Alfonso A. v Jeanne O.

[*1] Alfonso A. v Jeanne O. 2017 NY Slip Op 50190(U) Decided on February 6, 2017 Supreme Court, New York County Hoffman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2017
Supreme Court, New York County

Alfonso A., Plaintiff,

against

Jeanne O., Defendant.



314378/2015



Plaintiff Husband, Alfonso A. — pro se

Lauren M. Friend, Esq., Law Office of Lauren M. Friend, Guardian Ad Litem for Plaintiff Husband

Jennifer Brown, Esq., Jennifer P. Brown, PLLC, Attorney for Wife

Kira Ewig, Esq., Lawyers for Children, Attorney for the children
Douglas E. Hoffman, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Order to Show Cause filed by Defendant Jeanne O. seeking to hold Plaintiff in contempt of court:

PAPERS/NUMBERED:

Order to Show Cause, signed on September 28, 2016,

Affidavit in Opposition to Notice of Motion and In

Support of Order to Show Cause, sworn to on August

29, 2016 by Jeanne O., Affirmation in Opposition

to Notice of Motion and In Support of Order to Show

Cause, by Jennifer P. Brown, Esq., dated August

29, 2016, and exhibits annexed thereto, seeking an order:

Finding Plaintiff, Alfonso A., in contempt of

court for his willful failure to pay maintenance to

Jeanne O. in according with the Decision and Order

of this Court dated July 28, 2016; 2) Finding Plaintiff,

Alfonso A., in contempt of court for his willful

failure to pay child support to Jeanne O. in

accordance with the Decision and Order of this Court

dated July 28, 2016; 3) Finding Plaintiff, Alfonso

A., in contempt of court for his willful failure

to pay attorney's fees to Defendant's counsel in

accordance with the Decision and Order of this

Court dated July 28, 2016; 4) committing Plaintiff

to prison for his willful refusal to comply with the

maintenance, child support and attorney's fees

provisions of the Decision and Order of this

Court dated July 28, 2016; 5) Granting Defendant

leave to enter a money judgment against Plaintiff

for all maintenance and child support arrears accrued

since March 9, 2016, together with interest from

August 1, 2016; 6) Granting Defendant's counsel

leave to enter a money judgment against Plaintiff

for the unpaid legal fees pursuant to this Court's

Decision and Order dated July 28, 2016, together

with interest from August 17, 2016, the date that said

payment was due; 7) Directing Plaintiff to pay

Defendant's counsel an additional $5,000 in legal

fees and disbursements for Defendant's costs incurred

in the preparation and prosecution of this motion, as

well as $10,000 as and for additional interim legal

fees; and 8) Granting to Defendant such other and

further additional relief as to this Court may deem

just, proper and equitable 1, 2, 3, 4-9

Affidavit of Alfonso A. in Support of Objection

to Defendant's Order to Show Cause, sworn to on

November 14, 2016 by Alfonso A 10

Affidavit in Reply to Plaintiff's Opposition to

Defendant's Order to Show Cause and in Opposition

to Plaintiff's Motion to Modify the Pendente Lite

Order, sworn to on November 21, 2016 by Jeanne

O., Affirmation in Reply to Opposition to

Order to Show Cause and in Opposition to Motion

to Modify the Pendente Lite Order, by Jennifer P.

Brown, Esq., dated November 21, 2016, and exhibits

annexed thereto 11, 12, 13-16

This matter comes before the court upon motion by defendant-wife Jeanne O. for an order holding plaintiff-husband Alfonso A. in contempt of court, awarding her a judgment for outstanding child support, maintenance and attorney's fees, together with other appropriate relief. In response, at least in part, to the motion, plaintiff purportedly discontinued his divorce action and asserted that, consequently, jurisdiction no longer existed to hold him in contempt of court or to provide defendant with any other relief. Despite court order directing plaintiff to appear and issuance of a stayed warrant that sought to compel him to appear to show cause why the relief should not be granted, plaintiff refused to appear. The court conducted a limited hearing upon the motion, and this decision and order follows.

The court described the early procedural history between the parties in its July 28, 2016 decision and order upon defendant's pendente lite motion and will be repeated here only as necessary. The most salient aspects of these consolidated Family Court and Supreme Court matters are that on or about February 1, 2016, Ms. O. filed a Family Court petition for a writ of habeas corpus, asserting that Mr. A. wrongfully retained the parties' children. Ultimately, following a brief incarceration for willful failure to produce the children, the husband produced the children in court and the petitions for a writ were satisfied.[FN1] The wife filed custody and child [*2]support petitions in Family Court on or about February 24, 2016 and the husband filed his own custody petitions in Family Court on or about March 4, 2016. During the primary Family Court proceedings, both parties were represented by experienced and competent counsel and the court appointed an attorney for the children. Family Court conducted a number of substantive conferences and hearings concerning custody, parenting time and other contested issues between the parties.

