Merrick v. Merrick

• Decision Date: 29 May 1992
• Citation: 154 Misc.2d 559,585 N.Y.S.2d 989
• Parties: David MERRICK, Plaintiff, v. Etan MERRICK, Defendant.
• Court: New York Supreme Court

Page 989

585 N.Y.S.2d 989

154 Misc.2d 559

David MERRICK, Plaintiff, v. Etan MERRICK, Defendant.

Supreme Court, New York County IAS Part 18.

May 29, 1992.

Migdal, Pollack, Rosenkrantz & Sherman, New York City (Lawrence W. Pollack, of counsel), for plaintiff.

Morrison Cohen Singer & Weinstein, New York City (Mara T. Thorpe, of counsel), for defendant.

DAVID B. SAXE, Justice:

Defendant Etan Merrick, the wife of plaintiff David Merrick, requests an order requiring the plaintiff to post the sum of $440,000.00 for additional security for payment of temporary maintenance and child support, and also providing that if this security is not posted, additional property belonging to the plaintiff should be sequestered with defendant appointed as receiver. She further asks for (1) an order directing plaintiff to obtain life insurance in the amount of $2 million, designating defendant as sole beneficiary; (2) a direction that plaintiff file an updated net worth statement; (3) permission to expend $14,236.00 from already sequestered funds for repairs to the marital residence and for appliance replacements; (4) approval for an expenditure from the sequestered funds of $225.00 for the entrance exam and application fee for "C's" application to the Trinity School; (5) awarding defendant $1,500.00 for summer day camp expenses of "C" and "O," the children Etan Merrick is attempting to adopt (motion # 016).

By separate motion (# 017), Mrs. Merrick asks for an order sealing the court file in this action, closing the courtroom in all proceedings in this action, directing that the caption in this case be amended to read "Anonymous v Anonymous," and restraining the plaintiff and his attorneys or agents from discussing this case with the media or disclosing case documents to third persons.

I.

First, addressing the wife's privacy concerns: Domestic Relations Law § 235, subdivision (1) provides that in matrimonial actions, court personnel may not permit anyone other than a party or attorney for a party to take or see a copy of "any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony." This provision protects against the "indiscriminate inspection and publication of the details of matrimonial matters" (Scheinkman, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 14, C235:1 p. 119). It is noteworthy, however, that the statute does not provide complete privacy to matrimonial litigants. As Professor Scheinkman points out, it

"does not include court decisions and orders, such as orders made on motions or post-trial decisions. Indeed, the case reporters are replete with reported decisions with the parties' names stated. Official legal newspapers and even the general media report on decisions in matrimonial actions. While in some instances, decisions are publicly reported with fictitious names substituted for the true names of the parties, the statute does not completely provide for the privacy of all documents in a court matrimonial file." (Id. at 121).

The file in this action is already considered sealed pursuant to Domestic Relations Law § 235 subdivision 1. The court need not issue an order directing compliance with the statute. Nor will it issue an order giving broader protection than does the statute.

As to closure of the courtroom, public access to court proceedings is strongly favored (Richmond Newspapers v. Virginia, 48 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973; Anonymous v. Anonymous, 158 A.D.2d 296, 297, 550 N.Y.S.2d 704 [1st Dept.1990]. Judicial proceedings are presumptively open to the public and the press, unless there are compelling reasons for closure (Matter of Herald Co. v. Weisenberg, 89 A.D.2d 224, 455 N.Y.S.2d 413, affd. 59 N.Y.2d 378, 465 N.Y.S.2d 862, 452 N.E.2d 1190 [1983]. In divorce actions, Judiciary Law § 4 provides that the court may, in its discretion, exclude all persons not directly interested. Domestic Relations Law § 235 subdivision 2 overlaps to some extent with Judiciary Law § 4, but DRL § 235(2) authorizes closing the courtroom in a matrimonial action "If the evidence ... be such that public interest requires that the examination of the witnesses should not be public." As noted in the Practice Commentary, "DRL § 235 (subd. 2) does not however, authorize the closing of proceedings because of the private interests of the particular litigants. Rather, the court must be convinced that the 'public interest' requires closure" (Scheinkman, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 14, C235:2 p. 123).

Considering the issue of the public interest, in Sprecher v. Sprecher, NYLJ, June 21, 1988, at 26, col. 6 [SupCtNYCo] the trial court denied a motion to close the courtroom in a highly publicized matrimonial action involving a child's custody. Although the point was raised that teachers, other children, and parents were treating the child differently as a result of the publicity, the court noted that the public's interest in learning about the child rearing practices of the members of the Sullivan Institute for Psychoanalysis ("the Sullivanians") weighed in favor of an open courtroom. The court therefore denied the motion in Sprecher for an order closing the courtroom and changing the caption to anonymous or fictitious names. With respect to keeping the courtroom open, the Appellate Division agreed (although it directed the change to an anonymous caption) (see, Anonymous v. Anonymous, 158 A.D.2d 296, 550 N.Y.S.2d 704, supra ).

In support of her motion, the defendant wife states that news articles which have appeared regarding the matrimonial action are having a detrimental effect on the parties' 19-year old daughter Marguerita and two nursery school age "adoptive" children who reside with the defendant. However, with regard to the three children, the assertion is not supported by evidentiary submissions. In an affirmation, counsel states "upon information and belief" that Marguerita has told defendant that her schoolmates at Cornell University have taunted her. Defendant's affidavit less informatively states merely that Marguerita is depressed. It is further stated that the articles have an effect on the younger children, although the nature of such effect is not specified. What defendant's papers do establish is that defendant is upset when details of her personal life are published in this fashion.

Given the policy in favor of public access to the court (Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973, supra; Anonymous v. Anonymous, 158 A.D.2d 296, 297, 550 N.Y.S.2d 704, supra ), the defendant's emotional response to media coverage of this action cannot alone form the basis for closure of the courtroom.

The defendant also seeks what is commonly called a "gag order"--restraining the plaintiff, his agents and his attorneys from discussing this case with the media or distributing documents or information in this case to third parties.

A prior order by Justice Schackman has already prohibited the plaintiff's attorneys from disclosing and discussing with the media any documents submitted in these proceedings. This order constitutes the law of the case. I will not, however, issue an order even more severe than that, given the showing here.

The law in this state is sparse with regard to discussion of the use of an anonymous caption in matrimonial actions. As a general matter, however, such relief is viewed as addressed to the sound discretion of the trial court, upon consideration of the competing factors of the parties' need for such protection against the public's interest in maintaining public access to our courts (see, e.g., Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 [10th Cir1979], cert. denied 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 [1979]; Doe v. Stegall, 653 F.2d 180, 186 [5th Cir1981].

Of course, the trial court must actually exercise its discretion, and not simply apply a blanket policy to all cases (see, Doe v. Bodwin, 119...