Opinion
Index No. 2017/08147
10-20-2021
MATTHEW A., Plaintiff, v. JENNIFER A., Defendant.
AFFRONTI & AFFRONTI, LLP, Francis C. Affronti, Esq., For the Plaintiff Matthew A., Rochester, New York KELLY WHITE DONOFRIO, LLP, Donald A. White, Esq., For the Defendant Jennifer A., Rochester, New York LAW OFFICE OF DENISE R. MUNSON, ESQ., PLLC, Denise R. Munson, Esq., For the Children, Walworth, New York
AFFRONTI & AFFRONTI, LLP, Francis C. Affronti, Esq., For the Plaintiff Matthew A., Rochester, New York
KELLY WHITE DONOFRIO, LLP, Donald A. White, Esq., For the Defendant Jennifer A., Rochester, New York
LAW OFFICE OF DENISE R. MUNSON, ESQ., PLLC, Denise R. Munson, Esq., For the Children, Walworth, New York
Richard A. Dollinger, J.
This Court confronts, again, the sad devolution of a family with divorced parents and three sons. But because the estrangement of the children results directly from the mother's intentional and deliberate breach of their custody and visitation agreement, the judgment of divorce and violations of court orders imposed to enforce that agreement and judgment, this Court finds that the mother is in contempt and that appropriate penalties must be imposed.
This decision has been amended since its original issuance. After issuance of the decision, counsel for all parties made recommendations for clarification of certain aspects of the Court's determination regarding the imposed penalties and other matters. The Court, having concluded that those clarifications were appropriate, amended its decision to reflect those clarifications and has issued its revised decision accordingly.
This opinion is the fifth iteration of this Court's analysis of this family and its sad trajectory into conflict and estrangement. The Court's prior opinions are referenced and the Court will only refer to the lengthy history of these disputes as is necessary to reach its current conclusion. However, to establish a proper context for its findings, this Court needs to review the origins of the underlying dispute, as it colors the actions of the mother in her disregard for her obligations under the separation agreement and prior court orders. Significantly, in one prior opinion, the Court found that several aspects of the mother's conduct justified a finding of contempt. However, the Court, on an application to re-argue, vacated those determinations based on affidavits submitted by the mother which, after further consideration, raised factual issues regarding the mother's conduct. The Court then referred all the issues of contempt to a hearing which is the source of the factual conclusions in this opinion.
The Court's prior opinions include Matthew A. v. Jennifer A. , 72 Misc 3d 753 (Sup. Ct Monroe Cty 2021) (denying a Lincoln hearing in a contempt proceeding); Matthew A. v. Jennifer A., 2021 NY Misc. LEXIS 1271(Sup. Ct. Monroe Cty 2021)(confirming suspension of child support); Matthew A. v. Jennifer A. , 2021 NY Misc. LEXIS 1273 (Sup. Ct. Monroe Cty 2021)(a motion to reargue prior contempt findings); Matthew A. v. Jennifer A. , 2020 NY Misc. LEXIS 6406 (Sup. Ct. Monroe Cty 2020)(imposing "house rules" to enforce parental choice in visitation in a separation agreement and judgment of divorce).
Matthew A. v. Jennifer A. , 2021 NY Misc. LEXIS 1273, supra.
I. The Law on Contempt
Pursuant to Judiciary Law Section 753, this Court has the power to punish by fine and imprisonment or either a neglect or violation of a duty or other misconduct by which a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced. NY JUD. LAW § 753. In order to adjudicate the mother in civil contempt of court, this Court must find: (1) that a lawful order of the court clearly expressing an unequivocal mandate was in effect; (2) that the mother disobeyed the order; (3) that the mother had knowledge of its terms; and, (4) the father was prejudiced by the offending conduct in that a right or remedy of the father may be "defeated, impaired, impeded, or prejudiced." Judiciary Law § 753[A] ; Matter of Menard v. Roberts , 143 N.Y.S.3d 653, 2021 NY App. Div. LEXIS 3017 (4th Dept 2021) ; Matter of Carl KK. v Michelle JJ. , 175 AD3d 1627, 110 N.Y.S.3d 66 (3d Dept 2019) ; Augat v. Hart , 244 AD2d 800, 665 N.Y.S.2d 970 (3d Dept 1997). The father has the burden of proving the mother's contempt in this instance by clear and convincing evidence. El-Dehdan v El-Dehdan , 26 NY3d 19 (2015).
In its earlier opinion on the necessity of a Lincoln hearing in a contempt proceeding, this Court concluded:
If the proof finally establishes by clear and convincing evidence that the mother violated a court order that restricts her ability to unilaterally enroll her sons in activities until they visit their father as her agreement requires, then her conduct sends a message to her sons that the agreement giving their father visitation is meaningless as it cannot be enforced by the courts and further that their mother has become, in essence, a sole custodial parent, able to violate a court order and ignore the terms of her agreement with impunity. The prejudice to the father in the mother's conduct, if determined to violate the court order, is readily apparent: it defeats, impairs and impedes his bargained for rights as a joint custodial parent. Matthew A. v. Jennifer A. , 72 Misc 3d at 758.
The father contends that a finding of wilfulness is not necessary to find the mother in civil contempt. Matter of Menard v. Roberts, 194 AD3d 1427 (4th Dept 2021). Even if the standard were willfulness, the father prevails here. A finding of wilfulness would depend on the credibility of the testimony presented. Matter of Cobane v Cobane , 57 AD3d 1320, 1323 (3d Dept 2008). As the remainder of this opinion clearly details, the mother's conduct throughout the pertinent period of time was undertaken with knowledge of the agreement, the judgment of divorce and the various Court orders and an intention to do what she pleased in the face of them. A highly educated and skilled mother, with an annual income in excess of $100,000, her conduct throughout these episodes can never be characterized as anything less than willful.
As another starting point, this Court notes that conduct of the mother is analyzed under four separate orders and in four separate time periods. Under the undisputed facts in this matter, the couple were divorced in 2019 and their separation agreement was incorporated but not merged into a judgment of divorce. On January 15, 2020, father filed an order to show cause, alleging that the mother breached that agreement, and violated the judgment of divorce. The father also sought to enforce the terms of his separation agreement and judgment against the mother. The January 15, 2020 order, as detailed later in this opinion, included an ordering paragraph that unequivocally barred the mother from discussing the agreement or the scheduling of visitation with the children. The order was served on January 24, 2020 and its prohibitions were in effect after that date. The father, in this proceeding, seeks to hold the mother in contempt for violation of the January 15, 2020 order to show cause. Later, this Court issued an order on June 2, 2020, which contained the so-called "house rules" which barred the mother from allowing her children to engage in certain activities until they visited their father, as the agreement required. The father, in a subsequent order to show cause, sought contempt for violation of the terms of that order as well. As a result, the father now seeks contempt for all violations of the couple's separation agreement, judgment of divorce and the prior court orders.
The show cause order did not include the warnings required by the Judiciary Law. NY JUD. LAW § 756. The father later filed a second order to show cause which did contain the Judiciary Law warnings on February 24, 2020.
1. The Agreement and Judgment of Divorce and the Prior History
As explained in prior opinions, the couple, at the time of their separation and divorce, lived in different counties. The agreement provided the father with alternate weekend visitation and evening visitation, to be coordinated with his sons’ busy sports and extracurricular schedules. Importantly, there is no evidence before this Court — at any time in any part of this proceeding prior to Christmas, 2019 — that the sons declined to participate in the visitation plan set forth in their parent's agreement. There is evidence that the father, in part to accommodate his sons’ schedules, modified the weekend visitation plan slightly and returned the sons to their mother's residence an hour earlier than the time provided in the separation agreement for a time during the summer of 2019. However, while it is undisputed that the sons preferred the earlier return time to their mother's home at the end of a weekend, there is no evidence that the father's visitation with his sons in 2019 was unsuccessful or that the sons opposed visiting with their father, as the agreement required. There is no evidence of any significant discord between the father and his sons prior to December, 2019. Under the agreement, the couple confirmed that if the father moved "closer" to the mother, who was the primary residential parent, the father could seek additional time with his three sons. It is also undisputed that in the fall of 2019, the father took steps to move closer to the mother's residence and that by early December, 2019, the mother and the sons knew that the father would be seeking additional visitation time with the sons after he completed his relocation in early January 2020.