As one branch of her pendente lite motion, the wife sought an order from Supreme Court transferring the Family Court proceedings to Supreme Court and consolidating them with the husband's matrimonial action. This was the first Request for Judicial Intervention (RJI) filed in the Supreme Court action that the husband had commenced in November 2015 by service of a summons with notice. The notice stated that the husband sought joint legal custody and no maintenance or equitable distribution. The wife, through counsel, responded by demanding a complaint and serving notice that the wife sought child support and spousal maintenance in the matrimonial action. Although the husband never served the complaint, the matrimonial action was assigned to the undersigned upon the filing of the initial RJI. The undersigned had been addressing all of the Family Court proceedings in the capacity of Family Court Judge and was assigned to the divorce action as the presiding justice in the New York County Supreme Court Integrated Custody and Domestic Relations Part. The pendente lite motion was made returnable on March 29, 2016, the same day as the final appearance in Family Court.

While represented by counsel, both sides stipulated to the Family Court proceedings [*3]being transferred to and consolidated with the Supreme Court divorce action and the court entered an order to that effect on or about March 29, 2016. As on prior court dates, the parties and counsel worked out with the court various parenting issues, as well as other issues concerning maintaining Ms. O.'s residence. On May 19, 2016, still represented by counsel, the parties entered into a consent preliminary conference stipulation/order in the matrimonial action, delineating discovery and production of document deadlines and appropriately moving that action forward.

Following extensive briefing by counsel for both parties, the court issued its order upon the pendente lite motion on July 28, 2016. The detailed decision/order in pertinent part directed the husband to pay:

$1,852.53 as temporary spousal support, retroactive to the date of filing of the motion, subject to appropriate credits;$3,357.14 monthly as temporary child support, retroactive to the date of filing ofthe motion;80.11% of the children's additional expenses, including, but not limited to, any andall health insurance and dental insurance premiums, un-reimbursed medical expenses; and $12,500 in interim attorney's fees to the wife's counsel.

The court denied with leave to renew on proper papers the husband's request in his opposition papers for an award of full legal and residential custody of the parties' children.

During an August 9, 2016 court conference, the husband without prior notice discharged counsel. At his request, the matter was adjourned to September 22, 2016 for a compliance conference and, at the husband's request, to afford him time to obtain substitute counsel. He never did so.

On September 21, 2016, the court conducted a conference call to address Mr. A.'s request for a further adjournment. Among other filings, the husband had moved by notice of motion dated August 19, 2016 for a stay by this court and, in effect, re-argument of its July 28, 2016 order. Based upon the undisputed affirmation and affidavit in support of the instant contempt motion, the husband also refused to comply with that order.

By affirmation and affidavit dated August 29, 2016, the wife moved for an order holding the husband in contempt of court. There was some delay in the undersigned receiving the proposed order to show cause and the court signed a duplicate motion on September 28, 2016, returnable October 27, 2016, with opposition papers due October 20, 2016. In the interim, the court conducted the conference call on September 21, 2016 to address Mr. A.'s request for an adjournment. Following extensive colloquy on the record, the court denied the application for an adjournment but assured the husband that he would have additional time to respond to the contempt motion.

During the September 22, 2016 compliance conference, Mr. A. and his brother Carmine appeared. The husband asked that his brother be appointed "next friend". The court interpreted that request as one for appointment of a guardian ad litem. Although the action had been consolidated in Supreme Court, as the proceedings had started in Family Court, Family Court Mental Health Services conducted a limited evaluation of the husband pursuant to this court's order to assist the court in determining whether or not Mr. A. needed a guardian ad litem. During this conference, the wife expressed great concern that the paternal uncle, Carmine A., regularly [*4]verbally harangued the children and that the husband was interfering with the wife's telephone calls to the children. The court extended for two weeks the husband's time to respond to the motion. Ultimately, the husband submitted an affidavit "in support of objection to defendant's order to show cause", sworn to on November 14, 2016, in which he essentially asserted that he had an inability to comply with the court order. Mr. A. also submitted a motion attached to the opposition papers further detailing his objections to the July 28, 2016 pendente lite order and seeking modification of that order. The wife submitted her affidavit and the affirmation of her attorney dated November 21, 2016 in reply to the husband's opposition and in opposition to the husband's motion for modification. By order dated January 4, 2017, the court denied the husband's motion.

