                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:    June 2, 2016                    521310
                                                        520476
_________________________________

In the Matter of CINDY A. KHAN,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

FAISAL Z. KHAN,
                     Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:    April 28, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

                              __________


     Michelle I. Rosien, Philmont, for appellant.

     Richard E. Doling, Albany, for respondent.

     Christopher Hammond, Cooperstown, attorney for the child.

                              __________


McCarthy, J.P.

      Appeals (1) from an order of the Family Court of Montgomery
County (Cortese, J.), entered August 4, 2014, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to find respondent in willful violation of a prior
order of visitation and awarded counsel fees, and (2) from an
order of said court, entered September 29, 2014, which, among
other things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
visitation.
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                                                 520476

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a daughter (born in
2003) and a son (born in 2004). As is relevant here, the mother
filed an application to hold the father in contempt of a Family
Court order based on the allegation that the father violated that
order by keeping the children past the end of his scheduled
supervised visitation time. The mother also sought an award of
counsel fees. After a contempt hearing, Family Court issued a
temporary order suspending the father's parenting time. In May
2014, the court issued an order that, among other things, granted
the mother's motion for contempt and sentenced the father to 14
days in jail, suspended so long as he complied with a therapeutic
parenting time schedule. The mother subsequently moved to amend
the May 2014 order to award her counsel fees. In July 2014,
Family Court issued a temporary order that, among other things,
granted observed therapeutic parenting time to the father. In
August 2014, Family Court granted the mother's motion to amend
the May 2014 order and, among other things, awarded the mother
$3,100 in counsel fees. Eventually, based on both parties'
previous filings of custody modification petitions, Family Court
issued a September 2014 order with the parties' consent that,
among other things, adopted the aforementioned therapeutic
parenting time schedule. The father appeals from both the August
2014 order and the September 2014 order.1

      To establish that a party is in civil contempt for
willfully violating a court order, a "petitioner must show by
clear and convincing evidence that (1) Family Court issued a
valid, clear and explicit order, (2) the party alleged to have
violated the order actually knew the conditions of that order,
and (3) the alleged violation prejudiced some right of the
petitioner" (Matter of Holland v Holland, 80 AD3d 807, 808
[2011]; see Matter of Paul A. v Shaundell LL., 117 AD3d 1346,
1347-1348 [2014], lv dismissed 24 NY3d 937 [2014]). A


    1
         The father has abandoned any argument regarding the
September 2014 order by not challenging the order in his brief
(see Matter of Justyce HH. [Andrew II.], 136 AD3d 1181, 1182
[2016]; Matter of Ryan v Lewis, 135 AD3d 1135, 1136 n 2 [2016]).
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                                                 520476

determination regarding a party's contempt will be overturned
only if it is an abuse of discretion (see Matter of Paul A. v
Shaundell LL., 117 AD3d at 1348; Matter of Aurelia v Aurelia, 56
AD3d 963, 964 [2008]).

      Family Court's finding of contempt was not an abuse of
discretion. As to the temporary order of custody that was
underlying the finding of contempt, Family Court issued the order
from the bench reducing the father's supervised parenting time to
every other Sunday from 10:00 a.m. to 12:00 p.m. and requiring
him to transport the children.2 Family Court explicitly stated
that the temporary order would apply to the father's parenting
time on the upcoming Sunday, November 17, 2013 visit. Although
the father now argues that he was confused about whether the
order would be in effect before he received written confirmation
of it, he raised that issue as the court issued the order from
the bench. In response, the court again unambiguously informed
the father that "[t]he order is in effect immediately." When
later asked – at the contempt hearing – what he understood Family
Court to mean by this statement, the father testified that he
understood the court to be referring to the "new" order regarding
the "[t]en to 12" visitation with the children. On November 17,
2013, the father kept the children from 10:00 a.m. until 5:00
p.m., prejudicing the rights of the mother to have the children
returned to her at noon. Affording appropriate deference to the
court's credibility determinations, we conclude that the court
did not abuse its discretion in finding that the mother
established, by clear and convincing evidence, that the father
willfully violated the temporary custody order (see Matter of
Paul A. v Shaundell LL., 117 AD3d at 1348; Matter of Yeager v
Yeager, 110 AD3d 1207, 1210 [2013]).



    2
        At this visitation hearing, the father had an Urdu
interpreter available to him. Family Court informed the father
that the interpreter was available at any point that the father
did not understand something that was occurring. The father did
not avail himself of the interpreter's services at the hearing.
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                                                   520476

      Nonetheless, we agree with the father, to a limited extent,
that Family Court erred in awarding the mother $3,100 in counsel
fees. Where, as here, no actual loss or injury was sustained,
Judiciary Law § 773 permits that "a fine may be imposed, not
exceeding the amount of the complainant's costs and expenses, and
[$250] in addition thereto (see Family Ct Act § 156). A fine
pursuant to this section may include counsel fees (see Vider v
Vider, 85 AD3d 906, 908 [2011]; Matter of Jones v Jones, 75 AD3d
786, 788 [2010], lv dismissed 15 NY3d 866 [2010]). On this
record, we find that Judiciary Law § 773 permits reimbursement
for the six hours of work that counsel performed and documented
and an additional $250. However, the mother's further
submissions of "anticipated" counsel fees did not constitute
proof of costs and expenses that the mother had actually
incurred, and those fees were not properly awarded (compare
Matter of Claydon, 103 AD3d 1051, 1054 [2013]). Thus, the
counsel fee award is reduced to $2,050. The father's remaining
contentions have been considered and are without merit.
      Garry, Egan Jr., Devine and Aarons, JJ., concur.



      ORDERED that the order entered August 4, 2014 is modified,
on the law, without costs, by reducing the counsel fee award to
$2,050, and, as so modified, affirmed.

      ORDERED that the ordered entered September 29, 2014 is
affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