In its prior opinion Matthew A. v. Jennifer A. , 2020 NY Misc. LEXIS 6406 (Sup. Ct. Monroe Cty 2020), this Court detailed the terms of this couple's agreement and further detailed the procedural steps in the initiation of this litigation. Id at 2-22. In this opinion, the Court will not recount all of the steps in that process and will incorporate that portion of the prior opinion by reference.
In another opinion involving this matter, the Court noted the status of the father's visitation prior to December, 2019:
In the application before the Court in the prior motions, there was no evidence that the father was ineligible for visitation under that standard. There was no evidence of parental "unfitness" on the part of the father. The mother never even suggested the father was ‘unfit’ for visitation. There was no evidence of any defects in the father's prior visitation with his children: no evidence of any poor behavior, denial of extracurriculars, or any impact on their academic standing, which appeared to be — and apparently continues to be — excellent. The undisputed facts indicated the children had visited with their father when he lived a long ways away without incident for more than a year. There was no evidence that the father could not provide for the children: in fact, he moved closer to better provide for them. There was no evidence that the father did not have a "stable home environment:" he had bought a house to accommodate his sons and apparently, each son had his own room. There was no evidence that the father was undercutting the children's relationship with their mother. Matthew A. v. Jennifer A. , 2021 NY Misc. LEXIS 1273 at 26. These factual conclusions have never been seriously challenged by anyone in this proceeding.
2. Contempt for Denying the Father's Visitation in January 2020
Under the terms of the settlement agreement, incorporated into the judgment of divorce, the father was entitled to a weekly dinner visit upon one week's notice to their mother. In his amended order to show cause filed February 14, 2020, the father seeks a finding of contempt against the mother because she had denied him a visit with his children on January 2, 2020. Under the parties’ agreement, if the children were visiting with a parent over an extended weekend — a weekend in which the children did not have school on the Monday — then that extended weekend counted as the weekend visitation granted to the father. But, as noted in the footnote below, the agreement also provided that the father would have a dinner visit with his children each week, provided he gave the mother one week's notice. On December 7, 2019, the father asked for Thursday, January 2, 2020 as his evening visit. The mother said "fine." The father had extended visitation — from Friday to Monday on the weekend before January 2, 2020 — because there was no school on the prior Monday as part of the Christmas Holiday. However, on the day after Christmas, the mother wrote a text to the father and told him that because he had an extended weekend and Monday night with the children over the Christmas Holiday (as the agreement provided), the "kids would not be going to dinner with you on Thursday (January 2, 2020)." On January 2, 2020 — the day the father intended to have an evening with his children — the mother wrote a text to the father and said:
The dinner was guaranteed under the agreement. The language said the father "will spend one dinner visit with the children each week." It was uncertain whether all the children would attend, given soccer schedules but the language makes it clear that a dinner each week was guaranteed, if the father gave notice and the parties agreed. There is no language suggesting that the mother could deny the dinner visit under any circumstances.
(A) "this agreement can be read as we choose;"
(B) the agreement provided only one dinner visit a week and the father had had that dinner visit as part of the extended visitation;
(C) the father had failed to provide one week's notice;
(D) the mother added:
I may have allowed you to still have the 2nd dinner visit. However, all 3 children have told me that they don't want to go. They do not want to go out to eat again which is your plan according to them. They didn't have a normal dinner due to New Year's and went out to dinner for my mom's birthday yesterday. Since they have told me that they asked you and you refused to plan and cook them dinner, I decided not to allow an extra dinner visit this week. We have made other plans for dinner tonight.
The mother's bitterness toward the father and the antipathy that has played out throughout this proceeding, is evidenced in the December 29, 2019 email that accompanies the email denying the father his January 2, 2020 evening visitation:
Your long text came up blank. I assume it's more of your drama. You will have to email me which I may or may not read tomorrow. Good try to ruin my New Year's. There is no way you would ruin my wonderful night with my kids and [friends]. We are having so much fun. Your actions only demonstrate how pathetic and unhappy you are. What you fail to realize is that your drama only reflects negatively on you and hurts your relationship with the kids. It's time I have a conversation with [your girlfriend]. She deserves to know the truth about who she is with.
Significantly, the mother makes it clear that she is controlling the father's access to visitation: she uses the words "I may have allowed you to still have the 2nd dinner visit." The mother confirms that is deciding to deny the father his agreed visitation. She also contradicted her earlier agreement that the January 2, 2020 date was "fine" and instead texted that "We had never agreed on a time a week in advance." As a result of the communications, the father never got his visitation on January 2, 2020.
In short, the mother advanced the flimsiest of unfounded justifications for refusing visitation: because she had taken the children out to dinner the night before, the children were entitled to have a homecooked meal by their father and if he failed to provide them with one, they were justified in refusing to go on visitation. The mother concluded that somehow a dinner with the boys, when the father had visitation, was conditioned on the father agreeing to the boys’ choice of a venue and format. By doing so, the mother denied the father his bargained for visitation and his rights under the judgment of divorce.
In addition, this first denial of access sets the table for the mother's future endeavors to block the father's visitation. The mother never disciplined the children for failing to visit on January 2, 2020: after all, she made the decision to not allow the required dinner visit. Her email makes it clear that she is now dictating the terms of visitation and, in doing so, unilaterally changing the terms of the agreement and violating both the agreement and judgment of divorce and the father's joint custodial rights. The evidence is clear and convincing — not even seriously disputed — and it proves the wife is in contempt for violating the judgment of divorce.
By taking this action, the mother abdicated her role as a joint custodial parent. She elevated her sons to the role of a parent. She amended the agreement to her liking and imposed her own conditions on the father's visitation rights. She took the action unilaterally in derogation of the father's joint custody rights in which, through negotiation, he had acquired a right to make joint decisions on matters of importance involving his sons. In essence, the sons, after January 2, 2020, were empowered by their mother to decide their own best interests even though their father had negotiated for an equal right in defining those interests. From thereon, the entire pattern of the mother's behavior was consistently and intentionally motivated to undermine the agreed visitation plan.
3. The father's order to show cause and the mother's petition to change visitation
In any reading of the emails or texts exchanged in late December 2019 and early January 2020, it is apparent that the mother was taking the initiative on seeking to change the agreed visitation plan and there is undisputable evidence that her motive was a declared hostility to the father. On January 6, 2020, the father sent a text to the mother confirming that he had moved to Wayne County and requesting dinner dates with his sons. The mother wrote back, saying she would "discuss the dates with the boys" and adding "you don't get to decide by yourself." It is undisputed that the mother knew the father had relocated and would be seeking the expansion of his visitation rights that were enshrined in their agreement. It is also undisputed that the mother had had conversations with her sons about visitation and their preferences in the first two weeks of January, 2020 because shortly thereafter, the mother gave the father a letter written by the sons which details that the sons "were not going to dinner on soccer weeks."
The letter from the sons strikes this Court as unusual, given its timing and contents. The soccer season in this region occurs in the Fall. While club teams practice year round, the most intense time for the sport occurs in the Fall and the sons, in late December and early January, had completed the busy fall soccer schedule without any evident complaint. There is no evidence that the sons, during the Fall, failed to attend dinner visits with their father, even though it was in the middle of their busiest season and even though he still lived a significant distance away. The letter was apparently written after the end of the busy season and after the father had moved much closer to his sons. Those facts undercut the sons complaint that the father lived "far away so it would be hard to do dinners." In fact, when the letter was written in January (as the father testified), the father had moved to Macedon, a 23-minute driving distance away from the mother's home in Williamson. Mapquest, https://www.mapquest.com/ (Site visited on 10/18/21)(distance from father's new residence to mother's home is 23 minutes driving time). The sons’ suggestion in the letter that the father lived too "far away" to do dinner visits is without justification.
On January 10, 2020, the father asked the mother, via text, for a rescheduling of his dinner visits. The mother responded, saying that "the kids have responded" and she was ceasing to be the "go between" and "they had said they could not do dinners." "They are old enough to know what they can handle. You have their letter. Take them to Court." The email is stark evidence of the mother's abdication of her joint custodial role and her rejection of the father's concomitant role. She in essence, claims she had no obligation to enforce the father's rights or, for that matter, abide by the agreement she signed a year earlier. She ceded her parental rights to her children. The email is dramatic evidence that she pitted the father against his sons.
