Ritchie v. Ritchie

• Decision Date: 12 June 2020
• Docket Number: CA 19-01098,416
• Citation: 184 A.D.3d 1113,125 N.Y.S.3d 798
• Parties: Julie RITCHIE, Plaintiff-Appellant, v. Brian M. RITCHIE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 1113

125 N.Y.S.3d 798

Julie RITCHIE, Plaintiff-Appellant,

v.Brian M. RITCHIE, Defendant-Respondent.

416

CA 19-01098

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 12, 2020

KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR PLAINTIFF-APPELLANT.

PAUL B. WATKINS, FAIRPORT, ATTORNEY FOR THE CHILDREN.

PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying in their entirety those parts of defendant's motion seeking modification of the parties' custody and visitation arrangement and vacating the second through sixth and eighth ordering paragraphs, and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum:

Plaintiff mother commenced this matter pursuant to Family Court Act article 8, seeking an order of protection against defendant father based on allegations that he committed the family offenses of harassment in the first or second degree and stalking. Pursuant to their existing custody and visitation arrangement, the parties had joint legal custody of the children with the mother having primary residential custody. After a temporary order of protection was entered ex parte, the father filed a motion by order to show cause seeking, inter alia, removal of the matter to Supreme Court, vacatur of the temporary order of protection, modification of the parties' custody and visitation arrangement by awarding the father sole custody of the children with the "suspen [sion]" of the mother's "visitation," and an award of attorney's fees. The matter was removed to Supreme Court, which conducted a fact-finding hearing on the mother's family offense petition but treated the matter as though it was a post-divorce action. The mother appeals from an order entered after the hearing that, inter alia, effectively denied the petition and granted the motion in part by vacating the temporary order of protection, awarding sole custody of the children to the father for a period of 60 days with limited visitation to the mother, and directing the mother to pay $3,500 to the father for his attorney's fees. The order also, sua sponte, granted certain additional relief, i.e., it directed the mother to pay $2,500 to the father for her purported perjury in this matter, prohibited either party from filing a petition seeking an order of protection without prior permission from the court, and prohibited the older child from using any electronic device or participating in extracurricular activities within the 60-day period unless the father allowed the same. By order of this Court, the order on appeal was stayed in part pending appeal.

Contrary to the mother's contention, we conclude that the court did not err in effectively denying the family offense petition and granting that part of the motion seeking vacatur of the temporary order of protection. "The determination whether [the father] committed a family offense was a factual issue for the court to resolve, and ‘[the] court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record’ " ( Matter of Martin v. Flynn , 133 A.D.3d 1369, 1370, 20 N.Y.S.3d 812 [4th Dept. 2015] ; see Cunningham v. Cunningham , 137 A.D.3d 1704, 1704-1705, 28 N.Y.S.3d 751 [4th Dept. 2016] ). Here, we find no reason to disturb the court's credibility determinations or its conclusion that the father did not commit any of the family offenses alleged in the petition (see Matter of Teanna P. v. David M. , 134 A.D.3d 654, 655, 21 N.Y.S.3d 622 [1st Dept. 2015] ; Matter of Krisztina K. v. John S. , 103 A.D.3d 724, 724, 960 N.Y.S.2d 144 [2d Dept. 2013] ).

We reject the mother's related contention that we are unable to intelligently review the merits of the family offense petition because the recordings of the father's cell phone conversations with the older child, on which the court based some of its findings, were not included in the record on appeal. We note that it is the responsibility of the mother, as the appellant, to furnish an adequate record on appeal (see Matter of Unczur v. Welch , 159 A.D.3d 1405, 1405, 72 N.Y.S.3d 680 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2924938 [2018] ). Nevertheless, we conclude that the record is sufficient for intelligent appellate review inasmuch as the contents of the cell phone recordings can be gleaned from the record. Further, there was no dispute during the hearing as to the accuracy of the recordings (cf. Matter of Trombley v. Payne [Appeal No. 2], 144 A.D.3d 1551, 1552, 40 N.Y.S.3d 844 [4th Dept. 2016] ).