The husband's brother filed a motion seeking designation as "next friend" of plaintiff based upon an unsupported claim that plaintiff is dyslexic. Based in part on the Family Court Mental Health Services evaluation, the court issued an order appointing an experienced attorney, Lauren Friend, as guardian ad litem.

During the December 14, 2016 [FN2] return date on various motions, the court noted that the husband had delivered to the court the day before a notice of discontinuance of his divorce action. Only the attorney for the wife, the attorney for the children, and the GAL (formally appointed that day) appeared at the pre-scheduled hearing. The court requested that the GAL discuss with Mr. A. that the filing of this notice did not end all court proceedings, as it did not vitiate the underlying orders concerning child support, spousal maintenance and other matters that were merged with his underlying divorce action. On that date, the wife's counsel stated that the husband had not been paying child support, rent or utilities and that the wife's lease, unless extended (the husband is the tenant of record) would expire at the end of January 2017. Counsel also expressed concern that the husband may be planning to remove the children to Italy. The court issued a short order prohibiting either parent from removing the children from the United States without court order. All matters were then adjourned to January 4, 2017, primarily to afford the husband another opportunity to appear after the GAL had a full opportunity to reach out to him.

On January 4, 2017, the attorney for the wife, the wife, the attorney for the children and the GAL appeared. The GAL stated that the husband said that he would no longer appear. Through counsel, the wife asserted that the husband had not been making any payments and that the husband had stated that he would not pay rent or otherwise comply with the court orders. The wife asserted that the husband awakens the children up in the middle of the night to tell them how awful the wife and the court are. Based upon the information on record, the court denied the husband's various motions as without merit and upon failure to appear, deemed the wife's motion for contempt submitted, and granted the wife a temporary order of sole legal and residential custody. For the reasons stated on the record, the court suspended the husband's parenting time pending further court order and noted that the issue of the husband's parenting time would be discussed on the next court date of January 24, 2017, at which time there could be a hearing on the contempt motion as well. The court issued a stayed warrant for the husband to appear in a [*5]timely manner on that day. The record indicated that the husband had not met with the GAL and that the husband's brother, Carmine A., refused to permit the GAL to meet with or speak to the husband. The husband also filed a lawsuit against Ms. Friend, the attorney for the children, the attorney for the wife and the court attorney for the undersigned, among others, seeking $950,000 in damages. Plaintiff then filed a motion for the undersigned to recuse himself from this action.

After the husband filed petitions for writs of mandamus and prohibition, the Appellate Division denied on January 24, 2017 plaintiff's request for a stay of the Supreme Court action and urged the husband to appear in this court later that day. He did not do so, and counsel present at the hearing stated that the husband was adamant that he would not appear in this court. The court also denied with leave to renew the GAL's oral application to be relieved. The court denied the husband's motion for this court to recuse itself as without merit and upon failure to appear, conducted an evidentiary hearing upon the contempt motion, and reserved decision.

For a finding of criminal contempt, the standard of proof is beyond a reasonable doubt. Matter of Figueroa-Rolon v. Torres, 121 AD3d 684, 685, 993 N.Y.S.2d 348 (2nd Dept. 2014), lv. app. den., 24 NY3d 1096, 25 N.E.3d 977, 2 N.Y.S.3d 63 (2015). The focus of a criminal contempt finding is "to vindicate the authority of the court," and there does not need to be a showing of prejudice to the movant. Id. The essential element that "elevate[s] a contempt from civil to criminal is the level of willfulness with which the conduct is carried out." McCormick, supra, 59 NY2d at 583. "Knowingly failing to comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance." Figueroa-Rolon, supra. In Branche v. Holloway, 124 AD3d 553, 555, 2 N.Y.S.3d 450 (1st Dept. 2015), the First Department upheld a finding of criminal contempt against a defendant when the evidence adduced at the hearing demonstrated the defendant's "willful failure to pay the child and spousal support ordered in the pendente lite order and his failure to demonstrate any genuine attempt to obtain employment."

Pursuant to Judiciary Law § 756, the burden would then be upon Mr. A. to establish his inability to pay the child support or otherwise to comply with the court orders at issue. El-Dehdan v. El-Dehdan, 114 AD3d 4, 22-23, 978 N.Y.S.2d 239 (2nd Dept. 2013), aff'd, 26 AD3d 19, 41 N.E.3d 340, 19 N.Y.S.3d 475 (2015). Mr. A. would have had to establish his inability to pay clearly, plainly and unmistakably. See Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).

