Wheeler v Wheeler

Wheeler v Wheeler 2011 NY Slip Op 02945 Decided on April 14, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 14, 2011
Mazzarelli, J.P., Friedman, Acosta, DeGrasse, Román, JJ.
4780 300662/08 4781 4781A 4781B

[*1]Jane Wheeler, Plaintiff-Respondent,

v

Robert C. Wheeler, Defendant-Appellant.



 
The Law Offices of Linda L. Mellevold, New York (Linda L.
Mellevold of counsel), for appellant.
Aronson Mayefsky & Sloan, LLP, New York (John A.
Kornfeld of counsel), for respondent.
Bender Rosenthal Isaacs & Richter LLP, New York (Randi S.
Isaacs of counsel), attorney for the child.

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered August 12, 2010, which, insofar as it held defendant-father in contempt of an order entered December 8, 2008, unanimously affirmed, with costs. Appeal from so much of the August 12, 2010 order as awarded plaintiff-mother temporary sole custody of the parties' child and ordered that defendant-father's visitation with the child be supervised, unanimously dismissed, without costs, as academic. Order, same court and Justice, entered on or about November 9, 2010, which, insofar as it held defendant-father in contempt of the December 8, 2008 order and ordered that he be sentenced to 45 days of incarceration, unanimously affirmed, with costs. Appeal from so much of the November 9, 2010 order as ordered that defendant-father's visitation with the parties' child be supervised, unanimously dismissed, without costs, as academic.

The father's request that the Justice presiding over the matter of contempt be recused and a new Justice assigned is improperly raised for the first time on appeal (see Yoda, LLC v National Union Fire Ins. Co. of Pittsburgh, Pa., 63 AD3d 424, 425 [2009]). Were we to consider the father's request, we would conclude that recusal is unwarranted (Liteky v United States, 510 US 540, 555-56 [1994]; see R & R Capital LLC v Merritt, 56 AD3d 370 [2008]).

Furthermore, the court properly exercised its discretion in finding the father in contempt of the December 8, 2008 order, insofar as it forbade the parties from introducing their child to anyone with whom he or she was having a "romantic relationship," and sentencing him to a period of incarceration. The order was not vague or ambiguous, indeed, it resulted from a motion originally made by the father (see Matter of McCormick v Axelrod, 59 NY2d 574 [1983]), and the court only sentenced him upon discovery of a second violation of the order.

We have considered the father's remaining contentions and find them without merit or [*2]academic, as set forth above.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 14, 2011

CLERK