We agree with the mother, however, that the court erred in granting in part the father's motion insofar as it sought to modify the parties' custody and visitation arrangement, by awarding him sole custody of the children for 60 days and restricting the mother's visitation and contact with the children during that period. We therefore modify the order accordingly. The father did not allege, let alone establish, "a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child[ren]" ( Matter of James D. v. Tammy W. , 45 A.D.3d 1358, 1358, 845 N.Y.S.2d 890 [4th Dept. 2007] [internal quotation marks omitted]; see Matter of Kriegar v. McCarthy , 162 A.D.3d 1560, 1560, 78 N.Y.S.3d 566 [4th Dept. 2018] ; Matter of Wawrzynski v. Goodman , 100 A.D.3d 1559, 1559, 953 N.Y.S.2d 921 [4th Dept 2012] ). Additionally, even assuming, arguendo, that the father established a change in circumstances, we conclude that the court in its custody and visitation determination failed to adequately address the "factors that could impact the best interests of the child[ren]" ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ), and thus that determination lacks the requisite sound and substantial basis in the record (see generally Fox v. Fox, 177 A.D.2d 209, 211-212, 582 N.Y.S.2d 863 [4th Dept. 1992] ).

As the mother correctly contends, the court also erred in sua sponte directing that the parties' older child be deprived of a cell phone and other electronic devices and be barred from attending all extracurricular and "outside-the-home activities" for 60 days. No party requested such relief, and the court had no legal basis upon which to grant it. We therefore further modify the order by vacating the eighth ordering paragraph.

We agree with the mother that the court erred in sua sponte directing her to "pay a $2,500 fine to the [f]ather for her perjury in this matter ... and if the fine is not permitted by law, [directing that] ... the fine [be converted] into an award of damages." The court did not state whether it was sanctioning the mother for frivolous conduct or for civil or criminal contempt. A court of record may impose punishment for criminal contempt under Judiciary Law § 750 where, insofar as relevant here, the person at issue engages in "[d]isorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority" ( § 750 [A] [1] ). Additionally, a court may summarily punish a party for contempt only where "the offense is committed in the immediate view or presence of the court" (§ 755). Here, the court summarily punished the mother by sanctioning her after it determined that she committed perjury during her testimony before a Judicial Hearing Officer in Family Court with respect to the temporary order of protection and during her testimony at the hearing on the petition before Supreme Court. Assuming, arguendo, that perjury would support a finding of contempt, we conclude that the court could not properly find the mother in criminal contempt based on her testimony in Family Court, nor could the court summarily punish the mother for civil or criminal contempt based on that testimony, inasmuch as it occurred out of the court's "immediate view and presence" (id. ; see § 750 [A] [1] ; cf. Matter of Mitchell v. Wiggins , 195 A.D.2d 1069, 1069, 602 N.Y.S.2d 578 [4th Dept 1993] ). Insofar as the order may be deemed to sanction the mother for civil or criminal contempt that occurred in the presence of Supreme Court, we conclude that, because "due process requires that ... the contemnor be afforded ‘an opportunity to be heard at a meaningful time and in a meaningful manner’ " ( Matter of Mosso v. Mosso , 6 A.D.3d 827, 829, 776 N.Y.S.2d 599 [3d Dept. 2004] ; see Delijani v. Delijani , 73 A.D.3d 972, 973, 901 N.Y.S.2d 366 [2d Dept. 2010] ), and the court failed to provide notice that it was considering finding the mother in contempt or an opportunity to be heard thereon, the court erred in imposing such sanction (see generally Matter of Jung [State Commn. on Jud. Conduct] , 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925 [2008] ).

We further conclude that the court had no authority to sanction the mother on the ground that she engaged in frivolous conduct. Assuming, arguendo, that sanctions for frivolous conduct may be based on a party's perjury, we conclude that the regulation permitting the imposition of such sanctions specifically provides that it "shall not apply to ......