The mother's text misunderstands the entire process: the mother is not a "go between" in visitation. She is the decision maker, the custodial parent. Visitation is negotiated between the parents. The agreement was signed by the parents. The father would not take the children "to court." His recourse was to take the mother, who signed the agreement and was bound by the judgment of divorce, "to Court" which is what he subsequently did. In dictating this message, the mother skillfully manipulated the exchange to set up the exact dilemma she wanted: make the dispute over visitation a fight pitting the father against the children and not a dispute over an agreement that she signed and was responsible to enforce even if contrary to the children's wishes.
On Monday, January 13, 2020, the father again texted the mother, asking for a rescheduling of a dinner with his sons for the following week. The mother responded: "I did not decline anything. I set up the week of the break." The mother then told the father she was filing a petition to modify visitation and that she would be "double checking with the kids tonight to verify that all three would like me to file it on their behalf." She added; "please let me know if you would like to work this out like adults for the kids." The mother added that her mother — the children's grandmother — had recommended some visitation changes for the summer months and concluded "she (the grandmother) knows it's about what is best for the kids not us. I agree." The text emphasizes the mother's stance: she was dictating the visitation — postponing any dinner visits until the later (February) break — talking to the children about changes, and suggesting that her mother — and not the child's father — knew what was "best for the kids." The implication from this text is undeniable: the mother was directing the children, rewriting the terms of their agreement — no dinner visits until the February break — and substituting her mother's version of the children's best interests for the father's decisions regarding his children's best interests.
The father, who had been denied a dinner visit and knew the mother sided with the sons in objecting to dinners during the week, took the initiative. He filed an order to show cause with this Court on January 15, 2020, seeking contempt against the mother for failure to comply with the judgment of divorce — denying him his evening visitation on January 2, 2020 — and to modify the visitation and create an extended alternate weekend of visitation and a designated evening dinner. The order to show cause contained the following unequivocal order:
Under the agreement, the weekly dinner visit was a "floating" visit conditioned on the availability of the children. In face of the mother's decision to not "allow" the dinner visits until the February break, the father sought to convert the dinner visit into a firm weekly day.
ORDERED, both parties are prohibited from discussing any aspect of this litigation, the Judgment of Divorce, the parties’ Separation and Property Settlement Agreement or any scheduling issue with the children.
The father's order to show cause was served on the mother on January 24, 2020.
The first order to show cause did not include the contempt warnings required by Judiciary Law Section 756. While a violation of the order would not result in a finding of contempt — absent the warnings for any prior conduct, nonetheless this Court can consider any violation of the January 15 order — after the date of service — as evidence of the mother's violation of the "no discussion" ban. The amended order which includes the warnings allows this Court to consider all of her conduct in violation of the agreement, judgment of divorce as a basis for contempt, as well as any violations of "no discussion" rule issued in February order to show cause or the "house rules" issued by the Court in June, 2020.
In the period of time between the father's filing of the order to show cause and its service upon the mother, it is apparent that there were discussions between the mother and the sons over visitation and scheduling. Those discussions apparently included a discussion about how the mother and her sons could alter the agreed visitation plan because on January 17, 2020, the mother filed a petition on behalf of her sons for a change in visitation in the Wayne County Family Court. The petition is dated, in the mother's hand writing, as January 17, 2020. The time-stamp from the family court is dated the same day. In the petition, the mother, in her own handwriting, stated: "The children's wishes have changed." Importantly, in the petition, the mother said: "I am seeking to modify a visitation order." In evaluating the mother's conduct in this matter, this initial step, much like the decision made in late December involving visitation by the father, provides a background in analyzing the mother's conduct in her compliance with future court orders. She made the decision that she supported the children's claim to be able to change the agreed visitation. She signed the petition on their behalf. She took that step without the father's knowledge or approval. In short, she made a unilateral decision to petition the Court to change visitation, even though she had agreed to joint decision making in the separation agreement signed a year earlier. In making that move, she undercut the joint custody provisions of the agreement in which she agreed to consult with the father and make a shared decision on all critical issues impacting their children. The mother completely cut the father out of the decision and ignored his joint custody rights in filing the petition.
The summons, issued by the family court after receipt of the petition, is dated January 30, 2020, a date after the mother was served with the father's to show cause containing the prohibition on discussing the divorce, separation agreement or "scheduling issues" with the children.
In their separation agreement, the parents agreed that "neither party will do anything which will estrange the children from the other." While the father has not sought contempt for the mother's violation of that provision, this Court can easily conclude that the conversations with her sons over visitation prior to the filing and her filing the petition on their behalf, without consultation with their father, violates that non-estrangement provision.
4. The mother's conduct in forwarding the children's letter to Family Court violated the January 15, 2020 order
After the father was served with the mother's family court petition, the father submitted a second order to show cause, based on similar facts and seeking similar relief in enforcement of the visitation portions of the agreement and divorce judgment. In it, the Court repeated the ordering paragraph from the January 15, 2002 order that prohibited either party from discussing the litigation or any aspect of the pending dispute with their children. The father's request for a temporary order on January 15, 2020 banning the mother from communicating with her sons concerning the agreement, the judgment of divorce or scheduling issues was amply justified because the prior emails and texts — issued before the January 15, 2020 order — clearly established that the mother was communicating frequently with her children about visitation issues and, as indicated earlier, the messages clearly suggest that the mother was supporting — if not prompting, dictating, directing and approving — the sons refusal to abide by the visitation terms in the separation agreement and judgment of divorce.
The amended order stated:
Ordered, both parties are prohibited from discussing any aspect of this litigation, the judgment of divorce, the parties’ separation property settlement agreement or any scheduling issue with the children.
Throughout this proceeding, the wife acknowledged that she was familiar with all the Court orders and there is now evidence that she ever questioned the terms of the orders or failed to comprehend how the orders impacted her conduct.
On February 24, 2020, the parties appeared before a Wayne County Court judge. The mother was unrepresented and the father appeared with his counsel. In her presentation to the family court, the mother produced a letter from the sons which suggested that they supported the mother's petition to reduce the father's visitation. This Court has previously discussed the implications of the mother's forwarding of the letter to the Court and indicated that the mother's role in forwarding it violated her obligations under the separation agreement. See Matthew A. v. Jennifer A. , 2020 NY Misc. LEXIS 6406 (Sup. Ct. Monroe Cty 2010) This Court also declines to credit the mother's version regarding the creation of the letter. First, the letter was not created until February 19, 2020 after the mother had been served both the father's original order to show cause and the second order to show cause, both of which contained an order barring the mother from discussing any aspect of the litigation, the parties’ agreement, the judgment of divorce and scheduling issues with the children. Second, the letter is addressed to the family court judge who issued the summons. The sons knew the name of the judge, which could only have been given to them by the mother. In her testimony at the hearing, the mother could not provide a plausible explanation for how the children knew the name of the presiding judge. The only way that the children would know the name of the judge presiding over the family court matter would be if the mother told them the name or they read the family court summons, which listed the judge's name. The only way the children could have read the summons is if the mother showed the summons to the children. The children's letter states that "the father continued to ask us for dinners" which is evidence that the scheduling of dinner visits, which the father negotiated with the mother, had been communicated to the sons, despite the court order forbidding the mother from discussing the scheduling of dinner visits with her sons. Third, the letter was delivered by the mother to the Court. The mother's handwriting is on the letter, affixing a date to the letter. In the mere act of delivering the letter and telling her sons that she would deliver it, the mother again acted in support of her sons definition of their best interests and against the visitation plan she negotiated and agreed to, the joint custody rights of the father and the parent's definition of their sons’ best interest. Fourth, the letter parallels the language of an affidavit, simultaneously submitted by the mother to the family court. The only communication that the father had regarding access to his sons occurred in email exchanges with the mother and the father testified, without contradiction, that he never discussed scheduling or any other aspect of the litigation with his sons during this time. In fact, the children's letter refers to the fact that their father had recently requested dinner visits during the soccer school weeks. The mother's affidavit makes the same claim but, the only source for the son's knowledge that their father had requested dinner visits would be through their mother.
