Matter of Leah F. v Ephraim F.

[*1] Matter of Leah F. v Ephraim F. 2017 NY Slip Op 50933(U) Decided on July 24, 2017 Family Court, Kings County Vargas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2017
Family Court, Kings County

In the Matter of a Family Offense Proceeding Under Article 8 of the Family Court Act, Leah F., Petitioner,

against

Ephraim F., Respondent.



O-020403-2016 O-020994-2016



The Attorney for the Wife was Michael Barrows, Esq., from the Law firm of Antony Capetola, 2 Hillside Avenue, Building C, Williston Park, NY 11596, Phone: (212) 518-7144; and for Husband was Joseph DeSimone, Esq. from Cohen Clair Lans Greifer & Thorpe LLP., 885 3rd Ave Fl 32. New York, NY 10022-4851.
Javier E. Vargas, J.

Papers Numbered

Summons, Petitions, Affidavits & Exhibits Annexed 1

Petitioner's Post-Hearing Memorandum of Law 2

Respondent Post-Trial Memorandum 4

Order to Show Cause, Affidavits & Exhibits Annexe 5

Petitioner's Memorandum of Law in Opposition to OSC 6

Respondent's Reply Memorandum of Law 7

Court Proceedings Transcripts 8

______________________________________________________________________________

This Court, having presided over the instant evidentiary Family Offense trial, heard the testifying witnesses, examined the Petitions and exhibits in evidence, read the Post-Trial Memoranda, and listened to counsels' arguments, hereby makes the following findings of fact deemed established by the evidence and reaches these conclusions of law.

I.

Petitioner Leah F. ("Wife") and Respondent Ephraim F. ("Husband") were married on September 1, 1985 under the tenets of the Orthodox Jewish faith. Their 30-year union has procreated eight children, only two of whom remain unemancipated and allegedly currently reside with Husband. Husband is a contractor and real estate developer of a prominent Brooklyn family with several real estate holdings, while Wife has been a homemaker and the primary caretaker of the children throughout the marriage. The family has lived in a luxurious, newly renovated 11-bedroom marital residence for some years. As observed by the undersigned, Wife presents as a slender, petite, and expressive woman with a height of 5'5" weighing 125 pounds, while Husband is a tall, imposing and heavy-set individual, who weighs 215 pounds. Both parties appear to follow Orthodox Jewish precepts regarding marital roles, traditional clothing and observance of holidays. Unfortunately, marital difficulties ensued between the parties in 2015.

Specifically, beginning in April 2015, Wife alleges she was sexually abused and raped by the parties' son-in-law, Y.G., who is married to their adult 25-year-old daughter, P. Wife alleges on a contemporaneously pending Family Offense proceeding against Mr. G. that, on the mornings of April 14, 2016 and April 21 2016, Mr. G. "orally and anally sodomized" her without her consent and that, on several other occasions, he sexually abused, assaulted and choked her at the marital residence. According to Wife, she reported the incident to Husband sometime after it happened, but before she was confronted by their daughter P. on April 28, 2016. Wife testified that on that date, she was privately confronted by P. about the sexual relationship, accusing Wife of having an extramarital affair with Mr. G.

Everything came to a head when, on April 29, 2015, the parties' daughter confronted Wife a second time about the purported affair, berating her in front of their whole family during the Passover holiday. As a result, Wife's other children stopped speaking with her, and on May 1, 2016, Husband told Wife to leave the marital residence. She packed some of her belongings and went to temporarily reside with a friend. According to Wife, Husband did not physically force her out, but instead used verbal and mental games to force her out by telling her that her presence at the premises was "hurting [their] kids * * * know[ing] that there is one thing I don't want is to hurt my kids. My kids are the world to me." In any event, it is undisputed that between May and early August 2016, Wife stayed at her friend's one-bedroom apartment, kept her credit cards and continued to receive what appears to be her weekly allowance of $1,000 from Husband.

On the evening of August 9, 2016, Wife returned to the marital residence and got into an argument with Husband in front of their residence, which was recorded by the parties' outdoor surveillance camera. Although Wife can be observed gesticulating and speaking emphatically in Husband's face, Husband appears to be calm and engaged in conversation. However, at one point during their argument, Husband moves away from the camera, steering Wife towards the parties' motor vehicle, where he lunges toward Wife and appears to yell in her face, frightening her enough to make her take a few steps backwards. [*2]After the fight, Wife can be seeing leaving the premises without entering the house.

