Opinion
F-28150-13/15B
01-30-2019
In the Matter of a Support Proceeding Pursuant to Family Court Act Articles 4 & 5-B Christel D. c/o NORTH CAROLINA CHILD SUPPORT CENTRALIZED COLLECTIONS, Petitioner, v. Mandel T.B., Respondent.
The mother and North Carolina are represented by Celina Fletcher from the NYC Corporation Counsel, Family Court Division, 350 Jay Street Brooklyn, NY 11201, Phone: (718) 724-5300; Father is represented by Emmanuel F. Ntiamoah, Esq., 26 Court Street, Suite 1309, Brooklyn, NY 11201, Phone: (718) 237-0233, efnlaw@verizon.net.
Summons, Petitions, Affidavit & Exhibits Annexed..................................1 Notice of Motion, Affidavit & Exhibits Annexed ... ...2 Court Proceedings Transcripts....................................................................3
Upon the foregoing papers and the oral argument held on January 16, 2019, the Motion by Respondent Mandel B. (hereinafter "Father"), for the recusal of the Undersigned from presiding over the Proceedings, is denied.
The following facts and lengthy procedural history are essentially undisputed. In 1998, Father and Petitioner Christel D. (hereinafter "Mother") met in North Carolina, and began a sexual relationship which resulted in the birth of the subject Child, Juree Dews (DOB January 19, 1999), out of wedlock. There were some incidents of domestic violence committed by the Father against Mother in North Carolina, apparently prompting Father to leave the jurisdiction to eventually reside in Brooklyn, New York. By Order of Support dated April 13, 2009, the District Court Division of Guilford County, North Carolina (Cummings, J.) found Father chargeable with the support of the Child at a rate of $149 per month payable to Mother, which Order was registered in Kings County Family Court on August 5, 2010. Almost since its inception, however, Father has failed to comply with the N.C. Child Support Order, resulting in accumulated arrears. In fact, by UIFSA Order dated June 16, 2011, the District Court Division of Guilford County, North Carolina (Brown, J.) denied Father's motion to dismiss those child support proceedings based on lack of personal jurisdiction, and continued the Support Order unimpeded.
By Petition for Enforcement and Violation of Support Order dated June 12, 2015, a New York City's Assistant Corporation Counsel (hereinafter "ACC") commenced the instant proceeding on behalf of the Initiating Jurisdiction of North Carolina against Father in Kings County Family Court, seeking a willfulness finding and money judgment against him due to his failure to comply with the Support Order, thereby accumulating arrears of $15,347.29, and praying for his commitment to jail for a period not to exceed six months. The amount of arrears included the sum of $1,178.50 owed directly to Petitioner North Carolina Child Support Centralized Collections ("CSCC") as reimbursement for public assistance provided to Mother and Child while they were in North Carolina, and the rest of the arrears owed directly to the Mother. Issue was eventually joined, but Father failed to appear on the scheduled appearance of March 17, 2016, or on the notified adjourned date of June 16, 2016, prompting Support Magistrate Hecht-Zaki to make a finding that Father willfully failed to comply with the Support Order, on his default, with the recommendation that a warrant be issued. The matter was referred to the Undersigned, who upon the ACC's application, issued a Warrant for Father's arrest with a $2,000 undertaking on June 16, 2016. The matter was adjourned for warrant review on September 15, 2016.
However, on August 25, 2016, Father was arrested by the Kings County Sheriff's Department, involuntarily returned on the Warrant, and the Court immediately appointed him counsel, Kira Schettino, Esq., under County Law § 18-b to represent him. Claiming indigence, Father affirmed that he would attend all future court appearances and stated that he will be able to bring $100 at the next court date. Trusting his statements, the Undersigned vacated the Warrant and ordered him to return with $150 — a one-month payment - towards the Support Order. On the next appearance, September 15, 2016, Father appeared with counsel but without any payment toward the arrears. Although he alleged that he was applying for disability and receiving public assistance for years, he has never presented any information to support those claims. Nevertheless, the Court adjourned the matter to January 2017, to continue monitoring Father's compliance with the Support Order. After Father again failed to appear or make any payment towards the Order, a second Warrant was issued for his arrest and, on July 18, 2017, he was returned on that warrant. It was discovered then that Father had committed an unrelated criminal offense for which he served time in prison from November 11, 2016 until July 2017.The Court vacated the Warrant, reiterated to him the importance of complying with the Support Order, and referred the matter to the Support Magistrate to monitor his compliance.
