Opinion
Docket No. V-23966-14/22F
11-15-2023
In the Matter of Custody/Visitation Proceeding, B.F., Petitioner, v. S.R., Respondent.
The petitioner B.F. was represented by Kreuza Ganolli, Esq. The respondent S.R. was self-represented.
Unpublished Opinion
The petitioner B.F. was represented by Kreuza Ganolli, Esq.
The respondent S.R. was self-represented.
Robert A. Markoff, J.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of the petitioner's motion, by order to show cause, for an order (1) holding the respondent father in civil contempt for failing to comply with court orders issued since August 11, 2022; (2) pursuant to Judiciary Law § 773 imposing civil contempt sanctions in the amount of $50 per day for each day beyond August 11, 2022 that the respondent father continues to fail to comply with the order for forensic evaluation and the order for supervised visitation with the petitioner mother; (3) directing that respondent father pay the petitioner $50 per day; and (4) for such other and further relief as the Court deems just and proper:
Order to Show Cause
Affirmation in Support
Affidavit in Support
Exhibits A-O
Affirmation of S. R. in Opposition to Order to Show Cause and
Cross Motion
Exhibit A
Affidavit of S. R.
Affidavit of T. R.
Exhibit B
Reply Affidavit
Exhibits A-I
Pursuant to a New Jersey judgment of divorce issued in April 2011 (hereinafter "final order of custody"), the mother was awarded primary physical custody of the subject child subject to parenting time with the father. In September 2014, the mother filed a modification petition in New York. In December 2014, the New York Family Court (Katz, J.) determined that New York would retain jurisdiction of custody issues in accordance with an on-the-record discussion between the judges of the New Jersey Superior Court and the New York Family Court. The New Jersey court then issued an order transferring all child custody issues to New York. In October 2018, the New York Family Court (Mulroy, J) granted the mother's modification petition and specified the father's parental access schedule. Thereafter, the parties continued to litigate child custody and visitation issues in New York.
As relevant to the instant motion, on April 19, 2022, the mother filed the subject petition to modify the final order of custody. On June 29, 2022, the mother filed a petition for a writ of habeas corpus alleging that the father failed to return the child after a visit. On July 5, 2022, the father filed a family offense petition against the child's stepfather wherein he alleged that the child reported that she was physically abused by the stepfather. The Family Court (Friederwitzer, J) issued a temporary order of protection on behalf of the child against the stepfather and directed the Administration for Children's Services to conduct a court-ordered investigation of the father's allegations. On July 14, 2022, the court conducted an in-camera interview of the subject child.
By separate orders each dated August 11, 2022, the Family Court (Friederwitzer, J.), among other things, dismissed the mother's petition for a writ of habeas corpus, awarded the father temporary residential custody of the child, and granted the mother temporary visitation with the child "supervised through Safe Horizon." Even so, since August 2022, the mother has had no visits with the child due to the father's failure to arrange visits with the court-appointed supervisors. Additionally, the proceedings on the mother's modification petition and the father's family offense petition have stalled because of the father's failure to comply with court orders directing him to participate in a forensic evaluation, and to produce the child to the attorney for the child (hereinafter "AFC").
The mother now moves, by order to show cause, for an order, inter alia, (1) holding the father in civil contempt pursuant to Judiciary Law §753 based upon his continuing failure to comply with court orders dated August 11, 2022, January 19, 2023, May 1, 2023, and July 25, 2023; (2) pursuant to Judiciary Law § 773 imposing civil contempt sanctions in the amount of $50 per day for each day beyond August 11, 2022; and (3) for such other and further relief as the Court deems just and proper.
In support of her motion, the mother submits, inter alia, the order dated August 11, 2022, in which the Family Court (Friederwitzer, J.) temporarily modified the final order of custody by awarding the father temporary residential custody of the child. On that same date, the court issued a separate order granting the mother temporary visitation with the child "supervised through Safe Horizon." The mother attaches a message from Shannon Hughes, LMSW, who is the Supervising Social Worker for Supervised Visitation Program of Safe Horizon indicating, among other things, that Safe Horizon checked with the father "several times to see if he could bring [the child] for evenings and he said no."
