Opinion
11-30-2016
In the Matter of a Family Offense Proceeding under article 8 of the Family Court Act MELISSA S., Petitioner, v. ALLEN S., Respondent.
Both parties pro se.
Both parties pro se.
JOHN M. HUNT, J. In this family offense proceeding under article 8 of the Family Court Act, the respondent has made the unprecedented request that his physical appearance before the Court be dispensed with, and that he be permitted to participate and give testimony in the proceeding by electronic means, specifically by "telephone" from the offices of an attorney located in another state.
The attorney is presumably licensed to practice law in the state where the office is located, but he does not appear to be admitted to practice in New York.
By petition filed pursuant to Family Court Act § 821 on October 19, 2016, Melissa S. alleges that the respondent, Allen S., who is her spouse, committed one or more of the family offenses enumerated in Family Court Act § 812(1). The petition alleges that the parties reside at the same address in Astoria, New York, that there are no children residing in the parties' home, and that:
Allen accused me of cheating and being pregnant. [He] [s]aid he was leaving the next day. He was recording me the week prior with audio device. I left to check into a hotel. I was woken to enraged texts. Officers met me at the apartment where he [had] vandalized the front door—‘Lying, cheating, slut whore lives here’ and [he] saturated my clothes ... with vinegar, oil and coffee grounds. [He] ruined clothing and bedding [and] [l]eft hostile notes, continued to harass me via text. The most recent incident started on October 16, 2016 at 2:00 p.m. at my residence in Astoria.
I have not filed a criminal complaint concerning these incidents. I have no children and there are no other children living in my home.
Petitioner appeared before a Court Attorney–Referee on the date she filed her petition (see Fam. Ct. Act § 153–c ), a temporary order of protection was issued in petitioner's favor, a summons was issued for the respondent, and the case was adjourned for further proceedings before this Court on November 30, 2016.
Instead of having service of the summons, petition and temporary order of protection effected by the Sheriff or other law enforcement officer, the petitioner appears to have advised the Court Attorney–Referee that she would arrange for service of the papers upon the respondent (Fam. Ct. Act § 153–b[c] ). The Court notes that a "Domestic Violence Pedigree Sheet" completed by the petitioner states that respondent might be staying at an address in Berkeley, California or at an address in Las Vegas, Nevada.
On November 16, 2016 the respondent filed this application to dispense with his personal appearance before the Family Court, and for authorization to appear and participate in the proceeding by telephone from a specified law office, which is located in Las Vegas, Nevada. Subsequently, the respondent then filed an "answer" to the family offense petition and interposed a "counter-claim" pursuant to Family Court Act § 154–b.
Family Court Act § 154–b provides, in pertinent part, that "the respondent may file with the court an answer to the petition and a counter-claim. A counter-claim shall be heard in the same manner as a petition and may be heard on the return date of the petition ... [t]he petitioner may serve a reply to the counterclaim. A denial of the allegations of the counter-claim shall be presumed if the petitioner does not serve and file an answer" (Fam. Ct. Act § 154–b[1] ).
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In support of his application to testify by electronic means (by telephone), respondent states that "[o]n 10/19/16, I received a summons to appear in Family Court, Queens County, State of New York on November 30, 2016 at 11:00 A.M.". He further states that he now "resides" in Las Vegas, that it would pose an "economic hardship" were he required to return to New York in order to defend himself in this proceeding, that three unidentified members of his family passed away in October 2016 and he "is helping family with costs", and the "[c]ost of sudden and unexpected relocation to avoid proximity to petitioner."
Respondent's application further states that "I understand that I have the right to discuss this matter with legal counsel [and] [b]y this application, I am consenting to the hearing and determination of this matter by this Court without my physical presence [and] I understand that I have the right to be present at any and all appearances, including any hearing scheduled by the Court. I understand that if I fail to appear on any of the scheduled dates, either in person or by telephone, audio-visual means or other electronic means approved by this Court, this Court may hear the matter in my absence of may issue a warrant for my arrest." The use of electronic technology to facilitate participation by litigants in judicial proceedings locations remote from the courtroom has found acceptance in recent years, as technology has developed.
One recent example is a 2015 amendment of the Family Court Act which authorizes the implementation of a pilot program for the electronic filing of family offense petitions which permits a petitioner in a domestic violence case to appear electronically from a remote location to request that a temporary order of protection be issued ( Fam. Ct. Act § 153–c[b] as amended by L. 2015, ch. 367, eff. April 1, 2016). In criminal actions, the "electronic appearance" of a defendant is authorized in certain circumstances, not including a hearing or a trial, by Criminal Procedure Law § 182.20(1) and 22 NYCRR § 106.1 (see Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, Criminal Procedure Law § 182.10 at 253 [West 2007] ).
