Matter of Robert A. v Chantelle C.

[*1] Matter of Robert A. v Chantelle C. 2018 NY Slip Op 51379(U) Decided on September 27, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2018
Family Court, Kings County

In the Matter of a Family Offense Proceeding Robert A., Petitioner,

against

Chantelle C., Respondent.



In the Matter of a Family Offense Proceeding CHANTELLE C.,Petitioner,

against

ROBERT A.,Respondent.



O-14627/15
Javier E. Vargas, J.

Papers Numbered

Summons, Petitions, Affidavits & Exhibits Annexed 1

Orders to Show Cause, Affidavits, Affirmation & Exhibits Annexed 2, 3

Affirmations in Opposition, Affidavits & Exhibits Annexed 4, 5

Reply Affirmations, Affidavits and Exhibits Annexed 6, 7

Court Proceedings Transcripts 8

Upon the foregoing papers and for the following reasons, the Motions to Vacate Defaults by Respondent Chantelle C. (hereinafter "Mother"), are consolidated for consideration and are denied in part and granted in part in accordance with the following decision.

In 2015, the above-captioned parties had an intimate relationship after Petitioner Robert A. (hereinafter "Father") engaged in an extramarital affair with Mother. Proceedings between them commenced on June 9, 2015, when Father filed a Family Offense Petition against Mother in Kings County Family Court, alleging that she has been involved in a campaign of harassment and intimidation by using social media accounts, i.e. Facebook and Twitter, under an alias to announce her extramarital relationship and pregnancy to Father's current wife, family members and business associates. Among several specific allegations, Father affirmed that Mother sent electronic messages to his wife saying that she was pregnant with Father's baby, that she is "going to be a Mom" with "bundle of joy: Baby A!!" and that "everyone will know the [Father] impregnated me on March 16th at the Archer Hotel on 38th Street!!!" On another occasion, Mother allegedly hacked Father and his wife's Facebook accounts to transmit his photo to all their friends and family listed in their accounts with the caption: "This is the guy who made me pregnant." Subsequent to filing of the Petition, on November 27, 2015, Mother gave birth to the parties' child-in-common. Father admitted to his paternity and an Order of Filiation was entered after admission on May 5, 2016; the Nassau County Family Court (Bloom, S.M.) subsequently issued an Order of Support dated March 6, 2017, requiring Father to pay to Mother $2,025 per month for the Child.

Father and his attorney Richard Izzo, Esq. appeared before former Family Court Judge Franc Perry on June 9, 2015, August 11, 2015 and October 29, 2015, with respect to service of process, after the issuance of a Temporary Order of Protection in favor of Father, directing Mother to stay away from him, his home and place of employment, and to refrain from harassing, stalking, assaulting or committing any criminal offense against Father. Judge Perry later modified the Temporary Order to a full stay away, including no communication on August 11, 2015. That Temporary Order of Protection remained in effect until the parties appeared before the newly assigned judge of the matter, the Hon. Sharon Bourne-Clarke, on February 4, 2016. Mother made her first appearance in the case with her counsel. After the February appearance, Judge Clarke modified the Temporary Order of Protection to usual terms, no third party contact or communication with Father's friends, relatives, business associates or colleagues, and adjourned the matter for further proceedings.

Between court appearances, on July 20, 2016, Father filed a Violation Petition against Mother (O-14627/15/16A) alleging that she maliciously mailed a package containing photographs of the Child to his residence where he resides with his wife and family; that Mother caused the New York City Administration for Children Services ("ACS") to investigate his home with allegations that he and his wife had hit the Child, failed to feed and left him unsupervised, and snorted cocaine in the Child's presence. According to Father, Mother made these false allegations knowing full well that the Child had never been in his home or met his family. Father further alleged that he received text messages from two parenting services without actually subscribing to either service.