The mother submits the order dated January 19, 2023, in which the Family Court (Friederwitzer, J.) issued an order designating a licensed social worker, instead of Safe Horizon, as the supervision host between the mother and the child. The order directs visits to occur in New York at least one day every other week. Additionally, the order directs that the mother have daily phone/video calls with the child at 9:00 pm, except for Fridays.
The mother submits her own affidavit, to the effect that since August 11, 2011, she has not had a single supervised visit with the child. She avers that "[i]t has been a year since I have seen my daughter." Additionally, the mother avers that since June 2023, she has not spoken with her daughter over the phone, and, indeed, has been blocked from her daughter's phone.
On May 1, 2023, the court (Friederwitzer, J.) issued an order appointing a forensic expert to conduct a child custody evaluation, mental health investigation and parenting assessment to assist the court in determining the health, safety, welfare, and best interests of the child. The order directs the parties, upon receipt of the order, to "telephone the forensic expert, schedule appointments, and cooperate in all respects with the evaluation." The order directs the forensic expert to submit a final report within 90 days from the date of the order.
On June 3, 2023, the forensic expert issued a "non-compliance report" to the Family Court indicating that the mother contacted him, but that the father had not. Further, the forensic expert's report indicates that his office twice followed up with the father's attorney to no avail. The forensic expert reported that the mother was informed that "she [cannot] schedule any further appointments until Mr. R. contacts the office and completes the same initial assignments." On June 28, 2023, the forensic evaluator issued its second "non-compliance report" indicating that "[t]here has been no contact from Mr. R. and the evaluation is stalled as a result." On July 21, 2023, the forensic evaluator issued a third "non-compliance report" again indicating that "[t]here has been no contact" from the father, and the evaluation is stalled. On August 14, 2023, the forensic evaluator issued its fourth non-compliance report to the same effect. To date, the forensic evaluation has not even started due to the father's failure to even call the forensic expert as directed in the order.
By order dated May 1, 2023, the Family Court (Friederwitzer, J.) directed the father to produce the child to the AFC on July 5, 2023, at 4:00 pm. The father failed to produce the child as directed. On July 25, 2023, the parties appeared before this Court (Markoff, J.) for a status conference. The AFC was unable to take any position on behalf of her client because the father still had not produced the child to her. As such, this Court issued an order directing the father to "immediately arrange for production" of the child to the AFC, and further directed the father to comply with all prior orders. This Court warned that "[f]ailure to comply with court orders may form the basis for a contempt motion." The father did not comply with this Court's order which, in effect, prompted the mother to file the subject contempt motion.
In opposition to the mother's contempt motion, the father submits his own affirmation explaining, inter alia, that the reason he had not complied with the court's orders for supervised visitation with the mother is due to the child "refusing to cooperate with the court's orders," and that the child is "refusing to see her mother, talk to her lawyer or participate in forensics." The father asks whether he should "physically force a teenage abuse victim to go somewhere she doesn't want? Should I tie her up and drag her to New York?" Even so, the father affirms that, "the child would be open to reunification therapy in Lakewood, N.J. under the supervision of someone she knows and trusts in a location she feels safe." He also asks why the mother would "choose to not see her daughter for more than a year, insist on more drama with forensics, lawyer visits, court appearances" He affirms that he has been "trying his best to ensure that [the child] has and will have a relationship with her mother." The father asserts that he has been "in touch" with the licensed social worker to "try and arrange for visits, but those attempts were unsuccessful."
The father provides no specifics, neither dates nor times, regarding his efforts to schedule supervised visitation with either Safe Horizon or the licensed social worker. He gives no details regarding the child's alleged refusal to see her mother. The Court has no information regarding the child's position on supervised visitation with the mother because the child has not been produced to the AFC. Although the father purports to speak for the child, his statements regarding the child's alleged refusal to visit her mother, or comply with court orders, are self-serving.
As to the alleged violation of court orders directing the father to produce the child to the AFC, the father claims, without any substantiation, that he has "attempted many times to schedule with [the AFC] and she has not made herself available." He alleges that the AFC holds an "implicit bias towards [sic] fathers." As a solution, the father requests that the court "dismiss" the AFC and "find someone else."
