SEEKING AN ORDER OF PROTECTION POST DIVORCE

Supreme Court, Monroe County Judge Dollinger always writes an interesting decision.

JF v. DF, 2021 NY Slip Op 51046 - NY: Supreme Court, Monroe 2021:

"It has been said that sticks and stones may break my bones, but words can never hurt me.^[1] That adage ignores the true power that words can wield, particularly when they threaten harm or are otherwise designed to cause trauma. The question here is whether the words spoken — or, in actuality, for the most part, typed in emails — by Defendant Father in this case rise to the level of criminal harassment, justifying curtailment of his fundamental liberty interest through issuance of an order of protection. The court concludes that they do not.

The parties were divorced in November 2013, and, pursuant to the Judgment of divorce and separation agreement, shared joint custody and equal residency of their three children, ages 19, 17 and 11. The relationship between the parents has been rocky, with numerous applications being made over the years for modification of custody, orders of protection, and the like. This latest dispute has its roots in the COVID pandemic, with Father initially filing an application in October 2020 alleging that Plaintiff Mother was not following State mandated COVID protocols with respect to the children. Further applications have followed, with the Mother's initial cross-motion, filed in November 2020, containing a request for an Order of Protection. That request is supported by the Mother's affidavit, pointing primarily to emails sent by the father, many of which accuse her of violating COVID protocols regarding out of state travel and quarantine. Her Affidavit contains upwards of 50 pages of email exchanges between the couple, which the Mother contends demonstrate harassment sufficient to support an order of protection. Father has now moved to dismiss this application, insofar as it seeks an order of protection.

At the outset, the parties disagree as to the proper authority under which the order of protection is sought. Father contends that the application is brought pursuant to section 812 of the Family Court Act, which requires a finding of a qualifying family offense in order for an order of protection to be issued. Mother contends that the application is made pursuant to DRL § 240 (3), the text of which does not require the finding of a family offense. The Court disagrees with Father's contention that section 240 (3) is inapplicable because that section applies only to matrimonial actions, and there is no matrimonial action pending at this point. That suggested reading of Section 240 is far too narrow. Section 240 can support an award of a protective order "during the pendency of the action, in the final judgment, and even after the final judgment" (Scheinkman, Practice Commentaries, McKinney's Cons. Laws of NY, Book 14, Domestic Relations Law C240:30 [emphasis supplied]). Thus a post-judgment application such as this, seeking a change in custody/visitation, constitutes a matrimonial action within the meaning of section 240. The case cited by father — Xiaokang Xu v Xiaoling Shirley He (147 AD3d 1223 [3d Dept 2017]) is inapposite. There, the proceeding was not a post-judgment application in the matrimonial proceeding, but a separate action for various intentional torts — which clearly did not constitute a matrimonial action.

In the end, though, the fact that the application for a protective order may be brought pursuant to DRL § 240 (3), as opposed to section 812 of the Family Court Act, is a distinction without a difference. While section 240 does not, on its face, limit the court's ability to issue orders of protection to situations where a family offense is pled and proven, the Appellate Division has specifically grafted that limitation onto the statute. In Jennifer JJ. v Scott KK (117 AD3d 1158 [3d Dept 2014]), the court held that

"[a]s Domestic Relations Law § 240 does not delineate the precise standards or procedures governing the issuance of such an order, it is appropriate to look to Family Ct. Act article 8 for guidance. In this regard, the party seeking an order of protection bears the burden of establishing — `by a fair preponderance of the evidence' — that the offending party committed one of certain enumerated family offenses"

(id. at 1159 [internal citations omitted]; see also Scheinkman, Practice Commentaries, McKinney's Cons. Laws of NY, Book 14, Domestic Relations Law C240:30 ["The statute does not expressly provide standards to be employed in granting orders of protection. It would appear that the substantive law to be applied is that supplied by Article 8 of the Family Court Act"]). Indeed, because orders of protection implicate a person's fundamental due process rights, the statute must be read to include "explicit standards" for their issuance (People v Freeman, 2001 NY Slip Op 40329(U) [NY City Ct Nov. 2, 2001], quoting Grayned v City of Rockford, 408 US 104, 108-109 [1972]); leaving such decisions to the court's arbitrary discretion would likely violate due process (see generally People v Forman, 145 Misc 2d 115, 130 [Crim Ct 1989]).

Anticipating the need to prove a qualifying family offense, Mother argues that her petition contains sufficient allegations of conduct amounting to the qualifying offense of harassment in the second degree (Penal Law § 240.26). As relevant here, that statute provides:

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

. . .

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."

