Matter of S.W. v R.D.

[*1] Matter of S.W. v R.D. 2009 NY Slip Op 51870(U) [24 Misc 3d 1244(A)] Decided on August 31, 2009 Family Court, Westchester County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 31, 2009
Family Court, Westchester County

In the Matter of a Proceeding Under Article 4 of the Family Court Act S. W., Petitioner,

against

R. D., Respondent.



F-3872-03/08F



Nicholas P. Barone Esq.

Attorney for the Petitioner

44 Church Street

White Plains, New York 10601

Westchester County Support Collection Unit

112 East Post Road

White Plains, NY 10601

Colleen Duffy, J.

On September 25, 2008, S. W. ("Petitioner") filed a violation petition against R. D. ("Respondent") alleging that the Respondent has failed to obey the terms of the parties' Judgment of Divorce, dated June 18, 1999 (J.S.C. Donovan) (hereinafter "Judgment of Divorce"), obligating Respondent to pay child support in the amount of two thousand one hundred fourteen dollars ($2,714.00) monthly for the benefit of the parties children, B. D. (DOB:12/17/1992) and T. D. (DOB: 7/30/1988), and seeking arrears.[FN1] Respondent thereafter filed a motion with the [*2]Support Magistrate seeking dismissal of Petitioner's violation petition based on lack of jurisdiction, failure to state a cause of action and also seeking a change of venue, the assignment of counsel and requsting to appear telephonically.

On December 10, 2008, Support Magistrate Reed-Bowman heard both matters — Respondent's motion and Petitioner's violation petition. Petitioner appeared personally and was represented by Nicholas Barone, Esq. Respondent appeared telephonically for the limited purpose to contest jurisdiction. Kerrick Agee appeared on behalf of the Westchester County Support Collection Unit.

At the hearing, Kerrick Agee testified that, as of December 10, 2008, Respondent is in arrears of his child support obligations to Petitioner in the amount of sixty five thousand nine hundred forty seven thousand dollars ($65,947.00). Based on the amount of arrears established on December 10, 2008, the Support Magistrate found that the Petitioner had established a prima facie case that the Respondent willfully failed to obey the terms of the Judgment of Divorce obligating Respondent to pay child support for the parties' children.

The Support Magistrate adjourned the proceeding to provide Petitioner an opportunity to respond to Respondent's motion to dismiss based on lack of jurisdiction and seeking a change of venue and assignment of counsel.

On May 29, 2009, the matters were heard by the Support Magistrate; Petitioner appeared personally and was represented by Nicholas Barone, Esq. Respondent appeared telephonically. Kerrick Agee appeared on behalf of the Westchester County Support Collection Unit.

After the hearing, the Support Magistrate dismissed Respondent's motion and granted Petitioner's cross-motion in part for Respondent to pay for Petitioner's legal fees. The Support Magistrate also took judicial notice of the outstanding arrest warrant for Respondent issued on August 29, 2006 by this Court (J, Duffy), which remains outstanding to date.

The Support Magistrate ruled that, as a result of Respondent's failure to present himself to this Court and evading this Court's jurisdiction and his lack of efforts to have the pending arrest warrant vacated or stayed, she would not consider Respondent's arguments on the matter before her. On July 8, 2009, the Support Magistrate also entered an Order of Disposition, Findings of fact and a money judgment against Respondent in the amount of sixty five thousand nine hundred forty seven thousand dollars ($65,947.00) (hereinafter "the July 2009 Order").

On July 9, 2009, Respondent filed an objection to Support Magistrate's Decision and Order on Motions and is seeking to have the matter transferred to New Rochelle Family Court or other court contending that this Court is biased and prejudiced against him. On July 31, 2009, Respondent filed an objection to the July 2009 Order. For the reasons set forth herein, Respondent's objections are dismissed in their entirety. [*3]

As an initial matter, this Court notes that, to date, the August 2006 Arrest Warrant issued by this Court still is pending and that Respondent has not presented himself to this Court to address that matter or the August 2006 Confirmation Order for which the issue of sentencing still awaits.

