Opinion
V-0000-00/00X V-0000-00/00X
01-10-2022
In the Matter of a Proceeding Under Article 6 of the Family Court Act, D.D., Petitioner, v. R.M., Respondent.
Sari Friedman, Esq., and Jennifer Moran, Esq., Attorneys for Petitioner, D.D. Karen Charrington, Esq., Attorney for Respondent, R.M. Patricia Sokolich, Esq., Attorney for Child.
Unpublished Opinion
Sari Friedman, Esq., and Jennifer Moran, Esq., Attorneys for Petitioner, D.D.
Karen Charrington, Esq., Attorney for Respondent, R.M.
Patricia Sokolich, Esq., Attorney for Child.
Conrad D. Singer, J.
The following papers were read on these Motions:
Respondent's Motion by Order to Show Cause and Supporting Papers...............1
Petitioner's Affidavit in Opposition to Respondent's Order to Show Cause and Supporting Papers...............2
Attorney for the Children's Affirmation in Support of Respondent's Notice of Motion and Opposition to Petitioner's Notice of Cross-Motion...............3
Before the Court in these custody and parenting time proceedings is the respondent father's motion filed by Order to Show Cause, which seeks an Order: 1) Holding the petitioner mother in contempt of court pursuant to Judiciary Law § 753 for violating the Court's August 9, 2021 order and August 12, 2021 amended order, and issuing a penalty and punishment that, per counsel, is "severe enough to deter the petitioner's conduct and remedy the prejudice caused by the petitioner"; 2) Issuing immediate relief to the respondent father by awarding him temporary custody of the children pending any hearing or further proceedings before this court pertaining to the parties; or, in the alternative; 3) Issuing immediate relief by awarding the respondent father makeup time visits with his children by way of consecutive day to day visits until the petitioner mother has made up all of the parenting time pending a determination of the Court as to any and all applications before the Court pertaining to the parties in this matter; 4) Transferring full custody of the parties' children to the respondent father, after a final determination of this court, based upon a change in circumstances in light of a contempt finding and the harm caused to the respondent father and the children due to the petitioner mother's [alleged] acts, alienation and interference with the respondent father's access; 5) Issuing an award of attorney's fees for costs incurred by the respondent father pursuant to Judiciary Law § 773.
The petitioner mother, through counsel, filed opposition papers to the respondent father's Contempt Motion by Order to Show Cause. The Attorney for the Child filed an Affirmation in Support of the Respondent's Contempt Motion by Order to Show Cause and Opposition to the Petitioner's Notice of Cross-Motion. The father, through counsel, filed Reply papers, but did not obtain Court permission before doing so, and the Court did not consider said Reply papers in deciding his Contempt Motion. The respondent father's Contempt Motion is determined as follows:
The Attorney for the Child labeled her answering papers as follows: "Affirmation in Support of Respondent [ sic ] Notice of Motion and Opposition to Petitioner's Notice of Cross Motion". However, the body of the AFC's submission refers to the respondent father's Motion, by Order to Show Cause, seeking to hold the mother in contempt. The AFC's answering papers also refer to the Petitioner's Notice of Cross-Order to Show Cause, which this Court believes is intended to refer to the Cross-Order to Show Cause that was submitted by the Petitioner mother, but which the Court declined to sign, and which was not subsequently filed by Notice of Motion, and so is not presently before the Court. The Court has considered the AFC's papers to the extent that they address the father's Motion by Order to Show Cause for Contempt against the Mother, as discussed herein.
See, e.g., Uniform Rules §§ 202.8-d, "[a]bsent advance permission of the court, reply papers shall not be submitted on orders to show cause."
The father's Contempt Motion includes a supporting affirmation from his counsel. As counsel acknowledges, there is already a contempt proceeding that is pending before this Court and which is scheduled for hearing on January 19, January 20, January 21, January 24, January 25, January 26, and January 27, 2022. (See Affirmation in Support by Karen Charrington, Esq., on Contempt Motion Filed Under Docket Numbers V-0000-00/00X and V-0000-00/00X ["Charrington Aff. in Support"], ¶ 3). The father's counsel contends that his Contempt Motion differs from the previously scheduled contempt proceedings, which were commenced by Contempt Motion filed by the Attorney for the Children ["AFC"]. (Charrington Aff. in Support, ¶ 4). Counsel for the father cites to the Court's Short Form Order dated August 9, 2021, which is attached to her Supporting Affirmation and which provides as follows:
"ORDERED that until further order of this court all pickup and drop-off of the children for parenting time shall be at McDonald's located at 000 F.A., F.S., NY". (Charrington Aff. in Support, ¶ 8, Exhibit A thereto).