Thereafter, on August 10, 2016, Mother filed her own Family Offense Petition against [*2]Father (O-19971/16), which resulted in a Temporary Order of Protection (Ross, JHO.), full stay away, subject to court ordered visitation. The next appearance before Judge Clarke was on September 22, 2016, where both parties appeared with counsel. Judge Clarke modified the Temporary Order of Protection issued under Mother's Petition to only usual terms and Father's Temporary Order of Protection to a full stay away, no contact via email, text message or social media, no third party contact and directing that the subject Child's Facebook page was to be deactivated.

On March 28, 2017, parties and counsel appeared before Judge Clarke. Multiple issues were discussed, including the impending trial and the number of witnesses to be presented by both sides. Mother's attorney raised an issue regarding a provision in the Nassau County Family Court support case which allowed the parties to communicate regarding health insurance issues and whether that provision may cause Mother to violate the Temporary Order of Protection. Mother also filed a motion to dismiss Father's Petitions on May 11, 2016. After a lengthy discussion, Judge Clarke denied Mother's Motion to dismiss Father's Petitions, and warned Mother not to communicate with Father directly but that communication should occur only through counsel. Trial dates on the cross Family Offense Petitions were then selected and set for August 15, 2017 and September 11, 2017.

Father filed his second Violation Petition on July 11, 2017, under Docket No. O-14627-15/17B, against Mother, this time alleging, among others things, that she falsely submitted to Nassau Family Court purported proof of child care expenses to a Notary Public for signature by someone named "Carla Price;" however, Father attached affidavits signed by the Notary attesting to the fact that the person who signed as "Carla Price" was actually the Mother. The Notary appeared in Nassau County Family Court to testify against Mother, forcing her to withdraw her application for child care expenses. Shortly thereafter, on July 21, 2017, Father commenced his third Violation proceedings against Mother (Docket NO. O-14627-15/17C) accusing Mother of posting a "like" on his Facebook Page. Father then filed his fourth and last Violation Petition against Mother on August 1, 2017, alleging that she initiated a custody proceeding against him on February 2, 2016 in New York County Family Court, a Small Claims Court action against him on August 5, 2016, an action for a money judgment against him on April 13, 2017 in Nassau County Supreme Court, and a custody proceeding against him on May 26, 2017 in Richmond County Family Court. With the exception of the money judgment action, Father alleged that Mother failed to appear in those proceedings and the cases were dismissed for failure to prosecute. With respect to all the filings, Father claims that he incurred attorneys' fees and was served at his residence causing him to experience distress, embarrassment, marital woe and discomfort.

On August 15, 2017, Father, his attorney and Mother's new attorney appeared for the scheduled fact-finding hearing. When queried regarding Mother's whereabouts, Mother's attorney informed the Family Court that her client had moved somewhere out of state and was asking to appear by telephone. Counsel did not submit a prior request for electronic testimony. Father's attorney opposed the application protesting that Father was ready to proceed for the hearing and that Mother was in court on the last court date and elected to leave the jurisdiction. Counsel further argued that there will be contested issues and the Court cannot make an appropriate assessment of Mother via telephone. In response, Judge Clarke acknowledged that there is a credibility issue and that she needed to assess Mother's credibility by physically seeing her, and that had Mother made a prior application, the Court would have been able to explore [*3]whether a monitor would be available. Judge Clarke expressed her discomfort in making a decision on a Family Offense Petition on Mother's telephonic testimony and noted that Mother also had her own Petition before the Court. Judge Clarke deemed jurisdiction complete on Father's Violation Petitions because the court served Mother at her confidential address.

Noting that Mother was present on the last court appearance, and that she relocated without notifying the Court, Judge Clarke dismissed Mother's Family Offense Petition and proceeded to inquest against her with respect to Father's underlying Petition. At the close of the hearing, Judge Clarke found that Mother committed the family offense of harassment in the second degree in violation of Penal Law § 240.26(3), aggravated harassment in violation of Penal Law § 240.30(1) and stalking in the fourth decree in violation of Penal Law § 120.45. Furthermore, she found that Mother's rebellious behavior constituted aggravated harassment as her behavior negatively impacted Father, his business and his family. As a result, on August 15, 2018, the Family Court (Clarke, J.) entered a final Order of Protection for three years against Mother, directing her to have no contact with Father, to fully stay away from him, his home, school, place of business, place of employment or anywhere else that he is likely to be. In addition, Mother was directed to have no contact with Father by regular mail, telephone, email, voice-mail, text message or any platform of social media that exists, nor to have any third party contact whatsoever with Father, including legal documents which were to "be served on [Father]'s attorney only or it will constitute a violation of this order."