On August 11, 2016, Wife returned to the marital residence and their shared bedroom, which has two separate full/queen-size beds in accordance with their religious proscriptions. That day there was a dispute over the volume of the television in their bedroom because Wife was "read[ing] Scriptures" on her bed, and Husband wanted to watch television. Husband again demanded that Wife leave the marital residence; she did not. Following the altercation, Husband left Wife at the home and went with their daughter to the Catskills in Upstate New York to visit the paternal grandparents. Upon his return, on August 14, 2016, he found Wife in their marital bedroom. Both parties testified that there was another dispute over the television, in which Husband turned on the television, and Wife got up and turned it off. The acts of turning the television on and off were repeated several times. This escalated to a point in which Husband forcefully moved Wife's mattress. The parties' versions of this so-called "mattress incident" differ significantly.

Although there were some semantic inconsistencies, Wife consistently testified during direct and cross examination that Husband violently "threw" and "pushed" the mattress at her during the argument. According to Wife's testimony:

He turned on the television which I don't want on because it was a holy day. He kept turning it on and I went up to the television to turn it off, he turned it on, I turned it off, he turned it on. My goal was not to start a fight, my goal was not to get him anything, my goal was just — I did not want the television on. At that point he got really angry and took the mattress and threw it at me. And I tried leaving the room and he just kept pushing towards me, towards me, towards me. At that point, I ran and grabbed my phone. I called the cops. I ran outside my house. I told them what happened.

She further explained on cross-examination that she was standing by the television - approximately ten-to-eleven feet from the bed - and the mattress was thrown at her striking her foot. She also testified that Husband used the mattress to push her out of the room. Although the parties' younger daughter, Michal, was apparently present at the premises, she was not a witness to the incident.

Wife's testimony was partly supported by the parties' housekeeper, Ms. Agnes Griffith, who was the next witness for Wife and testified that she had been the family's housekeeper for ten years and was present on August 14, 2016. Per Ms. Griffith, she heard no arguing, screaming, nor any "cries for help" from the "kitchen in the downstairs area" of this mansion on the date to the latest incident. However, Ms. Griffith credibly testified that she heard "a bang from the upstairs area" and went to "see what fell" and make sure everything was "all right." What she discovered was that Wife's mattress was on the floor and Husband was lying in his bed. It was unclear whether the bedframe had been removed; however, one can infer from the testimony that it was not. Specifically, Ms. Griffith testified as follows:

Q.The mattress was on the floor. Well, mattresses are usually on the floor.

Can you tell me where on the floor it was? Was it on the bedframe? Can you explain?

A.No, it was slide off [sic] on the floor —

Q.How about the box spring?

A.The box spring was there.

Q.And the mattress was positioned where?

A.On the floor.

Ms. Griffith's testimony indicates above that there were a box spring and a bedframe present, which the mattress was adjacent to, in a "slide off" position.

On the other hand, Husband testified that on the subject date of August 14, 2016, he returned home to find Wife lying on her bed in the marital bedroom. He testified that Wife was reading from the scriptures and that he turned on the television, at which time, Wife got up and turned off the television. Consistent with Wife's recitation, Husband testified that these antics repeated themselves "a number of times." Husband testified that he then got out of the bed "and . . . took hold of my Wife's mattress and leaned it up against the wall, took hold of the box spring and leaned it up against the wall and put the bedframe and carried it out to the hallway." He then claimed to have placed both the box spring and mattress on the floor. However, on April 20, 2017, after the testimony of the parties' housekeeper about the loud "bang," Husband amended his testimony claiming that he returned to the room "took the uppermost portion [of the bed] and put my hand and threw it down to the floor," causing a "thud."

Despite her inconsistencies, Wife's testimony reflects that the mattress was "thrown" or moved in an intimidating manner towards or at her, striking her foot. Understandably, Wife testified that after the mattress incident she feared for her safety at the marital premises, and went outside to call the New York City Police Department. Two police officers came to the premises and questioned both parties separately, though they did not place anyone under arrest. Wife then filed a Police Domestic Incident Report on August 14, 2016, handwriting a Statement of Allegations/Supporting Deposition that "I had a dispute with my Husband and I'm afraid of him[;] I want an Order of Protection."

II.

