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Matter of Berrocales v. Idels

Appellate Division of the Supreme Court of New York, Second Department
Aug 15, 1994
207 A.D.2d 446 (N.Y. App. Div. 1994)

Opinion

August 15, 1994

Appeal from the Family Court, Richmond County (Meyer, J.).


Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, and that the matter is remitted to the Family Court, Richmond County, for further proceedings consistent herewith.

In a petition dated July 2, 1991, the appellant alleged that the respondent was constantly "harass[ing]" and "badmouthing" him, that the respondent's roommate "spanked" the parties' child and that the parties' child was "in dang[er] and suffer[ing] from emotional and mental problems because of the above situation". The appellant requested that the respondent's visitation rights be suspended.

In an order dated the same day as this petition, the Family Court found that the petition was "frivolous on its face and * * * made in retaliation for respondent being awarded unsupervised visitation". The court imposed a sanction of $250, payable by August 5, 1991, and in the order appealed from, the court again directed the respondent to "pay fine of $250.00 by 11/27/92".

The record on appeal furnished to this Court contains no proof that the appellant was given a reasonable opportunity to be heard prior to the Family Court's imposition of a monetary sanction (see, 22 NYCRR 130-1.1 [d]; Flaherty v. Stavropoulos, 199 A.D.2d 301; Folk v. State of New York, 185 A.D.2d 267). Further, the Family Court did not state any reason "why [it] found the amount awarded or imposed [was] appropriate" ( 22 NYCRR 130-1.2; Carchi v. Carchi, 203 A.D.2d 505; Martino v. Martino, 194 A.D.2d 591). The sanction must, therefore, be vacated.

The petition dated July 2, 1991, was "on its face" no more "frivolous" than any of the several other petitions which the parties have exchanged since 1986. Certainly, it cannot be considered intrinsically "frivolous" for the father of a child to request the suspension of the mother's visitation when, as is alleged in the petition under review, the child's emotional stability is at stake. On the other hand, it may well be "frivolous" for a father to invent a claim that his child's emotional health is suffering when, in fact, such a claim is totally unfounded. In other words, while the petition under review cannot be considered frivolous on its face, upon the taking of evidence, it may be established that the petition is frivolous as a matter of fact, as that term is defined in the governing regulation (see, 22 NYCRR 130-1.1 [c]).

Because we cannot categorically say that the petition under review was not frivolous and because vacatur of the sanction is required for the reasons noted above, we remit to the Family Court for a hearing (see, Giblin v. Anesthesiology Assocs., 171 A.D.2d 839). Bracken, J.P., Sullivan, Miller and Hart, JJ., concur.


Summaries of

Matter of Berrocales v. Idels

Appellate Division of the Supreme Court of New York, Second Department
Aug 15, 1994
207 A.D.2d 446 (N.Y. App. Div. 1994)
Case details for

Matter of Berrocales v. Idels

Case Details

Full title:In the Matter of MANUEL BERROCALES, Appellant, v. BEVERLY IDELS, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 15, 1994

Citations

207 A.D.2d 446 (N.Y. App. Div. 1994)
615 N.Y.S.2d 756

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