The father's counsel also cites to this Court's August 12, 2021 Amended Order, appended to her Supporting Affirmation as Exhibit A, which provides as follows:
"ORDERED that until further order of this court all pickup and drop-off of the children for parenting time shall be at McDonald's located at 000 F.A., F.S., NY, unless otherwise agreed to by the parties in a future writing.
ORDERED that neither party shall bring a third party or be accompanied by a third party or permit a third party to be present for the pick up or drop off exchanges of the children. (Charrington Aff. in Support, ¶ 8, Exhibit A thereto).
The father's counsel argues that the elements of a civil contempt proceeding have been satisfied, in that:
"(1) the court unequivocally outlined the terms of the order on the record on August 9, 2021 when the Petitioner was physically present The Court then mailed said order to the parties. In addition, the court issued an amended order on August 12, 2021 and said order was emailed to the parties. Said orders were in effect for all visits moving forward. Furthermore, Petitioner agreed to the new drop off location and was given a choice as to the most convenient location for her; (2) Petitioner disobeyed the order by refusing to 'drop off' the children at the designated McDonalds; (3) the Respondent has stated the prejudice to him as a father. He has been prejudiced by the ongoing contumacious conduct of the Petitioner because the Petitioner has infringed upon the Respondent's rights as a parent; the bond between Respondent and his children has been wrongfully impacted; and he has missed valuable visitation time with his children". (Charrington Aff. in Support, ¶ 26).
The father's counsel further argues that a fact-finding on his Contempt Motion is not necessary because there can be no dispute that the Petitioner refused to "drop off" the children at McDonalds, but that even if a fact-finding is necessary, it is customary for the Family Court to issue an order of makeup parenting time to the non-custodial parent without a hearing. (Charrington Aff. in Support, ¶¶ 31 and 32). The father's counsel further asserts that under New York law the father is entitled to $2,800.00 in costs and fees that he incurred by prosecuting his contempt application. (Charrington Aff. in Support ¶ 33).
The father's Contempt Motion also includes the father's Affidavit of Support, in which he attests that "on the first date" of his access schedule after the August 9, 2021 order, the mother arrived late to McDonalds (3:06 PM instead of 2:15 PM), and that she entered the McDonalds with the children, ordered food and sat at a table with the children. (Affidavit of R.M. in Support of Contempt Motion, dated November 3, 2021 ["M. Aff. in Support"] ¶ 4). He further attests that the mother did not leave once he entered the McDonalds, but instead sat at a table with their children. (M. Aff. in Support, ¶¶ 5 through 7). His motion papers include a photograph which he affirms shows her sitting with the children. (M. Aff. in Support, ¶ 7, Exhibit ["Ex."] D thereto). He further attests that when he attempted to take his children with him, the parties' children looked at their mother, and then turned to him and stated, in sum and substance, that they would get in trouble if they left with him, and that the parties' daughter stated, "I can't go to your house". (M. Aff. in Support, ¶ 8).
The father also details that on the next access schedule date following the Court's issuance of an Amended Order dated August 12, 2021, the mother drove up with the children tightly seat belted in the back seat with a blanket covering their legs and seatbelt. (M. Aff. in Support, ¶ 18). He further attests that, as instructed by his attorney, he went over to the mother's car to take the children out of her vehicle and that as soon as he touched their daughter's hand, the mother started yelling "Is he hurting you? Is he hurting you?" and their daughter started screaming. (M. Aff. in Support, ¶¶ 21 and 22). The mother called the police, who then came to the scene but left without taking any action. (M. Aff. in Support, ¶ 23).
The remainder of the father's supporting affidavit describes subsequent visits in more generalized terms, e.g., "On my next scheduled visits after these occurrences, Petitioner would drive to McDonalds and my children would now remain seat belted in their seats in the vehicle, and I would have to speak to my children from the car window of Petitioner's car". (M. Aff. in Support, ¶ 24; see also ¶¶ 25 through 28).
