S.D. v J.D.

[*1] S.D. v J.D. 2023 NY Slip Op 51062(U) Decided on May 25, 2023 Supreme Court, Westchester County Patel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2023
Supreme Court, Westchester County

S.D., Plaintiff,

against

J.D., Defendant.



Index No. [Redacted]



Constantine G. Dimopoulos, Esq.
Counsel for the mother, S.D.
Dimopoulos Bruggemann P.C.
73 Main Street, 2nd Floor
Tuckahoe, NY 10707

J.D., Esq.
Pro se counsel for the father, J.D.
Anar Rathod Patel, J.

In this post-judgement proceeding, Plaintiff moves by order to show cause for an order: (a) entering a Temporary Order of Protection ("TOP") against Defendant and on behalf of Plaintiff to order Defendant to refrain from harassment of Plaintiff through the use of e-mail, TalkingParents, or any other form of communication; (b) directing Defendant to pay counsel fees in the form of sanctions in an amount to be determined by the Court under 22 NYCRR 130-1.1 for Plaintiff having to bring this motion; and (c) other and further relief which this Court deems just and proper. The following papers were considered in connection with this motion:

Papers/NYSCEF Doc. Nos.
Order to Show Cause (Mot. Seq. No. 81), Affidavit, Exs. 1—8 2405—2414
Affidavit in Opposition, Memorandum of Law, Exs. A—L 2423—2436

Relevant Factual and Procedural Background

The parties were married on August 25, 2008, and have two children of the marriage: B.D. (born [Redacted]) and A.D. (born [Redacted]). Plaintiff commenced an action for divorce and ancillary relief on July 30, 2018. The trial as to custody and access commenced on February 8, 2021. The parties entered into a stipulation resolving custody and parenting prior to the commencement of testimony and such stipulation was So Ordered by the Court (Koba, J.) on February 10, 2021 ("Custody Stipulation"). NYSCEF Doc. No. 1578. Parties agreed to, inter alia, joint legal custody of the two children. The Court (Koba, J.) issued a decision after trial as to access on April 30, 2021. NYSCEF Doc. No. 1696. The trial as to financial issues of child support, spousal maintenance, and equitable distribution commenced on September 27, 2021, and the Court (Koba, J.) issued a decision after trial on March 1, 2022. NYSCEF Doc. No. 2057. The Judgement of Divorce was issued on May 3, 2022, and entered by the Clerk of the Court on May 6, 2022. NYSCEF Doc. No. 2086. Upon consent of the parties, the issues of counsel fees and expert fees were severed and the parties submitted motions to that effect. The Court (Koba, J.) issued a decision on said motions on February 23, 2023. NYSCEF Doc. No. 2397.

Plaintiff now moves by order to show cause seeking a TOP against Defendant that directs him to refrain from harassment of Plaintiff through e-mail, TalkingParents, or any other form of communication. The Court observes that, despite engaging in nearly five years of highly antagonistic litigation, including but not limited to eighty (80) motions, the parties have not sought such relief to date.

Relevant to the issue of communications between the parties is the plain language of the Custody Stipulation, wherein the parties agree that they "are entering into this Stipulation with the intent to achieve and maintain constructive, civil and respectful treatment, communication and cooperation that primarily advance the best interests of the Child. Each party recognizes that without such communication and cooperation the Children's best interests will be disserved." NYSCEF Doc. No. 1578 at 21. This provision is consistent with prior interim orders as to custody and access whereby the Court (Everett, J. & Koba, J.) directed that each party shall comply with the Children's Bill of Rights and shall not disparage the other party in front of the children or within ear shot of the children. NYSCEF Doc. Nos. 791 (12/18/19 Order); 866 (3/10/20 Order). In light of the hostile communications initiated by both parties and the acrimony existing between the parties, the Court (Everett, J.) ordered the parties to communicate exclusively on the TalkingParents application. NYSCEF Doc. No. 791. Accordingly, the parties have communicated using this application since January 1, 2020.

Plaintiff's Order to Show Cause and Defendant's Opposition

In support of her Order to Show Cause, Plaintiff submits an Affidavit wherein she avers that "[d]espite the case being over for well over a year, Defendant's contempt for me continues and has gotten even worse." NYSCEF Doc. 2406 at ¶ 3. She supplies the Court with the following excerpts of communications made by Defendant as examples of the types of statements that she argues are harassing pursuant to NY Penal Law § 240.26 and support her application for a TOP:

[*2]Date

Alleged Harassing Statement

Pl.'s Ex.

