Opinion
2022-05474 Docket Nos. V-2137-19/21J, V-2138-19/21J, V-2137-19/22K, V-2138-19/22K
07-05-2023
In the Matter of Joseph A. MAROTTA, appellant, v. Tracy MAROTTA, respondent.
Courten & Aloni, Hauppauge, NY (Dorothy A. Courten and Rachel J. Aloni of counsel), for appellant. Petroske Riezenman & Meyers, P.C., Hauppauge, NY (Michael Meyers and Danielle Murray of counsel), for respondent. Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the children.
Courten & Aloni, Hauppauge, NY (Dorothy A. Courten and Rachel J. Aloni of counsel), for appellant.
Petroske Riezenman & Meyers, P.C., Hauppauge, NY (Michael Meyers and Danielle Murray of counsel), for respondent.
Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the children.
MARK C. DILLON, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, LILLIAN WAN, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (James F. Quinn, J.), dated July 8, 2022. The order, insofar as appealed from, denied those branches of the father's motion which were to hold the mother in civil contempt for violating a so-ordered stipulation of settlement dated September 22, 2020, to modify the parental access provisions of that so-ordered stipulation of settlement, and to appoint a separate attorney to represent each of the parties’ children, and granted that branch of the mother's motion which was to disqualify the father's attorneys. ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the mother's motion which was to disqualify the father's attorneys, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The parties are parents of two children. Pursuant to a stipulation dated April 15, 2015, which was incorporated but not merged into the parties’ judgment of divorce, the parties shared joint custody of the children, the mother was the children's residential parent, and the father had certain parental access. The parties subsequently entered into a so-ordered stipulation of settlement dated September 22, 2020 (hereinafter the September 2020 stipulation), modifying their parental access arrangement while agreeing that they would continue to share joint custody of the children. Thereafter, the father moved, inter alia, to hold the mother in civil contempt for violating the September 2020 stipulation, to modify the parental access provisions of the September 2020 stipulation, and to appoint a separate attorney to represent each child. The mother moved, inter alia, to disqualify the father's attorneys. The Family Court denied those branches of the father's motion without a hearing and granted that branch of the mother's motion which was to disqualify the father's attorneys. The father appeals.
The Family Court properly denied that branch of the father's motion which was to hold the mother in civil contempt. A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court (see Cassarino v. Cassarino, 149 A.D.3d 689, 690, 50 N.Y.S.3d 558 ). To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753(A)(3), the movant is required to prove by clear and convincing evidence that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, that the order was disobeyed and the party disobeying the order had knowledge of its terms, and that the movant was prejudiced by the offending conduct (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Matter of Herbst v. Palange, 193 A.D.3d 859, 860, 142 N.Y.S.3d 387 ). Prejudice is shown where the party's actions "were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party" ( Matter of Mendoza–Pautrat v. Razdan, 160 A.D.3d 963, 964, 74 N.Y.S.3d 626 [internal quotation marks omitted]; see Matter of Figueroa–Rolon v. Torres, 121 A.D.3d 684, 685, 993 N.Y.S.2d 348 ). In order for contempt sanctions to be imposed pursuant to Judiciary Law § 753(A), willfulness need not be shown (see El–Dehdan v. El–Dehdan, 26 N.Y.3d at 33–35, 19 N.Y.S.3d 475, 41 N.E.3d 340 ). Here, the father failed to demonstrate that the mother violated a clear and unequivocal mandate contained in the September 2020 stipulation or that he was prejudiced by any of her alleged violations.
The father's contention that the Family Court erred in denying that branch of his motion which was to modify the parental access provisions of the September 2020 stipulation is without merit. In order to modify an existing custody arrangement, there must be a showing of a subsequent change in circumstances such that modification is required to protect the best interests of the child (see Matter of Blackman v. Barge, 207 A.D.3d 537, 538, 169 N.Y.S.3d 845 ; Matter of Alphonse v. Alphonse, 189 A.D.3d 1028, 1029, 136 N.Y.S.3d 322 ). "While hearings are generally required in cases in which there is no existing permanent order of custody (see S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 ), hearings are not automatically required whenever a party seeks a change in custody or parental access" ( Matter of Newton v. McFarlane, 174 A.D.3d 67, 76, 103 N.Y.S.3d 445 ; see Matter of Scott v. Powell, 146 A.D.3d 964, 965, 45 N.Y.S.3d 557 ). "Before subjecting children and their parents to additional litigation, courts require that, before a full hearing is ordered, the parent seeking a change of custody must make an evidentiary showing of a change in circumstances demonstrating a need to conduct a full hearing into whether a change of custody is appropriate in order to insure the child's best interests" ( Matter of Newton v. McFarlane, 174 A.D.3d at 76–77, 103 N.Y.S.3d 445 ; see Matter of Mulholland v. Mulholland, 202 A.D.3d 963, 964, 159 N.Y.S.3d 701 ). "Conclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on the issue of whether a change in custody would be in the best interests of the child" ( Matter of Chichra v. Chichra, 148 A.D.3d 883, 884, 49 N.Y.S.3d 513 ). Here, the facts alleged by the father in support of his motion were either unsubstantiated and conclusory, or did not support a finding that a change in circumstances had occurred since the entry of the September 2020 stipulation to warrant a modification of the parental access provisions of that stipulation.