It is axiomatic that this Court— and every court has a responsibility to protect the fairness of its litigation process, the integrity of its judgments and orders and to remedy affronts to the respect due the judicial branch. See Peppin v. Lewis, 194 Misc 2d 151 (Fam. Ct. Albany Cty. 2002) quoting Degen v. U.S., 517 U.S. 820 (1996)[. . ."we acknowledge disquiet at the spectacle of a criminal defendant reposing . . . beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be honored . . ."]. Indeed, this power has been found to be inherent in a court's right to manage its proceedings in an efficient and equitable manner. Id. at 155.

As a means of effectuating this inherent power, the Courts have adopted the fugitive disentitlement doctrine which essentially holds that a person is not entitled to seek the court's assistance in the same cause from which he or she is a fugitive. Peppin at 155. This doctrine ensures that a court will not have to render judgment in a matter where there is no expectation that there will be compliance with the court's mandate if it is averse to the fugitive appellant. see Peo. v. Barnes (143 AD2d. 837, 533 NYS2d 383); Peo. v. Sutherland (136 AD2d 662, 523 NYS2d 779); Peo. v. Fleming (104 AD2d 1048, 480 NYS2d 882).

Nonetheless, a court must be "very cautious in self-defining its own authority by declaring that some power is inherent. Id. Accordingly, the fugitive disentitlement doctrine cannot be invoked as a per se dismissal rule, rather, a court should look first to some connection between the fugitive status and the legal action sought to be taken by the fugitive.

The fugitive disentitlement doctrine may be applied by a court against the party to a proceeding when the following elements are present: (1) the party seeking judicial relief must be a fugitive from justice in either a civil or criminal case; (2) there must be some connection between the petitioner's fugitive status and the legal action which the fugitive wishes to pursue; (3) the petitioner's fugitive status must work some actual prejudice to the other party to the lawsuit; (4) to justify an outright dismissal, the remedies available to the court must be inadequate to ameliorate the prejudice. The court may also consider any prejudice to the court and the issue of deterrence for both the specific deterrence of the party fugitive and the general deterrence of potential fugitives.

The court may also consider whether the use of remedies short of dismissal would adversely affect the general administration of justice and significantly diminish respect for the judicial process and if dismissal would advance those interests. See Peppins at 807) (court declined to sign order to show cause filed by a mother pursuant to the fugitive disentitlement doctrine when a warrant had been issued earlier for the mother's arrest because she had refused to cooperate with court ordered DNA tests and failed to produce the child even though father was awarded temporary custody).Application of the fugitive disentitlement action is particularly appropriate In this case, as all prongs of the test are met. Not only has there been an outstanding warrant out of this Court for Respondent since 2006, Respondent's various written submissions [*4]to this Court and others since the issuance of that warrant evidence that he is well aware of its existence, yet still has failed to present himself to the Court to address it. Indeed, in litigation both in New York and in California — in both state and federal courts, Respondent has alluded to the existence of the warrant in seeking relief and/or intervention from such other courts. Despite his knowledge of the warrant's existence, he continues to fail to present himself to the Court to answer it.

There also is a direct connection between Respondent's fugitive status and the objections he has filed with this court — objecting to the Support Magistrate's rulings requiring him to comply with the support requirements in the parties' Judgment of Divorce. Respondent has been persistent in his failure to comply with the existing orders — which failure was the basis for the Court's issuance of the 2006 warrant.

And, Respondent's actions throughout the entire duration of the matters before this Court demonstrate his defiance of the Court's June 2006 Order, which has directly prejudiced petitioner and the Subject Children, including requiring Petitioner to participate in extensive litigation in both New York and California to attempt to requires Respondent's compliance with the Court's support orders.