6/11/22

You and [Redacted] are similar, lies. You are a disgusting horrific mother. Your [sic] an absentee mom, always was and always will be. your entire life is a lie! You have never accomplished one thing in your life. You live off of your parent, and have failed at everything, including being a mom and a wife. This is why your grandparents hated your parents, because they were failures as parents. Your parents taught you to be them when you should have been like your grandparents. You lie and lie and lie. You hospitalized your daughter, abandoned your children and try to have your parents substitute you. Everything you do is to appease them. Bottom line is you cannot be trusted and the fact is my provisions enforce what should otherwise be the default. You cannot accept it.

Ex. 1

[*3]3/5/23

This is not abuse, this is responsibility. I understand that it is hard for you to be a mother, but this is your responsibility. When the children are late, they miss out. For example, [A.D.] did not get to play the first set of matches. If this is your response, well maybe the children need me to have a more active presence in their lives and you less. By the way, did you enjoy spending $4,000,000 (or your parents)? Was it worth it?

Ex. 2

3/6/23

No one said miscommunication. Just shows your lack of intelligence. You did not communicate and expect me to read your mind and track you. I do neither! You are a horrific animal and do not deserve any respect, albeit I show you way too much courtesy.

Ex. 3

3/14/23

you owe me so much money, I can be your creditor and force you into bankruptcy.

Ex. 4

[*4]3/19/23

Your goal was to destroy me rather than to divorce me and have our children grow up with two loving divorced parents. You went to such distances to hurt me that you've become the laughing stock of our community. Everyone knows what you've done. Everyone knows who you are. Even your friends are now talking behind your back.

Ex. 5

3/19/23

I just received the bill for [A.D.] that you charge to my account. If you take the children somewhere, all charges should go on your account and I will pay any amounts that I am obligated to pay that have not been offset by amounts you owe me. If you do this again, I will file a police report.

Ex. 6

[*5]3/22/23

Unfortunately, this is just another delay tactic that will not be tolerated. I will be seeking judicial intervention after 5pm today. I requested this information from you on Monday, which was not your birthday. Tuesday was not your birthday. Today, for the amount of messages you have already sent me, you could have provided this information to me in less than two minutes. When I have traveled internationally, I have provided you with the information. I have paid for the children to be able to remain in contact with you. Happy to provide you with the receipts, and amount of communication the children had with you. You know you have not reciprocated and you blocked the children form communicating with me. I will not accept such result again this time.

Ex. 7

Plaintiff argues that these alleged harassing statements evidence an intent to threaten, harass, intimidate, and seriously annoy her and have no legitimate purpose. Accordingly, she avers that such communications are harassment in the second degree pursuant to NY Penal Law § 240.26. NYSCEF Doc. No. 2406 at ¶ 10. Plaintiff furthers seeks sanctions against Defendant for his failure to agree to a mutual TOP at the conference held before this Court on March 28, 2023. Id. at ¶ 11 ("I have no intention of harassing Defendant or committing any family offense against him, so for me, consenting to a mutual refrain from was acceptable.").

Defendant opposes the application and invites the Court to consider a full recitation of facts in this matter dating back to August 2018 and as set forth in his Affidavit in Opposition. NYSCEF Doc. Nos. 2423 at 2; 2436. Defendant argues that Plaintiff has "cherry picked portions of communications to submit to this Court" and claims that each excerpt supplied by Plaintiff relates to a communication concerning the children and therefore, has a legitimate purpose. Defendant further argues that Plaintiff is in fact the party guilty of harassment and is the instigator of the "alleged harassing response." NYSCEF Doc. No. 2436 at ¶¶ 8, 11. In response to Plaintiff's request for sanctions, Defendant responds that he is not required to consent to the order of protection that Plaintiff seeks.

In urging the Court to consider the surrounding context of the statements that Plaintiff alleges constitutes harassment, Defendant responds as follows:

Date

Defendant's Response

Def.'s Ex.

[*6]6/11/22

Defendant avers that he was responding to the following statement by Plaintiff: You are a disgusting human being. Of course I want my children there. I always want my children with me. As far as the kids knowing about [Redacted] bar mitzvah, they thought they were not going prior to today as you have made that clear, and now they will be disappointed after you brought it to their attention after everything was settled upon that it was a possibility that they could attend.