In its earlier opinion, the Court cited a California decision Goldstone v. Swan , 2019 Cal. App. Unpub. LEXIS 1219 (ct. App. Cal.1st Dist. 2019) for the following:
The Goldstone court noted that the mother presented written statements from the child to the Court, after the Court had ordered her not to involve the children in the proceeding. The mother in Goldstone claimed that she had only facilitated delivery of a child's written statements to her attorney and presentation to the Court. She claimed that "it was the children who on their own resolved to have their views expressed to the court." The California Court stated in response:
Certainly one permissible inference from the evidence is that the children wrote their statements at Mother's (implicit) prompting or, at least, without her discouragement. And even if it were believed that the written statements were entirely the children's doing, it was still Mother who, instead of stepping in and stopping the children's involvement, affirmatively delivered the statements to her attorney for the attorney to transform them into declarations and present them to the judge. Id. at 18. This Court, applying the Goldstone analysis, then concluded that in this case:
The exact same conclusion is easily justified here. The mother here engaged in the same behavior. The letter from the children, dated February 19, 2020 is indisputable evidence that the children knew, even before their attorney was appointed, about the terms of the proposed visitation change sought by their mother in Wayne County Family Court and the application from their father in Supreme Court. The mother here took the same steps as the mother in Goldstone : instead of tearing up the letter and stopping the children's involvement, she brought the letter to the Court, attaching it to her papers. She took the children's side in the dispute with their father, even though she had signed an agreement with the father which, in granting the father additional visitation, was directly contrary to the children's argument. Matthew A. v. Jennifer A. , 2020 NY Misc. LEXIS 6406 at 39-42. There was no credible evidence produced in the hearing on these contempt charges that alters this Court conclusion that by forwarding the letter to the Court the mother violated the Court's January 15, 2020 order that precluded her discussions with the children over visitation or scheduling.
A close reading of the children's letter and the mother's affidavit evidence their apparent joint preparation by the mother in conjunction with her children. In her affidavit, the mother states, near the start, that the "father lacks the ability to provide for the children's intellectual development. Early on in the letter, the son writes: "our dad isn't able to help us with our homework." The children's letter states that the father won't "let us come early anymore even though he let us for the last eight months." The mother's affidavit states: "the children had an informal agreement with the father regarding Sunday return time which is no longer being honored by the father." The children's letter refers to a letter to the father in April, 2019 and the mother's affidavit makes reference to the same letter with a date of April 28, 2019.
In much of the testimony regarding the sons activities, the mother suggested the children had busy schedules and academic demands precluded dinner visits with their father. However, there was no evidence before this Court during the hearing about the extent of the children's busy schedules in December 2019 or January 2020. In addition, the children had dinner visits with their father during the Fall of 2019, when they were busy playing fall soccer. There is no evidence that they were any busier in January, 2020 then they had been through the proceeding fall. As for the claim that the children had academic pressures that precluded visits, there is no evidence that dinner with their father once a week impacted their academic standings. These unsubstantiated claims were simply after-the-fact pretexts advanced by the mother and are evidence of her duplicity.
Based on these facts credited by this Court, the evidence clearly and convincingly establishes that the mother had discussed the pending family court matter with her sons after receipt of the February 14 order prohibiting such contact. All of these actions, in which the mother undercut the father's joint custody and visitation rights, occurred even before any appearances before this Court. But, in this Court's view, these actions — almost two years ago — set the table for this case: the mother was, right from the start, out to sabotage the father's relationship with his sons. She ignored the agreement. She breached it when she unilaterally decided whether she would abide by the visitation plan that she had agreed to. She fully supported the concept that the sons should be able to negotiate their visitation with father, even though she — and their sons — were bound by the terms of the separation agreement and the judgment of divorce.
5. The father's missed dinner visitation after January 2, 2020 violated the agreement and the judgment of divorce
As noted earlier, the mother had dictated that the children would not engage in dinner visits with their father from January 2, 2020 to the February break, even though the father was entitled to such visits under the agreement. It is undisputed that he was denied six visits in this time frame. The denial of these visits was dictated, approved and condoned by the mother, as her January 13, 2020 email clearly indicates. She used the first person "I" in emails dictating the terms of the father's dinner visitation. The Court can easily conclude that the mother had told the children that they did not need to go to dinner visits, after all she admitted in her email that she had "double checked" with children on visitation matters. In her trial testimony, the mother claimed that she had, during that time frame, told her children that they needed to go. The Court declines to credit that testimony. The mother had made it clear in her January 13, 2020 email that there would be no dinner visits until the break. She had "double checked" with the children. The children knew that their mother had unilaterally canceled the January 2 visit after a discussion with them. The mother filed a petition asking to modify the dinner visits. The mother's claim that she told the children they "needed to go" cannot be credited with a straight face. This Court can conclude, based on the mother's testimony, that she may have told the sons "to go" but, her conduct, emails and texts, conveyed a contrary message to the children. The children knew they did not need to go and everything their mother had done to that point justified their conclusion that her "suggestion" "to go" was half-hearted and lacked sincerity at best and at worst, completely facetious. Finally, as this Court notes later, the mother testified that she never imposed any discipline on the children's failure to follow her direction that "they needed to go." Her urging was toothless and contributed to the children's continual estrangement from their father.
The father testified that when he was present with the mother and children and the children declared their intention not to visit their father, the mother not only never encouraged them to go but "never said a word."
Based on this clear and convincing evidence, this Court finds that the mother is in contempt for her conduct in denying the father dinner visitation on six occasions between January 2 and February 24, 2020.
In resolving the issue of the contempt for violation of the separation agreement, the judgment of divorce and the January 15,2020 and February 14, 2020 orders, this Court cannot ignore the impact of these preliminary episodes, in which the mother acted in derogation of the father's negotiated rights, on the mother's future conduct during 2020. By the time of the February court appearance in the Wayne County Family Court, the mother had taken complete control of the sons access to their father: the sons knew they had an ally who would support their refusal to visit their father. The mother's conduct in the remainder of 2020 may be examined through the prism of more than a year's worth of conduct by the mother aimed to void the parties’ agreed visitation plan and her intentional acts to under cut the father's relationship with his sons.
II. The mother's conduct under the "house rules" order of June 15, 2020 and other orders thereafter
After this Court became involved and heard the father's order to show cause, a barrage of motions and cross-motions ensued, an attorney was appointed for the sons, the Court issued a series of orders, several of which are on appeal before the Appellate Division, Fourth Department. The most pertinent order was now known as "the house rules" order. The rules were contained in a June 2, 2020 order that read as follows:
ORDERED, if the parties’ children do not go with the Father for his weekly dinner and alternating weekend visits per the Amended Judgment of Divorce and as modified by this Order, then Defendant is directed to remove any portable devices (phones, tablets, computers) from the children and not let them play with such devices; discontinue any extracurricular activities for the sons; not transport them (or let anyone else transport them) to any event other than school or church; prohibit them from visiting any friends or relatives or having such visits in their home; restrict any telephone conversations with anyone other than their Father until the children attend the visit with their Father.
Subsequently, the Court issued a second order, dated June 18, 2020, which reads:
Effective immediately, the Defendant (mother) is precluded from enrolling children in any soccer, sport, or extracurricular activity."
Thereafter, the father brought an action for contempt for violation of that Court order, alleging that the sons missed numerous mid-week visits and that the mother had enrolled the children in soccer even thought they were not participating in the agreed visitation plan. While the Court originally held the mother in contempt for violating those rules, the Court, after an application to re-argue, vacated the contempt findings and ordered all the contempt-related issues involving all of the Court's prior orders to a hearing. The mother and father testified, along with the maternal grandmother and representatives from the sons’ school district.
This Court will not reiterate the justification for "the house rules," as this Court has repeatedly explained its rationale in imposing the rules and its desire to avoid the legal and logistical stalemate when one parent comes to court and says: "I can't get them to go" but never disciplines the children to failing to follow the visitation plan that both parents agreed was in the children's best interests in their settlement agreement. See E.E.C. v. S.S. , 2021 NY Misc. LEXIS 4989 (Sup. Ct. Monroe Cty 2021)(Dollinger, J.). After the myriad of motions, hearings and filing, this matter comes down to whether the father can prove that mother's conduct in violation of any of the prior court orders constitutes contempt.
1. The mother's action in enrolling or assisting in enrolling the sons in Soccer in September 2020 violated an unequivocal mandate of this Court of which the mother was well aware and the father's custodial rights were prejudiced by that action.
The couple have sons who are excellent soccer players. They play for high school teams. In the court orders issued in June, 2020, this Court clearly stated that the mother could not enroll the children in soccer or any sport or extracurricular activity and had to discontinue any extracurriculars for the sons unless they visited with their father as the agreement required. It is undisputed that in the Fall of 2020, the couple's sons were enrolled in high school soccer programs without their father's approval and during the time when they were not visiting with their father as either the judgment of divorce or the Court's orders had decreed. The clear and convincing evidence before this Court establishes:
A calendar admitted into evidence showed that the sons missed mid-week visits from July 8, 2020 until September 30, 2020.