In addition to ex parte appearances by a petitioner by electronic means at the preliminary stage of a family offense proceeding, the Family Court Act authorizes the taking of testimony "by telephone, audio-visual means or other electronic means" (see 22 NYCRR § 205.44 [a] ), in certain other proceedings, without regard to whether the hearing is a preliminary appearance or fact-finding hearing. The proceedings in which testimony by electronic means is specifically authorized are: (i) child support proceedings ( Fam. Ct. Act § 433 [c] ); (ii) paternity proceedings ( Fam. Ct. Act § 531–a[a] ); (iii) proceedings under the Uniform Interstate Family Support Act ( Fam. Ct. Act § 580–316[f] ); and (iv) interstate custody proceedings commenced under the Uniform Child Custody Jurisdiction and Enforcement Act ( Domestic Relations Law § 75–j[2] ).
Civil litigants in this State generally have "a fundamental right, guaranteed by the due process clause of both the Federal and State Constitutions, to be present at every stage of [a] trial" ( Matter of Raymond Dean L., 109 A.D.2d 87, 88, 490 N.Y.S.2d 75 [1985] ; see N.Y. Const., art. I, § 6 ; Carlisle v. County of Nassau, 64 A.D.2d 15, 18, 408 N.Y.S.2d 114 [1978], app dismissed 45 N.Y.2d 965 [1978] ; Lunney v. Graham, 91 A.D.2d 592, 593, 457 N.Y.S.2d 282 [1982] ; Matter of Deborah J.B v. Jimmie Lee E., 31 A.D.3d 1146, 1149, 818 N.Y.S.2d 388 [2006] ). The right to appear in a civil proceeding is not absolute ( Matter of James Carton K., 245 A.D.2d 374, 377, 665 N.Y.S.2d 426 [1997], lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750 [1998] ; Matter of Elizabeth T., 3 A.D.3d 751, 753, 770 N.Y.S.2d 804 [2004] ; Matter of Lillian D.L., 29 A.D.3d 583, 584, 813 N.Y.S.2d 784 [2006] ; Matter of Eileen R., 79 A.D.3d 1482, 1482–1483, 912 N.Y.S.2d 350 [2010] ; Matter of Atreyu G., 91 A.D.3d 1342, 938 N.Y.S.2d 686 [2012], lv. denied 19 N.Y.3d 801, 2012 WL 1502691 [2012] ; Matter of Assatta N.P., 92 A.D.3d 945, 938 N.Y.S.2d 916 [2012] ; Matter of Kyanna T., 99 A.D.3d 1011, 1014, 953 N.Y.S.2d 121 [2012], lv. denied 20 N.Y.3d 856, 959 N.Y.S.2d 691, 983 N.E.2d 770 [2013] ), and a court may proceed in the absence of a litigant where there is "an express waiver or unusual circumstances" ( Radjpaul v. Patton, 145 A.D.2d 494, 497, 535 N.Y.S.2d 743 [1988] ; see Matter of Christina F., 74 N.Y.2d 532, 534, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989] ; Lunney, 91 A.D.2d at 593, 457 N.Y.S.2d 282 ; Matter of Jolene SS., 254 A.D.2d 581, 582, 678 N.Y.S.2d 832 [1998] ; Deborah J.B., 31 A.D.3d at 1149, 818 N.Y.S.2d 388 ; Matter of Justin CC., 77 A.D.3d 207, 210–211, 903 N.Y.S.2d 806 [2010] ; Matter of Desirea F., 137 A.D.3d 1519, 1520, 28 N.Y.S.3d 490 [2016] ). In those instances where a litigant is involuntarily unable to appear due to illness or incarceration, and where there is no statute or regulation prescribing a specific procedure for the particular proceeding at issue, courts are vested with inherent power to adopt necessary procedures in order to accommodate the absent litigant's participation in the litigation (see People v. Wrotten, 14 N.Y.3d 33, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [2009], cert. denied 560 U.S. 959, 130 S.Ct. 2520, 177 L.Ed.2d 316 [2010] ; Matter of State v. Robert F., 25 N.Y.3d 448, 453–454, 13 N.Y.S.3d 319, 34 N.E.3d 829 [2015] ; Matter of Eileen R., 79 A.D.3d 1482, 1483–1485, 912 N.Y.S.2d 350 [2010] ; Matter of Sonara HH., 128 A.D.3d 1122, 1123, 8 N.Y.S.3d 477 [2015], lvs. dismissed 25 N.Y.3d 1220, 1221, 16 N.Y.S.3d 513, 514, 37 N.E.3d 1157 [2015] ).
