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J.R. v. B.M.R.

Supreme Court, Monroe County
May 9, 2019
63 Misc. 3d 1234 (N.Y. Sup. Ct. 2019)

Opinion

14/11375

05-09-2019

J.R., Plaintiff, v. B.M.R., Defendant.

Maureen Pineau, Esq., Rochester, New York, Attorney for Plaintiff Michael Schmitt, Esq., Rochester, New York, Attorney for Defendant Michael Guarino, Esq., Rochester, New York, Attorney for the Child(ren)


Maureen Pineau, Esq., Rochester, New York, Attorney for Plaintiff

Michael Schmitt, Esq., Rochester, New York, Attorney for Defendant

Michael Guarino, Esq., Rochester, New York, Attorney for the Child(ren)

Richard A. Dollinger, J.

Orders of protection can be a shield for victims of threats and violence in New York. People v. Kearns , 95 NY2d 816 (2000). But, when the order is procured through false and exaggerated testimony, it is weaponized into a sword that scars a former spouse unjustly and requires a court to fashion a remedial order that shields the newly-victimized parent from its impact.

This matter is a longstanding dispute before this court. This couple was divorced years ago, but their two children remain at the center of years of turmoil. This court has issued several prior orders and there have been several orders to show cause, reflecting the fractured nature of the relationship between these two parents. The deterioration reached a new nadir when the mother applied in Family Court for an order of protection on April 22, 2019. The mother, under oath, alleged three incidents as constituting the immediate basis for the order of protection:

(a) the father had kept one child in his custody for three days longer than was permitted by the governing custody/visitation agreement;

(b) on a late night five days earlier, the father had parked his car outside the wife's home for 30 minutes and the daughter took pictures of the father's car; and,

(c) a week earlier, the father, in a telephone call with the child, threatened to kill the child.

The wife, in her petition, then added a series of general comments about the father's behavior, without dates, times or places and certainly none of the remaining alleged incidents pertained to any recent events in the relationship between the mother, father and child. In fact, many of the remaining allegations were dated more than eight years ago and were the subject of extensive previous litigation. The Court did not permit any testimony on these prior matters because they were too distant from the current events and not relevant to the specific events that lead the mother to seek the order of protection.

In order to procure the order of protection, the mother appeared before a judicial hearing officer in the family county. Under oath, the wife testified as follows.

1. That father was late in returning the child to the mother and when asked specifically whether the father was "two or three days late" by the hearing officer, the wife responded "yes."

2. Referring to the "parked car" incident, the mother testified that the father was "in front of the house at 1:30 in the morning," that the mother and children saw the father's car, "took pictures of him," and the wife then, late at night, "contacted my neighbor cause I knew she could come out faster than the police," and when the neighbor "did come out, pulled the car out, turned the lights on and then he drove away," adding that this had occurred "numerous times:"

3. The father told his daughter: "I'm gonna kill you."

Based on these facts as testified to by the wife, the hearing officer granted an order of protection. The husband, after receiving the order, immediately filed an order to show cause to vacate the order of protection and this court, after reserving on the request, held an immediate hearing in which the mother, their child, the father and his girlfriend testified.

This Court cannot criticize the hearing officer's grant of the order of protection based on the proof before him. There is simply no mechanism in the ex parte order of protection process that permits the hearing officer to examine other proof that might contradict the testimony of the applicant.

The proof reveals that none of the mother's sworn statements to procure the order of protection are true. First, in her petition, she swore that the husband kept the child for three days in violation of their custody arrangement. At trial, the mother conceded that the husband kept the child only three hours longer because he was delayed on a plane flight returning from Florida. The mother complained that the husband never communicated his delay, but it is indisputable that the mother exaggerated the time delay in her petition and in her sworn testimony before the hearing officer. This contradiction substantially undercuts her credibility. The change from "three hours" - the admitted fact - to "three days" - the conjured testimony - cannot be passed over as a scrivener's error or a mere mistake. When the mother was in front of the hearing officer, seeking the order of protection, she knowingly exaggerated the time, presumably to suggest that the father was willfully engaged in not only a violation of their agreement, but a deliberate attempt to undercut the mother's standing in the child's eyes.