(A) only a parent can enroll a child in school-sponsored activities and a parent needs a password and electronic signature to enroll the child via the internet;
(B) a school official testified that only a parent can fill out a health form for a child engaged in a sport;
(C) after enrolling a child, the parent must sign the enrollment form, electronically, as "accepted" by the parent;
(D) in enrolling the sons in soccer in the Fall of 2020, the name on the owner email account, used to enroll the sons, was that of the mother;
(E) school officials, during the registration process, addressed email communication to the mother by her first name;
(F) the registration form to enroll in soccer states that the registration has been completed by a parent for [the school official] to look at and approve for the current sport season and the form contained the words "accepted by J.A. [the mother],"
(G) the registration form contains language in which the parent states ... "my signature below constitutes my permission for my child to participate in the above named sport,"
(H) the school district's rules unequivocally state that only a parent or guardian may enroll a child in a sport;
(I) the mother's mother — the son's grandmother — is neither a parent nor a guardian of the child;
(J) the email address utilized to enroll both sons in soccer was the mother's email address and the approval of the sons’ participation was forwarded to the mother's email address and the district official started the approval email with the words "Hi [mother's first name]:"
(K) the district officials, who handled the enrollment of the sons, believed, based on the emails and documents, that the mother had enrolled the children in soccer;
(L) the children's maternal grandmother went to the mother's house, discussed enrolling the sons for soccer with the mother;
(M) the grandmother admitted that she had never previously signed up the boys for any sport;
(N) the grandmother knew the mother wanted her sons to play soccer despite the Court expressly denying the mother permission to enroll them in soccer unless they visited their father consistent with the separation agreement and court orders;
(O) at the time the grandmother came to the house, she admitted that she knew this Court's order prohibited the mother from signing up her sons for soccer;
(P) the computer used to enroll the children was the mother's work computer which requires a smart card to activate and the card was inserted into the computer by the mother to allow the grandmother to use the computer;
(Q) the grandmother sat down at her daughter's work computer and her daughter instructed her on how to use the daughter's computer;
(R) the daughter gave her mother her password for an enrollment account to allow the grandmother to enroll her sons in fall soccer;
(S) the daughter sat next to her mother while her mother operated the computer;
(T) the enrollment occurred when the mother was sitting at the computer two or three feet away form the grandmother
(U) the grandmother, with her daughter at her elbow, used the mother's password and the electronic format to sign up both sons for soccer under her daughter's name;
(V) in doing so, the grandmother was acting in violation of the school rules that only permitted a parent or guardian to enroll the sons and the grandmother admitted under oath that she was neither a parent or guardian for either child;
(W) the responses from the school district were all directed to the mother's email.
(X) the mother confirmed the enrollment and said "we are all set" after receiving her confirmation;
(Y) the mother never took any steps to stop her mother's from enrolling the children under her name and with her email and password;
(Z) while the grandmother enrolled the sons, the mother never mentioned this Court's order barring her from enrolling the children unless they visited their father.
(AA) when asked whether she had found a way "to go around" the Judge's order, the grandmother answered, "I guess that you could look at it that way;"
(BB) the mother admitted that she never told the father that her mother had forged her name to sign up the children for soccer.
Based on all these facts, it is undisputed that the grandmother was acting solely at the direction and control of the mother in direct violation of this Court's order. The grandmother had never enrolled the sons in any sport before the Fall of 2020 and only enrolled them after the Court order was issued. The mother's argument that she did not enroll the sons or that her conduct did not violate this Court's order is ludicrous. First, there is no evidence that the grandmother would have or could have enrolled the sons without the mother. Second, the mother gave the grandmother the computer, activated it, directed her to the appropriate websites, furnished the necessary information, directed the entire process, responded to the emails and, allowed her mother to use her name in the enrollment process. Throughout this process, the school district could only assume that the person enrolling the child was the mother. Third, the mother, knowing that only a parent or guardian could enroll a child and knowing further the grandmother was neither, deliberately misled the school district. The grandmother even admitted that she knew was violating the Court order. When asked in cross examination "So you found a way to go around the judge's order, right?" she replied "I guess you could look at it that way." Finally, in what can only be considered a contemptuous slap in the face of the Court order, the mother testified that she was "glad" that her son was signed up for soccer and glad her mother had signed the sons up. Based on the evidence, the grandmother was simply a button pusher: the mother directed which buttons to push and the grandmother was simply an instrument of the mother's deception. This Court finds that the mother knew she — using her mother as the button pusher — was violating the clear and unequivocal mandate contained in the Court order. This Court declines to endorse the mother's evasive conduct and clandestine surreptitious attempts to evade the clear command of the court order. This Court finds that these facts establish clear and convincing evidence that the mother is in contempt for violating the court order barring her from enrolling the children in soccer when they were failing to visit their father in the Fall of 2020.
While this conduct violated the Court order, it also violated the couple's separation agreement. The father was a joint custodial parent: the mother could not enroll the sons in soccer without the father's approval, as he had the right to joint decision making in this aspect of his children's lives.
By allowing the children to attend soccer without visiting their father and failing to follow the agreement's visitation schedule, the father alleges the mother violated the Court order 22 times from June 18, 2020 through September 30, 2020. The Court accepts the father's description of the number of violations, as each missed dinner or weekend constitutes a separate and distinct violation.
At one point, the mother, in response to cross-examination, defended her conduct by saying: "the Court did not say nobody else" could sign up the sons in soccer. Her statement is entirely deceptive because the school district only permitted a parent to sign up the child and the mother knew that was the rule. The rule was spelled out in the application and the mother was familiar with it.
In addition, on September 18, 2020, this Court issued a further order that required the mother to discontinue the children's participation in fall soccer until they visited with their father. The proof establishes that the mother, after receiving this order, did not discontinue the soccer when the children were not visiting with their father. This conduct violates an unequivocal court order and the mother is held in contempt for that failure.
2. The mother violated the judgment of divorce and Court orders by allowing the children to miss visitation in the Fall of 2020.
The undisputed evidence establishes that the children missed nine dinner visitations with their father during the fall of 2020, while they played soccer. The mother took no steps to enforce the agreed visitation with her sons. There is no evidence that the mother imposed any discipline on the sons for failing to visit their father. There is no evidence that she curtailed their soccer playing when they failed to visit with their father. The couple's judgment of divorce required that visitation and the mother is in contempt for that conduct.
3. The mother violated the Judgment of Divorce by Denying the March 11, 2020 Visitation
The credible proof before this Court establishes that the father had scheduled visitation on March 11, 2020. He arrived at the mother's house and the maternal grandmother — who would later surreptitiously enroll the sons in school soccer — met him and told him that the children would not visit with their father until "the kids attorney was appointed." The visitation did not occur. When the father later inquired, the mother texted him and said "the kids are not visiting until the AFC got in the picture." There is no basis in any court document or any agreement that conditioned the father's visitation upon the children's consultation with their court-appointed attorney. This purported excuse from the grandmother — later reiterated by the mother — is without any justification but is instead, a bald and insincere violation of the agreement and the judgment of divorce. At this point in March, 2020, it is easily evident that the mother did not believe that the father had any visitation rights under the agreement. The mother could deputize her mother to tell the father that he had no rights and she felt free to re-write the agreement and invent a new clause — "the father gets visitation only if the mother says he gets visitation and only if the children have talked to their attorney." The mother apparently concluded that the attorney for the children could somehow unilaterally amend the agreement and judgment of divorce and overrule this Court. There is nothing in writing from this Court — or in any pronouncement that would give the mother — or her mother — such authority.
Finally, there is evidence that the father on this date sought the mother's assistance in requiring the sons to attend the dinner visit. He emailed the mother and asked her to "tell them they have to go" and added:
I know they will listen to us if we both tell them this is the way it has to be instead of standing back and letting them make the decision. I don't want to go back to court to enforce the rights we already agreed to and the judge ordered.
While perhaps in artful, this email simply asks the mother's assistance in enforcing what she had long ago agreed was in the best interests of the children. The evidence establishes that the mother never responded to the father except to advise, as she had earlier the same day, that it would be "much better if you could work something out with the boys." In short, the mother, by March 2020, had no interest in following the agreement or any court order. The clear and convincing evidence establishes that the mother's conduct in denying contact and inventing a pretextual justification on March 11, 2020 is contemptuous in every respect.
