Sentencing a father (a police officer) to 15 days in jail for sending abusive e-mails to the mother, Supreme Court, Putnam County Justice Victor G. Grossman attempted to stop the war between divorcing parents.

Charging the parties with acting more like children, throwing tantrums, teasing and name-calling, Justice Grossman, in his decision in L.T. v. K.T.  noted that both parents behaved like preschoolers. Unfortunately, the Court could send the parties to their rooms. The parties’ three children have two parents whose embarrassing behavior has set a horrible example. the behavior of both parties was “all the more disappointing when one considers the parties should know better.” The father was a police officer, who had been trained to defuse difficult situations. The mother had a Master’s Degree in Psychology. Thankfully, the children had multiple outlets where they can see responsible adult behavior.

The Court also blamed the lawyers, observing “how counsel for each of the parties has personalized the conflict to the point where they are incapable of communicating effectively beyond a litigating posture, to promote their clients’ interests.”

In this divorce action, a custody Stipulation had been placed on the Record in open Court and was “So-Ordered.”

In this application, the mother moved to hold the father in contempt and other relief including counsel fees, and for an Order of Protection with specific findings or violations and related relief. The mother complained:

1. the father refused to undergo drug and alcohol testing as stipulated;
2. the father refused to agree to modify the access schedule for certain family events;
3. the father withheld telephone access;
4. the father refused to show any flexibility on pick up and drop off issues;
5. the father did not take their daughter to therapy;
6. the father failed to reimburse the mother for certain expenses;

The father responded with a cross-motion seeking counsel fees and sanctions on six different grounds.

As to alcohol and drug testing, the mother was concerned that the father is under the influence of alcohol and/or pain killers while he is caring for the children. The father denied the allegations. Their Stipulation provided:

either party is free to demand the other party submit to drug testing for a 180-day period from today’s date [April 29, 2014] that will be paid by the party who demands the test, demanded no greater than, no greater frequency than 15 days . . . there needs to be a basis for the demand there be a drug test.

Twice, during the 180-day period, the father had tested positive for alcohol on the basis of a urine test. One of these tests covered a period when the father had care and custody of the children. Another test was scheduled for September 2, 2014, but the father failed to appear and submit to testing. The father defended this failure to appear by claiming that he had pre-existing plans with the children, which could not be altered.

The mother also complained that the father refused to submit to a hair follicle test on September 30, 2014. In response, the father argued that he was not obligated to submit to a hair follicle test. The father also suggested that, as a police officer, he is required to submit to such testing and if anything is revealed by such job-related testing he would lose his job. Justice Grossman rejected this excuse, noting that such had never been substantiated by statute, police department policy statement, collective bargaining agreement or other documentary evidence.

Justice Grossman found the language of the Stipulation quite clear. It did not allow for the father to ignore the request. As the term “drug testing” had not been further defined in the parties’ Stipulation, either party was entitled to request any type of drug test so long as he/she was willing to pay for it. Thus, the Court found that the father violated a Court Order by refusing to submit to testing when demanded. As the appropriate result of such violation was to address the goals of drug testing, i.e. to ensure that the parent’s ability to adequately care for three young children was not compromised by the use of drugs or abuse of alcohol, Justice Grossman ordered that drug testing be continued for a period of twelve months.

The mother also complained that the father refused to adjust the access schedule to accommodate two Christenings, and a Confirmation on May 13, 2014. She pointed to the provision of the Stipulation which provides:

Both parties will be flexible with access time, afford the other access time to attend extended family events such as Christenings, birthday parties, baptisms, weddings, other community events. If one party gives another party some time, the other party will afford makeup time. The intention is to make sure the children don’t miss out on these events.

Justice Grossman found that he could not hold the father in contempt for not being flexible. “Unfortunately, for purposes of a contempt finding, the agreed upon imposition of flexibility does not create a clear mandate with respect to any specific event or family gathering.” The supposed shared intent to make sure the children did not miss out on these events did not create a priority for family events.

The parties, by acknowledging the need to be flexible, agreed to do more than the specific schedule they set forth. Presumably, they understood — and understand — the value of extended family in their’s children’s lives, but their inability to agree cannot be resolved by a finding of a violation or contempt. Instead, failing agreement, the parties may find themselves returning to court for relief relating to specific events.

Similarly, the need for flexibility with respect to pick-up and drop-off and the needs of three children, with the backdrop of two different parental work schedules, is clear, but:

“flexibility” is a two-way street and cannot be ordered. It is also a component of making a joint custody agreement reach its full potential. The parties need to recognize the mutual value of cooperation; the Court cannot define it for every family unit. While the Court is prepared to enforce that which can be enforced, it cannot mold either party into what the other party would like.

The mother sought to hold the father in contempt for generating a series of embarrassing and harassing e-mails to the mother. The Stipulation had limited such communications between the parties:

The parties will be relegated to one e-mail a day for the purpose of discussing issues concerning the children, unless there is a circumstance which requires, that is exigent circumstances, which requires more than that, it being the intention to limit the amount of e-mailing so they can communicate effectively, rather than being pressed to respond to five, seven, ten e-mails in a day.

