In this proceeding, the estate of the Incapacitated Person, Anthie B., (hereinafter referred [*2]to as "IP") seeks to hold the court-appointed Guardian, Patricia H. Esq., in contempt of court for her failure to follow this court's directions contained in various court orders issued in this guardianship matter. It is with great reluctance that a court holds an attorney in contempt. In this case, however, the court-appointed Guardian has left the court with no alternative.

In appointing a guardian for an individual who is incapacitated, the court exercises one of its most inviolable duties and occupies the role of "parens patria." This duty can not be taken lightly. Nor can a court appointee take lightly the duties inherent in the acceptance of the appointment as a guardian. While most guardians appointed by the courts perform admirably, often with inadequate compensation, some unfortunately do not. Those individuals who violate their duty to their ward, or, as in this case, to the ward's family after the IP has died by not timely filing their final accounting and distributing the ward's assets, must be dealt with firmly as an example to others of what will happen to those who abuse their position as a guardian of the most vulnerable of our citizens.

Ms. H.'s actions in this case from the date of the IP's death to the time of the contempt hearing must be detailed with specificity in order to understand and appreciate the level of wilfulness involved in her failure to follow the directions of the court. She states in her Affirmation in Opposition dated June 20, 2014, to the motion for contempt, that she has served as a guardian, court evaluator, and counsel for alleged incapacitated persons and counsel for petitioners in Mental Hygiene Law Article 81 proceedings since 1991. She also points out that she has "been a faculty member of the Office of Court Administration mandated training course for Guardians and Court Evaluators given by the Suffolk County Academy of Law," that she is a Registered Nurse and has been published. These credentials make her actions and inactions in this matter all the more sad and reprehensible.

Ms. H. was appointed as the permanent Guardian of the Person and Property of Anthie B. by a prior court on January 25, 2008.^[FN1] Anthie B. died on November 1, 2009. The Order and Judgment Appointing the Guardian dated January 25, 2008 stated "upon the death of the incapacitated person, the Guardian shall file the final report or petition to be discharged as Guardian, as required by Sections 81.33 or 81.34 of the Mental Hygiene Law, within 60 days after the death of the incapacitated person." Although Ms. H. timely notified the court of the IP's death, she did not timely file a final account within 60 days as directed in the court's January 25, 2008 Order and Judgment Appointing the Guardian. This failure to file a final account within 60 days constitutes her first disregard of a court order.

In a letter sent to the court dated July 23, 2011, the IP's son Jack K. who is also the Estate Representative, complained that the Guardian had not paid Anthie B.'s real estate taxes for the year 2011 and that she had not paid prior taxes until he forced the issue. Because it was not clear that the Guardian had the authority to pay the real estate taxes on Anthie B.'s property following her death, the court issued an order dated July 27, 2011 directing Ms. H. to file a final accounting [*3]within 30 days and a motion for the judicial settlement of the final account within 45 days. With the judicial settlement of the final account, the court could have then issued the discharge order releasing the guardianship assets to the estate for distribution to heirs and for payment of any estate expenses including taxes. Ms. H. disregarded this order and failed to submit her final account and motion within the time prescribed therein, and thus the guardianship could not be discharged and the assets could not be disbursed. This is Ms. H.'s second disregard of a court order.

Ultimately, on October 6, 2011, 21 months after the first deadline for submitting a final account,^[FN2] Ms. H. submitted a document purporting to be a final account and motion ^[FN3] with the Guardianship Department. The court also received a letter dated October 12, 2011 from the IP's son questioning many aspects of the alleged final account. On October 19, 2011, the court issued an order directing the Guardian to respond to the IP's son's letter. Ms. H.'s reply affirmation dated October 17, 2011 contained her response and a copy of a computer generated check register.^[FN4]

Upon receipt of Ms. H.'s final account, the Guardianship Department began its audit of the submitted document. Upon inspection, however, the document was found to be deficient in form and substance. As a result, it could not be judicially settled for the following reasons: (1) the final account did not state the dates that the IP's assets were marshaled; (2) while Ms. H. referenced "bank accounts" and "investment accounts," said accounts were not identified; (3) the summary statement listed amounts received as income from social security, pension payments, interest and investments, however, those amounts were not delineated according to year or source; (4) the amount of disbursements stated in the summary varied from the amount itemized in Schedule B; and, (5) finally, the amount of the remaining assets did not correlate with Schedules A through C. After detailing the numerous errors and omissions in the final account in an order dated December 14, 2011, the court gave Ms. H. 30 days to amend the document.