The mother's Opposition to the father's Contempt Motion includes an Affidavit from the mother, in which she affirms that the Court's Short Form Order dated August 9, 2021 "does not provide any further detail or explanation as to how to effectuate the transition between parents" other than stating "All pick up and drop off of the children for parenting time shall be at McDonald's located at 000 F.A., F.S., New York". (Affidavit in Opposition to Respondent's Order to Show Cause by D.D., dated November 17, 2021 ["D. Aff. in Opp."], ¶ 4).
The mother further attests that the father's first scheduled McDonald's pickup following the Court's issuance of the August 9, 2021 Short Form Order was August 10, 2021. (D. Aff. in Opp., ¶ 5). She further attests that, on that date, she brought the children to McDonald's for the father to pick them up for his parenting time. (D. Aff. in Opp., ¶ 5). She attests that, once she and the children arrived, the father greeted the children but then walked away from them and sat at a table across the restaurant, with his feet up, taking pictures of the children and talking on his cell phone. (D. Aff. in Opp., ¶ 5). Her Opposition papers include a photograph which she affirms shows him with his feet up. (D. Aff. in Opp., ¶ 5, Ex. D thereto). She affirms that he did not attempt to leave the McDonald's with the children and that he did not try to exercise his parenting time while at the McDonald's. (D. Aff. in Opp., ¶ 5). She further attests that the parties exchanged emails while at McDonald's in which she asked him to encourage the children to leave with him, and she affirms that she has appended a copy of their email exchange to her Opposition papers as Exhibit E. (D. Aff. in in Opp., ¶ 5, Ex. E thereto).
The mother further attests that on August 12, 2021, when the father was next scheduled to have parenting time, the parenting time transition was a "nightmare". (D. Aff. in Opp., ¶ 7). She attests that the father arrived at McDonald's with his sister present (in contravention to the Court's directives), that he opened the daughter's car door, unbuckled her seat belt, and grabbed her by the arm, trying to forcefully pull her out of the car. (D. Aff. in Opp., ¶ 7). She further attests that she "had no choice" but to call the police to the scene to deescalate the situation. (D. Aff. in Opp., ¶ 7). She further attests that she is not (willfully or otherwise) violating the Court's orders and that therefore a contempt finding against her is inappropriate. (D. Aff. in Opp., ¶ 9). She argues that she has brought the children to McDonald's each and every Tuesday, Thursday, and alternate Friday as she was required under the Court's orders, and that she has gone above and beyond her court-ordered obligations to convince the children to get out of the car, to speak to the father away from her, and that she even convinced their son to leave with the father on numerous occasions. (D. Aff. in Opp., ¶ 9).
The Court notes that the mother and her counsel overstate and mischaracterize the representation made by Court staff during the off-the-record attorneys-only conference which was conducted on an "emergency basis" at counsel's request on August 10, 2021. The Court was not involved in the attorneys "mutually agreeing" about how to interpret the term "drop-off", nor was it involved in "determining" that it was the "father's responsibility" to get the children out of the car; the attorneys have repeatedly been advised that no orders result from an off-the-record attorney's only conference, such as that which was conducted on August 10, 2021. Additionally, the Court has always maintained that it would not interpret the terms in the subject orders for them. Likewise, the Court's only "directive" to the attorneys concerning third parties at the exchanges was set forth in the Court's Amended Order dated August 12, 2021. Counsel is directed not to mischaracterize the representations made by the Court or Court staff.
She asserts that it is the father who has repeatedly canceled visits at the last minute, has left early from almost every visit, and has now resorted to giving the children the choice of whether or not to go with him. (D. Aff. in Opp., ¶ 9). She argues that she cannot be held in contempt for the father's voluntary choice not to exercise his parenting time. (D. Aff. in Opp., ¶ 10). She also details the parties' interactions on various of the father's court-ordered parenting time dates, including, e.g., that on September 23rd and September 28th, the father unilaterally canceled his parenting time sessions with the children, and that on October 7, 2021, the father spent time with the children at the V.S. Park, as recommended by the mother. (D. Aff. in Opp., ¶ 12, Ex. G thereto). The mother further argues that, if anyone should be held in contempt it is the father, for violating the Amended Order dated August 12, 2021, when he allowed his mother to be present for the parenting time exchange on October 5, 2021. (D. Aff. in Opp., ¶ 15). The mother further argues that if the Court determines that the phrase "pick-up" and "drop off" constitutes an unequivocal mandate sufficient to support a finding of contempt, then the father should be held in contempt for his failure (other than one occasion on November 11, 2021) to "pick-up" and leave with both children. (D. Aff. in Opp., ¶ 17). The mother disputes the father's assertions that she has withheld parenting time from him for "over a year". (D. Aff. in Opp., ¶ 18).