The Mother points to a long series of emails from Father concerning necessary quarantine measures and other proscriptions and requirements with respect to COVID 19. In particular, the Father sent numerous emails to Mother saying that she was required to quarantine following a trip to Illinois, after that State was added to the restricted state list then in effect. Mother contends — and it appears beyond dispute — that father's information was largely, if not entirely, incorrect. Nevertheless, he persisted in maintaining that she and the children needed to quarantine, and apparently reported them to health department authorities. He also demanded make-up time with the children after their (unnecessary) quarantine period.

There is no doubt in this Court's mind that the Father's persistent — again, there are upwards of 50 pages worth of texts back and forth — insistence that Mother needed to take COVID precautions which, in fact, were not necessary would "seriously annoy" almost anyone. And, inasmuch as this is a motion to dismiss, and the Court must draw every reasonable inference in favor of the Mother as the non-moving party (see Alden Glob. Value Recovery Master Fund, L.P. v KeyBank N.A., 159 AD3d 618, 621 [1st Dept 2018]), the Court accepts that it may even have been the Father's intent, at least at some point, to "harass" or "annoy" the Mother. However, because of the Constitutional protection afforded by the First Amendment, speech can not be punished simply because it causes annoyance. A "conversation may well be `abusive' and intended to `annoy'; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" (People v Dietze, 75 NY2d 47, 51 [1989] [emphasis supplied]). In Dietze, the Court declared a prior version of the harassment statute, which forbade "abusive" speech intended to "annoy," unconstitutional as substantially overbroad. Similarly, in People v Golb (23 NY3d 455, 466-67 [2014]), the Court of Appeals struck down as vague and overbroad the section of the aggravated harassment statute that provided that a person was guilty when "with intent to harass, annoy, threaten or alarm another person, he or she. . . communicates with a person. . . in a manner likely to cause annoyance or alarm." As with the statute at issue in Dietze, this section impermissibly "criminalize[d], in broad strokes, any communication that has the intent to annoy," which is impermissible (Golb, 23 NY3d at 467).

The current version of the statute has withstood overbreadth challenges, in part because it is aimed at conduct, not simply speech, and because, to the extent that speech is proscribed, it "prohibits only speech that lacks a `legitimate purpose'" (People v Perez, 51 Misc 3d 1215(A) [Crim Ct 2016]). That "no legitimate purpose" language must be read to incorporate the Constitutional limitations on prohibiting speech — i.e. only "words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace" may be proscribed (Dietze, 75 NY2d at 52).

Read under that prism, there is simply no way to conclude that the Father's texts were sent with "no legitimate purpose." Even assuming they were misguided and in some cases, flat out wrong, they were aimed at a legitimate subject of debate — the appropriate measures of COVID prevention protocols, something any parent certainly has a "legitimate" interest in. There are no "`threats []or intimidating or coercive utterances' "in these emails that would place them "outside the pale of the First Amendment" (People v Graziano, 11 Misc 3d 137(A) [App Term 2006], quoting People v Shack, 86 NY2d 529, 538 [1995]). Nor can it be said that only Father's conduct in sending the texts, rather than the substance of the texts themselves, is at issue (c.f. People v Seitz, 44 Misc 3d 1226(A) [Crim Ct 2014]), inasmuch as the substance of the emails — i.e. their veracity, or more to the point, inaccuracy — makes up a large portion of the Mother's argument.

To the extent that Mother relies on Father's alleged placing of, or attempting to place, a GPS device on her car, the Court agrees with the argument of counsel for the Father that this conduct can support an order of protection only if it amounts to stalking, which applies only where an offender continues conduct "after being told to stop" (People v Stuart, 100 NY2d 412, 427 [2003]; see Penal Law § 120.45[2]). That was not the case here.

Accordingly, the motion to dismiss the application for an Order of Protection is GRANTED.

SUBMIT ORDER ON NOTICE 22 NYCRR 202.48.

[1] This Court previously cited this aphorism in another dispute in which words — in that case, vulgar and insulting — were used by a child against a parent and resulted in a finding of abandonment by the child of the parent. Cornell v Cornell, 47 Misc 3d 605 (Sup.Ct. Monroe Cty 2015). But the adage is apropos here because, as this opinion notes, the issue of when words — alone — violate a statute is a different kettle of fish. The later — "kettle of fish" — adage has never been used in the New York courts but is popular elsewhere. Holbrook v. Holbrook, 2021 Ky. App. Unpub. LEXIS 592 at 10 (Ct. App. Kentucky 2021); Enoksen v. Squires, 2021 U.S. Dist. LEXIS 65359, n.8 (E.D.NY 2021)."