DocketNumber： 314079-10 15294N 15293N
Judges： Concur--Friedman, Feinman, Gische, Manzanet-Daniels, Saxe
Filed Date： 3/24/2016
Status： Precedential
Modified Date： 11/1/2024
Order, Supreme Court, New York County (Ellen Gesmer, J.), entered December 23, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiff wife’s motion for sanctions against defendant husband and granted plaintiff’s motion to hold defendant’s parents in contempt of court, modified, on the law and the facts, to deny plaintiff’s motion insofar as she sought to sanction defendant for his delay in paying his share of the neutral forensic evaluator’s fees, to vacate the sanctions imposed on defendant for the delay ($6,847.50 and $79,530), and to vacate the fines imposed on defendant’s parents for their contempt of court in the amounts of $156,704.94 and $28,135.35, representing the legal fees plaintiff incurred in conducting the visitation trial and preparing an addendum to the posttrial memorandum, and otherwise affirmed, without costs. Appeal from judgment of divorce, same court and Justice, entered May 12, 2014, dismissed, without costs, as abandoned.
This case involves tragic circumstances that disrupted and eventually destroyed the parties’ marriage. The parties, who were married in 2005, have one child, a daughter born in 2007. In 2008, defendant, then age 28, suffered a stroke from an undetected brain aneurysm. He was in a coma for several weeks and underwent four brain surgeries. He emerged partially paralyzed and uses a wheelchair. Although he resides in a nursing home, and suffers from some vision, memory and speech impairments, he has never claimed in this action that he is incapable of making independent decisions. In fact, in
The primary dispute in this divorce proceeding is visitation. The parties previously stipulated that plaintiff would have primary custody of the child, and defendant withdrew his special proceeding to enjoin plaintiff from obtaining a religious divorce before a Beth Din. We hold that the trial court abused its discretion in sanctioning defendant for failing to comply with its June 12, 2012 order directing him to pay his share of the neutral custody forensic evaluator’s fees. We hold, however, that by filing and continuing a special proceeding to enjoin proceedings before the Beth Din of America, defendant engaged in frivolous litigation. We also deem defendant’s notice of appeal to include his parents because they have “a united and inseverable interest in the judgment’s subject matter, which itself permits no inconsistent application among the parties” (Hecht v City of New York, 60 NY2d 57, 62 [1983]). Moreover, on rare occasions, in granting relief to an appealing party, the nonappealing party may also benefit (see Cover v Cohen, 61 NY2d 261, 277-278 [1984]), particularly where, as here, the issues are hopelessly entangled (see Citnalta Constr. Corp. v Caristo Assoc. Elec. Contrs., 244 AD2d 252, 254 [1st Dept 1997]). Upon doing so and in consideration of the merits, we affirm the trial court’s finding of contempt in connection with defendant’s parents’ failure to comply with trial subpoenas and court orders directing them to produce documents for trial. The fine appropriately included an award of legal fees incurred by plaintiff in making a contempt motion. However, we vacate the part of the fine representing legal fees incurred for preparation of a posttrial memorandum as well as for the visitation trial itself.
With respect to sanctions attributable to defendant’s failure to pay his share of the forensic evaluator’s fees in time for the originally scheduled trial, defendant claimed he could not afford the expense. The trial court rejected the proffered excuse because defendant’s parents were paying most of his other litigation fees. Defendant’s parents, however, were under no legal or contractual obligation to pay the forensic evaluator’s
Defendant’s commencement of a special proceeding against plaintiff and the Beth Din for a permanent stay of an arbitration hearing on the religious divorce was frivolous within the meaning of the part 130 rules because the action had no legal or factual merit (22 NYCRR 130-1.1 [c]). Plaintiff was proceeding before the Beth Din for a religious divorce based upon a binding arbitration agreement (BAA) she claimed had been signed by the parties prior to their marriage and years before defendant’s stroke. Instead of examining the BAA when he was notified by the Beth Din of the hearing, defendant immediately claimed it was a forgery, largely based on his recollection that he was not in Jamaica Estates (Queens County) on November 29, 2004, the date on which the BAA was executed. Defendant seized upon certain scrivener’s errors in the BAA to bolster his forgery claim, ignoring sworn attestations by two witnesses who saw him sign the BAA, the notarization, and his ability to identify the physical signature as his own, even though he had no specific memory of its execution. It was not until one year later, at his deposition, that defendant finally acknowledged the signature was his, essentially conceding that his claim of forgery had absolutely no merit. Even then defendant delayed withdrawing his petition, waiting until the very day of the hearing to do so. By failing to fully investigate whether this
Even if, as defendant now claims, his parents actually manipulated him into bringing the summary proceeding and were the driving force behind it, ultimately it was defendant’s decision to pursue those baseless claims for over a year (see Levy v Carol Mgt. Corp., 260 AD2d 27 [1st Dept 1999]). Notwithstanding that defendant has serious health and cognitive issues, no claim was made by defendant, his attorneys, or even his parents that he was in need of a guardian ad litem, or any other substitute decision maker, because he was unable to defend or prosecute his claims (CPLR 1201 et seq.). In fact, as noted, in the prior custody proceeding, the court found he was not in need of a guardian ad litem. There is no indication that defendant was incapable of making decisions regarding the proceedings or unaware of its implications. Consequently, the trial court correctly held defendant responsible for his own frivolous conduct.