Civil contempt requires proof by clear and convincing evidence that Mr. A. violated a lawful, clear and unequivocal court order and that Ms. O.'s rights were impaired, impeded or prejudiced as a result of the husband's conduct. McCain v. Dinkins, 84 NY2d 216, 226, 639 N.E.2d 1132, 616 N.Y.S.2d 335 (1994); McCormick v. Axelrod 59 NY2d 574, 453 N.E.2d 508, 466 N.Y.S.2d 279 (1983). Civil contempt is used to coerce compliance with the court's order and to compensate a party for the offender's conduct.The unrebutted evidence established that Mr. A. had knowledge of the court's order, and that his disobedience of that order directly impeded, impaired, and prejudiced Ms. O.'s rights, as it greatly adversely affected her ability to provide for her children and herself, causing the wife and children to face eviction from their home and an inability to meet their essential needs. It is not even necessary for a finding of civil contempt that the disobedience be willful, provided that plaintiff's disobedience, regardless of motive, defeated, impaired, impeded or prejudiced plaintiff's rights. El-Dehdan v. El-Dehdan, [*6]supra. Mr. A. purposely absented himself from the contempt hearing and the court credited the testimony of Ms. O. Thus, the court finds that the wife proved by clear and convincing evidence that the husband is in civil contempt of court.

During the hearing, the court noted that the motion did not delineate whether defendant sought to hold plaintiff in criminal contempt of court, civil contempt of court, or both and precisely what relief movant was seeking with respect to each branch of the contempt motion. Defendant's counsel indicated that defendant sought incarceration of plaintiff for both criminal and civil contempt. As noted, the court reserved decision upon the motion.

As a threshold matter, the court addresses movant's lack of notice to plaintiff that she would seek to hold defendant in criminal contempt of court. As a matter of due process, plaintiff was entitled to know that defendant was seeking to hold him in criminal contempt of court before this court could consider criminal sanctions. 24 Seven Inc. v. Fiorello, 14 Misc 3d 1221(A), 836 N.Y.S.2d 490 (Sup. Ct. NY Co. 2006), citing Hero Boy, Inc. v. Dell'Orto, 306 AD2d 226, 761 N.Y.S.2d 648 (1st Dept. 2003); Page v. Cheung on Mansion, Inc., 138 AD2d 324, 325, 526 N.Y.S.2d 453 (1st Dept. 1988). Although at the hearing, counsel for defendant made clear that movant was seeking to hold plaintiff in both criminal and civil contempt of court, which could have obviated the effect of failing to notify plaintiff herein that criminal contempt was sought, see In Re Drimmer, 97 AD2d 792, 468 N.Y.S.2d 533 (2nd Dept. 1983)(citation omitted), plaintiff was not actually present in court during the hearing and therefore was not appropriately informed of the election to seek both criminal and civil contempt of court. See also Yacht Shares, Ltd. v. Knutson's Marina, Inc., 112 AD2d 419, 420, 492 N.Y.S.2d 79 (2d Dept. 1985)(error for court to convert the contempt motion to one for civil contempt in decision handed down after close of hearing as respondents were entitled to know which course was being followed, or, if both criminal and civil contempt were sought, that they must defend against both charges)(citing Drimmer, supra). Given plaintiff's ban against communication with his GAL herein, the GAL's presence at the hearing did not remedy the absence of specification concerning the contempt motion.

The lack of delineation of criminal or civil contempt does not prevent the court from finding that plaintiff is in civil contempt of court as the standard for civil contempt has clearly been met. Hero Boy, Inc., supra, The court's remedy for this civil contempt of court will be discussed infra.

The husband mistakenly asserts that this court cannot enforce the orders previously issued in this action, even those issued on consent, because he sent a notice of discontinuance of his divorce action on December 13, 2016. As a preliminary matter, the court notes that this notice was not sent to the attorney for the children or to the husband's own guardian ad litem. The guardian ad litem stands in the place of the husband for purposes of decision making in this action and the husband's purported attempt to effectuate a discontinuance is therefore a nullity.

Moreover, the husband ignores the significance of both the wife's assertion in her demand for a complaint for an award of child support and spousal maintenance, as well as the orders and claims in the Family Court proceedings that were transferred to Supreme Court and consolidated with the matrimonial action on consent of all counsel. CPLR sec. 602(b) provides that, "[w]here an action is pending in supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in supreme court." [*7]Consolidation of these related proceedings is generally favored by the courts as sound public policy. See, e.g., Giasemis v. Giasemis, 139 AD3d 794, 32 N.Y.S.3d 254 (2nd Dept. 2016); George A. v. Ivett A., 14 Misc 3d 622, 826 N.Y.S.2d 877 (Sup. Ct. Bx. Co. 2006). As noted above, all counsel consented to having Supreme Court transfer and consolidate the Family Court proceedings with the Supreme Court action. Consolidation takes two or more actions or proceedings and fuses them into one, culminating in one judgment. See Siegel, New York Practice sec. 127, p. 227 (5th Ed. 2011). Thus, the wife's claims for custody, child support, spousal maintenance and other relief became part and parcel of the combined, or consolidated, action in Supreme Court; otherwise, consolidation would have made no sense as the court's orders concerning custody and parenting time, for example, would have been eviscerated by the husband's purported discontinuance of his divorce action. Those claims, as part of a fused set of claims by both parties, survive any purported discontinuance. Court orders concerning those claims survive as well and are enforceable.