Second, the mother's credibility is ground into dust by the conflict in her rendition of alleged "stalking" involving the car parked near the house in the dead of night. In her trial testimony, the mother said she was sleeping throughout the night that the incident occurred. She testified that she never saw the alleged "parked car." In her testimony before the hearing officer, as noted above, she invented out of whole cloth a more receptive narrative that she had, with the assistance of an alleged neighbor, confronted the car in the night and watched the car pull away. On the witness stand, when confronted with the evident contradiction, the mother simply stated she could not remember her testimony before the hearing officer, even though it occurred less than three weeks before the hearing. The mother also never testified in the hearing that the father had previously parked a car at night in front of her home, even though she told the hearing officer it had happened "numerous times."

The mother's credibility, already strained to a breaking point, collapsed when the court considers the testimony of her 13-year-old daughter on this incident. When asked what occurred on the night of the alleged "parked car" incident, the daughter never mentioned her mother, denied that her mother was awake, never spoke to her mother that night and testified that neither she nor her mother left the house. The pattern of lying under oath is evident: when the mother wanted an order of protection to interfere with the child's father's life, she lied about what had occurred to make the father's conduct look intentional, harassing and stalking. The mother's prevarication is further highlighted because the father testified that he never left the house the night of the alleged incident and his girlfriend, who spent the night with him, verified that he was home all night. This court accepts the testimony of the girlfriend, a Monroe County sheriff, and further credits the testimony of the father that he was nowhere near the house on the night of alleged incident.

Despite the mother's lying on her version of the incident, the mother still offered evidence in an attempt to independently establish the father's presence outside the house in the dead of night. The mother offered a picture that the daughter took at 2:26 in the morning of the "parked car" event. The daughter testified that she was up late with friends, happened to glance out the window and saw a car parked outside the house, with its headlights and parking lights on. She testified that the individual in the car turned on the inside lights for a brief time and she saw the back of a head. She testified that even though she never saw his face, she was confident it was her father. She testified that the car was a white Cobalt, that she identified as one owned by her father. She took two pictures, which were introduced into evidence.

Neither picture supports the daughter's testimony. First, the vehicle, which the daughter alleges was parked, is, by this court's estimate, at least 40-50 yards away the window from which the daughter took the picture. At that distance, identifying anyone in the vehicle, in the middle of dark night, would be nearly impossible, even if, as here, the observing witness was related to the occupant. Second, the photo, reviewed in color from the daughter's phone, contains no detail on the color of the vehicle: the photo is pitch black except for the headlights and tail lights. There are no details in the pictures from which anyone could identify the driver of the vehicle or, for that matter, the color, make or model of the vehicle. The daughter's fragmented testimony — she could tell by observing the back of his head in the middle of the night a long distance away that the operator was her father — does not credibly establish that the father was operating the vehicle. In conclusion, the mother was lying about the "parking incident," either in the preliminary hearing before the hearing officer or at trial, and the daughter's testimony, even viewed most favorably to her mother, contradicts the mother, constitutes pure speculation and is not worthy of belief.

The final episode alleged in the mother's petition is equally troubling because the critical witness's testimony is also unworthy of belief. The mother swore that her daughter told her that the father threatened to kill her. This court accepts the fact that the daughter made that statement to her mother. But, as the testimony revealed, the daughter was not telling the truth. The daughter claimed that the father made that threat during a telephone conversation. The father testified that he telephoned his daughter because he was upset to learn that his daughter had lied to him about where she was and what she was doing on the morning of the call. The father called his daughter on her cell phone and accused her of lying to him that morning. The daughter testified that during that call, the father threatened to kill her.

During the trial, the father produced a tape recording, made through his cell phone, of the telephone call in which the daughter claimed she had been threatened. This court listened to the call with counsel and the parties in the courtroom. In the call, the father's tone is accusatory. He is blunt. He is harsh and demanding. He accuses his daughter of lying to him about her activities and complains vociferously, in another call, when his daughter suggests that her mother is coming to pick her up, as he declares the time on that date was his visitation time and his ex-wife could not interfere with it. The father's voice is loud and angry. But, nowhere in the conversation does he threaten to kill his daughter. He does threaten to take her phone away. The telephone calls between father and daughter include two that are hostile and perhaps evidence of an ill-temper in the father. But, there is no evidence of any threat to kill her or injury her: threatening discipline by taking away a phone is not a form of harassment in any context.