The trial court properly awarded plaintiff legal fees incurred to defend the special proceeding as the appropriate sanction amount (22 NYCRR 130-1.1 [a]). No hearing was required to determine the amount of the fees, because the parties stipulated in writing that the issue of counsel fees could be decided upon written submissions.
With respect to the trial court’s holding defendant’s parents in contempt, we uphold the trial court’s finding that defendant’s parents were in contempt of trial subpoenas and court orders when they failed to provide documents at trial. Despite serving each parent with subpoenas over four months in advance of trial, requiring them to testify and produce at trial records and documents necessary for plaintiff’s case, defendant’s parents appeared for trial without many of the records and documents demanded, including communications between the parents and defendant’s lawyers. Neither defendant nor his parents brought a written motion to quash those subpoenas. It was not until trial that defendant’s parents asserted, for the first time, a blunderbuss attorney-client privilege and made an oral application to quash the subpoenas. In asserting the privilege, no privilege log itemizing documents being withheld was produced. Nor were the withheld documents offered for in camera inspection. Although the trial court rejected the oral application as untimely, it nevertheless considered the privilege
The record supports the trial court’s determination that the parents were actually aware of, and disobeyed, a clear and unequivocal court directive, thereby prejudicing plaintiff’s rights, justifying the finding of civil contempt (see Judiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226 [1994]; Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]). The motion to quash was properly denied by the court as untimely. But even if, as defendant now argues, the orders underlying the contempt were not correct, defendant’s parents were still obligated to comply. An order that is jurisdictionally valid and not stayed during the relevant time can form the basis for contempt, even if the order is erroneously made (see New York City Coalition to End Lead Poisoning v Giuliani, 248 AD2d 120, 121 [1st Dept 1998]; Seril v Belnord Tenants Assn., 139 AD2d 401, 401 [1st Dept 1988]). Clearly noncompliance prejudiced plaintiff because she incurred unnecessary legal fees in having to bring a contempt motion.
Legal fees that constitute actual loss or injury as a result of a contempt are routinely awarded as part of the fine (Judiciary Law § 773; see Bell v White, 112 AD3d 1104 [3d Dept 2013], lv dismissed 23 NY3d 984 [2014]). These may include the legal fees incurred in bringing the contempt motion (see Glanzman v Fischman, 143 AD2d 880, 881 [2d Dept 1988], lv dismissed 74 NY2d 792 [1989]).
The trial court properly included plaintiff’s legal fees for bringing a contempt motion as part of the fine. The trial court, however, improperly included as part of the contempt fine both the legal fees incurred to prepare the posttrial memorandum and those incurred in connection with the trial itself. There was no basis for the court to conclude that such legal fees constituted an actual loss or injury related to the contempt as a means of compensating plaintiff, rather than punishing de
With respect to including the legal fees associated with the visitation trial as part of the contempt fine, the trial court based its decision on a belatedly produced email dated December 27, 2012 from defendant’s parents to defendant’s attorney. The email indicated that the defendant had told his parents he did not want any visitation with his daughter. The trial court concluded that if the email had been produced sooner “there would have been no visitation trial.”
The broad-based conclusion that no visitation trial would have been necessary, or as the dissent hypothesizes, sharply curtailed by the production of this email and other correspondence, is simply speculation. In fact, some of the important issues involved how to best rehabilitate defendant’s strained relationship with his young daughter. The natural right to visitation is a joint right of the noncustodial parent and the child (Resnick v Zoldan, 134 AD2d 246, 247 [2d Dept 1987]). Consequently, “[i]t is presumed that parental visitation is in the best interest of the child, absent proof that such visitation would be harmful” (Matter of Wise v Del Toro, 122 AD2d 714, 714 [1st Dept 1986]). The primary dispute between the parties was the extent to which the parties’ young daughter would have access to her father and under what circumstances, given defendant’s disabilities and his living arrangement. It was never contemplated, even by plaintiff, that their daughter would cease to have contact with her father. Defendant steadfastly maintained throughout these proceedings that he wanted access to his daughter, and although the forensic evaluator testified that there should be reduction in the frequency and duration of the child’s visits with her father, she did not recommend wholesale termination of visits. Therefore, even if defendant’s parents had timely produced these documents, access and supervised visits would still have been an issue. The fact that defendant, who was competent, actually proceeded with a trial is irrefutable proof that a trial was necessary. Had defendant not wanted visitation with his daughter, he could have simply withdrawn his request for access and the fact that he did not do so is of greater significance than the email and other documents his parents did not turn over. Given these
Defendant filed a custody petition in the Bronx Family Court in October 2009. The Special Referee appointed Pierre Javier, an attorney from the Mental Hygiene Law article 81 panel, to assess the husband’s mental capacity and ability to assist his counsel in his representation and make a recommendation whether a guardian ad litem should be appointed. Attorney Javier recommended that no such appointment was needed.