Supreme Court of New York, Third Department.
November 24, 2004.
Mugglin, J. Appeal from an order of the Family Court of Fulton
County (Jung, J.), entered June 6, 2002, which, inter alia, upon
referral of the matter from Supreme Court, awarded sole custody
of the parties' child to plaintiff.
Before: Crew III, J.P., Spain, Rose and Kane, JJ., concur.
At the conclusion of the matrimonial action between these
parties, Supreme Court referred issues concerning the custody and
support of the child to Family Court. During the pendency
of the matrimonial action, Family Court had issued a temporary
order of joint custody, defendant having physical custody subject
to specifically delineated rights of visitation in favor of
plaintiff. Thereafter, as a result of numerous disputes regarding
visitation, the parties filed various petitions charging each
other with violating the temporary order. Family Court considered
all of these issues in one evidentiary hearing and awarded sole
custody to plaintiff, the father, subject to visitation for
defendant, the mother, held the mother in contempt of the
temporary order and dismissed all other petitions. Defendant
appeals.
Family Court found that defendant willfully violated the
visitation order on two occasions, once when she refused to
deliver the child until plaintiff delivered defendant's
snowmobile to her and once when she refused to allow the child to
accompany plaintiff because his girlfriend's husband was with
him. Nevertheless, when plaintiff returned alone, defendant still
refused to allow the child to go with him. While Family Court
assessed no penalties for these contempts, it did consider them
in making the custody determination. "To sustain a finding of
civil contempt based upon a violation of a court order, it is
necessary to establish that a lawful court order clearly
expressing an unequivocal mandate was in effect and that the
person alleged to have violated that order had actual knowledge
of its terms" (Graham v. Graham, 152 AD2d 653, 654 [1989]
[citations omitted]; accord Matter of Hoglund v. Hoglund, 234 AD2d 794, 795 [1996]).
Defendant contends that the acts complained of were not
proscribed by the order and Family Court's decision lacked a
sound basis in the record and was contrary to the weight of the
evidence. We find no merit to these arguments. Defendant clearly
knew that plaintiff was entitled, unconditionally, to visitation
with his daughter on Tuesdays and Thursdays from 6:00 p.m. to
8:00 a.m. and on every other weekend. Nevertheless, she withheld
visitation as above set forth. As can be expected, the testimony
of the parties differed as to what occurred on those occasions.
We discern no basis in this record to disturb Family Court's
credibility determinations resolving factual issues in
plaintiff's favor. Moreover, contrary to defendant's contention,
Family Court's findings are set forth and supported by the record
in sufficient fashion to enable appellate review (see Matter of
Vezina v. Vezina, 8 AD3d 1047, 1048 [2004]; Matter of Miller v.
Miller, 220 AD2d 133, 136 [1996]).
Defendant also contends that Family Court's award of sole
custody to plaintiff lacks a sound and substantial basis in the
record and is contrary to the weight of the evidence. In addition
to interfering with plaintiff's visitation, this record supports
Family Court's findings that defendant blocked plaintiff's
telephone access to the child, made derogatory remarks to
plaintiff in the child's presence and physically assaulted
plaintiff in the child's presence. Thus, we agree with Family
Court that their relationship was so acrimonious that joint
custody was no longer feasible (see Matter of Rosario WW. v.
Ellen WW., 309 AD2d 984, 985 [2003]; Matter of Markey v.
Bederian, 274 AD2d 816, 817 [2000]). In determining who should
be the custodial parent, Family Court was required to consider
the best interests of the child (see Friederwitzer v.
Friederwitzer, 55 NY2d 89, 96 [1982]) by reviewing such factors
as "maintaining stability for the child, the child's wishes, the
home environment with each parent, each parent's past
performance, relative fitness, ability to guide and provide for
the child's overall well-being, and the willingness of each
parent to foster a relationship with the other parent" (Matter
of Smith v. Miller, 4 AD3d 697, 698 [2004]). Here, in addition to
the incidents above set forth, the testimony of the psychologist
revealed that the child perceived that her parents frequently
argued and that it was her mother who started the arguments.
Moreover, the psychologist expressed the opinion that plaintiff
was not being "totally forthright" and that she is more
responsible for the conflict than she is willing to admit. As
Family Court's determination depends upon its credibility
assessments and upon the character, temperament and sincerity of
the parents (see Matter of Blanco v. Corbett, 8 AD3d 374, 374
[2004]) which findings are accorded great deference (see
Matter of Meola v. Meola, 301 AD2d 1020, 1021-1022 [2003]) we
discern no reason to disturb Family Court's custody
determination, finding it to be fully supported by the record.
Ordered that the order is affirmed, without costs.