On July 27, 2017, Father appeared before the Support Magistrate, and he again blamed his unemployment and indigence for his lack of any payments to date towards the Support Order.As such, the Support Magistrate referred Father to the Support Through Employment Program ("STEP"), over his objections, adjourning the matter to October 12, 2017. Father was also ordered to return with several pieces of evidence to prove his purported incapacity to pay the Support Order, including a job search diary, day job dairy, financial disclosure affidavit and notarized letters from all third-parties financially supporting him. On October 12, 2017, Father failed to appear or submit the requested information and the Support Magistrate referred the matter to the Undersigned. Upon the ACC application, the Court issued its third Warrant against Father with a reduced $1,000 undertaking.
On October 17, 2017, Father voluntarily returned himself on the Warrant, again purporting to be indigent and on public assistance without providing documentation. When asked how much he could realistically pay towards the arrears, Father dismissively indicated to the Court that he could try to get $100 in a month. Given Father's contemptuous failure to pay any support for several years, the Undersigned remanded Father to the custody of the New York City Department of Corrections with a purge amount of $1,000, and the matter was adjourned for him to be produced on October 27, 2018 with the money. On that date, Father was produced in Court without making or offering any payment toward the purge amount or Support Order. In his defense, Father argued that he was immunized from any monetary judgment on arrears because he has always been receiving public assistance, citing Family Court Act § 451 for the proposition that the Court could reduce the arrears to zero because of his alleged indigency. Over the ACC's objection, the Court vacated the Warrant, released Father and referred the matter back to the Support Magistrate on December 21, 2017, for a new willfulness hearing given Father's new arguments and for a penalty recommendation.
However, Father again failed to appear to present his evidence and new arguments and he was defaulted on December 21, 2017. As a result, Support Magistrate Shamahs issued an Order of Disposition dated December 21, 2017, finding that Father "knowingly, consciously and voluntarily disregarded his obligation under a lawful [Support O]rder in that he willfully failed to pay arrears" in the total amount of $21,221.90, and recommended his incarceration for six months unless he pays a purge amount of $5,305.48. On the return date of January 9, 2018, Father again failed to appear despite court notifications, and the matter was promptly referred to the Undersigned for a Warrant application. Noting that Father had not only defaulted on his appearances but refused to pay any child support, the Undersigned issued a fourth Warrant for Father's arrest with a $2,000 undertaking. The same scenario repeated several additional times with Father either failing to make court appearances or refusing to pay any child support under the Support Order in January, February, April, June, July and August 2018.
In the meantime, by Order to Show Cause and Petition dated April 26, 2018 (Silber, J.), Father commenced a CPLR Article 78 proceeding pro se against the Undersigned and ACC Celina Fletcher in Kings County Supreme Court, seeking a "Writ of Prohibition with a Mandamus to review and compel" the Undersigned to uphold the U.S. Constitution's Due Process Clause by conducting a hearing and ultimately modify the Support Order by "[zeroing-]out the arrears in accordance with Federal and State law" without "hold[ing] an indigent person liable for [his] inability to pay." In the Federal District Court, Father commenced a Civil Rights action pro se against the City of New York, the Family Court, the Undersigned and ACC Fletcher similarly challenging the enforcement of the N.C. Support Order in Family Court, alleging various violations of his Federal constitutional rights. The Office of the Attorney General of the State of New York represented the Undersigned in both of those cases, and motions to dismiss Father's actions were simultaneously made on both the Federal and State Courts. Upon notification, the Court informed Father's counsel of the pending lawsuits, of which she appeared to have no knowledge.