The ironic part of the mother's decision is that because of a dispute over the appointment of the AFC between the father and mother, this Court did not render the appointment until May 12, 2020, two months after the mother cut off visitation because of the possible appointment of the AFC.
4. The mother engaged in contempt when she denied numerous other visitation days between the children and their father
The father alleges that the mother denied him weekend visitation on May 29, 2020, June 12, 2020 and on Father's Day 2020. In addition, the mother did not take any actions against the children on 13 occasions when she denied the father dinner visits, weekend visits and summer weeks. This Court will not recount all those violations of the agreement and judgment of divorce. But, the evidence is undisputed: the father was allocated that visitation in the agreement and the mother denied him access to his children on those dates. The conclusion is equally inescapable: the mother had convinced the sons that they did not need to follow the agreement struck by their parents and that their mother, who had filed a petition on their behalf, carried a letter with her handwriting on it to the courts, supported their defiance of the judgment of divorce and the court orders, would never punish them for any defiance and all the while mouthing that she "told them to go" but they knew that she never meant it.
The couple's agreement clearly gives the father access on Father's Day. The children did not see their father on that day. The mother testified that she told the sons about visitation that day but never imposed any discipline on the children for failing to see their father that date. The Court can only conclude that the children's visitation with their father was in free-fall by the summer solstice.
The father did not have a dinner visit from July 8, 2020 through September 30, 2020, had no weekend from May 29, 2020 through October 2, 2020 and lost his week of vacation during that summer because the children would not go and there is no evidence that the mother told them to go in the father's presence or disciplined the children for failing to go. The mother acknowledged that the father, religiously, visited her house once a week for his dinner visit during this time. The mother also admitted that she had the authority to discipline the children and could use it when the children disobeyed either parent.
The mother actions, as late as September, 2020, further underscore her attempts to derail the father's visitation as well. On September 23, 2020, after the mother has secretly supervised the enrollment of the sons in soccer, the father arrived to take the children for dinner. The father had always previously picked the children up at the mother's residence. The mother told the father to pick the children up at a nearby McDonald's restaurant. The father went to the restaurant but the sons refused to eat a meal with him and rode their bikes home. The father told the mother that the sons had not had a meal with him. This episode is further evidence that the mother would go to virtually any length — letting the children dictate where and when visitation occurred — to defeat the father's visitation rights. There is no evidence that the mother imposed any consequences for the son's refusal to have dinner with their father.
The clear and convincing evidence establishes that the mother, by denying the father his visitation through the spring, summer and fall in 2020, violated the judgment of divorce and the agreement and collateral court orders. She is found in contempt for that conduct.
4. The mother's transporting the son to work violated the June 15, 2020 court order
The father asserts that the mother violated this Court's June 15, 2020 order by transporting the oldest son to and from work. The order explicitly provided that if the children failed to attend the scheduled visitation with their father, the mother could "not transport them (or let anyone else transport them) to any event other than school or church." The clear evidence establishes that the mother drove the son to work and had her boyfriend drive him to and from work on numerous occasions.
In her defense, the mother argues that the Court order did not prohibit the son from working. In that respect, the mother's argument based on the June 15, 2020 order is sound: that Court order does not prohibit the son from working. What it does do, however, is expressly prohibit the mother — or anyone else under her control — to transport any child to any event other than school or church. The mother argues that because the order did not expressly prohibit the mother from allowing the son to work, it follows that the order prohibiting her from transporting him to "any event" is likewise outside the scope of the order. She claims that the son's work is not "any event" under the court order. Her evasive argument is unpersuasive. First, the order was designed to restrict the mother's transportation of the son by car until he fulfilled the visitation requirements of the judgment of divorce and the court orders. The Court used the broad language — "any event" — to create a broad restriction on the ability of the mother to facilitate the son's activities until he visited with his father. The mother, in driving her son, engaged in her well-established pattern of interpreting agreements, judgments and court orders to her liking provided it defeated the father's visitation rights. As evidence of her attitude, the mother when asked by the father where the son was working — before the Court order — simply said "on the moon." During the cross-examination on this issue during the hearing, the mother freely admitted that she had driven the son to his job and when asked how often, she testified "I have absolutely no idea." She testified that she picked him at the job as well. She testified further that she had her boyfriend drive the son to work, "numerous times."
The logic of the mother's rebuttal on this point is easily dismissed. She claims that because the son's "working" does not run afoul of the order, "transporting him to work cannot be a violation." The order specifically rebuts that claim: the child could work but the mother could not transport him to work — he'd have to get their on his own. Frankly, in this Court's view, the argument advanced by the mother on this issue is consistent with her defiant view of every judgment or order in this matter: she believes that she can decide what it means and do whatever she wants.
In transporting the son to and from work, the mother was intentionally violating the Court order. The order only permitted the mother to engage in "transporting" the sons to school and church. The mother knew that transporting them elsewhere violated the terms of the order. By transporting the son and allowing her boyfriend to transport him, the mother clearly disobeyed the express and unequivocal mandate in the Court order "not to transport" the son to "the event" of his working. The evidence is clear and convincing — her own words confirm that she defied the court order. In addition, there is no dispute, based on the evidence, that when the child was being transported to and from work, he failed to visit his father or follow either the agreed visitation or the court-ordered visitation. There is also no dispute that the transportation, in violation of the court order, occurred at least six times. The clear and convincing evidence establishes that the mother's conduct in ignoring the Court order and continuing to transport the child to and from work was contemptuous as a matter of law.
5. The mother's violation of the court order related to portable devices constitutes contempt
In the June 15, 2020 Court order setting forth the "house rules," this Court required the mother to remove the children's phones, tablets and computers and "not let them play with such devices" until they visited with the father as the agreement required. The undisputed evidence before this Court clearly establishes that the sons used portable computer devices or their phones to play video games in November and December, 2020. The sons played the Clash Royale video game through their phones during that time. The father played games with them during this time and he identified screen shots that proved the sons were playing against each other during this time. The father testified that the sons required confidential passwords to play these games which ruled out anyone, other than his sons, from playing under their self-identified game name. The mother testified that she knew how to intercede in the games and claim daily certain rewards that had accrued to her sons during the period covered by the Court order, which is evidence that she knew her sons were playing the video games while under the house rules. When questioned why she was harvesting her sons game points at a time when she knew that the court order prohibited their playing games on their phone, the mother said:
By the time the issue of the portable devices arose, this Court had issued a decision confirming compliance with the "house rules" on September 18,200 and the Court re-affirmed the "house rules" in an order dated October 5, 2020. The issues related to the children's use of portable devices was raised in the father's March 10, 2021 cross-motion for contempt which included the contempt warnings and those allegations were consolidated into the hearing before this Court.
"Because I knew that they did [play the games on their phones]. So I was doing daily rewards for them. I certainly would have never thought this was going to be going on this long. So I was doing their rewards. And then, assuming the provision was going to be up soon and go back to our normal lives and they could do it themselves."
In short, the mother not only knew that her sons were playing the games, she assisted them in playing by harvesting their points won in the games. She also testified that she allowed her sons to have access to their phones if they went to dinner visits with their father but did not attend weekend visits during the period from November 13, 2020 to February 3, 2021. The house rules order makes no such exception: the order required that the children attend all the agreed visitation or forfeit access to these portable devices. The consequence of the mother's approval of the sons’ use of their phones to play games, among other uses, in violation of the order is evident: whatever respect the sons may have had for the court order, it evaporated in the face of the mother's consistent violation of that order. The mother disregarded it and her sons, taking their cues from her, disregarded it as well. Based on this testimony, almost all of which is undisputed, the mother violated the terms of the court order because she allowed the children to have access to their phones and portable devices even thought they were only partially fulfilling the visitation requirements in the agreement and judgment of divorce. This Court finds, based on the clear and convincing evidence, that the mother has committed contempt in violation of the Court order regarding the children's access to their phones and computer devices to play video games on at least 17 occasions as detailed in the exhibits before this Court.
6. The alleged contempt for the mother's use of the children's phones to shoot slow-motion videos
The father also alleges that the mother violated the Court's June 15, 2020 order by taking slow-motion videos of her son jumping into a swimming pool. The Court declines to find any violation in this instance. The order does not prohibit the mother from using the son's phones. The order simply requires that she "remove" the phone from the child. For those reasons, the Court order does not unequivocally bar the mother from the using the child's phone in this manner and this Court declines to find any violation of the order in that conduct.
