Opinion
March 17, 1995
Appeal from the Supreme Court, Ontario County, Harvey, J.
Present — Green, J.P., Wesley, Callahan, Doerr and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court did not err in finding defendant in civil contempt of court based upon his violation of this Court's order regarding his visitation rights (Costanza v. Costanza, 199 A.D.2d 988; see, Cannizzaro v. Cannizzaro, 186 A.D.2d 776, 778; Bergin v Peplowski, 173 A.D.2d 1012, 1013; Richards v. Estate of Kaskel, 169 A.D.2d 111, 121, lv dismissed 78 N.Y.2d 1042). A hearing is not required unless there is a factual issue in dispute that needs to be resolved (see, Matter of Bonnie H., 145 A.D.2d 830, lv dismissed 74 N.Y.2d 650). Here, the facts regarding defendant's conduct are not in dispute.
"Judiciary Law § 773 permits an aggrieved party to recover costs and expenses, as well as the statutory fine of $250, where no actual damages have been established as a result of the contempt [citation omitted]" (Glanzman v. Fischman, 143 A.D.2d 880, 881, lv dismissed 74 N.Y.2d 792). Moreover, "[t]he reasonable counsel fees which are incurred in connection with an application to punish another for contempt are properly included as an item of the aggrieved party's `costs and expenses'" (Glanzman v. Fischman, supra, at 881; see, Quantum Heating Servs. v. Austern, 121 A.D.2d 437). Here, the court properly awarded plaintiff costs and expenses, including the reasonable counsel fees she incurred in connection with the contempt application, but it failed to determine the amount of those costs and expenses, including the reasonable counsel fees. We, therefore, remit the matter to Supreme Court to determine the amount of costs and expenses, including the reasonable counsel fees incurred by plaintiff in connection with the contempt application, and to conduct a hearing thereon if it is so advised.