By Decision and Order dated August 22, 2018, the Supreme Court (Landicino, J.) granted the governmental respondents' motion and dismissed Father's proceedings against the Undersigned and ACC Fletcher on the ground that mandamus does not lie "to compel a hearing and to modify the North Carolina Order in New York Family Court" (Matter of Brock v Vargas, ___Misc 3d___, Dec & Order, Index No. 974/2018 [Kings Sup Ct, August 22, 2018]). In that same vein, by Decision & Order dated September 6, 2018, the U.S. District Court for the Eastern District of New York (Cogan, J.) dismissed the Federal Complaint in its entirety on the grounds that Father failed to sufficiently state a cause of action against the Undersigned as any such claim would be barred by the doctrine of absolute judicial immunity, which bars "an action against a judicial officer for an act taken in such officer's judicial capacity" (Brock v City of New York et al, 2018 U.S. Dist. LEXIS 152052 [Sept. 6, 2018]). Judge Cogan explained that "judicial immunity 'is not overcome by allegations of bad faith or malice,' nor can a judge 'be deprived of immunity because the action he[/she] took was in error or was in excess of his[/her] authority'" (id.).
On August 28, 2018, Father appeared with his court-appointed counsel, again claiming indigency and lacking any funds to pay any child support. His counsel orally moved to be relieved due to a breakdown in communications and other "issues" with her client, which motion was granted on consent of Father and over the objection of the ACC, who was concerned about any additional delay of the confirmation hearing. Given the serious repercussions faced by Father, the Court immediately appointed new counsel for him, Emmanuel Ntiamoah, Esq., cursorily explaining to him the proceedings and making him aware of the pendency of legal actions against the Undersigned and ACC. The Court then adjourned the matter for a full evidentiary confirmation hearing on October 16, 2018, thereby affording sufficient time for new counsel to prepare for the hearing (see CPLR 321).
On October 16, 2018, the Court preliminary denied the oral application of Father's counsel for the Undersigned's recusal, but afforded counsel time to file a written motion to be served upon the ACC with a full elucidation of his supporting arguments. Although Father and his counsel then requested a further adjournment, the Court noted that the case has been pending undecided for over two years and that new counsel had almost one and-a-half months since the last appearance to prepare for the hearing and obtain whatever documentary evidence was needed. Over Father's objections, the Court commenced the confirmation hearing with the ACC putting on evidence, on consent, the relevant Petitions, Family Court Orders, N.C. Support Orders and a certified copy of the NYC Child Support Collection Unit's Account Statement showing current arrears by Father of $22,503.76. The hearing was adjourned to counsels' first available date of January 16, 2019.
Now, by Notice of Motion returnable January 16, 2019, Father formally moves for the recusal of this Court under Judiciary Law § 14, claiming that "Judge Vargas's preoccupation with the [Father's pending] Writ of Prohibition petition and Civil Rights Complaint was so prevalent" that "there has been an 'appearance' of bias and impropriety" which demands recusal. Father further argues that "Judge Vargas [has] denied [him] the protections of NYS law carved out for indigent debtors by the legislature * * * [and] aid[ed] and abett[ed] prosecuting [him] thereby denying [his] 'equal protection of the law.'" He also argues that the ACC has committed serious misrepresentations against him in her "prosecution" of the support arrears which have been countenanced by the Court. In opposition, the ACC argues that recusal is not permitted under the extant circumstances, submitting several precedents, and will serve to improperly reward Father for his strategic lawsuits, inordinate delay and his own contemptuous conduct. This Court agrees with the ACC.
