K.K. v P.M.
Annotate this CaseDecided on November 16, 2015
Supreme Court, Westchester County
K.K., Plaintiff,
against
P.M., Defendant
xx/16
Linda Christopher, J.
In this matrimonial action the plaintiff moves for an Order:
1.Adjudicating defendant, P. M., in contempt of Court for failure to obey the Court's directive with respect to the return of the parties' child, M. K., ("Child") to the custody of the plaintiff, K. K.; and
2. Pursuant to CPLR § 3025, granting plaintiff leave to amend his Verified Complaint to include a cause of action for egregious cruel and inhuman treatment or, in the alternative, reserving plaintiff's right to make such assertion at the time of inquest or trial of the ancillary relief in these
proceedings; and
3. Directing defendant to contribute no less than 50% to the expenses of the marital residence located at — — Avenue, Ardsley, New York 10502 ("Ardsley residence") and/or making an award of child support in such amount as this court deems appropriate; and
4. Striking defendant's Answer and entering Judgment on defendant's default; and
5. Precluding defendant from presenting any evidence upon a trial, hearing and/or inquest with request to any ancillary relief within the context of the above-referenced captioned action; and
6. Pursuant to Judiciary Law § 773 and DRL § 237, awarding to the plaintiff counsel fees in a sum of no less than $50,000 as and for the various applications heretofore made for custody, prosecution of the matrimonial action, the making of the instant application and enforcement of the custody Order.
The parties were married in India on — — , 2006 and there is one child of the marriage M. (DOB -/—/12), who is almost 3 ½ years old. The date of commencement of the matrimonial action was May 13, 2015. Since her birth the child had resided — — Road, Ardsley, NY. In February 2012, the defendant traveled to India with the parties' child, and thereafter cancelled her return flight and has remained in India with the child, notwithstanding court orders awarding plaintiff custody and directing the defendant to return the child to plaintiff's custody.
CONTEMPT
On May 21, 2015 plaintiff filed an Order to Show Cause pursuant to which certain interim relief was granted, including an Order: 1) directing defendant to return the parties' child to the State of New York into the custody of plaintiff forthwith; 2) directing that defendant or plaintiff or whoever has the child bring the child before the Supreme Court of New York, County of Westchester, on June 2, 2015 to appear before the Hon. Linda Christopher, J.S.C.; and 3) awarding plaintiff temporary custody of the child pending a hearing and determination hereof.
On June 2, 2015, the defendant failed to appear or produce the child. Keith M. Brown, Esq. appeared on behalf of defendant and acknowledged service on behalf of defendant of the Order to Show Cause as well as the Summons and Verified Complaint. The Court directed Mr. Brown on the record to advise defendant that she was to appear with the child on the next court date, June 8, 2015, and to advise her that plaintiff would pay the airfare to enable her and the child to appear.
On June 8, 2015 neither the defendant nor the child appeared before the Court. Mr. Brown acknowledged advising defendant of the Court's directive to appear in court with the child and that cost would not be an issue as plaintiff would pay the cost if she did not have available funds. Mr. Brown also asserted that defendant informed him that she commenced an action in India which pre- dates the action in this court and she was proceeding in India and did not intend to appear in Court with regard to this matter. A hearing on the issue of custody was set for June 12, 2015 and through counsel, defendant was advised to be present.
On June 12, 2015, after a plenary hearing that defendant participated in through counsel (although she did not appear), the Court rendered a bench decision awarding plaintiff sole custody of the parties' child. The decision was memorialized in a written order signed by the Court on June 23, 2015 that also included a provision directing defendant to forthwith return the [*2]child to the state of New York into the custody of plaintiff. The written order was served on defendant's counsel with notice of entry on June 25, 2015.
From June 25, 2015 through July 3, 2015, subsequent to the issuance of the order awarding custody to plaintiff, plaintiff traveled to India, and contacted defendant who refused to turn their daughter over to him.
Plaintiff then filed the instant Order to Show Cause wherein he asserts that defendant had knowledge of the orders and through her counsel advised the court of her intention not to abide by the orders. He avers that defendant's conduct, wrongful detention and withholding of his daughter from him, was and still is intended to defeat, impair, impede and prejudice his custodial rights.