Defendant further argues that the Court should disregard this statement because it is outside the time period for which Plaintiff accuses Defendant of committing the family offense of harassment in the second degree (i.e., March 5 through 22, 2023), and therefore irrelevant to the allegations in Plaintiff's motion.

Ex. G

[*7]3/5/23

Defendant avers that he was responding to the following statement by Plaintiff: [Redacted], go harass and abuse someone else.

Defendant avers that he initiated the exchange because "the Children were arriving at their activities late and leaving early during Plaintiff's access time." NYSCEF Doc. No. 2436 at ¶12.

Ex. A

3/6/23

Defendant avers that he was responding to the following statement by Plaintiff: This is not a miscommunication, your emails are consistently aggressive and abusive.

Defendant avers that he made the alleged harassing statement because "she should provide me notice when she delivers the Children's items and merely leaves them in the driveway rather than delivery such to me (or the nanny) directly." Id. at ¶ 13.

Ex. B

[*8]3/14/23

Defendant avers that he was responding to a communication regarding payment of add-ons for the children and sought to remind Plaintiff "that she owes me over $700,000 from my equitable distribution ..." Id. at ¶14.

3/19/23

Defendant avers that he was responding to the following statement by Plaintiff that arose in the context of discussing access to A.D.'s ice skating account, id. at 20: [Redacted], you're such a miserable, abusive person, disgusting both inside and out.

Exs. C, I

3/19/23

Defendant avers that he made the alleged harassing statement because "Plaintiff was violating my privacy and invading my private [sic] accounts. My intent was solely to inform Plaintiff that she was prohibited from charging my accounts...." Id. at ¶26.

[*9]3/22/23

Defendant avers that he made the alleged harassing statement because of "Plaintiff's refusal to purchase the phone service"-referring to an international cellphone plan for the children to use to speak to Defendant while they were traveling internationally with Plaintiff. Id. at ¶¶25-28.

Legal Discussion

In a divorce action, Domestic Relations Law (DRL) § 240(3) permits the court to make an order of protection in connection with any custody order and DRL § 252(1) mandates that this court entertain an application for an order of protection or temporary order of protection made by either party in either a pre-judgment or post-judgment proceeding. Although the statutes do not set forth any standards to determine whether or not an order of protection should be granted, the courts have followed the case law developed under Article 8 of the Family Court Act when deciding such applications. See Fakiris v. Fakiris, 177 AD2d 540 (2d Dept. 1991). The party alleging a family offense has the burden of establishing the complained of conduct by a fair preponderance of the evidence. Matter of Bunin v. Bunin, 2020 NY Slip. Op. 06122 (2d Dept. 2020); Matter of Stanislaus v. Stanislaus, 155 AD3d 963 (2d Dept. 2017). With respect to the alleged family offense of harassment in the second degree, NY Penal Law § 240.26 provides in relevant part that "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person, and which serve no legitimate purpose."

The intent to commit harassment in the second degree can be inferred from the party's conduct and the surrounding circumstances. Finn v. Harrison, 188 AD3d 1200 (2d Dept. 2020) (intent to commit harassment in the second degree properly inferred from the respondent's conduct, which included "her use of abusive language directed at the petitioner and her threatening action of videotaping the petitioner while she slept, both of which frightened the petitioner, caused her blood pressure to rise, and served no legitimate purpose"); Matter of Howard v. Howard, 181 AD3d 894, 896 (2d Dept. 2020) (intent to commit harassment in the second degree properly inferred from the respondent's threatening conduct and use of abusive language directed at the petitioner which frightened the petitioner and served no legitimate [*10]purpose). Moreover, a single incident is sufficient to establish harassment in the second degree. See Matter of Richardson v. Brown, 173 AD3d 876, 876—877 (2d Dept. 2019) (evidence established the respondent committed the family offense of harassment in the second degree based on a text message sent by him to the petitioner, which "contained a genuine threat of physical harm, and the evidence . . . adequately demonstrated that it was reasonable for the petitioner to take the threat seriously since it was sent during a period of extreme marital discord").

Courts have determined that "[m]ere words alone are not enough to constitute the family offense of harassment." Lisa T. v. K.T., 49 Misc 3d 847, 853 (Fam. Ct. 2015) (respondent's emails to petitioner in custody dispute were not sent with the intention of harassment where respondent obtained a custody order giving him a legitimate reason to contact petitioner); see also People v. Dietze, 75 NY2d 47, 51 (1989) ("unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized").