By Petition dated August 16, 2016, Wife commenced the instant Family Offense Proceeding against Husband in Kings County Family Court, alleging that Husband committed the family offenses of disorderly conduct, menacing, intimidating, assault and harassment, among others, as:

[Husband] herein has become increasingly irrational and aggressive towards the [Wife], with matters reaching a boiling point on August 14, 2016. It is [Wife]'s belief that [Husband]'s recent pattern of physical and verbal abuse is designed to force her to vacate the marital residence, leaving her penniless, while [he] takes up residence with his paramour.

***

That on August 14, 2016, [Husband] physically assaulted the [Wife]. At or around 4 o'clock in the afternoon, [Husband] entered the parties' bedroom and began to berate [Wife] while she was resting on the bed. While standing over her, [Husband] shouted to [Wife] to immediately vacate the marital residence and demanded that she not return. In a violent rage, the [Husband] wrenched the mattress out from under her, causing [her] to fall off the bed. While on the ground and in an effort to harm the [Wife] further, [Husband] picked up the mattress and forcefully threw it at [her], causing same to strike her foot. When it became clear that [Wife] would not acquiesce to his demands, [Husband] began to [*3]violently shove the [Wife] out the door.

***

In light of the foregoing pattern of abuse, both physical and verbal, [Wife] lives in a constant state of fear for her safety. She is unable to perform even the most basic daily activities for fear that [Husband] will physically assault her again, or worse. While [Wife] has no alternate residence, the [Husband] has numerous other places where he can reside during this action. Thus, if this Court vacates [Husband], it will permit [Wife] and their daughter to live peacefully and without fear of violence, and will not cause undue prejudice to [Husband].

During his arguments before the Honorable Robert Mulroy, Wife's counsel illuminated her situation as a woman of the Orthodox Jewish community, who married at an early age 30 years ago and raised eight children, for whom "it's very hard to speak out" against "authority figures, and [for whom] speaking out about her Husband is a relatively new thing." Based on these and other allegations in the Petition, the Family Court (Mulroy, J.) issued a Temporary Order of Protection dated August 16, 2016, in favor of Wife, ordering Husband to refrain from assaulting, harassing, stalking, intimidating, menacing, forcibly touching, stealing from or committing any criminal offense against her. That Temporary Order of Protection has been extended by the undersigned several times on the same terms for almost one year while the exclusion trial proceeded.

Contemporaneously with the Family Offense proceeding, Wife commenced a matrimonial action in Kings County Supreme Court against Husband, seeking, inter alia, the dissolution of their marriage, exclusive use and occupancy of the marital residence, maintenance and equitable distribution. That matter is still sub judice and the parties are currently engaged in discovery proceedings. Within a week of Wife's filings, by Family Offense Petition dated August 23, 2016, Husband commenced a cross-proceeding against Wife before the Undersigned, claiming that Wife committed a family offense by returning uninvited to the marital residence after four months of absence, making false claims against him, threatening his arrest and frightening their daughters out of their home, while seeking a full stay-away and refrain Order of Protection. No Temporary Order of Protection was issued in Husband's favor.

In addition, on September 28, 2016, Wife filed a separate Family Offense Petition in this Court, and obtained a full stay-away Temporary Order of Protection (Bourne-Clarke, J.) in her favor and against Mr. Gelb based on the sexual assault allegations. That related proceeding is still pending before Judge Bourne-Clarke in Family Court.

Because the parties could not reach a resolution of the proceeding as to the requested exclusion, the matter proceeded to a fact-finding exclusion hearing and trial before the undersigned for eight days until its conclusion, including on November 3, 2016, December 1, 2016, December 20, 2016, January 30, 2017, February 16, 2017, March 9, 2017 and April 20, 2017. The aforementioned factual recitation was gleaned from those hearing days, credible testimony and exhibits admitted into evidence. The Dispositional Hearing was held on July 21, 2017 (see Family Court Act §§ 833, 834, 835). At disposition, Husband again moved to dismiss the proceeding as baseless or, in the alternative, to let the Temporary Order of Protection expire on its own terms. For her part, Wife asked this Court to grant her a final Order of Protection against Husband including a full stay away and [*4]exclusion for two years from the marital property to protect her safety.

III.

In this Family Offense proceeding and trial, the Court faces three main questions: (1) whether Husband committed a family offense; (2) whether Wife committed a family offense against him; and (3) whether the relationship between him and his Wife has deteriorated to the point where a final Order of Protection is appropriate and necessary for the duration of their divorce proceedings to prevent further violence and protect the family. The undersigned answers questions 1 and 3 in the affirmative, number 2 in the negative.