In her affidavit submitted in opposition to this application, defendant admits service of the Order to Show Cause with the annexed Summons and Verified Complaint. She asserts that she was not attempting to ignore this matter and demonstrated this by hiring Mr. Brown to appear on her behalf. Defendant claims, she "could not come to the United States, as [she] was prosecuting an action in the Family Court in India, which [she] had commenced several weeks prior to the date when plaintiff commenced the instant action." Defendant asserts the Family Court in Chennai was exercising jurisdiction over the matter. Defendant claims and plaintiff through his Indian attorney does not deny that in or about April or May 2015, defendant filed a petition in Family Court at Chennai, India seeking an order of interim injunction. While defendant claims plaintiff was served with this petition prior to commencing the instant action in May 2015, he and his counsel in India deny same and claim the petition was not served upon him until his Indian counsel appeared in court on August 12, 2015. Defendant has not submitted proof of service of the petition upon plaintiff. Moreover, the petition appears to only seek to enjoin plaintiff from forcefully, illegally or by other illegal methods "taking away the custody of the [parties' daughter]" from Chennai, India, or any other place, pending disposal of the suit. Defendant does not allege that any order was made in connection with this petition. Plaintiff notes the alleged petition is the same document that the Court did not admit into evidence at the custody hearing.[FN1] With regard to the purported matrimonial action defendant commenced in India, same was commenced on or about June 8, 2015, after plaintiff had commenced the New York action and after defendant's New York counsel had appeared in Court on June 2, 2015 and acknowledged service of the Order to Show Cause and Summons and Complaint. While defendant makes a passing comment that she is prosecuting an action for divorce in India which includes an Order of custody and an Order of child support, no such Orders were submitted to the Court. Moreover, plaintiff's counsel in India, Usha Tholgappian, asserts in her Affirmation that the divorce proceedings initiated by defendant in India did not include a request for custody. According to Ms. Tholgappian, defendant only first filed custody proceedings in the Indian courts on June 30, 2015.
Decision on Contempt.
Pursuant to Judiciary Law §753(A)(3), "[a] court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of 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," in various circumstances, including, "any other disobedience to a lawful mandate of the court."
"In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed (citations omitted)." McCormick v. Axelrod, 59 NY2d 574, 583 (1983); El-Dehdan v. El-Dehdan, 26 NY3d 19, 2015 WL 6128760 (2015). "Moreover, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party (citations omitted)." McCormick, 59 NY2d at 583; El-Dehdan, 26 NY3d 19, 2015 WL 6128760. "Finally, prejudice to the right of a party to the litigation must be demonstrated (citation omitted)." McCormick, 59 NY2d at 583; El-Dehdan, 26 NY3d 19, 2015 WL 6128760.
In this case defendant had knowledge of the following unequivocal lawful mandates of this Court:
1) the May 21, 2015 order 1) directing defendant to return the parties' child to the State of New York into the custody of plaintiff forthwith; 2) directing that defendant or plaintiff or whoever has the child bring the child before the Supreme Court of New York, County of Westchester, on June 2, 2015; and 3) awarding plaintiff temporary custody of the child pending a hearing and determination hereof. Defendant had actual knowledge of this mandate as she admitted service of the Order to Show Cause as did her attorney;
2) on June 2, 2015, the Court directed Mr. Brown on the record to advise defendant that she was to appear with the child on the next court date, June 8, 2015, and that plaintiff would pay the airfare to enable her and the child to appear. On June 8, 2015, in open court Mr. Brown acknowledged advising defendant of the Court's directive to appear in court with the child and that cost could not be an issue as plaintiff would pay the cost if she didn't have available funds;
3) as found by the Court at the June 12, 2015 custody hearing, on June 8, 2015 defendant was advised through her counsel that her appearance was required at the custody hearing and she was also directed to have the child produced; and
4) on June 12, 2015, after a plenary hearing, that defendant participated in through counsel (although she did not appear), the Court rendered a bench decision awarding plaintiff sole custody of the parties' child. The decision was memorialized in a written order signed by the Court on June 23, 2015 that also included a provision directing defendant to forthwith return the child to the state of New York into the custody of plaintiff. The written order was served on defendant's counsel with notice of entry on June 25, 2015.
Defendant's defense to plaintiff's application for contempt is that she had initiated prior proceedings in India and could not come to the United States as she was prosecuting the Indian action. She claims the Family Court in Chennai was exercising jurisdiction over the matter. Her argument is not persuasive. She has acknowledged service of the Order to Show Cause and Summons and Complaint; she was served with the custody order and her counsel has conveyed the Court's directives made on the record to her. The only proceeding that may have been filed before plaintiff commenced this action, was a petition seeking to enjoin plaintiff from forcefully [*3]or illegally or by other illegal methods from "taking away the custody of the [parties' daughter]" from Chennai, India, or any other place, pending disposal of the suit . Defendant has not produced any proof of service of said petition upon plaintiff. Moreover, no Order associated with this petition, nor any other Orders from the Indian Courts were produced by defendant to this Court. Additionally the petition filed by defendant did not seek an order of custody. Plaintiff's action for divorce, seeking inter alia, custody of the child, was filed May 13, 2015; defendant's purported action for divorce was not filed until June 8, 2015. It does not appear that the divorce proceedings initiated by defendant in India included a request for custody. According to Ms. Tholgappian, plaintiff's counsel in India, defendant first filed custody proceedings in the Indian courts on June 30, 2015, although no documents establishing same were provided to this Court. Hence, the first filing for custody occurred in New York. [FN2]
Based on the foregoing, defendant has not provided any valid reason for being unable to comply with the clear, unequivocal orders of this court, of which she had knowledge and which were violated by her. Plaintiff's rights and remedies were actually defeated, impaired, impeded and prejudiced by defendant's failure to return the parties' child to the State of New York forthwith, her failure to appear with the child in court and her failure to return the child to New York into the custody of plaintiff.
