Opinion
157212
07-17-2020
In the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act, Robert H., Petitioner, v. Thurma S., Respondent.
Cheryl Sue Solomon, Esq., Attorney for Grandmother Aisha Prudent, Esq., Attorney for the Subject Children Virginia Hewitt, Esq., Attorney for the Mother Meichia Gulley, Esq., Attorney for the Father
Cheryl Sue Solomon, Esq., Attorney for Grandmother Aisha Prudent, Esq., Attorney for the Subject Children Virginia Hewitt, Esq., Attorney for the Mother Meichia Gulley, Esq., Attorney for the Father Caroline P. Cohen, J.
Submissions on Motion for Contempt Notice of Motion; Amended Affidavit of Robert H. for Motion of Contempt; Affirmation of Support by Miechia L. Gulley, Esq. and Exhibits 1 Affirmation of the Attorney for the Child and Exhibits submitted by Aisha D. Prudent, Esq. 2
Upon the forgoing papers, the arguments presented, and the reasons set forth below, the instant motion is denied in part and granted in part. The instant motion is brought by the Movant/Father, Robert H. (hereinafter "Movant/Father") which seeks, among other relief, to hold Respondent/Grandmother Thurma S. (herein after "Respondent/Grandmother") in contempt for violating an order addressing visitation between herself, Joshua H. and Jazmine H. (hereinafter "Subject Children") and the mother of the Subject Children Tarice S. (hereinafter "Mother').
Background
The instant matter involves several custody and visitation dockets, including dockets filed by the Respondent/Grandmother seeking visitation of the Subject Children, and dockets filed by Mother seeking custody of the Subject Children and seeking a modification of a prior custody and visitation order. The Movant/Father has had physical custody of the Subject Children since 2017.
On February 11, 2020, the following parties and counsel appeared in court: the Respondent/Grandmother; her attorney, Cheryl Sue Solomon, (hereinafter "Attorney Solomon); the Mother pro se; the Movant/Father pro se and Aisha Prudent, the Attorney for the Subject Children, (hereinafter "Attorney Prudent"). During that appearance, Attorney Solomon made an oral application for visitation between the Respondent/Grandmother and the Subject Children, and the Mother also made an application for visitation with the Subject Children. In response, Attorney Prudent articulated the Subject Children's concerns regarding the Respondent/Grandmother's home and the company she keeps, including the Mother's then-boyfriend. A lengthy discussion ensued, where the Court, parties and counsel worked to establish parameters for the visit.
On consent, parties and counsel agreed to a Temporary Order of Visitation that permitted joint visits between the Subject Children, the Mother and the Respondent/Grandmother once a week on Saturdays between 10:00 am and 5:00 p.m. in a community space (hereinafter "the February Order"). The Court took extra care to discuss the terms of the February Order with Attorney Solomon, the Respondent/Grandmother and the Mother, and placed emphasis on the fact that the visits must take place in the public so that the Subject Children would be safe and comfortable. The structure of the visits was engineered to respect the Subject Children's reticence to spend time with the Respondent/Grandmother, particularly in her home, their concerns about the individuals the Respondent/Grandmother associates with, and the parties' relative desire to see one another.
On or about February 19, 2020, the Father brought a pro-se Order to Show Cause (hereinafter "February 2020 OTSC") which alleged that on or about February 15, 2020, the Respondent/Grandmother denied the Subject Children's request to shop at a Target in Brooklyn, but instead took them to her sister's house, the Subject Children's aunt, in Long Island City, Queens. The Father alleged that doing so violated the February Order, in that the home is not a "community space."
On or about February 27, 2020, Virginia Hewitt (hereinafter "Attorney Hewitt") was appointed as counsel to the Mother, and thereafter Meichia Gulley (hereinafter "Attorney Gulley") was appointed as counsel to the Father.