Pursuant to Family Court Act § 812, the Family Court and the Criminal Court shall have concurrent jurisdiction over any proceeding concerning acts between spouses, couples or family members. Either court may also issue an Order of Protection from conduct constituting a family offense which could include, among other provisions, an order excluding a respondent or defendant from the marital residence and directing that he or she stay away from a petitioner and the children (Family Court Act § 812[5]). Family Court Act § 832 provides that a petitioner alleging the commission of a family offense for the purposes of obtaining an Order of Protection must prove at a fact-finding hearing the allegations "by a fair preponderance of the evidence" (Matter of Kiani v Kiani, 134 AD3d 1036, 1037 [2d Dept 2015]; see Matter of Tulshi v Tulshi, 118 AD3d 716 [2d Dept 2014]; Matter of Zina L. v. Eldred L., 113 AD3d 852, [2d Dept 2014]; Matter of P.A.A. v M.R., 31 Misc 3d 786 [Fam Ct 2011]). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record" (Matter of Crenshaw v Thorpe-Crenshaw, 146 AD3d 951, 952 [2d Dept 2017]; Matter of Jackson v Idlett, 103 AD3d 723 [2d Dept 2013]; Matter of Konstantine v Konstantine, 107 AD3d 994 [2d Dept 2013]).

Applying these legal principles to the matter at bar, this Court finds that Wife has established by a preponderance of the evidence that Husband's actions met the elements of the family offense of harassment in the second degree (see Penal Law § 240.26) as a result of the mattress incident. Although the testimony of both parties lacked credibility in certain aspects, they both agreed that an incident occurred with the mattress in their shared marital bedroom on the afternoon of August 14, 2016. Having observed the parties' demeanors and heard their testimony, this Court finds Wife's testimony to be more believable than that of Husband's, and that it revealed her fear as well as the agitated state of their relationship. Despite mostly-semantic inconsistencies under the cross-examination of Husband's counsel, Wife's testimony reflects that Husband in fact "threw" or moved the mattress in an intimidating manner towards or at her, striking her foot and that she understandably feared for her safety. Continuing his offense, Husband also used the mattress to force Wife out of the marital bedroom.

According to Husband's version of the events, they were arguing about the television and, in the middle of the altercation, he peacefully and inexplicably moved Wife's mattress and box spring and leaned them against the wall. Although Husband's counsel attempts to reason his behavior in the Post-Trial Memorandum, no clear testimony was elicited from Husband as to his purported behavior at that moment. Nor did it help Husband's credibility when he attempted to rehabilitate himself after Ms. Griffith's [*5]damaging "bang" description by changing his testimony from saying that he gently laid the mattress on the floor to "thr[owing]" it down with his hands. Having carefully examined both testimonial and documentary evidence as well as the corroboration by Ms. Griffith, the Court finds that the mattress was moved by Husband in the heat of an argument with Wife, that the mattress was moved with the intent to scare and intimidate Wife, that the mattress struck her foot, and that using the mattress, Husband forced her out of the marital bedroom.

These acts by Husband of touching Wife with the mattress with the intent to alarm and instill fear constitutes harassment in the second degree. "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: (1) He or she strikes, shoves, kicks or otherwise subjects other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26). "The crux of offense of harassment in the second degree is the element of physical contact; actual, attempted, or threatened" (People v Bartkow, 96 NY2d 770 [2001]). Furthermore, "[t]he intent element of the offense of harassment may be inferred from conduct as well as the surrounding circumstances." (People v Kelly, 79 AD3d 1642 [4th Dept 2010], lv denied 16 NY3d 832 [2011]; see Matter of Shephard v Ray, 137 AD3d 1715 [4th Dept 2016]; see also Matter of Shana SS. v Jeremy TT., 111 AD3d 1090 [3d Dept 2013]). And a "single incident of such conduct is "legally sufficient to support a finding of harassment in the second degree" (Matter of Tamara A. v Anthony Wayne S., 110 AD3d 560 [1st Dept 2013]; see Matter of Victor S. v Kareem J.S. 104 AD3d 405, [1st Dept 2013]).