As noted at a compliance conference on the record before the Court Attorney Referee on January 18, 2012, the Guardian failed to provide an amended final account in violation of the court's December 14, 2011 order. This constitutes her third disregard of a court order. Instead, at that conference Ms. H. submitted the same copy of a computer generated check register for the [*4]guardianship accounts that she had previously provided to the IP's son. Nevertheless, the Guardianship Department attempted to reconcile the check register with the final account. This, however, was not possible. At a conference held on June 6, 2012, during which the Court Attorney Referee and the Guardianship Clerk reviewed the final account with Ms. H. (in the presence of the IP's son), the Guardianship staff explained to Ms. H. the deficiencies contained therein. The Guardian was then directed to submit her amended final account by August 15, 2012. A late amended final account was submitted on August 17, 2012. On August 22, 2012, at a conference before the Judge then assigned to the case, the Guardian was directed to clarify several disbursements from the guardianship account which were not identified in the amended final accounting. When the Guardian was unable to provide the requested information at the conference, she was directed to remedy the omission by mail. Her first letter to the court following the conference provided some, but not all of the information requested. The Guardian again failed to document two of the payments. The court was required to issue yet another order dated October 2, 2012 directing the Guardian to identify the remaining unexplained payments and withdrawals.^[FN5] Finally, on October 23, 2012, Ms. H. provided an explanation of the unidentified withdrawals and payments. Once Ms. H. identified the payments and withdrawals, the review of the final account continued.

In an effort to bring this matter to conclusion and once again attempt to judicially settle the final account, the prior court, in an order dated November 29, 2012, addressed the two remaining issues, to wit: the late payment of real estate taxes and the late payment of income taxes. The court found that due to the Guardian's failure to timely pay real estate taxes on the home owned by the IP, penalties and interest in the amount of $6,100.00 accrued. Accordingly, the court found that Ms. H. was negligent in not paying the taxes on time. Nevertheless, Ms. H. was given an opportunity to obtain a refund. In addition, the Guardian's late payment of NewYork State income taxes resulted in penalties and interest in the amount of $2,702.19. The Guardian alleged that she was unable to pay the State Income taxes until the Federal Income Tax Return was filed and those taxes were calculated and paid. The court directed that unless the Guardian was able to present proof from a tax expert supporting her position that the State tax penalties and interest were unavoidable, the State tax penalties and interest would be deducted from the Guardian's commissions.

The Guardian was unable to procure a refund of any of the penalties and interest paid. Furthermore, no statement from a tax expert was provided to support her contention that the income tax penalties and interest incurred were unavoidable. Moreover, despite the court-ordered deadline of December 29, 2012 as directed in its order dated November 29, 2012, the Guardian failed to file a proposed Order Settling Final Account. Ms. H.'s failure to follow this direction constitutes her fourth disregard of a court order.

In order to move this matter to completion, a subsequent court, in an order dated July 23, [*5]2013, afforded the Guardian one final opportunity to obtain a refund for the penalties and interest incurred as a result of the late payment of real estate taxes and placed the case on the final account compliance calendar on September 12, 2013, to determine whether she complied with said order. Due to a clerical error, however, a second order dated July 23, 2013 was unintentionally mailed to the parties which judicially settled the Guardian's final account and surcharged the Guardian for the penalties and interest at issue. On September 11, 2013, the day before the scheduled control date, the Guardian contacted the court to obtain an adjournment as she was appealing the mistakenly disseminated "surcharge" order. The court granted her request and adjourned the matter to December 11, 2013 for control only.

On November 22, 2013, the court ordered all parties to appear for a conference on December 11, 2013 to clarify the confusion regarding the two July 23, 2013 orders. On December 11, 2013, the Guardian and Counsel for the IP appeared and met with the Court Attorney Referee and the Guardianship Clerk. Since the Judge handling the matter was unavailable, the case was given to the undersigned who has presided over the matter from that date forward. At the conference (in which the undersigned did not participate), the parties arrived at a proposed settlement. The final and complete stipulation of settlement, which was placed on the record before the undersigned, provided that Ms. H. would be compensated in the amount of $20,000.00 for all of her work in the case. In addition, the IP's son agreed that he would not pursue the reimbursement of penalties or interest for unpaid income and real estate taxes. In return, the Guardian agreed to immediately transfer the funds remaining in the IP's UBS investment account by January 15, 2014 and guardianship bank accounts soon thereafter, after the payment of unpaid administrative fees.^[FN6] The Guardian also agreed to submit the proposed Order Settling Final Account by January 16, 2014. The following day, December 12, 2013, the Guardian faxed a request to the Court for reimbursement of two fees that she paid, to wit: (1) the appeal of the mistakenly disseminated July 23, 2013 order sanctioning the Guardian; and, (2) the commencement of the Surrogate's Court proceedings.