On May 21, 2020, Attorney Gulley, Attorney Solomon, Attorney Hewitt, and Attorney Prudent all appeared before this Court by Skype for Business to discuss the February 2020 OTSC. Attorney Gulley and Attorney Prudent presented information regarding the Respondent/Grandmother's alleged failure to comply with the February Order and expressed concern regarding the same. Further information was presented that confirmed that the Mother was present for the visit as well. Attorney Solomon argued her Client did not understand the scope of the order and asserted that the Respondent/Grandmother believed that she simply could not take the Subject Children to her home. The Court also explained to Attorneys Solomon and Hewitt that considering the COVID-19 pandemic, the Respondent/Grandmother and Mother could not continue their visits with the Subject Children, as there were in fact no community spaces open where they could safely spend time. Accordingly, the visits were de facto suspended.
On or about June 11, 2020, Attorney Gulley filed on behalf of the Movant/Father a Notice of Motion, an Affirmation and an Amended Affidavit for Motion for Contempt (hereinafter "amended OTSC'). The amended OTSC amended the original OTSC that was filed by the Movant/Father. The Amended OTSC sought to hold Respondent/Grandmother in Contempt of Court because of her alleged failure to adhere to the February Order, and to stay the February Order in respect to Respondent/Grandmother's visits. The Mother was not implicated in the amended OTSC. In the amended OTSC, Attorney Gulley argued that the standard for contempt is that 1) the party in question did not comply with a lawful court order; 2) the order included a clearly expressed a mandate; and 3) the allegedly contemptuous party was aware of the order and mandate. Attorney Gulley also stated that lastly, the contemptuous act needs to have "impair[ed], impeded or prejudice[d] the rights of a party." On June 25, 2020, Attorney Prudent filed an affirmation, supporting Attorney Gulley's amended OTSC. On behalf of the Subject Children, Attorney Prudent further requested that this Court 1) bifurcate the Mother's and Respondent/Grandmother's visitation; 2) continue the February Order in respect to the Mother, and 3) not continue the Respondent/Grandmother's visitation order pending the Court's final determination.
Attorneys Hewitt and Solomon did not timely serve and file their opposition to the amended OTSC pursuant to the briefing schedule set after the May 21, 2020 conference. Both made applications for extensions. The requests for extensions were opposed by Attorneys Gulley and Prudent. The extensions were not granted. The Court scheduled the contempt hearing in the Kings Country Virtual Court and offered all counsel the opportunity to present their case on the record and to serve and file supplemental papers.
The contempt hearing took place on July 9, 2020 in New York Family Virtual Courtroom, Kings 2. In the hearing, counsel exclusively presented their arguments. No direct or cross examination was taken of any party. Attorney Gulley argued that all elements of contempt were met: the February Order was lawful and clear; the Respondent/Grandmother knew about the February Order, as both she and her attorney were present in Court when it was issued; and the Respondent/Grandmother violated the February Order by taking the Subject Children to her sister's private home. Attorney Gulley further argued that the last element of contempt was fulfilled, in that the Subject Children were prejudiced by the Respondent/Grandmother's actions because they were "scared" during the visit. Attorney Gulley also made an application for the Mother and the Respondent/ Grandmother's visits to be bifurcated.
Thereafter, Attorney Prudent largely rested on her papers, renewed her support in seeking an Order of Contempt, a stay of the Respondent/Grandmother's visits, and a bifurcation of the visits so that the Subject Children can continue to visit with the Mother.
Attorney Solomon orally opposed the amended OTSC, on the grounds that her client, Respondent/Grandmother, did not understand that the February Order prohibited her from taking the Subject Children to her sister's home. Attorney Solomon went on to argue that the February Order was unclear, in that the term "community space" was undefined. Attorney Solomon also discussed the Respondent/Grandmother's love for the Subject Children, and argued that despite Attorney Prudent's statements otherwise, the Subject Children truly want to visit with her Client. Attorney Solomon also made an oral application for daily telephone calls between the Respondent/Grandmother and the Subject Children.
Attorney Hewitt renewed her application for the visits between the Respondent/Grandmother and her Client, the Mother, to be bifurcated.
All Counsel chose not to file supplemental papers.
At the conclusion of the hearing, the Court issued an interim order, which temporarily suspended the Respondent/Grandmother's visits, bifurcated the Mother's and Respondent/Grandmother's visitation, granted modified visits with the Mother, and granted FaceTime calls between the Respondent/Grandmother and the Subject Children six days a week.