Here, Wife's testimony consistently indicated that the mattress touched her foot when it was moved by Husband. Although there was no reported history of violence and no injury resulted, the acts of lunging at her during the discussion outside their home and the mattress incident are sufficient to constitute harassment in the second degree. As the testimony indicates beyond a preponderance of evidence, Husband moved the mattress as testified by Wife, Ms. Griffith, and Husband; indeed, Ms. Griffith testified that when she went upstairs, she saw the mattress on the floor, not the box spring. Both parties also testified that the mattress incident occurred during an argument over the television, indicating that surrounding circumstances were in place to lead to a violent act. Although the mattress only struck Wife's foot and caused no physical injury, that act understandably induced alarm and fear of the Husband, who was wielding a large, heavy item, sufficient to meet the elements of harassment in the second degree (see People v Bartkow, 96 NY2d at 770). The physical act of throwing or moving furniture toward another is both sufficiently violent and threatening to "place another person," here Wife, in fear of physical injury or alarm (see People v Dickson, 82 AD3d 1289 [3rd Dept. 2011]; Matter of J.D. v N.D., 170 Misc 2d 877 [Fam Ct 1996]).

Husband's counsel places great weight on the inconsistencies and assertion that Wife purportedly "lies" to the Court. He continuously tried to obfuscate the legal issues before the undersigned by pointing to Wife's allegations that, for instance: Husband caused her medical issues by forcing her to live at the premises during the renovations, despite his testimony that he offered to temporarily move out; that she dressed provocatively out of her own volition, not Husband's; or that she claimed to have been left penniless, despite Husband giving her an allowance of $1,000 weekly. However, the issue at hand is whether a family offense occurred not whether the semantics of the traumatic incident [*6]are presented in an unvarying and uniform manner. The attempt to break the credibility of Wife through the repetitive presentation of Wife's semantic variations of her testimony and any testimony that could be construed as inconsistent does not sufficiently demonstrate that no family offense occurred. The testimony of all the parties, including the sparse testimony of Husband, adequately proved by a preponderance of the evidence that a family offense did occur.

IV.

The Court must address a final matter. During the trial on January 30, 2017, Wife sought to introduce evidence of alleged extramarital affairs by Husband in the form of text messages showing Husband's membership in a sexually explicit chatting and encounter sites called "Just Hook Up" and "Zoosk." Upon exploring the provenance of those text messages, the Court was informed that Wife was in possession of Husband's missing Samsung cellular telephone ("smartphone") and that those messages were surreptitiously obtained by her. Upon learning this, Husband's counsel strenuously objected to the admission of such evidence as inadmissible hearsay and, more importantly, because it was obtained illegally by Wife from Husband's missing smartphone. Following the receipt of legal memoranda by both sides, the Court issued an Order sustaining Husband's objection, excluded those matters from evidence as the fruit of a poisonous tree, and ordered Wife through her counsel to return the smartphone to Husband's counsel no later than Tuesday, February 21, 2016. There was an agreement between counsel that Husband's smartphone would not be further accessed, investigated or cloned. Husband's counsel received the smartphone on February 23, 2016, two days after the court-ordered date.

Upon receipt, Husband's counsel sent the device to a computer forensic expert, Mr. Yalkin Demirkaya, who received it on March 2, 2017. On March 6, 2017, Mr. Demirkaya notified Husband's counsel that there was a conflict of interest because he had previously handled that particular smartphone. He explained to Husband's counsel that on February 22, 2017, a day after the phone was to be returned, an agent of Wife's attorney, Mr. Ben Newman, who was supposed to only deliver the smartphone to Husband's counsel, had asked Mr. Demirkaya to take a forensic image of the phone which is currently stored in their storage account.

By Order to Show Cause dated April 17, 2017, Husband moves for this Court to find Wife in criminal and civil contempt for violating the Court's Order to return the smartphone, arguing that Wife not only illegally obtained and willfully failed to comply with the Order of the Court, but contemptuously duplicated the phone under false pretexts, through deception and without the Court's authority. As such, Husband maintains that Wife should be held in contempt and ordered to pay for Husband's costs, expenses and the attorneys' fees incurred in submitting their Order to Show Cause and Memorandum, and to have to copy of the phone returned to Husband's counsel.

In opposition, Wife's counsel argue that Husband's counsel motions is an overreach and meritless as Mr. Newman's action is a standard self-protecting procedure for his company for the sole purpose of protecting himself from claims by either litigant that he had extracted data or somehow accessed the phone while it was in his possession. Mr. Newman was not present when the order was issued and was not present to hear Husband's opposition to the phone being cloned. Moreover, Wife's counsel continues to argue that: (1) the phone is marital property pursuant to Domestic Relations Law § 236 and as such the phone is jointly owned with shared rights access its data; (2) that the smartphone was not [*7]improperly obtained considering the absence of a password and the phones presence in their shared home; (3) that the information obtained through the phone was not privileged; and (4) that Wife genuinely believed she had the right to access Husband's smartphone.