Despite the Court's direction and Ms. H.'s assurances provided on the record on December 11, 2013 that the Guardian would file the proposed Order Settling Final Account by January 16, 2014, no order was filed on that date. Instead, on March 6, 2014, three months later, the Court received a letter from the Guardian complaining that she had not received a decision from the conference. Included with the letter was a proposed order entitled Supplemental Order Approving Fees. While the proposed order was not a proper Order Settling Final Account and did not include the necessary summary statement or correct language to settle the Guardian's final account, it did provide for the payment to her of commissions and legal fees, and the reimbursement of appellate filing fees and Surrogate's Court filing fees.

On March 17, 2014, the court received from Mr. Bollhofer (Counsel for the IP's son) a copy of a letter addressed to the Guardian objecting to the proposed order submitted. In particular, Counsel objected, inter alia, to the payment of Appellate Division fees of $1,765.00 and Surrogate's Court filing fees of $1,200.00. In reply to Mr. Bollhofer's objection to the Appellate Division fees, the Guardian represented in her letter dated March 20, 2014, that the payment of the fees had been approved by the Court Attorney Referee. At a hearing held July 8, 2014, however, it was clarified that the Court Attorney Referee never approved such fees.

In a May 7, 2014 order, this court denied the Guardian's request for compensation for fees paid to commence the appeal and to commence the administration proceeding in the Surrogates's Court and for any amount in excess of the settlement amount agreed to by the parties on December 11, 2013. Moreover, in that order the court directed the Guardian to turn over all funds remaining in the guardianship estate to Counsel for the IP's son within 10 days. The order further directed all parties to appear on May 22, 2014 if Ms. H. failed to comply with the court's directions.^[FN7] In addition, the Court issued an Order Settling Final Account simultaneously with the aforementioned May 7, 2014 order, which provided, inter alia, that the Guardian shall provide copies of recent bank statements from the date of the amended final account (filed in August 2012) until the present to the IP's son. In a letter dated May 20, 2014, Counsel for the IP's son notified the court that Ms. H. failed to release the remaining funds in the guardianship bank accounts and failed to turn over all bank records as directed.

On May 22, 2014, pursuant to the court's direction contained in its May 7, 2014 order, the IP's son, Mr K., and his Counsel, Mr. Bollhofer, appeared before the undersigned. Ms. H., however, did not appear. Her failure to appear as directed in the May 7, 2014 order constitutes her fifth failure to obey a court order. After waiting two hours for Ms. H. to appear, Counsel for the IP's son announced that his client would be bringing this contempt motion and would also be seeking counsel fees from the Guardian as her conduct in failing to properly file the final account forced him to hire an attorney to bring this proceeding in order to obtain the estate funds that he is to inherit. This motion for contempt was brought by order to show cause on May 28, 2014 and made returnable on June 23, 2014. Thereafter, a contempt hearing was held in this court on July 8, 2014.

The Guardian's failure to turn over all remaining funds in the guardianship accounts by May 17, 2014 constitutes her sixth failure to comply with a court order. Her failure to provide Counsel for the IP's son with copies of the guardianship bank account statements as directed in the Order Settling Final Account issued simultaneously, constitutes the seventh failure by Ms. H. to follow a court order. While it appears that the Guardian has since transferred the funds in the [*6]UBS account ^[FN8] and guardianship accounts to the IP's son as the representative of her estate, her contempt for this court's orders continues since it appears that she still has not provided all of the bank statements that she was directed to produce.^[FN9]

Civil contempt seeks to vindicate the private right of a party to the litigation and the penalty is compensation for injuries sustained by a party as a result of the contempt (McCormick v. Axelrod, 59 NY2d 574, 582-583 [1983]). Criminal contempt is an offense against public justice and compels respect for its mandates (id. at 583). For constitutional due process purposes, if the sanction is punitive, the contempt is criminal; if the sanction is remedial, the contempt is civil in nature.

In regard to civil contempt, under Judiciary Law § 753(A):

Under Judiciary Law § 750(A) a court of record has power to punish for criminal contempt in instances of any wilful disobedience to its lawful mandate or any resistance wilfully offered to its lawful mandate.