This Court has considered whether any other remedy exists that this Court could impose to ameliorate the prejudice to Petitioner and the Subject Children other than outright dismissal of Respondent's objections. There are none. The remedy imposed here will not only minimize the extent of litigation required to seek enforcement of this Court's orders and judgments that already have been rendered in this matter, but also will ensure that Respondent will not benefit by the Court's consideration of his arguments while he still persists in his contempt for this Court's directives and lawful mandates.

With respect to Respondent's contentions that this Court has a bias and is prejudiced against him, the Court notes that Respondent has failed to state any meritorious basis in his objections as to why recusal of the Support Magistrate, this Court or Judge Malone (who has had no connection to this matter since being elected as a Judge) is necessary.

Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of its own recusal. Schreiber-Cross v. State of New York, 31 AD3d 425, 819 N.Y>S.2d 530 (2d Dep't 2006). No such basis exists here. Indeed, Respondent's only basis for requesting "a change of venue" appears to be that he does not like the outcome of the prior hearings. Moreover, the fugitive disentitlement doctrine also precludes Respondent from seeking this or any other relief connected to these matters, until he presents himself to the Court to address the existing warrant.

Accordingly, after examination and inquiry into the facts and circumstances of the case, it is hereby

ORDERED, that, pursuant to the fugitive disentitlement doctrine, Respondent's objections are dismissed in their entirety.

NOTE: (1) THIS ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS [*5]AFTER THIS ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. UPON APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT, AN ADJUSTED ORDER SHALL BE SENT TO THE PARTIES WHO, IF THEY OBJECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTY-FIVE (35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONSIDER IN ADJUSTING THE CHILD SUPPORT ORDER IN ACCORDANCE WITH THE CHILD SUPPORT STANDARDS ACT.

(2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE THE CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED WITHOUT FURTHER APPLICATION OF ANY PARTY. ALL PARTIES WILL RECEIVE NOTICE OF ADJUSTMENT FINDINGS.

(3) WHERE ANY PARTY FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION FOUR HUNDRED FORTY-THREE OF THE FAMILY COURT ACT, TO WHICH AN ADJUSTED ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THE ORDER, REGARDLESS OF WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.

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 LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

DATED: August 31, 2009

Yonkers, NY

ENTERED

HON. COLLEEN D. DUFFY

J.F.C.

Nicholas P. Barone Esq.

Attorney for the Petitioner

44 Church Street

White Plains, New York 10601

Westchester County Support Collection Unit

112 East Post Road

White Plains, NY 10601 Footnotes

Footnote 1:On April 20, 2006, Support Magistrate Jordan found that R. D. willfully had violated the parties' Judgment of Divorce obligating Respondent to pay two thousand seven hundred fourteen dollars ($2,714.00) for the benefit of the parties' children and as well as fifty percent (50%) of statutory add-on expenses. Support Magistrate Jordan thereafter issued a Decision and Order, entered June 6, 2006, referring the matter to this Court for a confirmation of willfulness by default (hereinafter the "June 2006 Order").

The willfulness hearing was scheduled to be heard on July 11, 2006; Respondent did not appear nor did any counsel on his behalf. This Court thereafter adjourned the matter to assign counsel to Respondent and adjourned the matter to August 29, 2006. On August 29, 2006, Respondent again failed to appear and failed to contact the Court as to why he did not appear. On that date, this Court confirmed the Support Magistrate's findings that the Respondent willfully and without just cause failed to obey the terms of the parties' Judgment of Divorce. Accordingly, the Court issued an Order (1) continuing the order of support in the Judgment of Divorce; (2) issuing a money judgment on behalf of Petitioner against Respondent in the amount of $101,000.00; (3) suspending Respondent's New York State Driver's license; (4) issuing a warrant of arrest for Respondent with a bail amount of one hundred fifty thousand dollars ($150,000); and reserving on the issue of sentencing until Respondent either appeared in Court or was apprehended on the warrant of arrest (hereinafter the "August 2006 Willfulness Order").