However, considering the secretive manner in which Wife obtained and retained the smartphone and the function of smartphones to access personal information, this Court hereby reiterates its ruling that Husband had a reasonable expectation of privacy, and any evidence obtained through Husband's smartphone without his permission shall continue to be excluded from the record and from this Decision. As for Husband's assertion that Wife should be held in contempt for violating the Order, this Court disagrees.

In a Family Court proceeding, a finding of civil contempt may be only established by the well-settled "clear and convincing evidence" standard (El-Dehdan v El-Dehdan, 26 NY3d 19 [2015]; Matter of Pamela v James, 25 Misc 3d 670 [Fam Ct 2009]). "To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order of the court, clearly expressing an unequivocal mandate, of which that party had knowledge, and that as a result of the violation a right of a party to the litigation was prejudiced" (Keller v Keller, 126 AD3d 940, 942 [2d Dept 2015], quoting Incorporated Vil. of Plandome Manor v Ioannou, 54 AD3d 365, 366 [2008]). A hearing is not necessary each time contempt is sought; "it is only mandated if a factual dispute exists which cannot be solved on papers alone" (Coyle v Coyle, 63 AD3d 657 [2d Dept 2009], quoting Jaffe v Jaffe, 44 AD3d 825, 826 [2d Dept 2007]). The New York Court of Appeals has recently clarified that, while willfulness is an essential element for a finding of criminal contempt, "civil 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, 114 AD3d at 29; S.M.S. v D.S., 54 Misc 3d at 770).

In the case at hand, the Court's Order to return the smartphone by February 21, 2016 was clear and lawful. It was also made clear on the record that Wife or her agents were not to make any copies of the information and data stored on the smartphone and, arguably, by maintaining a copy is in a sense not fully returning the phone in violation of the Order. However, Husband has failed to show clear and convincing evidence that Wife's failure to return the smartphone and the creation of a copy in itself, "defeats, impairs, impedes, or prejudices his rights or remedies."

The affidavits of the expert, Mr. Demirkaya, who copied the phone, and Wife's agent, Mr. Newman, show that the forensic image or copy of the smartphone has never been accessed by Wife nor her counsel. Nor has Wife or Mr. Newman requested any information to be extracted from the image and/or received any information. In fact, if anyone failed to comply with the Order, it was Mr. Newman, yet he did not receive any direct order from the undersigned not to clone the phone from Wife or her counsel. The mere existence of a copy cannot prejudice Husband's rights. No injury occurred due to the late return and act of copying the smartphone, especially since Mr. Demirkaya conceded that he has been in possession of the forensic image since it was cloned. Nor is this Court inclined to grant legal fees for the Memorandum prepared on Husband's behalf for an overzealous Order to Show Cause for contempt.

Accordingly, Husband's motion to hold Wife in contempt of court is denied as no prejudice has been created in this court of law that would [*8]infringe on the rights of either party. Nevertheless, the Court hereby precludes Wife or any of her agents from using any copy of the contents of Husband's smartphone held by Mr. Demirkaya in this or any other proceeding in Family Court, and that any data or copies of the phone retained by Wife and her counsel should be returned to Husband and his counsel.

V.

The mattress incident indicates that the relationship between Wife and Husband has deteriorated to a point where an Order of Protection is necessary to protect her against any further violence by Husband and to maintain the peace between the parties. The mattress incident is a culmination of the deterioration of the relationship between Wife and Husband. Despite a 30-year history of marriage, the relationship between the two parties began to deteriorate at least approximately in April of 2016. They can no longer cohabitate peacefully and without risk of escalating violence.

In accordance with the foregoing, the Court hereby issues a final Order of Protection in favor of Wife directing Husband to refrain from assaulting, harassing, stalking, menacing, intimidating, stealing, forcibly touching or committing any criminal offense against Wife for one year, which became effective on August 16, 2016 until its expiration on August 15, 2017. Husband is additionally placed on probation with this Court for a period of one year (see Family Court Act § 841[c]), during which time he cannot commit any family offense against Wife. Finally, Husband's family offense petition is hereby dismissed for failure to establish Wife's commission of any family offense against him. This constitutes the memorandum decision and order of the Court.

Dated: July 24, 2017

Brooklyn, New York

NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.