Pursuant to Judiciary Law § 14, "a judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree." In interpreting this statute, the New York Court of Appeals has ruled that "[r]ecusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, * * * or where a clash in judicial roles is seen to exist" (People v Alomar, 93 NY2d 239, 246 [1999] [citations omitted]; Matter of Khan v Dolly, 39 AD3d 649, 650-51 [2007]; Matter of Stampfler v Snow, 290 AD2d 595, 596 [2002]). Absent a legal disqualification under Judiciary Law § 14, "a trial judge is the sole arbiter of recusal and his or her decision in that regard will not be lightly overturned" (People v Moreno, 70 NY2d 403, 405-406 [1987]; Matter of Stampfler v Snow, 290 AD2d at 596 [2002]). "A judge cannot be disqualified merely because a litigant sues or threatens to sue him or her. We cannot encourage such an easy method of disqualification" (Matter of New York State Assoc. of Crim. Defense Lawyers v Kaye, 95 NY2d 556, 592 [2000]; see United States v. Grismore, 564 F 2d 929, 933 [10th Cir. 1977], cert. denied 435 US 954 [1978]).
Applying these legal principles to the matter at bar, Father's Motion for recusal fails. Father essentially concedes that there is no statutory basis for this Court's disqualification, and the Undersigned has no "direct, personal, substantial, or pecuniary interest" in the ultimate outcome of these child support proceedings directly benefitting only the Mother, Child and North Carolina (see Matter of New York State Assoc. of Crim. Defense Lawyers v Kaye, 95 NY2d at 592-593). Nor is there a clash in its judicial roles since the Undersigned's role in the State and Federal litigation was that of a defendant (see Matter of Khan v Dolly, 39 AD3d at 650; Matter of Stampfler v Snow, supra at 596). The Father's contention that the Court is biased against him or that there is an appearance of impropriety in its presiding over the proceedings is belied by the foregoing procedural history of the case (see Matter of Bowe v Bowe, 124 AD3d 645 [2d Dept. 2015]. Specifically, the record and procedural history shows that this Court has treated the parties fairly, protected Father's rights by appointing him free counsel at all stages, and bent over backwards in excusing Father's numerous nonappearances, only dispensing warrants for his arrest following the issuance of stayed warrants and/or upon the ACC's affirmative and factually-supported applications. After repeatedly hearing Father's protestations of indigency, the Court has reduced the undertakings initially recommended on those Warrants by the Support Magistrate from $5,000 to $1,000, and has afforded Father time and again opportunities to pay the substantial arrears owed.
More significantly, "[a] judge has an obligation not to recuse himself or herself even if sued in connection with his or her duties, unless he or she is unable to serve with complete impartiality, in fact or appearance" (Spremo v Babchik, 155 Misc 2d 796, 799 [Queens Sup. Ct. 1992], affd as modified, 216 AD2d 382 [2d Dept.1995], lv denied 86 NY2d 709 [1995], cert denied 516 US 1161 [1996]). "A litigant cannot be allowed to create a sham controversy by suing a judge without justification, and to then use that sham as a means for achieving the judge's recusal. To hold otherwise would be to give such a litigant 'a license under the judge would serve at their will'" (Id. at 800, quoting Davis v Board of School Commrs. of Mobile County, 517 F2d 1044 [5th Cir. 1975]). This is a priori relevant here since both of the actions commenced against the Undersigned have been dismissed on the merits. This Court is not inclined to recuse itself and temporarily reward Father, so that the matter be transferred to another colleague who will be saddled with this tortuous matter, only for Father to again repeat his strategic scheme. Further, given the long-standing proceedings affecting not only North Carolina, but the Mother and the Child, the Family Court is hereby acting within its discretion in declining to recuse itself (see Matter of Khan v Dolly, 39 AD3d at 650). The Court will hear all the testimony and evidence at the hearing with impartiality and without a predetermined outcome of the case in mind (see Matter of Davis v Pignataro, 97 AD3d 677, 678 [2012]; Matter of Khan v Dolly, 39 AD3d at 650).
In accordance with the foregoing, Father's Motion for this Court to recuse itself from the pending proceedings is denied. All parties and counsel must be ready to proceed with the continued confirmation hearing on March 27, 2019 at 2:30 p.m. The foregoing constitutes the Decision and Order of this Court. E N T E R: Dated:January 30, 2019 Brooklyn, New York _________________________________________ J.F.C. NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.