III. The mother's defense that the father suffered no prejudice from her violations of the divorce judgment, the agreement and the Court orders is unfounded.
In her most eloquent plea before this Court, the mother argues that the Court cannot find her conduct in contempt because the father, throughout this entire proceeding, has suffered no prejudice because, despite her repeated violations of the joint custody agreement and the Court orders, the children would not visit with their father. The argument is facetious on its face: the mother's conduct was designed to void the separation agreement and undercut the father's negotiated visitation rights. The sons, armed with the knowledge that their mother did not respect their father's visitation rights, simply disregarded the agreement and, as a consequence of the mother's acquiescence, the father's visitation rights were destroyed. For anyone to suggest that the father's loss of his visitation rights as a result of the concerted violations of the agreement and the Court orders has not harmed him misunderstands the entire nature of parental rights. The message of the mother's contemptuous conduct to her sons was simple: your father no longer has any rights to tell you — or me — what to do. She conveyed the same message about her own conduct: the Court has no right to tell me what to do either. The mother decided the best interests of her sons alone and cut the father out of that determination. By doing so, she clearly and unmistakably prejudiced the father's rights as a joint custodial parent. She, in essence, became a sole custody parent: the only parent that the children had to obey was their mother and they could ignore their father. To suggest that a father is not "harmed" or "prejudiced" by the wilful and intentional destruction of his negotiated joint custody rights and his right to visit with his children is an argument that violates every principle in New York's family law.
The mother argues that the father would need to prove that visitation would have occurred if she acted differently. The proof lies in the father's visitation prior to December, 2019. It is undisputed that the sons visited with their father under the agreed scheduled for many months, even though he lived in another county miles away from the mother's residence. There is no evidence of any disputes between the father and the sons over visitation during that time and no evidence that the sons opposed either alternate weekend visitation or weekly dinner visitation, as the separation agreement and judgment of divorce provided. In short, if nothing had happened in December, 2019, if the mother had not decided what visitation the agreement envisioned — despite its actual text — denied the father his January 2, 2020 visitation and condoned the son's desire to change the visitation thereafter, the visitation between father and sons was likely to continue without objection. The mother, having led a successful mutiny against the agreed visitation, can hardly claim she did not prejudice the father by her contemptuous actions. Instead, she argues before this Court that her conduct cannot be punished and therefore, having poisoned the children against their father, he has no recourse and his joint custody rights vanish. This Court will not allow that to occur.
There is evidence that the sons, during the summer of 2019, asked their father to adjust the time that they returned to their mother's at the end of a weekend. The father agreed to that change and abided by it for a time but there is no evidence that he waived his right to insist on the return time set forth in the agreement. The agreement contains the typical "no waiver" clause. Art 21(I).
IV. The AFC's Argument that the father was not prejudiced is similarly misguided
In her submission, the attorney for the children ("AFC") argues that there should be no finding of contempt because the children "chose not to visit" and further that the children "tried to negotiate a change" in the court ordered visitation but the father failed to respond. The AFC's argument on this score completely misses the mark: the visitation — as a part of the "best interests" of the children — was decided by the parents. The father was not obligated to negotiate with his sons: he had already negotiated with their mother. This Court has never recognized a child's right to dictate or negotiate visitation: the parents had already decided it. The Court, initially after hearing the dispute, had ordered additional visitation consistent with the plan in the separation agreement but the sons, relying on the complicity of their mother and her unilateral amendment of the agreement, refused to attend. The AFC also argued that the mother could not be able in contempt because after the Court ordered additional visitation, the mother attempted to negotiate a compromise on behalf of her sons and the father refused. The Court sees the mother's conduct much differently: after the Court ordered extended visitation, the sons knew that their mother was firmly on their side in seeking to limit or end visitation. The mother's entire course of conduct gave her sons the assurance that she sided with them against their father. The AFC's characterization of the mother's effort to have her children attend visitation ignores the reality of what had occurred and is undisputed: the mother had, since Christmas 2019, conveyed to her sons that visitation was, in essence, optional or their own choice and that they did not need to attend visitation. Her sons knew it: their mother supported that choice by filing the family court petition and taking the letter to the judge hearing the case. They knew that their mother's "encouragement" was half-hearted at best and at worst just a disguised effort to be able to tell this Court that she had asked her children to participate. Importantly, prior to the Court's imposition of the "house rules," there is no evidence that the mother ever — ever — imposed any discipline on the children for failing to attend visitation with their father.
The AFC also argues that incarceration would seriously impact the children. This Court, having concluded that the children's resentment of their father is a result of their mother's conduct, acknowledges that they will be some impact but, without any "discipline" on the mother for her contemptuous conduct, this entire family could conclude that legal proceedings, court orders, agreements and judgments are meaningless and everyone gets to go about their business without living according to the rules. This Court, with its respect for the rule of law, will not allow that to occur.
V. The penalties for contempt in this matter
In reviewing the wide scope of evidence is this matter, a substantial penalty for the mother's breach of the agreement and the violation of the Court orders is eminently justified. The father seeks a wide range of penalties, including extended incarceration and a change in custody for the children. In considering the penalties for the mother's violation of the Court order, this Court can consider the entire range of her conduct, from the first day she substituted her judgment on visitation for the terms of the agreement up to her lack of effort and complicity in the son's playing video games with her knowledge and acquiescence. A period of extensive incarceration could be easily justified. See Matter of Beesmer v. Amato, 162 AD3d 1260 (3d Dept 2018) (60 days incarceration for violation of court order); Wheeler v Wheeler , 83 AD3d 502 (1st Dept 2011) (violator sentenced to 45 days incarceration for two violations of court order); Rubin v. Rubin , 78 AD3d 812 (2d Dept 2010) (willful violation of the court's mandate found by parent "intentionally doing certain things" which would have the natural effect of turning the children away from the father and which actually had that effect) Matter of Aurelia v. Aurelia , 56 AD3d 963 (3d Dept 2008) (parent incarcerated for six months of weekends even though parent testified that discipline for failing to attend visitation was imposed, but the parent took no action to attempt to persuade the children to engage in the court-ordered visitation [and] In fact, [the parent] left the choice entirely up to the children).
1. Incarceration and Financial Penalties
Therefore, the penalties to be imposed by this Court are:
(A) the mother is sentenced to six consecutive weekends in the Wayne County Jail or, if weekends are not an available option in the Wayne County Jail, then she is sentenced to six consecutive weekends in the Monroe County Jail and such sentence shall start during the first weekend after the entry of an order from this decision;
(B) the mother must served the first three weekends without any ability to purge that portion of the sentence;
(C) during the weekends in which the mother is incarcerated, the children shall reside with their father and the mother shall deliver the sons to visitation at their father's residence at 5pm on Friday of the each of the three weekends she is in jail and furthermore, deliver them to their father's residence at 5pm each Wednesday and picks them up at 8pm on that evening futing that same three week period;
(D) after serving the first three weekends, the mother may purge the remaining three weekends of the sentence of incarceration if she delivers the sons to visitation at their father's residence at 5pm on Friday of each weekend for each of the remaining three weekends and furthermore, delivers them to their father's residence at 5pm each Wednesday and picks them up at 8pm on that evening during the same three-week period;
(E) the mother shall pay 100 per cent of the fees of the AFC from the date of this decision forward and the mother shall reimburse the father for any fees that he has paid in excess of $2500 and such reimbursement shall occur no later than 30 days after the issuance of the order from this decision;
(F) the mother shall pay 100 per cent of the uninsured costs for the reunification counselor, Dr. Christina McCann, until Dr. McCann determines that her efforts are no longer needed or of value to this family and she shall reimburse the father for any fees that he has paid beyond $2500 and such reimbursement shall occur no later than 30 days after the issuance of the order from this decision;
(G) the father shall arrange all scheduling with Dr. McCann and the mother shall make the children available for all such scheduled appointments upon reasonable notice from the father; and,
(H) the mother shall pay the father TWENTY THOUSAND DOLLARS as and for attorneys fees and costs incurred to date, including the fees to bring this contempt application and, any further request for fees shall be referred to a hearing and such fees shall be paid within 90 days of the entry of the order from this decision.