The Court finds the papers establish by clear and convincing evidence, that plaintiff has established that defendant is in contempt pursuant to Judiciary Law §753 in that she failed to comply with the clear and unequivocal Orders of this Court by failing to return the parties' child to the State of New York, her failure to appear with the child in court on June 2, June 8 and June 12, 2015 and her failure to return the child to New York into the custody of plaintiff. The Court finds that defendant's conduct was calculated to and did actually defeat, impair impede or prejudice the rights of the plaintiff.
The Court need not hold a hearing, as there was no factual dispute raised. "A hearing is required only when the affidavits demonstrate a genuine issue as to whether a party is able to abide by the terms of the order or judgment..." Farkas v. Farkas, 209 AD2d 316 , 318 (1st Dept. 1994); see, Rocco v. Rocco, 90 AD3d 886 (2nd Dept. 2011).
Defendant is granted leave to purge herself of the contempt by returning the child to New York to plaintiff's custody within 30 days after personal service upon defendant of a copy of this Decision and Order with notice of entry thereon.
Upon failure of the defendant to purge herself of contempt, and upon submission by plaintiff of an affidavit of facts constituting said failure to purge, upon notice to defendant, [*4]plaintiff may apply for a hearing to determine appropriate punishment.
REQUEST FOR CRIMINAL CONTEMPT
Plaintiff's request for an order adjudicating defendant to be in criminal contempt of the Court's Orders is deferred to the trial of this matter. A full evidentiary hearing is required in a criminal contempt proceeding. See, Simens v. Darwish, 100 AD3d 527 (1st Dept. 2012).
LEAVE TO AMEND VERIFIED COMPLAINT
Plaintiff seeks leave to amend his Verified Complaint to include a cause of action for egregious cruel and inhuman treatment or, in the alternative, reserving his right to make such
assertion at the time of inquest or trial of the ancillary relief in these proceedings.
Defendant opposes allowing plaintiff to amend his complaint, claiming the plaintiff is attempting to use the circumstances surrounding the custody hearing as leverage on unrelated issues, such as equitable distribution.
Pursuant to CPLR §3025
(b) Amendments and supplemental pleadings by leave. A party may amend his... pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.
CPLR §3025.
"The decision to allow or disallow the amendment [to pleadings] is committed to the court's discretion." Edenwald Contracting Co., Inc, v. City of New York, 60 NY2d 957, 959 (1983). In the absence of significant prejudice to the opposing party, where the proposed amendment is not patently devoid of merit, leave to amend a pleading should be freely granted. Emilio v. Robison Oil Corp., 28 AD3d 417 (2nd Dept. 2006).
Based on the foregoing, plaintiff's motion for leave to amend his complaint is granted. Plaintiff shall serve the Amended Complaint upon defendant's counsel so as to be received by them within 10 days hereof.
CONTRIBUTION TO EXPENSES AND/OR CHILD SUPPORT
Plaintiff requests that the defendant be directed to contribute no less than 50% to the expenses of the marital residence located at — — Avenue, Ardsley, New York 10502 and/or that the Court make an award of child support.
Currently, neither party is residing in the marital residence. Defendant has absconded with the child to India, and plaintiff has rented a residence in Connecticut near his work. Defendant contends that she has no objection to placing the former marital residence on the market.
Based on her 2014 Form 1040 Federal Income Tax Return, defendant's 2014 income was [*5]in the sum of $95,217. Her July 10, 2015 paycheck stub reflects year to date earnings in the sum of $60,124, which when extrapolated reflects an annual income of approximately $112,000. The Court notes that defendant's Statement of Net Worth dated August 7, 2015 is devoid of housing expenses in India. Plaintiff claims his 2015 gross income is in the amount of approximately $120,000, based on his 6 months of employment at — Hospital at the rate of $2500 bi-weekly and his current employment at — Medical Group at the rate of $6500 bi-weekly. Plaintiff's current annual salary, effective July 2015, is $169,000.
If the parties wish to agree to list the house for sale, they may do so, and they may agree to have either or both of their counsel hold the proceeds in escrow.
Based on the foregoing, until the house is sold upon written agreement of the parties, or until further order of the court, commencing forthwith, subject to reallocation at trial, the plaintiff shall be responsible for payment of 52% and the defendant shall be responsible for payment of 48% of the mortgage, taxes and homeowner's insurance in connection with the marital residence, the total of which is $2619 per month.