Further proceedings on Father's Violation Petitions were to be addressed by Judge Clarke on September 11, 2017, thereby essentially giving Mother another opportunity to appear. On that date, Father appeared with counsel, but neither Mother nor her attorney appeared. Again, the Court confirmed that Mother was indeed served with the Violation Petitions at her confidential address. An inquest was held, and finding that Mother violated the Temporary Order, Judge Clarke issued a final Order of Protection against Mother, dated September 11, 2017, supplementing the prior one, directing that she stay away from Father wherever he may be, refrain from assaulting, staking, harassing, menacing, stalking or committing any criminal offense against Father and directing that Mother is to have no communication by mail, telephone, email, voice-mail or any other electronic means, including:

"No third-party contact; no contact via social media; [Mother] is not permitted to contact the family members or business associates of [Father] and friends or colleagues. Any legal documents must be served on [Father]'s attorney only or it will constitute a violation of this order."

In March 2018, Judge Clarke was transferred to New York City Civil Court and all her pending matters were reassigned to the undersigned. By Order to Show Cause dated April 30, 2018, Mother now moves before this Court to vacate the Final Order of Protection issued on her default on August 15, 2017, and the reinstatement of her Family Offense Petition, pursuant to CPLR 5015, or in the alternative, vacating the portion of that Order of Protection directing that "Any legal documents must be served on [Father]'s attorney only if it will constitute a violation of the order." In support of her Motion, Mother contends that she has a reasonable excuse for her failure to appear in that she informed her attorney, whom she had retained in May 2017 in advance of the court date, that she had relocated to Columbus, Ohio, in June 2017, but that her attorney neglected to advise her to complete an application for electronic testimony and waiver of personal appearance form. Furthermore, Mother contends that she did not have the funds to [*4]travel to New York City, that she did not have anyone to take care of the Child, and that she has meritorious defenses to the allegations in the Family Offense Petitions.

Mother filed a second motion, by Order to Show Cause dated May 16, 2018, seeking to vacate the Order of Protection entered on September 11, 2017, pursuant to CPLR 5015, or in the alternative, to vacate the provisions in the Order that prohibit Mother from contacting Father's family members, business associates, friends or colleagues, and the provision in the Order of Protection upon default that states "Any legal documents must be served on Father's attorney or it will constitute a violation of the order." Mother contends that her reasonable excuse for failing to appear is that she was still residing in Columbus, Ohio, and she did not travel to New York City because she lacked funds to travel and she had no one to watch her Child. Also, she did not request permission to appear by phone because she figured that Judge Clarke would deny the application just as she declined her prior application to appear on August 15th.

In Affirmations in Opposition dated July 26, 2018, Father argues that Mother has failed to provide either a reasonable excuse for her nonappearance on two occasions, or a meritorious defense to his recitation of the egregious and malicious behavior engaged on for years by Mother. Following receipt of Mother's Reply Affirmations and extensive oral argument on July 31, 2018, this Court reserved decision and now denies most of the Mother's Motions.

Under the New York Uniform Court Rules for Trial Courts, "if the [respondent] appears but the [petitioner] does not appear, the judge may dismiss the action," and "if the [Petitioner] appears but the [Respondent] does not, the judge may grant judgment by default or order an inquest" (22 NYCRR 202.27[a], [b]). However, under CPLR 5015(a)(1), a court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person "upon the ground of excusable default if such motion is made within one year after service of the copy of that judgment or order." The decision of whether to relieve a party from "her default rests within the sound discretion of the trial court" upon the establishment of "a reasonable excuse for the default and a potentially meritorious cause of action or defense" (Matter of Wong v Liu, 121 AD3d 692, 693 [2nd Dept. 2014]; Matter of Strickland v Lewis, 110 AD3d 907, 908 [2nd Dept. 2013]). Whenever a reasonable excuse is lacking, it is unnecessary to consider whether a party demonstrated the existence of a meritorious defense (see Abdul v Hirschfield, 71 AD3d 707, 708-709 [2nd Dept. 2010]).