Regarding his failure to comply with the order directing him to telephone the forensic expert, the father asserts that "when something is stalled, it is not violated," and that his "delay" in calling the forensic expert has been "minimal." Additionally, he states that he "did in fact try to 'telephone' the forensic expert several times and no one answered."
The father submits an affidavit from the child's paternal grandmother, i.e., his own mother, who avers that she had discussions with the child about the "irreplaceable role a mother plays in one's life," and that she advised the child that it would not be beneficial "for her to permanently sever ties with her mother." She avers that the child made it "clear that she does not wish to have any relationship or interaction with her mother at this time." The paternal grandmother however does not provide any specifics as to when these discussions with the child occurred. Moreover, the paternal grandmother's statements are based upon inadmissible hearsay statements of the child.
The father submits an affidavit from the child's stepmother, i.e., the father's spouse, who avers that she too had discussions with the child about the importance of re-establishing a relationship with her biological mother. She avers that "we have not encountered any behavioral challenges with her, except when addressing the court's mandates." She avers that after phone calls with her mother, the child was "visibly shaken, impacting her academic performance, and straining her social interactions." She avers that the child "independently" decided to "cease communications with her mother." This affidavit also lacks specificity and is largely based upon inadmissible hearsay.
Finding of Civil Contempt
A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court (Stone v Weinberg, 201 A.D.3d 939, 939 [2d Dept 2022]; Matter of Mendoza-Pautrat v Razdan, 160 A.D.3d 963, 964 [2d Dept 2018]). To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753(A)(3), the movant is required to prove by clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms; and (3) that the movant was prejudiced by the offending conduct (see El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29 [2015]; Matter of Marotta v Marotta, 218 A.D.3d 468, 469 [2d Dept 2023]; Matter of Herbst v Palange, 193 A.D.3d 859, 860 [2d Dept 2021]). "Prejudice is shown where the party's actions 'were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party'" (Matter of Marotta v Marotta, 217 A.D.3d at 469, quoting Matter of Mendoza-Pautrat v Razdan, 160 A.D.3d at 964). "[C]ivil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order defeats, impairs, impedes, or prejudices the rights or remedies of a party" (El-Dehdan v El-Dehdan, 26 N.Y.3d at 35). "Willfulness is not an element of civil contempt" (id.)
"Once the movant makes the required showing, the burden shifts to the alleged contemnor to refute that showing, or to offer evidence of a defense such as an inability to comply with the order" (Mendoza-Pautrat v Razdan, 160A.D.3d at 964; see El-Dehdan v El-Dehdan, 26 N.Y.3d at 35). "A hearing is required if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense" (Toranzo v Toranzo, 185 A.D.3d 621, 623 [2d Dept 2020]). Generally, "conclusory, baseless and self-serving allegations are insufficient to raise an issue of fact necessitating a hearing on a contempt motion" (El-Dehdan v El-Dehdan, 114 A.D.3d 4, 18 [2d Dept 2013], affd 26 N.Y.3d 19 [2015]; see Jaffe v Jaffe, 44 A.D.3d 825, 826 [2d Dept 2007]). "A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Jaffe v Jaffe, 44 A.D.3d at 826 [internal quotation marks and citations omitted]).
Here, the mother established, prima facie, by clear and convincing evidence that the father violated the orders dated August 11, 2022, and January 19, 2023. Both orders expressed unequivocal mandates requiring that the father arrange for production of the child for supervised visitation with the mother. The orders were issued on the same dates that the parties appeared for court conferences and were served by the court upon the parties. The father had knowledge of the terms, disobeyed the orders, and the mother's parental access was prejudiced thereby. Indeed, the mother's parental access has been impeded for now well over a year. Additionally, the mother has not had phone calls with the child since June 2023 due to her number being blocked on the child's phone.