Discussion
Section 753(A) of the New York State Judiciary Law enables courts to punish an entity who either neglects or violates a duty, which resulted in the right or remedy of a party to civil litigation being in some way "defeated, impaired, impeded, or prejudiced." See Judiciary Law § 753(A) . The goal of contempt is to vindicate the private right of a party that was in some way impaired, and the institution of any penalty by the court is designed to compensate the injured party for the interference with that right. See McCormick v. Axelrod, 59 NY2d 574, 583-583 (1983). Determining if a party is in contempt is solely in the discretion of the court. See El-Dehdan v. El-Dehdan, 114 AD3d 4, 10 (2d Dept 2013).
The party moving for contempt bears the burden of proving the same through "clear and convincing evidence." See Raphael v. Raphael, 20 AD3d 463 (2d Dept 2005). The moving party must prove by clear and convincing evidence that (1) the court issued a lawful order, which articulated an "unequivocal mandate; (2) the allegedly contemptuous party knew about the order; (3) the party violated the order; and (4) the right of a party to the litigation was prejudiced. See McCormick v. Axelrod, 59 NY2d at 583. Subsequent case law clarified that the movant themselves needs to be injured or prejudiced. See El-Dehdan v. El-Dehdan, 114 AD3d at 10; Palmieri v Town of Babylon, 2018 NY Slip Op 08317, *3 (2d Dept 2018) (holding that a court must find, amongst other factors, that the movant was prejudiced by the offending conduct [emphasis added]); Breskin v Moronto, 172 AD3d 1298, 1300 (2d Dept 2019), citing Palmieri v Town of Babylon.
In the case at hand, the first three requirements of contempt are met. This Court lawfully issued the February Order. The February Order included a clear and unequivocal mandate that the weekly visits take place between the Subject Children, Respondent/Grandmother and Mother in a "community space." The Court ordered that the visits take place in a community space in order to ease the Subject Children's concerns, including that they would be placed in a situation where they would have to interact with the Respondent/Grandmother's associates. While the Respondent/Grandmother and Attorney Solomon argue that the meaning of the phrase "community space" is unclear, this claim is undermined by the fact that both were present in court during the on-the-record discussion of the language that was ultimately included in the February Order. Therefore, all parties, the Respondent/Grandmother and Attorney Solomon, knew about the February Order, as it was issued in court the same day.
The final requirement, that movant be prejudiced by the allegedly contemptuous behavior, is not met. Attorneys Gulley and Prudent both argued that the Subject Children were injured by the Respondent/Grandmother's actions, in that that they were uncomfortable with and scared by the visit to their aunt's house. To this end, Attorney Gulley joined in the amended OTSC on the Subject Children's behalf and articulated the Subject Children's concerns in greater detail. However, while the fear experienced by the Subject Children is regrettable, examination of the Subject Children's injuries is not germane to this motion. As the Father is the movant, his injuries need to be articulated, not the Subject Children's. Ultimately, there was no demonstration as to how the Movant/Father was prejudiced by the Respondent/Grandmother's behavior.
Conclusion
Several, but not all factors, of contempt are met in the instant case. It is indisputable that the Respondent/Grandmother violated the February Order. Moreover, the February Order was lawful, included a clear mandate and the Respondent/Grandmother and her counsel indisputably knew of it. However, contempt cannot ultimately be found, as there is no evidence, clear and convincing or otherwise, that the Movant/Father was in anyway prejudiced by the Respondent/Grandmother's actions.
Even though the Respondent/Grandmother's actions do not rise to contempt, the fact that she violated the February Order must be addressed as the Court deems just and proper. The Respondent/Grandmother's violation presents questions regarding her judgement and willingness to follow orders issued by this Court in the future. At the contempt hearing, the Court issued an interim order which temporarily suspended the Respondent/ Grandmother's visits, bifurcated the Mother's visits and allowed the Mother's visits to continue. Upon consideration, the Respondent/Grandmother's visits remain suspended; the Mother's visits remain bifurcated and will take place in accordance with the terms laid out in the July 9, 2020 Interim Order, and lastly the Respondent/Grandmother will have calls with the Subject Children also in accordance with the terms additionally laid out in the July 9, 2020 Interim Order. Dated: July 17, 2020 Hon. Caroline P. Cohen Judge, Family Court