           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1041
CAF 10-01240
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF CHRISTOPHER FEWELL,
PETITIONER-APPELLANT,

                      V                           MEMORANDUM AND ORDER

JENNIFER M. KOONS, RESPONDENT-RESPONDENT.


DEBORAH J. SCINTA, KENMORE, FOR PETITIONER-APPELLANT.

M. KIM BABAT, ATTORNEY FOR THE CHILD, BUFFALO, FOR ISIAH S.K.


     Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered April 27, 2010 in a proceeding pursuant to Family
Court Act article 6. The order dismissed the petition alleging a
violation of a prior order of visitation.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner father appeals from an order in this
Family Court Act article 6 proceeding dismissing his petition alleging
that respondent mother violated a prior order of visitation with
respect to the parties’ son. We reject the father’s contention that
Family Court erred in dismissing the petition without conducting a
hearing. “It is well established that due process does not mandate a
hearing in every instance where contempt is sought [based on the
violation of a court order]; it need only be conducted if a factual
dispute exists [that] cannot be resolved on the papers alone” (Bowie v
Bowie, 182 AD2d 1049, 1050; see also Matter of Lynda D. v Stacy C., 37
AD3d 1151; cf. Matter of Lisa B.I. v Carl D.I., 46 AD3d 1451).
Moreover, a hearing is not required even where a factual dispute
exists when the allegations set forth in the petition are insufficient
to support a finding of contempt (see Matter of Palacz v Palacz, 249
AD2d 930, lv dismissed 92 NY2d 920). Here, no hearing was required
because the father failed to indicate how the mother allegedly
violated the order. In addition, as the court properly noted, the
order that the father sought to enforce was ambiguous.




Entered:    September 30, 2011                  Patricia L. Morgan
                                                Clerk of the Court