The mother's counsel argues that the Court's August 9, 2021 Short Form Order and its August 12, 2021 Amended Order do not contain an "unequivocal mandate" that the mother is violating. (Affirmation in Opposition to Respondent's Order to Show Cause by Jennifer Moran, Esq., dated November 17, 2021 ["Moran Aff. in Opp."], ¶ 4). Counsel for the mother further argues that, "per the terms of the existing Court Orders, the Petitioner has no greater responsibility than the Respondent to effectuate the transition. The Respondent can just as well 'pick-up' the children and leave with them". (Moran Aff. in Opp., ¶ 5).
The mother's counsel argues that, given the level of disputed facts, neither party may be held in contempt without the Court conducting a hearing first. (Moran Aff. in Opp., ¶ 8). Counsel further argues that the father's application for a temporary and/or final change of custody should be denied, as the record reveals that the deterioration of the relationship between the father and the children is due, in part, to the father's own conduct and failure to make sufficient efforts towards improving his relationship with the children. (Moran Aff. in Opp., ¶ 9).
The AFC's answering papers consists of the AFC's Affirmation, in which she primarily opposes arguments that appear to have been asserted by the mother in her proposed Cross-Order to Show Cause which the Court declined to sign. The Court hereby disregards those aspects of the AFC's Affirmation which purport to address the mother's Cross-Order to Show Cause. However, the AFC argues that the mother's statement that she complied with the Court's Order is "disingenuous" and further argues that she did not comply with said Order, which did not state that the mother was to take the children into McDonald's and buy them French fries and then sit at a table and eat with the children. (Affirmation in Support of Respondent [ sic ] Notice of Motion and Opposition to Petitioner's Notice of Cross Motion by Patricia Sokolich, Esq., dated November 22, 2021 ["AFC Aff. in Support"], ¶ 5).
The AFC further argues that there was no reason for the mother to get out of the car and that her behavior "was outrageous and clearly meant to interfere and prevent the Respondent from having visitation with his children". (AFC Aff. in Support, ¶ 6). The AFC argues that "exchange" means "switch" and that it is the mother's responsibility to deliver the children to the father. (AFC Aff. in Support, ¶ 8).
LEGAL CONCLUSIONS
"In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court's order Finally, prejudice to the right of a party to the litigation must be demonstrated." (Abizadeh v. Abizadeh, 190 A.D.3d 797, 797 [2d Dept 2021]). "The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence". (Abizadeh, 190 A.D.3d at 797). No hearing is required, even where a factual dispute exists, where the allegations set forth in the contempt application, even if accepted as true, are insufficient to support a finding of contempt. (See Matter of Perez v. Richmond, 104 A.D.3d 692, 692-93 [2d Dept 2013]).
The father and AFC contend that the mother should be held in civil contempt for disobeying this Court's Short Form Order dated August 9, 2021, which provides, in pertinent part, as follows:
"ORDERED that until further order of this court all pickup and drop off of the children for parenting time shall be at McDonald's located at 000 F.A., F.S., NY". ("August 9, 2021 Order").
The father further contends that the mother should be held in civil contempt for disobeying this Court's Amended Short Form Order, dated August 12, 2021, which provides, in pertinent part, as follows:
"ORDERED that until further order of this court, all pick up and drop off of the children for parenting time shall be at McDonald's located at 000 F. A., F.S., NY, unless otherwise agreed to by the parties in a future writing.
ORDERED that neither party shall bring a third party or be accompanied by a third party or permit a third party to be present for the pick up or drop off exchanges of the children". ("August 12, 2021 Order").
The Court finds, after reviewing all of the parties' respective motion submissions, that the father has failed to meet his burden of proving the mother's alleged civil contempt of either the Court's August 9, 2021 Order and/or the Court's August 12, 2021 Order.