The Family Court properly denied that branch of the father's motion which was to appoint a separate attorney to represent each of the children. The father failed to provide evidence that the current attorney for the children is not zealously advocating for the children or that an actual conflict of interest exists between the children's positions (see 22 NYCRR 7.2 [d]).
The Family Court improvidently exercised its discretion in granting that branch of the mother's motion which was to disqualify the father's attorneys on the basis that the father's current wife, the children's stepmother, works as a paralegal in the law office that employs the father's attorneys. "A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. While the right to choose one's counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties’ substantive rights, thus requiring any restrictions to be carefully scrutinized. The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination" ( Gulino v. Gulino, 35 A.D.3d 812, 812, 826 N.Y.S.2d 903 [citations omitted]; see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443–445, 515 N.Y.S.2d 735, 508 N.E.2d 647 ). "Whether to disqualify an attorney is a matter which lies within the sound discretion of the court" ( Matter of Madris v. Oliviera, 97 A.D.3d 823, 825, 949 N.Y.S.2d 696 ; see Matter of Marvin Q., 45 A.D.3d 852, 853, 846 N.Y.S.2d 356 ; Olmoz v. Town of Fishkill, 258 A.D.2d 447, 684 N.Y.S.2d 611 ). However, " ‘doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety’ " ( Mineola Auto., Inc. v. Millbrook Props., Ltd., 118 A.D.3d 680, 680–681, 986 N.Y.S.2d 354, quoting Seeley v. Seeley, 129 A.D.2d 625, 627, 514 N.Y.S.2d 110 ; see Cohen v. Cohen, 125 A.D.3d 589, 590, 2 N.Y.S.3d 605 ). "Moreover, even when an actual conflict of interest may not exist, disqualification may be warranted based on a mere appearance of impropriety so long as there is actual prejudice or a substantial risk thereof" ( Wiederman v. Halpert, 172 A.D.3d 1442, 1443–1444, 100 N.Y.S.3d 97 [citation and internal quotation marks omitted]; see Matter of Lovitch v. Lovitch, 64 A.D.3d 710, 711, 884 N.Y.S.2d 430 ).
Where a party seeks to disqualify its adversary's counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time (see Matter of Astor Rhinebeck Assoc., LLC v. Town of Rhinebeck, 85 A.D.3d 1160, 1161, 925 N.Y.S.2d 896 ). If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party's representation (see Hele Asset, LLC v. S.E.E. Realty Assoc., 106 A.D.3d 692, 694, 964 N.Y.S.2d 570 ; Matter of Aaron W. v. Shannon W., 96 A.D.3d 960, 961, 946 N.Y.S.2d 648 ). Further, where a motion to disqualify is made in the midst of litigation and the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage (see Hele Asset, LLC v. S.E.E. Realty Assoc., 106 A.D.3d at 694, 964 N.Y.S.2d 570 ; Matter of Voss v. 87–10 51st Ave. Owners Corp., 292 A.D.2d 622, 624, 740 N.Y.S.2d 371 ).
Here, the mother was aware of the employment of the father's current wife at the law firm representing the father since 2019. Accordingly, the mother's failure to move to disqualify the father's attorneys until April 2022 constituted a waiver of her objection to the father's legal representation (see Matter of Aaron W. v. Shannon W., 96 A.D.3d at 961, 946 N.Y.S.2d 648 ). In any event, the mother failed to demonstrate that the children will be prejudiced by the father being represented by his current attorneys. There is no evidence that during the course of her employment, the father's current wife worked on the father's case or that she otherwise communicated with the children about the case (see Matter of Lopresti v. David, 179 A.D.3d 1067, 118 N.Y.S.3d 635 ).
We do not reach the issues that the father raises with respect to his amended petition dated February 1, 2022, to enforce, inter alia, provisions of the September 2020 stipulation. That amended petition was not addressed in the order appealed from and, thus, remains pending and undecided (see Wells Fargo Bank, N.A. v. Boakye–Yiadom, 213 A.D.3d 976, 185 N.Y.S.3d 191 ).
DILLON, J.P., IANNACCI, MALTESE and WAN, JJ., concur.