However, the same is not true where a litigant has voluntarily absented himself or herself from the proceedings by leaving the territorial jurisdiction of the state. In the absence of a statutory provision authorizing a voluntarily absent litigant to testify electronically from a remote location, courts are not obligated to permit such testimony because, most notably, the ability of a court to determine the credibility of a witness who testifies by telephone would be compromised (Matter of Neamiah Harry–Ray M., 127 A.D.3d 409, 410, 4 N.Y.S.3d 502 [2015] ).
Here, the respondent, who is also a cross-petitioner by virtue of having filed a counter-claim, voluntarily departed New York and is not restrained in his liberty or incapacitated and unable to appear in these proceedings. This Court has considered the several grounds advanced in support of respondent's request to defend against his wife's family offense petition and to prosecute his own family offense petition by telephone. The grounds asserted by the respondent are essentially self-serving and unsubstantiated by any documentation, and they do not justify any alteration of normal trial procedure in these cases.
Having departed New York without any apparent necessity after allegedly committing the acts set forth in the family offense petition, and in declining to return after admittedly being served with process by the Sheriff in Clark County, Nevada, the respondent has voluntarily placed himself beyond the jurisdiction of this Court. At the same time, respondent has affirmatively invoked the jurisdiction of the Family Court by filing a counter-claim against his wife, and in requesting relief on his behalf (see Fam. Ct. Act § 154–c [3 ] ).
Aside from the impact that the proposed telephonic testimony will have upon the fact-finding process, respondent's absence will render the Court practically unable to enforce or ensure compliance with any orders, mandates (e.g., Fam. Ct. Act § 251 ), or conditions which may be issued in connection with either the petition or respondent's cross-petition.
The commencement of a family offense proceeding by the petitioner and the service of the summons and petition upon the respondent constitute a directive that respondent personally appear before this Court to respond to the petition. These legal documents were most certainly not an invitation for the respondent to remain in a distant state, beyond the jurisdiction of the Family Court.
While any final order of protection issued by this Court would be subject to enforcement throughout the United States under the provisions of the federal Violence Against Women Act ( 18 U.S.C. § 2265 [a]; e.g. Commonwealth v. Shea, 467 Mass. 788, 791, 7 N.E.3d 1028, 1031 [Sup.J.Ct.2014] ; State v. Esquivel, 132 Wash.App. 316, 322, 132 P.3d 751, 754 [Ct.App.2006] ), the enforcement of foreign protective orders is limited to orders issued after "reasonable notice and [the] opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process" ( 18 U.S.C. § 2265 [b][2]; see Matter of Daniel W. v. Kimberly W., 135 A.D.3d 1000, 1002, 24 N.Y.S.3d 232 [2016] ).
Under the circumstances here, where the respondent is not involuntarily confined or unable to appear in court, there is no valid reason for this Court to issue an order of protection that could be subject to collateral attack on due process grounds in the event that the protected party seeks to enforce the order in another jurisdiction.
In the absence of an established inability to appear or genuine necessity, respondent's voluntary departure and continued absence from New York disentitles him to request that the Court devise a special procedure by which he may remotely defend against his wife's family offense petition and prosecute his own cross-petition (see Degen v. United States, 517 U.S. 820, 824, 116 S.Ct. 1777, 135 L.Ed.2d 102 [1996] ; Matter of Skiff–Murray v. Murray, 305 A.D.2d 751, 753, 760 N.Y.S.2d 564 [2003] ; Wechsler v. Wechsler, 45 A.D.3d 470, 472, 847 N.Y.S.2d 26 [2007] ; Matter of Christie S. v. Marqueo S., 106 A.D.3d 592, 592–593, 965 N.Y.S.2d 348 [2013] ; Matter of Allain v. Oriola–Allain, 123 A.D.3d 138, 142, 995 N.Y.S.2d 105 [2014] ; Matter of Fauconier v. Fauconier, 139 A.D.3d 850, 851, 29 N.Y.S.3d 818 [2016] ).
Finally, respondent's voluntary departure from New York and his expressed intention not to return in order to participate in these proceedings may ultimately result in dismissal of the cross-petition he filed from Nevada, as a litigant who places himself beyond the jurisdiction of the court may not invoke the court's jurisdiction to obtain affirmative relief (Matter of Shehatou v. Louka, 118 A.D.3d 1357, 1358, 987 N.Y.S.2d 746 [2014] ).
Accordingly, it is hereby
ORDERED, that respondent's application to appear and testify by telephone in the family offense proceedings commenced by both parties, is denied for the reasons indicated.