Justice Grossman characterized those e-mails as showing the father insolently mentioning issues between the parties and then repeatedly and gratuitously adding language one would expect to hear from drunken sailors or college students at a fraternity party. They included:

• September 29, 2014: “you may be the stupidest person I ever encountered…Holy crap…fuck you…funk your family…btw did I say fuck you…btw…you look pregnant.
• October 14, 2014: I DON’T GIVE A FUCK!!!!!…good luck in life dummy, you will need it…btw if you don’t get this shit soon I will have it dropped off in your parents driveway…also fuck you if that was not clear lol…I don’t know how to get [*5]this through your dented head…..I’m the competent parent….as always…., fuck you.
• October 28, 2014: E-mail No.1: The kids are sleeping, do you really want me to wake them up because you are a bad mother? Also fuck you….nasty bitch….when the kids need money for college…first cars….weddings….I will show them what you did……sooooooo fuck you, they will get off the bus at your parents house tomorrow….I can’t wait till the kids tell you they want to stay at my house cuz you are living in a basement apartment, like a divorced woman loser….you fuckin discrace.
• E-mail #2: They are sleeping….I guess your masters degree doesn’t cover reading comprehension…..now leave me alone bitch…..I don’t have to take your mouth anymore……btw fuck you!!!!!!!god I love to say that.
• November 16, 2014: sooooooo….you sound mad…get tires you dumbass they are bald. I only noticed because you parked next to me at the game…..but whatever….you want your 7500….send a moving company for the ass raping im allowing you to do to me and get your shit….im not a storage company. And if your ca passed inspection the person should not have passed it…where was it done?…I should make a notification to the state…..get tires you fucking bitch….the kids ride in that car. Btw if you don’t get your shit soon I will deliver..it to your parents driveway.
• November 19, 2014: E-mail #1: wtf don’t you understand about the fact I pay 100 max a month you dumbass….send me a receipt or a verification of payment.
• E-mail #2: No lisa…100 a month max….so fuck you.
• E-mail #3: God you are fucked up….get ready for obama care.
• October 6, 2014: I asked because it falls on your day. Also fuck you….garnish them Cuz that will make it an electronic transfer….like I asked you for dummy.
• October 15, 2014: Fu
• November 3, 2014: ….just remember the phrase…welcome to McDonald’s can I take your order lol.

Because the father did not deny the content of the e-mails, nor that he wrote and sent them to the mother, a hearing was not required. Instead, he tried to justify his conduct by claiming the mother had been condescending and demeaning.

Justice Grossman found the inexcusable repetitious pattern of demeaning abuse could neither be accepted nor tolerated as a response to the mother’s “dictatorial” e-mails, nor could it be excused because the father, as a law enforcement officer, might face some discipline or sanction for his actions.

His badge is one of honor, respect, and authority; it is not a badge of immunity.

As a practical matter, the parties’ co-parenting obligations required cooperation and adjustment. Instead, the father felt slighted at the mother’s tone and limited cooperation.

The solution is simple: Get over it. If the parties want their joint custody to work, they must make it work. Otherwise, their joint custody status becomes another name for the mutually assured destruction of their children.

As Justice Grossman stated: Perhaps their anger is so great that the welfare of their children is secondary to their desire to express themselves so poorly. The father’s First Amendment right to be rude, crude, obnoxious and disgusting is not matched by the mother’s First Amendment right to voice her (perceived by the father) superiority. Still, there is no equivalence between the words used by the father and those used by the mother. The fact that the mother’s use of the phrase “Is that clear ?” was condescending and disrespectful, did not compare with, or justify, the language used by the father.

The Court granted an Order of Protection to the mother, finding the gratuitous language of the e-mails served no legitimate purposes. The Court found that Harassment in the Second Degree (PL §240.26) approximated the conduct complained of and should be applied here. Justice Grossman found that with intent to harass annoy or harm the mother, the father engaged in a course of conduct or repeatedly committed acts which alarmed or seriously annoyed the mother and which served no legitimate purpose.

The father’s concern that his position as a law enforcement officer might be jeopardized by the existence of an Order of Protection against him was rejected. “Suffice it to say, he controlled his own destiny. The Court does not excuse the attitude or language used by the father.”

The Court found the violations of the drug testing and e-mail provisions of the “So Ordered” Stipulation had been established by proof beyond a reasonable doubt. The failure to obey a lawful order of a court is a species of contempt.” Findings of civil and criminal contempt were available.

Unfortunately, the Court noted, the expressive behavior exhibited by the father in his e-mails and his refusal to submit to drug testing were incapable of corrective measures. The powers of the Court could not change what had been done, but those same powers could be effective in limiting a repetition of behaviors that are violative of the Stipulation/Order. The Court was concerned that the father believed he can continue acting as he has — a belief the Court would not accept. It appeared to Justice Grossman that the father’s anger and behavior had not abated. Drastic measures were warranted. Accordingly, the father was ordered to serve a sentence of 15 days imprisonment.

Danziger Legal PLLC, of White Plains, represented the mother. Lieberman & LeBovit, Esqs., of Yorktown Heights represented the father. Carton & Rosoff, P.C., of White Plains, served as Attorney for the Children.