B.W. v J.W.
Annotate this CaseDecided on October 10, 2022
Supreme Court, New York County
B.W., Plaintiff,
against
J.W., Defendant.
Index No. XXXXXX/20XX
Plaintiff-husband is represented by Mosberg Sharma Stambleck Gross LLP, Peter Stambleck, Esq., stambleck@mssglaw.com, 1270 Avenue of the Americas, Suite 1703, New York, New York 10020, (212) 678-8500. Defendant-wife is represented by David Zaslavsky, Esq., david@zaslavskylaw.com, 11 Broadway, Suite 450, New York, New York 10004. The attorney for the children is Karen Rosenthal, Esq., karen@brsmatlaw.com, 18 East 48th Street, Suite 1001, New York, New York 10017, (646) 856-8501. Kathleen Waterman-Marshall, J.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 154, 159, 160 were read on this motion to/for CONTEMPT.
Upon the foregoing documents, the motion by Plaintiff B.W. ("Husband") for an Order: (1) pursuant to Judiciary Law § 753, holding Defendant J.W. ("Wife") in contempt of the March 19, 2021 "No Talk Order"; (2) pursuant to Judiciary Law § 773, and alternatively DRL § 238, awarding Husband attorney's fees incurred in connection with Wife's contempt; and (3) pursuant to DRL § 235(2), sealing this case from public accessibility and closing the courtroom to all future proceedings so as to protect the health and well-being of the subject children, is granted.
For reasons stated on-the-record on July 25, 2022, and reiterated below, Wife is in contempt of the No Talk Order and Husband is entitled to an award of attorney's fees in the sum of $32,535.25 as and for a fine for the contempt. In addition, the courtroom during the custody trial shall be closed and all evidence and testimony related to the custody proceeding shall be [*2]sealed.
Discussion
This is a sad and troubling case involving mental health issues, high-conflict, and the unfortunate, but irrelevant, connection of this family to a notorious public figure []. The case is made worse by Wife's unnecessary public disclosure of the private lives of the parties' children, which has caused them humiliation, stress, and emotional harm.
Briefly, the parties were divorced pursuant to a Judgment of Divorce entered on December 11, 2018. Initially, and pursuant to their agreement (incorporated into the Divorce Judgment) the parties had a 50/50 parenting time schedule with their two children, now ages 16 and 12. On February 21, 2020, following certain incidents during which Wife became, inter alia, dysregulated and upon Husband's emergency application to modify the custody agreement, the Court (Hon. Lori S. Sattler) granted Husband temporary physical and legal custody of the children and suspended Wife's parenting time. The Court also directed Wife to undergo drug testing and appointed a doctor to perform an immediate mental health examination of her. Thereafter, the Court engaged in additional proceedings, including but not limited to: the reappointment of an attorney for the children; an in camera Lincoln hearing with the children; the appointment of a forensic to evaluate the family and issue a report to be used at the modification trial; the appointment of a Guardian Ad Litem for Wife; supervised visitation between Wife and the children; and various motion practice.
In early 2021, Wife began speaking with the press and the public about the children, this divorce, and Husband. She also made statements about Husband's father, the children's grandfather for whom they have a great affection, that were negative and based upon his business relationship to the [aforesaid public figure]. She also asserted false claims that Husband was withholding visitation. The children were made aware of these media interviews — sometimes from their friends and sometimes seeing the live interviews themselves — and were extremely distraught by them.
Thus, on March 19, 2021, the attorney for the children moved, on an emergency basis, for an order directing Wife to refrain from having discussions or interviews with the press about this custody proceeding and the children. Following oral argument on the application, Wife, represented by counsel, agreed and consented to the No Talk Order which directed her to:
. . . refrain from having any discussions or interviews whatsoever with the press about the parties' children . . . the custody proceeding pending before the Court or her motivation for giving interviews insofar as it concerns the Children.Within days of issuance of the No Talk Order, Wife engaged in interviews with various media outlets during which she spoke of: the children, including where they attend school and allegations of who and how their tuition is paid; this custody proceeding; and Husband's purported interference with her custodial rights. [Wife engaged in seven such interviews between March 25, 2021 and May 13, 2021].
By Order to Show Cause signed by the Court (Justice Sattler) on April 13, 2021, Husband made the instant motion for contempt and to seal the custody trial. He provided proof [*3]of Wife's media interviews and statements. According to the attorney for the children, and not surprisingly, the children have been humiliated by their mother's conduct and have suffered emotional injury by her public disclosure of their private information and lives. The parties' daughter has begged her mother to stop placing her and her brother in the public eye. In opposition to the motion, Wife denied violating the No Talk Order, which she argued was "broad" and contained "somewhat unclear language," and attempted to explain that her comments were not really about the children and thus not prohibited by the No Talk Order.