In considering a term of incarceration, this Court is mindful of the conclusion in Rubin v. Rubin , supra , in which the Court held that a sentence of incarceration would serve no purpose. This Court rejects that conclusion here. The sentence is a short-term one and the mother engaged in a year-old campaign to undercut the father's joint custodial rights and violated not only the judgment of divorce but several court orders. The scope of the mother's conduct, combined with her cavalier attitude toward the Court orders — e.g., she was "glad" her children were signed up for soccer even though they were not visiting their father — justifies a definite sentence to a period of incarceration.
2. Change of Custody and Visitation
In addition to these financial and other penalties, the Court must examine the father's request for sole custody of the children. Initially, this Court has to search the record to determine whether the Court had authority, in the context of this contempt hearing, to modify any portion of the custodial arrangement. The mother's original filing with the family court sought to change visitation. The father's January 15, 2020 order to cause before this Court did not mentioned modification of custody or visitation and simply sought to enforce the visitation planks in the agreement. In the father's March order to show cause, he sought "primary physical residence" of the children and in his September, 2020 order to show cause he sought "50/50 shared physical custody of the children." Based on these pleadings, the father has put the issue of a change in custody — the concept of who makes choices for the children — before this Court. In addition, this Court has the authority, after a contempt hearing, to sua sponte modify a custody arrangement if the Court concludes that a parent has engaged in a contempt that frustrates a parent's visitation and decision-making rights. See Panaro v. Panaro , 133 AD2d 1306(4th Dept 2015); Heintz v. Heintz , 28 AD3d 1154 (4th Dept 2006) (party was adequately apprised prior to the contempt hearing that custody was at issue).
In Heintz , the Fourth Department applied the Eschbach factors to conclude that the change in custody was justified after a finding of contempt. Eschbach v Eschbach , 56 NY2d 167, 172-174 (1982). This Court in Heintz concluded that the court could sua sponte amended a contempt petition to reflect a change in custody and added that the change was justified because the Court carefully weighed all of the evidence and took into account various relevant factors, including the credibility of the witnesses, the continued acrimony between the parties, and the stability of the respective home environments.
Applying the Eschbach criteria here, as refined in Heintz , strongly suggests changes in the custody should occur. The New York courts have considered changes in custody after a finding of contempt against one the of the parents. Mercado v. Frye , 104 AD3d 1340 (4th Dept 2013) ; Munster v. Munster , 17 AD3d 600 (2d Dept 2005) (court suspended incarceration subject to parent's compliance with visitation). The Court will not change the primary residential designation: the children have primarily resided with their mother since before the divorce. But, as this opinion indicates, this Court has substantial questions about the probity, trustfulness and character of the mother. Her surreptitious enrolling the sons in soccer through the instrument of her mother, her refusal to discipline the sons for failing to follow the visitation plan, her complicity in the use of the phones or other devices to play video games in violation of the Court and finally her suggestion that she was "glad" that her children were enrolled to pay soccer after this Court barred her from enrolling them all indicate a lack of necessary judgment to continue in a joint custodial arrangement. Second, the acrimony between the parties is palpable and longstanding, even dating from the email in December 2019, when the mother said she needed to tell the father's girlfriend "what kind of man he was. There is no evidence of any reasonable communication between the parents, the sine qua non to support joint custody. Finally, there is no evidence of any instability in the father's home environment. The boys have visited with their father — on occasion — and there is no evidence of any difficulties with visitation, other than it is readily apparent that the sons do not want to visit as their attorney has repeatedly informed this Court.
In considering the options in modifying the custodial arrangement, the father asks this Court to award the father sole custody if he moves to the children's school district. The Court declines to take that step but, instead, adopts a prophylactic modification to allow the father to fully exercise his joint custodial rights. This Court finds that the mother's conduct, viewed in total, constitutes a change in circumstance that would justify modification of the custody and visitation provisions in the separation agreement. This change is entirely traceable to the mother's conduct: she willfully violated the agreement, the judgment and above-referenced court orders. This Court acknowledges that under usual circumstances after a finding of that there has been a substantial change in circumstances, the Court, prior to modifying any custodial term, must analyze the "best interests" of the children.
This Court does not take reformulation of the custody relationship lightly. In normal circumstances, this Court would afford the mother the opportunity to call and examine witnesses on the best interest question before even tinkering with custody. Ross v. Ross , 185 AD3d 595, 596-97 (2d Dept 2020). Similarly, the Court acknowledges that modifying this custody order should "should not be wielded as a means" of punishing a contemptuous parent. Matter of Noel v. Melle , 151 AD3d 1066-67 (2d Dept 2017). However, in this instance, other factors incline the Court to take just that step. First, the father sought a change in custody in his latest order to show cause and therefore the mother was on notice of the father's proposal to change custody. Second, under any best interests analysis, the mother's performance in failing to abide by the court orders is a clear indication she has no willingness to foster a positive relationship between the children and their father, an indispensable ingredient in any joint custody plan. Third, the relationship between the parents is "so acrimonious as to render joint custody unworkable." Matter of Patricia RR v. Daniel SS , 172 AD 1471 (3d Dept 2019). The Fourth Department has awarded a parent sole custody based on the other parent's "efforts to exclude the petitioner form the child's life" and "repeated attempts to sabotage that parent-child relationship." McTighe v. Pearl , 8 AD3d 951-952 (4th Dept 2004). Interference with a right to visitation — proven by clear and convincing evidence here — is "so inconsistent with the best interests of children as to, per se, raise a strong possibility that the offending party is unfit to act as a custodial parent." Matter of Ruiz v. Sciallo , 127 AD3d 1205,1206 (2d dept 2015). In Matter of Ruiz v. Sciallo , the Second Department conclude that no hearing was necessary prior to that Court's change of custody because it possessed "adequate relevant information" about the children's best interests.
In this case, any "best interests" analysis, now, after the mother had engaged in almost two years of willful violations of her agreements with her husband and the orders of this Court, would be counterproductive. The father's opportunity to have a legitimate "best interests" hearing has been purloined by the mother. The mother's flaunting of the prior orders and the agreement makes any "best interest" hearing one-sided: the children, having toed the mother's line for almost two years, are unlikely to support the father's request for any visitation time, much less any more than what was provided in the judgment of divorce. Under these circumstances, the Court, in its discretion, simply elects to fall back to the children's "best interests" which underlie the original agreement. Less than two years ago, the parents created a joint custody relationship: each parent had an equal say in all the children's decisions. There is no evidence before this Court that suggests a sharing of custodial rights can be restored. The animosity that has led to almost two years of litigation clearly indicates that joint custody on all parental decision making is impossible.
In place of the shared decision making envisioned by joint custody, this Court elects to create zones of interest that divide the parental decision-making and give each parent final say in selected activities. Under this modification, the father shall have custodial zones of interest in which he holds the final determination for all matters involving the son's sports, extracurriculars (including extracurriculars sponsored or associated with the children's school) and employment. He must consult with the mother prior to making any final decision but he will have the final choice in all matters within the zones of interest as described above. The mother will have zones of interest for all other activities and she shall have final decision-making, after consultation with the father, in those areas. In one area — college selection — joint custody shall apply and neither parent may enroll the children in college without the approval of the other parent.
With respect to visitation, the father, in his submissions to this Court, has, sought to extend his alternate weekend visitation to include a Sunday overnight. This Court, in its temporary order, granted the father that extended time but the Court never held a hearing on whether that additional time, which the Court described as "modest," was in the son's best interests. The mother objected, claiming that the Court could not add any extended time to the agreement without a best interests analysis. The agreement required such an analysis. This Court initially concluded that because of the mother's contemptuous conduct, the fact that the agreement envisioned more time for the father once he had moved, the undisputed fact that the father had moved significantly closer as the couple envisioned, the best interests of the sons to strengthen their relationship with their father would be served by adding one more overnight every two weeks with their father. The Court re-affirms that determination and adds the Sunday overnight to the father's alternate weekend visitation. In addition, the agreement clearly envisioned that a weekend dinner with the father was in the son's best interests. The father's current request simply seeks to confirm the date and time. Confirming Wednesday as the dinner date is a very minor adjustment in the visitation schedule and, in view of everything that the mother did to destroy the father's relationship with his sons, is amply justified.
All other terms of the prior orders issued by this Court, contained in the agreement or the judgment of divorce remain in full force and effect. The alternate weekend visitation, set forth in the couple's separation agreement and extended in the prior order of this Court, is reaffirmed.