Contested litigation is remarkably unsuited for healing a divorced family. One gets a sense of the feelings of frustration, if not helplessness a Family Court Judge may feel as she tries to figure out “what do we do next?” What remedy should be ordered that will actually strengthen the bonds between parent and children?

Consider the July 1, 2016 decision of Erie County Family Court Judge Mary G. Carney in Matter of Gregory S. v. Dana K. Judge Carney was charged with resolving the claims of a father, rejected by his four children in substantial part due to the mother’s willful violations of visitation orders.

Judge Carney noted that the family’s history was branded by protracted, caustic litigation, toxic interpersonal conflict and all categories of broken hearts.

Continue Reading Mother Ordered to Write Book Report for Disobeying Father’s Visitation Rights

Check censoredFinding statements made by a father on the memo portion of three child support checks offensive, the Appellate Division, Second Department, found that such violated the mother’s order of protection.

Doing so in its February 3, 2016 decision in Clovis v. Clovis, the Second Department reversed the order of Orange County Family Court Judge Andrew P. Bivona that had dismissed the mother’s petition.

The mother had alleged that the father violated her order of protection by communicating with her by mail. Specifically, instead of making his child support payments through alternate means, the father knowingly and intentionally mailed to her seven checks for child support and that, on three of the checks, he had written offensive remarks in the memo portion. After a hearing, Judge Bivona stated that the memos on three checks “may be offensive,” yet, without explanation, found that the memos did not constitute a violation of the order of protection.

Reversing, the Second Department found that the mother had established by a fair preponderance of the evidence that the father, by mailing the child support checks, willfully violated the order of protection, which expressly prohibited any form of communication by the father with the mother, including the use of mail. The father admitted at the hearing that he had communicated with the mother by mail, despite being aware that the order of protection prohibited such communication. Moreover, under the circumstances of this case and the history between the parties, the statements in the memo portion of the three checks were offensive.

Kelli M. O’Brien, of Goshen, represented the mother. Richard N. Lentino, of Middletown, represented the father. William E. Horwitz, of Ardsley-on-Hudson, served as attorney for the child.

Unemployment, alone, is not sufficient to avoid incarceration for the willful failure to pay child support. So held the First Department when on April 8, 2014 it affirmed the determination of Bronx County Family Court Judge Sidney Gribetz in Gina C. v. Augusto C.

Based upon the fact-finding determination of the Support Magistrate, Judge Gribetz had found that the father willfully violated a child support order, and committed him to the New York City Department of Corrections for a term of four months intermittent weekend incarceration, unless discharged by payment of $7,000.00 to the Child Support Collection Unit.

The First Department held that the Support Magistrate properly found that respondent wilfully violated the order of child support. The mother made her prima facie showing that the father’s failure to pay child support over a five year period was a willful violation of the order of support. The father failed to respond with a showing that the violation was not willful by evidence that he was unable to make the required payments. The father and his witnesses gave conflicting testimony as to whether he was working. There was no basis upon which to disturb the Support Magistrate’s credibility determinations.

Further, the appellate court held that unemployment alone does not establish inability to pay, especially given the father’s failure to show that he used his best efforts to obtain employment commensurate with his qualifications and experience. Moreover, prior to each court appearance, the father had appeared with a promise of employment and a minor payment on his outstanding arrears, only to lose the new job and discontinue support between hearing dates.

The father’s last minute attempts to avoid the consequences of his previous failure to pay, including staving off a potential jail sentence, should not be countenanced.

Complaining too much about visitation violations may just cause you to lose joint custody. Such may be the lesson to be learned from the September 19, 2013 decision of the Third Department in Green v. Green.

The parties were the parents of a son born in 2004 and a daughter born in 2008. Pursuant to a prior order of the Family Court, the parents shared joint custody of their children, with the mother having primary physical custody.

Within days of the entry of that prior Family Court custody order, the father filed the first of six petitions alleging that the mother was in violation of the custody order. The five other violation petitions were filed over the next several months. The father also filed a petition seeking modification of the prior custody order.

Following a hearing, Judge Dennis K. McDermott of the Madision County Family Court found that there had not been a change in circumstances warranting modification of physical custody. However, because the acrimonious relationship of the parties rendered joint legal custody inappropriate, Judge McDermott awarded sole legal custody to the mother. Judge McDermott also made certain adjustments to the visitation schedule.