Here, Plaintiff seeks a TOP on behalf of herself against Defendant, pursuant to DRL §§ 240 (3) and 252, requiring that he refrain from the family offense of harassment of Plaintiff through the use of e-mail, TalkingParents, or any other form of communication. Defendant denies he committed any family offense and rebuts that Plaintiff has failed to meet her burden for the Court to issue an order of protection because she has failed to establish that Defendant acted with the requisite intent to harass, annoy, or alarm Plaintiff. Rather he asserts that the alleged harassing statements "(1) were each made in direct response to [Plaintiff's] own actions and/or her own statements; and (2) consist of merely one allegedly offending statement in an entire series of communication which are nototherwise alleged to be offending." NYSCEF Doc. No. 2423 at 7. As to each of the alleged harassing statements, Defendant contends that he was "merely" responding to communication that concerned the children and "with the intent to discuss the Children." Id. at 13. Defendant further argues that Plaintiff has failed to establish that, even if the language he employed is "vulgar, derisive, and provocative," his language is Constitutionally protected speech and served the "legitimate purpose of discussing issues surrounding the Children and [Plaintiff's] failure to follow the orders of this Court ." Id. at 15. Finally, Defendant argues that Plaintiff has failed to establish that, as a result of the alleged harassing statement, she was alarmed or seriously annoyed.

The Court finds that Plaintiff has failed to allege the requisite elements to state a claim for harassment in the second degree, and that the offending statements at issue—which the parties do not dispute they authored—rise to the level of a family offense. See, e.g., Fakiris v. Fakiris, 177 AD2d 540, 544 (2d Dept. 1991); Kristiansen v. Kristiansen, 144 AD2d 441 (2d Dept. 1988). Plaintiff has not established the alleged harassing statements were made with the necessary intent to harass, alarm, or annoy her. See Mamantov v. Mamantov, 86 AD3d 540, 551 (2d Dept. 2011) ("accepting the evidence as true and giving her the benefit of every reasonable inference, the wife failed to demonstrate, prima facie, that the husband, in committing the act alleged, acted with an 'intent to harass, annoy or alarm'") (internal citations omitted). Rather, each of the alleged statements were made in the context of discussing issues related to the parties' children and Plaintiff herself made similar statements and used similar language towards Defendant. See Lisa T. v. K.T., 49 Misc 3d 847, 853 (Fam. Ct. 2015).

While the Court does find that the statements made by both parties serve no legitimate purpose—meaning, both parties could have engaged in discussions of issues relating to their children without resorting to name-calling and spiteful language, Plaintiff has also not alleged that, as a result of the alleged harassing statements, she was in fact alarmed or seriously annoyed. Plaintiff states that she is "at my wits' end and [ ] bombarded with insults and Defendant's frivolous lawsuits against me." NYSCEF Doc. No. 2406 at ¶ 10. However, based on a review of the record in this case, both parties have engaged in conduct that may be regarded as frivolous. Furthermore, when reviewing the alleged harassing statements in the context of the broader communications between the parties, it is evident—as the Court observed in the table provided supra—that Plaintiff made similar statements. Additionally, the parties continue to communicate with each other with respect to their children.

Notwithstanding the foregoing, the communications provided to the Court by both parties in connection with this motion evince a level of disrespect, uncivility, and vitriol that is a violation of their own Custody Stipulation, entered into in February 2021. The parties explicitly recognized and stated that such communications are not in the best interests of their children. Yet, both parties continue to engage in communications that are unfortunately consistent with the tone and tenor of this proceeding. The Court finds the communications demonstrate a lack of "constructive, civil and respectful treatment," which is contrary to the parties' binding contract. And while the parties have not provided the Court with evidence that such statements are made to or within ear shot of the children, common sense dictates that children absorb and internalize the mutual disrespect displayed by their parents. The parties themselves acknowledged that such language does not serve the best interests of their children. Accordingly, while the Court does not find that the communications at issue rise to the level of a family offense for purposes of issuing a TOP, there are appropriate remedies available where parties breach contracts and violate court orders.

All other arguments raised and evidence submitted by the parties have been considered by this Court notwithstanding the specific absence of reference thereto.

Accordingly, it is hereby

ORDERED, that Defendant's motion for a temporary order of protection, sanctions, and counsel fees is DENIED; and it is further

ORDERED, that all other relief requested and not decided herein is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: White Plains, New York
May 25, 2023
HON. ANAR RATHOD PATEL, A.J.S.C.