With regard to plaintiff's request for an award of child support, that issue is deferred to trial.
STRIKING DEFENDANT'S ANSWER AND PRECLUSION
Plaintiff asserts that due to defendant's failure to appear at the Preliminary Conference on August 10, 2015 and her failure to appear before the Court on June 2, 8 and 12, 2015, a default should be entered against her pursuant to 22 NYCRR §202.27(a).
At this time the Court declines to strike defendant's answer (although the Court notes that there is no defense to the grounds of irretrievable breakdown as alleged in the Verified Complaint), declines to enter a default against defendant, and declines to enter an order of preclusion. The Court also notes that plaintiff did not submit an Affidavit of Plaintiff alleging the grounds for divorce, as well as compliance with DRL§§ 230, 253 and 255. Additionally, defendant was not on notice that her failure to appear would result in a default against her.
However, defendant is on notice that her failure to appear at the next court appearance will result in the Court entering a default against her and the matter being set down for an inquest on the ancillary issues.
COUNSEL FEES
Plaintiff requests counsel fees in the amount of $50,000. As of August 27, 2015 he had paid New York counsel $37,542, of which $15,000 was borrowed from his mother and sister. Counsel claims that through September 30, 2015 plaintiff incurred additional counsel fees in the amount of $2700. Additionally, for the month of October, counsel asserts that services rendered in connection with the instant Order to Show Cause resulted in plaintiff incurring approximately an additional $3592 in counsel fees.
Plaintiff asserts that a substantial component of the fees he incurred were caused by defendant's interference with his custodial rights and her deceptive actions and tactics of carrying out a pre-meditated plan to deprive him of the parties' child, which actions continue to date in her [*6]refusal to comply with court orders. Plaintiff has also had to expend funds to attempt to seek enforcement of the New York Court Orders in India, and has paid $5000 to retain counsel in India.
Pursuant to DRL§237(b)
Upon any application to enforce, annul or modify an order or judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty of this article provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties.
" The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation' (citation omitted)". Brantly v. Brantly, 89 AD3d 881, 883 (2nd Dept. 2011).
Pursuant to Judiciary Law §773 where no actual monetary damages have been caused by the contempt, "a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto." It has been held that costs and expenses include counsel fees. See, Vider v. Vider, 85 AD3d 906 (2nd Dept. 2011); Gordon v. Janover, 121 AD2d 599 (2nd Dept. 1986).
Based on the Court's finding that defendant is in contempt of this Court's Orders as set forth hereinabove, and upon review of plaintiff's counsel's billing statements, the amount of reasonable counsel fees and disbursements to which plaintiff is entitled to pursuant to Judiciary Law §773 that appear to be a direct product of defendant's contemptuous conduct is determined to the in the sum of $12,500. The Court notes that defendant does not dispute the reasonableness of plaintiff's counsel fees.
Defendant is directed to tender payment to plaintiff's counsel the sum of $12,500 within 60 days from personal service upon her of a copy of this Decision and Order with notice of entry thereon.
Plaintiff's request for counsel fees pursuant to DRL §237(b) is deferred to trial. However, the Court notes that plaintiff may be the monied spouse in this matter and it would be improper to direct the payment of counsel fees pursuant to DRL §237 to the monied spouse. See,
Silverman v. Silverman, 304 AD2d 41 (1st Dept. 2003).
To the extent any relief requested in Motion Sequence 2 was not addressed by the Court
is hereby denied.
This decision shall constitute the order of the Court.
ENTER
Dated: White Plains, NY
November 16, 2015
HON. LINDA CHRISTOPHER, J.S.C.
To:
Sylvia Goldschmidt, Esq.
Goldschmidt & Genovese, LLP
81 Main Street, Suite 405
White Plains, NY 10601
Keith M. Brown, Esq.
Riebling, Proto & Sachs, LLP
1 North Broadway, Suite 401
White Plains, NY 10601 Footnotes
Footnote 1:This document was not admitted because it did not comply with the requirements set forth in CPLR 4542(a) with regard to certifications of foreign documents.
Footnote 2:Also, while not determinative with regard to this contempt application, the Court notes that pursuant to its Decision rendered following the custody hearing, the Court determined that New York is the home state of the child and has jurisdiction for purposes of determining custody. The Court notes that India is not a participant in the Hague Convention on the Civil Aspects of International Child Abduction, However, if it were, it appears to this Court that New York would be found to be the appropriate jurisdiction to rule upon custody issues inasmuch as the parties and child resided in New York for the child's entire life until the mother left with her in February 2015. Hence, it was the habitual residence of the child. See, Katz v. Katz, 117 AD3d 1054 (2nd Dept. 2014).
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