The mother established, prima facie, by clear and convincing evidence that the father violated the order dated May 1, 2023, directing, inter alia, that he telephones the forensic expert. This order expressed an unequivocal mandate, was issued at a court conference, and was served by the court. The forensic expert reported that the forensic evaluation was stalled solely because of the father's failure to contact him. Contrary to the father's contention, his "delay" is not "minimal" as the forensic report was supposed to have been completed within 90 days of May 1, 2023. The father's failure to contact the forensic evaluator has not only impeded the forensic evaluation, but the entire progress of this case. Given that the father was awarded temporary custody of the child and has obstructed the mother's right to visitation, the delay of any custody trial prejudices the mother's rights and remedies in this litigation.
The mother established, prima facie, by clear and convincing evidence that the father violated the orders dated May 1, 2023, and July 25, 2023, both of which unequivocally and clearly mandated that he produce the child to the AFC's office in Brooklyn. These orders were issued at court conferences and were served by the court. It would be unproductive to schedule trial when the AFC has been unable to speak to the child. Given that the father has custody of the child and has obstructed the mother's right to visitation, the delay of the custody trial prejudices the mother's rights and remedies in this litigation.
The father's submission of his own unsupported and self-serving affirmation is insufficient to raise a triable issue as to the elements of civil contempt, or the existence of a defense. His claim that he is unable to comply with orders based upon the child's refusal to cooperate is unsubstantiated and conclusory. He provides no excuse for failing to call the forensic evaluator, and his claim that he has done so lacks any detail or corroboration. Overall, from the time he obtained temporary residential custody of the child, the father has failed to comply with every order issued by the Family Court which has effectively impeded all visitation with the mother and all progress in this case. Therefore, the father is held in civil contempt.
Civil Contempt Penalty
In her motion, the mother seeks a civil contempt penalty requiring the father to pay the sum of $50 per day for each day beyond August 11, 2022. In opposition, the father contends that since the mother has not shown any actual monetary damages, Judiciary Law § 773 limits any civil contempt fine to a total of sum of $250.
"[C]ivil contempt exists to permit the 'the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right'" (Burns v Grandjean, 210 A.D.3d 1467, 1476 [2d Dept 2022], quoting El-Dehdan v El Dehdan, 26 N.Y.3d at 34; see Matter of Department of Envtl. Protection v Department of Envtl. Conservation, 70 N.Y.2d 233, 239 [1987]; Matter of Department of Hous. Preserv. & Dev. of City of NY v Deka Realty Corp., 208 A.D.2d 37, 42 [2d Dept 1995]). "A civil contempt penalty is imposed 'not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate'" (Matter of Department of Hous. Preserv. & Dev. of City of NY v Deka Realty Corp., 208 A.D.2d at 42, quoting Matter of Department of Envtl. Protection v Department of Envtl. Conservation, 70 N.Y.2d at 239; see Burns v Grandjean, 210 A.D.3d at 1476-1477).
Judiciary Law § 773 authorizes two types of awards for civil contempt: "one where actual damage has resulted from the contemptuous act in which case an award sufficient to indemnify the aggrieved party is imposed, and one where the complainant's rights have been prejudiced but an actual loss or injury is incapable of being established" (Matter of Department of Hous. Preserv. & Dev. of City of NY v Deka Realty Corp., 208 A.D.2d at 42; see State of New York v Unique Ideas, 44 N.Y.2d 345, 350 [1978]). Where the monetary value of the actual loss or injury is incapable of being established, Judiciary Law § 773 limits the fine to $250, plus costs and expenses (see Vider v Vider, 85 A.D.3d 906, 908 [2d Dept 2011]; Matter of Department of Hous. Preserv. & Dev. of City of NY v Deka Realty Corp., 208 A.D.2d at 43). Indeed, this rule limiting the fine for civil contempt to $250 where the monetary value of a loss is incapable of being established derives from the Code of Civil Procedure, and is nearly two centuries old (see Socialistic Coop. Publ. Assn. v Kuhn, 2 Bedell 473 [1900]; see Gregori v Ace 318 Corp., 134 Misc.2d 871 [Civ Ct., NY County 1987] [noting that the amount of $250 was set in 1829 and has not since been adjusted]).
According to officialdata.org, the sum of $250 in the year 1829 is worth over $8200 in the year 2023.