The mother and the daughter testified that the father had a tracker on his phone that allowed him to locate his daughter's phone, which was owned and financed by the father. The mother and child suggested that this tracker was a form of stalking. However, the undisputed proof at the hearing establishes that the daughter and her mother knew for more than year that the father had a tracker on the child's phone and that, on several occasions, the tracker assisted the daughter in finding her phone. The Court declines to draw any adverse inference from the father's use of the tracking device, especially because there is no evidence that the daughter had never previously complained about the device and its use.
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This court is reluctant to declare the child unworthy of belief, but the taped phone calls and the child's inconsistent recollections of where she was and what she did on the date of the alleged threat strongly suggest that she was willing to lie to her mother in an effort to strengthen the mother's effort to obtain an order of protection against her father. The court can only conclude that the daughter is complcit in the mother's lies to the court.

Simply put, this order of protection is built on a string of perjured testimony. The mother seems to have no regard for the truth and was willing to lie - repeatedly - to obtain an order of protection. She weaponized the order of protection through a cacophony of lies. No order of protection should be founded on such outright and knowing falsehoods. Based on this evidence, this court immediately vacates the order of protection, but other measures are required to remedy the conduct in this matter. This court notes that the court is unsure whether it can impose fines and other remedies in this matter without a finding of contempt. The court does not have the time to research that issue as the court promised that it would resolve this matter posthaste. If such a finding is required, the court finds that the mother's perjury constitutes contempt, but if the finding is not required, the court then imposes the other penalties as set forth below. The court, in response to the order to show cause filed by the husband, orders as follows:

(A) the mother's custody of both children is suspended for 60 days and the father shall have sole custody of both children during that time;

(B) the mother's visitation with the children shall be restricted to Saturdays from 9am to 6pm during the 60-day suspension of her custody and no other visitation shall occur, but the mother may call, through the father's cell phone, both children during the period from 7pm to 7:30 pm each night;

(C) the only day that the mother shall have any extended visitation during the 60-day suspension is Mother's Day and on that date, the children will visit their mother from 9am to 7pm and shall thereafter be returned to their father;

(D) the mother shall pay a $ 2,500 fine to the father for her perjury in this matter and such fine shall be paid within 10 days of the entry of an order in this matter and if the fine is not permitted by law, this court converts the fine into an award of damages to the father for the mother's wrongful imposition of an unjustified and perjury-filled order of protection;

(E) the mother shall pay $ 3,500 to the father as the attorneys fees for representation in this matter within 10 days of this order;

(F) the mother and father shall, henceforth, be barred from filing for an order of protection in the Monroe County Family Court or any other court in this state unless the application for such an order is presented to the undersigned; and,

(G) neither parent may permit the daughter to have a cell phone or other electronic device during the 60-day period in which the mother's custody is suspended unless the father agrees and the child shall be suspended from all extracurricular activities or outside-the-home activities during the same period unless the father waives that penalty.

This court is deeply disturbed by the conduct in this matter. Lying under oath is a crime. NY PENAL LAW 210.15. Seeking an order of protection based on perjured testimony is unlawful and unjust. Forging the order of protection process into a weapon, the legal equivalent of a sword, to wound, disturb or destroy a former spouse is unconscionable and will not be tolerated. The order of protection process is based on the theory that an aggrieved party, threatened by another person, must have access to immediate legal relief and the power of law enforcement and the court system to put distance between the aggrieved party and a threatening perpetrator. The ease of access to such orders — granted ex parte , without filing fees and often without legal assistance — mandates that the applicant be held to a high standard of truthfulness, especially because orders of protection can take on an extended life of their own and impact the restrained party in their employment and personal life. A hearing on an order of protection can take weeks — or months — before the restrained party — who, as here, was required to hire counsel or take other steps to challenge the order — can even have a chance to rebut the underlying allegations. The entire process depends on the aggrieved party rendering a true and accurate portrayal of the threatening party's conduct. When, as here, the applicant fictionalizes events to damage a parent, the Court must design an appropriate — and substantial — consequence for what can only be described in this instance as an abuse of the process by a vindictive and truth-challenged former spouse. This Court has taken that remedial step in this decision.

SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48.


Summaries of

J.R. v. B.M.R.

Supreme Court, Monroe County
May 9, 2019
63 Misc. 3d 1234 (N.Y. Sup. Ct. 2019)
Case details for

J.R. v. B.M.R.

Case Details

Full title:J.R., Plaintiff, v. B.M.R., Defendant.

Court:Supreme Court, Monroe County

Date published: May 9, 2019

Citations

63 Misc. 3d 1234 (N.Y. Sup. Ct. 2019)
2019 N.Y. Slip Op. 50865
115 N.Y.S.3d 829