On appeal, the Third Department accorded Judge McDermott’s factual findings appropriate deference. The appellate court found no error in the determination that the father failed to establish a change in circumstances sufficient to warrant a change in physical custody.

Moreover, the Third Department found awarding sole legal custody to the mother was appropriate:

[B]ased upon this record, it is evident that the parties are unable to effectively communicate and cooperate with one another. Therefore, upon consideration of all of the circumstances, we conclude that Family Court properly amended the prior order to award sole legal custody to the mother.

Finally, the Third Department found that the adjustments made to the visitation schedule were supported by the record.

Comment: Credibility is greatly affected by demeanor. I am sure both parties in the above case perceived the righteousness of their own positions. However, the manner in which one parent handles perceived violations by the other parent and then how that parent approaches the court are critical to ultimate determinations. No court likes to see a parent crying to it every single time there is a perceived violation. Good faith, maturity, patience and reasonable efforts must be shown.

Many recent decisions have shown the courts’ sensitivity to each parent’s responsibility to foster the relationship between the children and the other parent. However, it is also clear that each parent must meet the other at least part way.

In this case, Theodore W. Stenuf, of Minoa, represented the father. Mark A. Schaeber, of Liverpool, served as Attorney for the Children.

No retroactive fine or suspension of maintenance is to be  imposed against a wife who violated her so-ordered stipulation not to allow her paramour into the marital residence. Instead, suspension of maintenance and a fine would only be imposed prospectively and only until the wife complied with that stipulation. Civil contempt fines are not intended to punish the wrongdoer, but to secure future compliance with court orders.

Such was the holding of the Appellate Decision, Second Department, in its May 22, 2013 affirmance of Nassau County Supreme Court Justice Daniel Palmieri‘s order in Ruesch v. Ruesch.

For the pendency of this divorce action, the wife had been awarded exclusive possession of the marital home, temporary custody of the parties’ children, maintenance and child support.

At some point, the wife had permitted her alleged paramour to move into the marital home. In a so-ordered stipulation, the wife agreed that her paramour would be barred from entering the marital home absent further order of the court. A month later, the husband moved to hold the wife in contempt of that so-ordered stipulation because the paramour was continuing to reside in the marital residence.

Upon the wife’s admission that she permitted her paramour to continue to reside in the marital residence, Justice Palmieri held the wife in contempt pursuant to Judiciary Law §753. Justice Palmieri prospectively and temporarily suspended maintenance payments and imposed a fine of $250 for each day the wife remained in violation until the wife purged her contempt by demonstrating compliance with the so-ordered stipulation. Justice Palmieri denied the husband’s request for a counsel fee.

On appeal, the husband  contended that Justice Palmieri should have suspended maintenance payments and imposed a fine retroactive to the first day the wife violated the so-ordered stipulation.

The Second Department affirmed. Justice Palmieri had properly recognized that civil contempt fines are remedial in nature and not punitive. In the absence of a monetary loss for the husband, the contempt fine would be designed only to secure future compliance  with the so-ordered stipulation.

The appellate court held that unlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The fine for a civil contempt should be formulated not to punish an offender, but solely to compensate or indemnify private complainants. Thus, a fine is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss. The violator must be given the opportunity to comply, and thereby purge the violation.

Here, where the [husband] failed to prove an actual loss, any penalty that punished the [wife] for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication. Accordingly, the Supreme Court did not err in suspending maintenance payments and imposing a fine only prospectively.

The Second Department also held there was no merit to the husband’s appeal of the denial of his application for an award of counsel fees.

In divorce actions, it is not uncommon for one party to be made the financial obligor, and the other to perform some action. If the power of the court is to be administered even-handedly, its remedies must be balanced.

Should our stipulations themselves state what the remedy will be for a violation? Will a liquidated damages provision be upheld?

If Ms. Ruesch can avoid even a slap on the wrist by finally complying with the order she had violated for four months, is respect for the court’s orders truly being promoted? Indeed, with the denial of even a counsel fee, what is the lesson to be learned here?

The husband was represented on the appeal by Edward K. Blodnick, Thomas R. Fazio, and Steven R. Talan of Blodnick, Fazio & Associates, P.C., of Garden City.