First, the father failed to establish by clear and convincing evidence, that the mother violated an "unequivocal mandate" set forth in this Court's orders. Rather than establish that the mother violated the subject orders, the father's Contempt Motion papers reveal that a "clear disagreement" existed between the parties with respect to the manner in which the subject orders were to be interpreted, including the manner in which their exchange of the children was to be carried out. (See, Hoglund v. Hoglund, 234 A.D.2d 794, 796 [3d Dept 1996]). This Court has consistently directed the parties during their extensive Family Court litigation proceedings that they must learn to cooperatively co-parent their children and that it will not micromanage the manner in which they co-parent their children, including by issuing overly specific orders that govern every aspect of their co-parenting relationship, such as parenting time exchanges.
The Court further notes that the father's Contempt Motion papers largely describe the parties' exchanges at McDonald's in vague and general terms, for example, citing what the mother "would" do on "recent visits", etc. The Court finds that such allegations are insufficient to establish violative conduct on the mother's part. The father did, however, specifically discuss two exchange interactions, i.e., the parties' first exchange after the Court issued its August 9, 2021 Order, and their exchange that occurred immediately after the Court issued its August 12, 2021 Amended Order. The Father's discussion of these two exchanges merely establishes that a "disagreement" existed between the parties as to how they should effectively facilitate the exchanges, rather than that the mother was violating the Court's orders.
Moreover, even to the extent that the mother violated the Court's orders, the Court further finds that the father failed to establish that his rights were "prejudiced" by the mother's conduct at these exchanges. The subject Court Orders specify that not only is the mother's "drop off" of the children to take place at McDonald's, but also that the father's "pick up" of the children is to take place there. Having reviewed all the parties' motion papers, and having reviewed the documentary evidence appended thereto, the Court finds that both parties appear to have committed various wrongdoings during the subject exchanges, and that the father failed to prove that the mother's conduct, "standing alone", is what caused him any prejudice concerning his right to parenting time with the children. (See, e.g., Dwyer v. De La Torre, 279 A.D.3d 854, 857 [3d Dept 2001]; White v. White, 265 AD 942, 942 [2d Dept 1942] ["It appears without contradiction that the plaintiff failed to comply with the conditions imposed by an order dated April 30, 1942, and in that circumstance, there should be no adjudication of contempt for the failure of the defendant to comply with other conditions in said order"]).
Thus, under the circumstances of this case, the father's request for an Order holding the mother in contempt of court pursuant to Judiciary Law § 753 is denied.
In addition to failing to meet his burden on his Contempt Motion, the father has failed to establish circumstances which warrant modifying the parties' prevailing custody arrangement to award him temporary or final legal and/or residential custody of the parties' children. (Heffer v. Krebs, 196 A.D.3d 684, 684 [2d Dept 2021]). The father has also failed to establish the entitlement to the requested makeup access time with his children, particularly in light of the parties' dispute as to how the father calculated the proposed make up parenting time.
Furthermore, as the father has failed to meet his burden in establishing that the mother engaged in contemptuous conduct, he has also failed to establish entitlement to costs and fees that he incurred in pursuing his Contempt Motion against her. (See Judiciary Law § 773; see also Heffer, 196 A.D.3d at 684).
Finally, the Court notes that the father's own Contempt Motion papers reveal that, over time, he successfully made headway as far as exercising parenting time with the parties' son [ M. Aff., ¶¶ 26 and 27], and that during more recent exchanges both children exited the mother's car and conversed with him, a vast improvement over the parenting time exchanges that occurred right after the Court's issuance of the subject orders. [ M. Aff., ¶ 28]. The mother should strongly consider using such interactions as an opportunity to leave the children with their father so that he can fully exercise his parenting time with both children. Likewise, considering the improvement in the facilitation of the exchanges, the father should strongly consider working cooperatively with the mother to further strengthen his relationship with his children, rather than commencing yet another proceeding in the Family Court, which not only causes both parties to spend time and money, but which also generally serves to create further animosity and hostility between them.
Accordingly, it is hereby:
ORDERED, that the respondent father's Contempt Motion filed by Order to Show Cause filed November 4, 2021 [Motion #5], is denied in its entirety; and it is further, ORDERED, that all other requests for relief not specifically addressed herein are deemed denied.
This constitutes the Decision and Order of the Court.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.