Here, the mother did not set forth any specific compensatory losses resulting from the father's violation of the court orders. Indeed, there is no monetary value that can be assigned to the mother's claimed prejudice, including the extended loss of parental access and the delay in the resolution of a child custody matter. The mother's argument that she should be awarded the sum of $50 per day retroactive to August 11, 2022, is not supported by Judiciary Law § 773 or the caselaw interpreting it. The court "exceeds its authority when it fashions a remedy not contemplated by the statute" (Parker v Top Homes, Inc., 58 A.D.3d 817, 819; see Vider v Vider, 85 A.D.3d 906, 908 [2d Dept 2011]).
Where, as here, there are multiple orders that have been violated, the court may award a fine not exceeding $250 for each loss resulting from the violation of each court order. If, however, the same loss results from violations of multiple orders, the court is limited to awarding a $250 fine for that single loss (see generally State of New York v Unique Ideas, 44 N.Y.2d at 350 [1978]; Matter of Department of Hous. Preserv. & Dev. of City of NY v Deka Realty Corp., 208 A.D.2d at 44; see also Town Board of the Town of Southampton v R.K.B. Realty, LLC, 91 A.D.3d 628, 631[2d Dept 2012]).
The father's contention that any fine in this case is limited to a total of $250 is without merit. The mother established that the father violated multiple court orders, and that, as a result, she sustained different types of losses or prejudice for which she is entitled to compensation under Judiciary Law § 773.
The father's violation of the order dated August 11, 2022, impeded the mother's supervised visitation with the child at Safe Horizon for more than five months until that order was superseded. For the loss of five months of supervised visitation through Safe Horizon, the father shall pay the sum of $250 to the mother.
The father's violation of the order, dated January 19, 2023, granting the mother supervised visitation with a social worker impeded the mother's parental access with the child from January 2023 to date, a period of over 10 months. For that loss, the father shall pay the sum of $250 to the mother.
The father's violation of the order dated May 1, 2023, directing the father to telephone the forensic evaluator, and his violation of the orders dated May 1, 2023, and July 25, 2023, directing him to produce the child to the AFC, have delayed these legal proceedings, which has prejudiced the mother's ability to pursue remedies in her petition for custody and visitation. For that prejudice, the father shall pay the sum of $250 to the mother.
This Court recognizes that a total fine of $750, which is the most this Court is authorized to award under the circumstances, may seem grossly inadequate given the mother's loss of parental access to the child for over a year. A "custodial parent's willful interference with a noncustodial parent's right to visitation has been deemed, in some cases, to be an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent" (Labanoski v Labanoski, 4 A.D.3d 690, 694-695 [3d Dept 2004] [internal quotation marks and citations omitted]; see Gerber v Gerber, 133 A.D.3d 1133, 1137 [3d Dept 2015]). Given that the father has, in effect, blocked access to the child to both the mother and the AFC through his failure to comply with court orders, this Court has serious concerns about the child's well-being. Thus, the court hereby directs the father to immediately arrange production of the child to the AFC for a client interview. Failure to do so may be the basis for the court to issue its own order to show cause for production of the child into court (see generally People v Feldman, 46 A.D.2d 256, 257-258 [1st Dept 1974], affd 36 N.Y.2d 846 [1975] [court properly incarcerated parent for willful failure to produce child]).
Further, the father is warned that his continued and repeated failure to comply with court orders may be a basis for this Court to issue an order to show cause why he should not be held in criminal contempt. "[C]riminal contempt involves vindication of an offense against public justice and is utilized to protect the dignity of the judicial system and compel respect for its mandates" (McCormick v Axelrod, 59 N.Y.2d 574, 583 [1983]; see El-Dehdan v El-Dehdan, 26 N.Y.3d at 34).
Accordingly, the mother's motion is granted. The court holds the father in civil contempt, and the father shall pay the total sum of $750, representing 3 separate fines for violations of multiple court mandates as set forth herein. Payment shall be made to the mother within 30 days of the date of this order. The father shall immediately arrange production of the child to the AFC for a client interview in Brooklyn.
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.