Given the discussion above concerning the wife's statement that she seeks both criminal and civil contempt of court, the court will adjourn the hearing upon that branch of the motion that seeks a finding of criminal contempt to permit the husband and his GAL to prepare to defend against this claim. The husband had previously been advised in detail of his right to counsel. The hearing will also focus upon relief for the wife concerning the finding of civil contempt. The court hopes that, upon reflection, the husband will see that the court orders in question are extant and undertake to comply with those orders to the best of his ability. It is hoped as well that the husband will reconsider his position against appearing in court. He is given this final opportunity to do so. Accordingly, the court will not execute upon the warrant it had issued to compel the husband to appear, but will instead continue the stay of execution of the warrant provided that the husband appear in a timely manner for the continued hearing on February 17, 2017, 11:00 AM.

This constitutes the decision and order of the court.

Dated:New York, New York

February 6, 2017 Footnotes

Footnote 1:Ms. O.'s February 1, 2016 petition for a writ of habeas corpus alleged in pertinent part that Mr. A. did not return the parties' two minor children to him after his parenting time; instead, he served her with divorce papers and stated that he would not let her see the children or even speak with them. Ms. O. asserted that when the father served her with divorce papers on January 30, 2016, he refused to return the children to her and dictated terms to her of a divorce settlement, leading Ms. O. to believe that unless she agreed to a divorce with no spousal maintenance or child support, together with a 50/50 parenting plan, she would not be permitted to see the children. The court signed a writ that day directing Mr. A. to produce the parties' two minor children in court on February 3, 2016 at 10:00 AM. On February 3, 2016, only Ms. O., her counsel and the attorney for the children appointed by the court appeared initially. Ms. O. reported that the police attempted service and that Mr. A. was evading service, although he worked from home. The court indicated that if it could be demonstrated through the affidavit of a process server that the father was evading service, the court would consider issuing a warrant. The court issued a new order to show cause, directed personal service upon Mr. A. and directed the father to produce the children in court on the return date of February 4, 2016. According to court records, Mr. A. and his brother Carmine A. appeared in court on February 3, 2016 pursuant to the father's newly filed family offense petition against the mother. Mr. A. stated that he would be unable to appear on February 4, 2016 to respond to the writ because of another court proceeding. The court ordered the father to produce the children in court that day at 4:15 PM. Upon recall, with the attorney for the mother, the mother, the attorney for the child and the social worker for the attorney for the children present, the father failed to appear. Rather than issue a warrant for the father, the court asked the court officer to telephone the father on the record. The father then arrived at 4:37 PM but did not bring the children. The father and two of his brothers insisted without any credible evidence or support that the mother was a flight risk and that the children should not be given to the mother. Mr. A. and his brother Carmine were evasive as to the location of the children and failed to provide an honest response to the court. On the record, the court telephoned another brother of Mr. A. who, after many contradictory statements, ultimately said that the children could be in court in 40 minutes. At this time it was 5:00 PM or later. It was clear to the court that the father and his brothers had no intention to produce the children in court despite the court's order and subsequent attempts to convince them to produce the children. The father and his brother made clear that they decided to spend the time the court had provided for them to produce the children engaged in other matters, rather than producing the children in court, which they could have done in less than one hour. The court ordered the father incarcerated for willfully violating the court order to produce the children and scheduled the matter for the next day at 10:00 AM, ordering the father to be produced at that time and directing the father to ensure that the children were also produced at that time. On February 4, 2016 the father was produced and Carmine A. produced the children in court. Present in court were counsel for both parents, the parties, the attorney for the children and her social worker and the paternal uncle, Carmine A.. The court ordered the father released and the writ was deemed satisfied. There was no significant mention made again of any flight risk. The parties, counsel and the court worked out a temporary parenting schedule.

Footnote 2:The court had sought to have an earlier return date, but Mr. A. insisted that he and his brother were too busy in other court proceedings and could not attend to this action until that time.