Rubackin v. Rubackin

• Decision Date: 24 February 2009
• Docket Number: 2007-07008.,Docket No. O-01502-05.
• Citation: 62 A.D.3d 11,2009 NY Slip Op 01488,875 N.Y.S.2d 90
• Parties: In the Matter of SHEILA RUBACKIN et al., Respondents, v. ROBERT RUBACKIN, Appellant.
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 11

875 N.Y.S.2d 90

2009 NY Slip Op 01488

In the Matter of SHEILA RUBACKIN et al., Respondents, v. ROBERT RUBACKIN, Appellant.

Docket No. O-01502-05.

2007-07008.

Appellate Division of the Supreme Court of New York, Second Department.

Decided February 24, 2009.

DePodwin & Murphy, Nanuet (Phillip J. Murphy of counsel), for appellant.

Patricia Zugibe, County Attorney, New City (Barbara M. Wilmit of counsel), for Rockland County Department of Probation, respondent.

OPINION OF THE COURT

ANGIOLILLO, J.

The appeal in this family offense proceeding raises the question of what standard of proof is necessary to sustain a finding that a respondent has failed to obey a lawful order of the Family Court, when the remedy to be imposed is a period of incarceration pursuant to Family Court Act § 846-a. It is appropriate to address this question notwithstanding the fact that the period of incarceration imposed on the appellant, Robert Rubackin, has expired, and thus, the appeal from that portion of the order must be dismissed. Although the period of the appellant's incarceration has expired, the appeal from so much of the order as found that he violated a temporary order of protection is not academic in light of the enduring consequences which may potentially flow from an adjudication that a party has been found to have violated an order of the Family Court (see Matter of Er-Mei Y., 29 AD3d 1013 [2006]).

The provisions of Family Court Act article 8, governing family offense proceedings, do not specify the standard of proof that must be met in order to sustain a finding that an individual failed to obey a lawful order issued under that article. Family Court Act § 846-a refers to the remedial steps that may be taken when, after a hearing, "the court is satisfied by competent proof that the respondent has willfully failed to obey any such order." "[C]ompetent proof" references the nature and quality of the proof required, but it does not answer the question of what quantum of proof is required. The question of the proper standard of proof is complicated by the nature of the various remedies available to a Family Court judge upon finding that an individual has failed to obey a lawful order.

Most of the remedies provided for in Family Court Act § 846-a are clearly civil in nature. When those remedies are implemented, they assist in stopping the violence, ending family disruption, and providing protection to a party. Like the remedies that are clearly civil in nature, the imposition of a period of commitment to jail may have a certain coercive effect of compelling future compliance by an individual, but it is mainly punitive in nature, imposed to punish an individual for past disobedience.

We conclude that the standard of proof which must be met when the court commits an individual to a jail term is proof beyond a reasonable doubt that he or she willfully failed to obey a lawful order of the court. That same high standard is not applicable if one or more of the other available remedies under Family Court Act § 846-a is utilized and a jail term is not imposed.

Family Court Act § 812 (2) (b) provides, in part: "[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection."

Upon the filing of a petition alleging one or more family offenses, as specified in Family Court Act § 821, the court conducts a fact-finding hearing to determine whether the allegations of the petition are supported by a fair preponderance of the evidence (see Family Ct Act § 832). If the allegations of the petition are supported by a fair preponderance of the evidence, one of the actions the court may take at the conclusion of a dispositional hearing is to issue an order of protection (see Family Ct Act § 841 [d]). Another is the placement of the respondent on probation for a period not exceeding one year (see Family Ct Act § 841 [c]). Commitment to a period of incarceration, however, is not authorized under Family Court Act § 841 at that stage of the proceeding.

The Family Court in this case initially found, after a hearing, that the appellant had committed the family offense of harassment in the second degree. The court imposed a one-year period of probation and issued an order of protection. One of the conditions of the order of protection was that the appellant attend domestic violence classes for a period of one year. While that order of protection was in effect, a violation petition was filed by the Rockland County Department of Probation (hereinafter the Probation Department). Due to certain deficiencies in the Probation Department's proof on the issue of whether the appellant was discharged from the domestic violence classes for cause, that violation petition was not sustained. However, the court noted that it was undisputed that the appellant was not attending domestic violence classes. The Family Court issued another temporary order of protection dated August 11, 2006 (hereinafter the August 11 order of protection) and, subsequently, a permanent order of protection dated October 13, 2006, both of which required the appellant to register in and attend domestic violence classes.

A second violation petition was thereafter filed alleging that the appellant failed to attend a registration meeting for the program, failed to reschedule the registration meeting, and failed to attend domestic violence classes. A hearing was conducted on that violation petition. The testimony of two witnesses, a senior probation officer and an individual who was a court liaison with a volunteer counseling program, was offered to establish the appellant's willful noncompliance with the August 11 order of protection. The appellant testified that he did not remember why he had missed the registration meeting.

After the hearing, the Family Court found, by clear and convincing evidence, that the appellant willfully failed to comply with the August 11 order of protection. The court issued a new order of protection, with a two-year duration, and committed the appellant to a period of incarceration of 30 days. As noted, the appellant has completed the period of commitment. This appeal ensued.

The enforcement of an order of protection may be pursued by the filing of a violation petition alleging a failure to obey the order of protection (see Family Ct Act § 846). Family Court Act § 846-a provides, in part: "if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order" (emphasis added), it may take one or more specified actions. The court may: (1) add reasonable conditions of behavior to the existing order of protection; (2) make a new order of protection in accordance with Family Court Act § 842; (3) forfeit bail in a manner consistent with article 540 of the Criminal Procedure Law; (4) order the respondent to pay the petitioner's reasonable and necessary counsel fees; and (5) "may commit the respondent to jail for a term not to exceed six months" (Family Ct Act § 846-a).

Although the statute requires "competent proof," it does not specify what standard of proof a petitioner must meet in establishing a willful failure to obey the court's order of protection.

The failure to obey a lawful order of a court is a species of contempt. A contempt of court ultimately may constitute a criminal contempt, a civil contempt, or both a criminal and a civil contempt. A period of incarceration may be imposed upon a finding of either a criminal or civil contempt. When a period of incarceration is imposed, what distinguishes a criminal contempt from a civil contempt is, in part, the purpose for which the incarceration is imposed. When the purpose of committing an individual to jail is in the nature of vindicating the authority of the court, protecting the integrity of the judicial process, or compelling respect for the court's mandates, the contempt is a criminal contempt. In order to sustain a finding of criminal contempt, there must be proof beyond a reasonable doubt that the contemnor willfully failed to obey an order of the court.

We arrive at the conclusion that the contempt finding in this case was criminal in nature, requiring that the proof of such willful disobedience of the court's order be made beyond a reasonable doubt, by first looking to the language of a nearly century-old decision of the United States Supreme Court. In Gompers v Bucks Stove & Range Co. (221 US 418 [1911]), the Supreme Court stated the following:

"Contempts are neither wholly civil nor altogether criminal. And `it [might] not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both' . . . It is not the fact of punishment but rather its character and purpose that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. . . . [I]mprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order" (id. at 441-442 [citation omitted]).

The Supreme Court in Gompers gave an example where a defendant is ordered to do something, refuses, and is committed to a jail term after being found in contempt. It stated that this is an example of civil contempt, where the individual remains committed only until he does what he previously refused to...