Applying these principles to the case at bar, Mother has utterly failed to establish either a reasonable excuse for her two defaults or a meritorious defense for her malicious and egregious acts committed against Father. The record reflects that Judge Clarke presided over this highly contested and longstanding Family Offense proceedings initiated by Father in 2015. On March 28, 2017, following detailed discussions on the record with the parties and counsel, Judge Clarke "firmly" set this case down for a fact-finding hearing to be held within five months on August 15 and September 11, 2017. While Father and his attorney appeared on both days prepared to proceed on the fact-finding case, Mother failed to appear requiring her counsel to inform the court that she had moved out of state and was asking to appear by phone. In her papers, Mother places the blame for her clear default upon her then counsel, charging counsel with ineffective assistance of counsel for the mishap in failing to apply for electronic testimony.

However, Judge Clarke appropriately denied the oral application for electronic testimony and defaulted Mother as she was personally aware of the court date and had a confidential address in court records, but neglected to notify the court of her new out-of-state address, as she is statutorily required to do (see Family Court Act § 154-b). Mother was aware that there was a [*5]pending hearing with numerous dockets before the court, including her own Petition. Since the determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, requiring it to observe the parties' demeanor and behavior in the courtroom in assessing credibility (see M.B v L.T., 152 AD3d 475 [2nd Dept. 2017]; Matter of Charrat v Jeanty, 146 AD3d 947, 948 [2nd Dept. 2017]), the undersigned concurs with Judge Clarke that the court could not properly assess Mother's credibility through electronic testimony, and she improperly failed to apply in advance for video appearance despite having moved from her address of record approximately two months prior to her scheduled hearing date.

When Judge Clarke denied counsel's application for electronic testimony, counsel did not ask for an adjournment for her client to appear on the next scheduled hearing date. Even now, Mother contends that she could not appear because she lacked funds to travel and did not have child care for her daughter. This leads this Court to conclude that Mother had no intention of appearing in court so that the judge could assess her credibility. Court records reflect that Mother's counsel remained on the phone with her until Judge Clarke informed counsel that it was "unprofessional" to be on the phone during the course of the hearing and counsel declined the offer to recall the case at a latter time. "Such conduct [by Mother] constituted an intentional default, which is not excusable" (Eretz Funding, Ltd. v Shalosh Assoc., 266 AD2d 184, 185 [2d Dept. 1999]). Although Mother now purports to have a meritorious defense and a meritorious cause of action, this Court finds that Mother did not have a reasonable excuse for her failure to appear in court on August 15, 2017.

Nor does Mother show a reasonable excuse or defense for her second default. On the next scheduled date September 11, 2017, Father again appeared with counsel ready to proceed, but neither Mother nor her attorney appeared. There is no indication that either Mother or her counsel made a prior application to the court for an adjournment or electronic testimony. Absent Mother's presence, Judge Clarke held an inquest, ultimately making a finding that Mother violated the Order of Protection. Mother reiterates that she has a reasonable excuse for failing to appear in court in that she was still living in Ohio, lacked funds to travel and did not have child care for her daughter. She further argues that she did not make an application to appear by phone because she knew that Judge Clarke would deny her application. Based on this record, the Court finds that Mother's arguments lack merit. Again, Mother was aware that she had scheduled court appearances for trial. On the first day, August 15th, Mother's attorney was present in the courtroom when Judge Clarke, dismissed Mother's petitions, entered findings against her and adjourned the case to September 11th for proceedings on the violation. A violation of an Order of Protection has serious consequences since it may lead to incarceration for a term not to exceed six months (see Family Court Act § 846-a). Instead of making every effort to appear in court, Mother inexcusably disregarded the scheduled hearing by choosing not to appear. While she may have potentially presented a meritorious defense to the violation petitions, she must prove both elements to persuade this court to vacate the default (see Abdul v. Hirshfeld, 71 AD3d 707, 708 [2d Dept. 2010]).