Wife is in Contempt of the No Talk Order
Judiciary Law § 753 (A) empowers the court 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 ... pending in the court may be defeated, impaired, impeded, or prejudiced, in a case." Civil contempt is available where "a party to the action" is guilty of "disobedience to a lawful mandate of the court." See Judiciary Law § 753 (A)(3). The aim of civil contempt is "the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right." McCormick v Axelrod, 59 NY2d 574, 582-583 (1983).
In order for the court to find civil contempt: (1) a lawful order of the court, which "clearly express[es] an unequivocal mandate," must be in effect; (2) the party sought to be held in contempt "must have had knowledge of the court's order"; (3) the alleged contemnor must have disobeyed the order; and (4) violation of the order must have resulted in prejudice to the right of a party to the litigation. See McCormick v Axelrod, supra 59 NY2d at 583 (civil contempt found where nursing home transferred residents in violation of court order that expressed "clear mandate" staying all steps to involuntarily discharge residents pending appeal); El-Dehdan v El-Dehdan, 114 AD3d 4, 16-17 (2d Dept 2013). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence." El-Dehdan v El-Dehdan, supra 114 AD3d at 10.
At the outset, this Court may decide the instant contempt motion without a hearing, as Husband "expressly requested the subject relief in [his] motion papers," and Wife "was afforded an opportunity to be heard and to oppose the motion." Rhodes v Rhodes, 169 AD3d 841, 844 (2d Dept 2019) ("court did not violate [defendant's] rights in deciding the motion without a hearing, as the plaintiff expressly requested the subject relief in her motion papers, and [defendant] was afforded an opportunity to be heard and to oppose the motion."); see also, Doors v Greenberg, 151 AD2d 550 (2d Dept 1989) (where record unequivocally shows party disobeyed orders, hearing unnecessary prior to finding contempt).
The instant record clearly and convincingly demonstrates that Wife's conduct amounts to disobedience of a lawful mandate of the court warranting a finding of contempt. See El-Dehdan v El-Dehdan, supra; see also, Rhodes v Rhodes, 169 AD3d at 844 (contempt found where lawful court order in place, undisputed that defendant had knowledge of order and did not comply with order). The No Talk Order is a lawful and valid order which clearly expresses an unequivocal mandate that Wife refrain from "having any discussions or interviews whatsoever with the press about the parties' children, the custody proceeding, or her motivation for giving interviews [*4]insofar as it concerns the Children." Wife knew about the No Talk Order and each of its terms: indeed, she consented to its entry on March 19, 2021. Within days of its issuance, Wife violated the No Talk Order by engaging in interviews and discussions with the media in which she spoke about this custody proceeding and divulged the children's private information.
Finally, the credible proof clearly and unequivocally shows that Wife's actions did defeat, impair, impede, and prejudice the children's rights as set forth in the No Talk Order: the children are devastated by the public disclosure of their private lives. See Doors v Greenberg, 151 AD2d at 550 ("In order to sustain a finding of civil contempt, it is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights of a party."). Accordingly, this Court finds that Wife has violated, and is in contempt of, the No Talk Order. See McCormick v Axelrod, supra; El-Dehdan v El-Dehdan, supra; Rhodes v Rhodes, supra; Doors v Greenberg, supra.
Wife fails to offer any valid defense such that this Court may excuse her contempt. Her blanket denial is insufficient. Her claim that the language of the No Talk Order is "broad" and "unclear" is wholly undermined by her express consent to it. Indeed, having consented to the No Talk Order, she is estopped from now asserting a new position — i.e., it is unclear — to suit her present needs. See generally Shondel J. v Mark D., 7 NY3d 320, 326 (2006) ("The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted."). Wife's conduct, and her arguments meant to excuse such conduct, are not compelling.
The Court recognizes that the beneficiaries of the No Talk Order — the "parties" meant to be protected thereunder — are the children. Husband has sole legal and physical custody of the children, although temporary. Consequently, he has standing to move for contempt on the children's behalf and is entitled to recover his costs and expenses, consisting of reasonable counsel fees, incurred in doing so. Husband is thus awarded attorney's fees in the sum of $32,535.25, payable by Wife, because her conduct in violation of the No Talk Order caused those fees to be incurred. Judiciary Law § 773; Boukas v Boukas, 163 AD3d 755, 756 (2nd Dept 2018); Gonnard v Guido, 141 AD3d 649, 650 (2d Dept 2016) ("Judiciary Law § 773 permits recovery of attorney's fees from the offending party by a party aggrieved by contemptuous conduct (citations omitted). The intent of Judiciary Law § 773 is to indemnify the aggrieved party for costs and expenses incurred as a result of the contempt (citations omitted). Attorney's fees that are documented and directly related to the contemptuous conduct are generally recoverable unless they are proven excessive or reduced by the court in a reasoned decision."); Gordon v Janover, 121 AD2d 599, 600—01 (2d Dept 1986) ("The court may, in an action to punish for civil contempt, where, as here, no actual damage has been demonstrated, impose upon the offending party the other party's reasonable costs and expenses, including attorney's fees.").
