Matter of Siskind v Schael

Matter of Siskind v Schael 2006 NY Slip Op 07484 [33 AD3d 806] October 17, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

In the Matter of Neil M. Siskind, Petitioner,
v
Courtney A. Schael, Appellant. Roberta Nancy Kaufman, Nonparty Respondent.

—[*1]

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Jaeger, J.), dated October 18, 2005, which, after a hearing, found her in contempt for her willful failure to comply with a prior order of the same court dated October 6, 2005, directing her to pay her share of the Law Guardian's fee, and ordered her incarceration.

Ordered that the order is affirmed, with costs.

The Family Court properly found the mother in contempt, and ordered her incarceration, for failing to pay her share of the Law Guardian's fee as directed in an order of the same court dated October 6, 2005 (see Family Ct Act § 156; Judiciary Law § 753 [A]). There was no dispute that the mother failed to pay the Law Guardian. Proof of noncompliance with the order established a prima facie case of criminal contempt, shifting the burden to the mother to establish good cause for noncompliance, thereby negating the inference of wilfulness (see Ferraro v Ferraro, 272 AD2d 510 [2000]). Here, the mother had in her possession a bank check for the entire amount owed to the Law Guardian, which belied any claim of an inability to pay (see Matter of Gerzack v Gerzack, 87 AD2d 612 [1982]). Contrary to her contentions, the Family Court gave the mother a reasonable [*2]opportunity to pay the amount owed (see Stempler v Stempler, 200 AD2d 733 [1994]).

The mother's remaining contentions are without merit.

Motion by the nonparty respondent on an appeal from an order of the Family Court, Nassau County, dated October 18, 2005, to strike portions of the appellant's brief on the ground that it raises issues that are not properly before this Court. By decision and order on motion of this Court dated May 11, 2006, the motion was held in abeyance, and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

Ordered that those branches of the motion which are to strike points III and V of the appellant's brief are granted; and it is further,

Ordered that the motion is otherwise denied. Florio, J.P., Krausman, Luciano and Skelos, JJ., concur.