Nevertheless, this Court will consider whether the interest of justice warrants a partial vactur of the orders. Mother contends that the portion of the Orders, directing that Mother serve Father's counsel with legal documents or it will constitute a violation and that Mother is not permitted to contact the family members or business associates of Father and friends or colleagues, should be vacated. Courts may reopen a default for a limited purpose (see Borek, Stockel & Co. v. Slevira, 203 AD2d 314 [2nd Dept. 1994]; Schutzer v Berger, 40 AD2d 725 [2d [*6]Dept. 1972]). This Court has carefully reviewed the Orders issued on August 15 and September 11th. Based on the record presented, Mother has not raised any legal or factual arguments to persuade this Court that legal papers should not be served upon Father's attorney. Mother contends that she only agreed to not communicate with Father directly regarding the provisions of the Nassau County Child Support Order and to instead have her attorney communicate with Father's attorney; Judge Clarke warned Mother that she may not communicate with Father directly, but only through his attorney. At that time, there was no on the record directive about the service of legal papers. That determination only came about at the close of the inquest held against Mother. Judge Clarke determined that Mother engaged in a course of conduct with the intent of harassing Father by filing numerous small claims actions and custody petitions, having Father served, then not appearing at the subsequent court appearance. Per Judge Clarke, those actions appeared to have no legitimate purpose other than to harass Father. This record supports the finding that Mother shall serve papers directly to Father's attorney and any service upon Father will be considered a violation. Notably, the parties here have been litigating since 2015, and Father has been represented by his counsel Mr. Izzo, an officer of the court. In the event Mr. Izzo ceases to represent Father he will, of course, forward any papers to Father's attorney of record.

As for the provision in the Order that prevents Mother from contacting the family members, friends or business associates of Father and his colleagues, "reasonableness is the guiding consideration in determining what conditions to impose on an order of protection" (Matter of Jeff M. v Christine N., 101 AD3d 1426, 1429 [3rd Dept. 2012]; see also Family Court Act § 842). The major criterion in reasonableness "is whether they are likely to be helpful in eradicating the root of family disturbances" (Id.). Here, it appears unreasonable for the Court to impose an Order which directs Mother to have no contact with Father's family members without any specificity (see id.). Father's Order of Protection may include named children residing in his household, provided that a record has been made warranting that inclusion. Father's wife may not be included in the Order since there may be remedies available to her in Criminal Court, as well as Family Court (see Family Court Act § 812). Equally unreasonable is the provision directing Mother to have no contact with Father's friends, business associates and colleagues (see People v Wright, 81 AD3d 1394 [4th Dept. 2011]; People v Shultis, 61 AD3d 1116, 1118 [3rd Dept. 2009]). To the extent that Father's friends, business associates and colleagues seek no contact from Mother, they can file their own criminal complaint against Mother and pursue an Order of Protection in Criminal Court. It should be noted that there is a provision in the Protection Order that specifies "no third party contact." If it is proven that Mother contacted any third parties to transmit messages to Father via social media or other means, Mother may be again in violation of the Court's order (see Family Court Act § 846-a).

Based on the foregoing, it is hereby ordered that Mother's Motion to Vacate the default findings entered on August 15, 2017, is denied in its entirety. That Order of Protection expired and was supplanted by the entry of the September 11, 2017 Order of Protection. However, Mother's Motion to vacate default findings entered on September 11, 2017, is denied in part and granted in part only to the extent of removing the portion of the Order of Protection which prevents Mother from contacting Father's family members, business associates, friends and colleagues. Otherwise, the Final Order of Protection of September 11, 2017 is continued in full force and effect. This constitutes the Decision and Order of the Court.

[*7]E N T E R:

Dated: September 27, 2018

Brooklyn, New York

J.F.C.