This Court reviewed the affirmation of legal services and redacted legal bills submitted by [Husband's attorney], and finds the entries and fees itemized to be directly related to Wife's contemptuous conduct in violating the No Talk Order. In addition, this Court finds the fees to be reasonable and not excessive. The Court notes that Wife did not submit any opposition to [the Husband's attorney's] affirmation and redacted legal bills, as she was entitled to do by September 16, 2022.
The Court here notes, as it did on the record, that there is nothing in the No Talk Order [*5]which prevents Wife from discussing matters outside of this proceeding, namely, Husband and his family relationships with the [public figure], so long as it does not involve mention of the children or this custody proceeding. Similarly, there is nothing in the No Talk Order that prohibits her from engaging in talks with law enforcement about matters for which she may have information. She is simply prohibited from disclosing the private information of her children and this custody matter with the public, as it has, and will continue to harm them.
The Courtroom Shall be Closed and the Evidence Sealed in the Custody Trial
Courts are open to the public and, with limited exceptions, court proceedings such as trials are also open to the public. See generally People v Kin Kan, 78 NY2d 54, 57 (1991) (trial courts have "carefully calibrated discretion[]" to exclude the public from trials "for demonstrated and documented reasons"; "[c]losure remains only an exception to the mandatory postulate of open trials.").
Thus, in determining whether to close a courtroom in a custody trial, the objective is to find the "balance [between] the right of access of the public and the press to judicial proceedings [and] the ... interest in protecting children from the possible harmful effects of disclosing [harmful information] to the public." P.B. v C.C., 223 AD2d 294, 296 (1st Dept 1996). In this regard, DRL § 235(2) permits the court to close the courtroom on a custody trial and seal the evidence proffered therein where "the evidence on the trial of such an action . . . be such that public interest requires that the examination of the witnesses should not be public."
In making its determination whether to close the courtroom in on a custody trial, the court must consider the following factors, set forth in 22 NYCRR 205.4:
(1) the person [sought to be excluded] is causing or is likely to cause a disruption in the proceedings;(2) the presence of the person is objected to by one of the parties, including the attorney for the child, for a compelling reason;(3) the orderly and sound administration of justice, including the nature of the proceeding, the privacy interests of individuals before the court, and the need for protection of the litigants, in particular, children, from harm, requires that some or all observers be excluded from the courtroom;(4) less restrictive alternatives to exclusion are unavailable or inappropriate to the circumstances of the particular case.Overall, the "controlling consideration" is the best interest of the children. P.B. v C.C., 223 AD2d at 296.
In this Court's considered view, this custody trial should be closed and shielded from press access and all evidence and testimony related to the custody proceeding shall be sealed. The children have been directly harmed by Wife's public disclosure of their personal and private information and relationships. The record on this motion establishes this fact, as does the forensic expert report which this Court read with consent of counsel. The Court recognizes the parties may not agree with all of the matters and opinions contained in the report, and that it is subject to cross-examination; thus, the Court gave the report its appropriate weight subject to such cross-examination. However, the report substantiated certain statements made by the [*6]attorney for the children as to the damage and harm caused to them by Wife's conduct in discussing this matter with the media. Any claim that the damage has already been done by Wife's disclosures, and that allowing the press into the custody trial will not further harm the children, callously overlooks that further subjecting these children to public scrutiny and embarrassment will only exacerbate their emotional injuries. P.B. v C.C., Id.
Moreover, the public has little, if any, interest in the private, sensitive information of the children. Husband's family relationship with the [public figure], although titillating, has nothing to do with the children's physical, mental, and emotional lives and their relationship with their parents. Thus, closing the courtroom and sealing the evidence is in the best interest of these children.
Accordingly, it is hereby
ORDERED that Husband's motion for an order holding Wife in contempt of the No Talk Order, is granted; and it is further
ORDERED that Husband established that a lawful order of the court expressing an unequivocal mandate has been and remains in full force and effect, that Wife has disobeyed the Order, that Wife had knowledge of the Order, and that her violation of the Order has prejudiced the children's rights; and it is further
ORDERED that Wife shall pay Husband a fine, pursuant to Judiciary Law § 773, in the sum of $32,535.25, as and for attorney's fees incurred by reason of Wife's contempt, within forty-five (45) days of the date of this order.
ORDERED that the courtroom shall be closed, and all evidence sealed, in the custody trial.
DATE 10/10/2022
KATHLEEN C. WATERMAN-MARSHALL, J.S.C.
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