The facts demonstrate beyond a reasonable doubt that Ms. H. wilfully and defiantly disobeyed clear and unequivocal court orders. The sheer number of instances in which she refused to comply with the court's directions, totaling seven in number, makes clear the level of her wilfulness and serves to elevate her conduct to that of a criminal contempt. In coming to this conclusion the court has also considered the testimony and evidence adduced at the contempt hearing, and Ms. H.'s total disregard of Mr. Bollhofer's written requests to Ms. H. to honor the [*8]court's orders, dated January 8, 2014 (Exhibit B to Counsel's contempt motion), January 15, 2014 (Exhibit E to Counsel's contempt motion), February 5, 2014 (Exhibit F to Counsel's contempt motion), February 11, 2014 (Exhibit H to Counsel's contempt motion), March 24, 2014 (Exhibit L to Counsel's contempt motion), and May 23, 2014 ( Exhibit O to Counsel's contempt motion). Her failure to obey the court orders, to file the final account and to respond to said letters forced Counsel to bring this contempt motion to obtain the money the IP left to his client and this court to conduct a hearing.

Counsel's frustration with Ms. H.'s refusal to comply with court orders is apparent in his May 23, 2014 letter in which he writes

Ms. H., in her Affirmation in Opposition to the motion for contempt does not dispute the fact that she was served with and aware of the court orders in question, particularly the May 7, 2014 Order and the Order Settling Final Account granted May 7, 2014 issued simultaneously, or that the directions contained therein were anything but clear and unequivocal. She argues, instead, despite the evidence to the contrary, that her final account was filed timely after the IP's death, but that the approval was delayed by the court requesting numerous revisions, and that her accountings, once submitted, sat for numerous months without any action being taken by the court (H. Affirmation, paragraph 8). In this regard Ms. H. has misinterpreted and misstated the facts. She did not timely file the final account. In addition, she attempts to blame the court for a delay of approximately 22 months prior to the July 2013 order, during which time she maintains that she duly submitted accounting revisions which the court "sat on." Ms. H.'s defense is [*9]unpersuasive because any alleged delay in reviewing her accountings would certainly not have justified her failure to follow the court's directions made in 6 separate court orders. Moreover, a brief review of that general time frame demonstrates that the court issued orders repeatedly directing the Guardian to file a completed and accurate final account.^[FN11] In addition, the court expended unnecessary effort and time reviewing her untimely and inaccurate final account and amended final accounts, as well as the objections to those filings.^[FN12]

In Ms. H.'s Affirmation in Opposition, she attempts to place the onus for her wilful failure to follow the court's orders on the court, the IP's son and his Counsel. There is no recognition or acknowledgment by Ms. H. that she has failed to follow the court's directions. Indeed, her Affirmation in Opposition provides no defense or excuse for her refusal to file documents within the time frames directed by the court. And there simply is no excuse for her repeated filings containing inadequate proof to support her final accountings which caused a delay of several years in releasing the IP's assets to her family. Furthermore, there is no excuse offered for her failure to turn over all of the estate assets and required bank records either after the settlement reached in December of 2013 or after this court ordered her to do so in May of 2014. Instead of responding with an attitude of cooperation or an apology, she has taken a combative, disrespectful and critical tone in her papers, all the while apparently continuing in her contemptuous conduct by refusing to turn over all of the bank records from 2012 forward.

While no court wishes to hold an attorney in contempt,^[FN13] when presented with conduct rising to level of Ms. H.'s outright disregard and defiance coupled with her total lack of remorse, it has a duty to use its contempt powers to compel compliance and respect for its mandates. It also has a duty to make whole any party that has suffered damages due to an individual's contemptuous conduct. To allow Ms. H. to avoid any consequence for her actions and conduct would be to abdicate the court's duty and responsibility and would be sending the wrong message. Accordingly, the court finds that Ms. H. has wilfully violated the court's orders by:

(1) failing to file a final account within 60 days of the death of the IP in direct violation of the court's January 25, 2008 order appointing her as Guardian;

(2) failing to file a final account within 30 days and a motion judicially settling the final account within 45 days, in violation of the court's July 27, 2011 order;

(3) failing to file an amended final account by January 18, 2011 as directed in the court's December 14, 2011 order;

(4) failing to file a proposed order Settling Final Account by December 29, 2012 as directed in the court's order dated November 29, 2012;

(5) failing to appear in court on May 22, 2014 as directed in the court's May 7, 2014 order;

(6) failing to turn over all remaining funds contained in the Guardianship estate within 10

(7) failing to provide Counsel for the IP's son with copies of all of the guardianship account bank statements in violation of the court's Order Settling Final Account granted May 7, 2014.

The petitioner's motion, however, only requests a contempt finding against Ms. H. due to her failure to abide by the settlement reached on the record on December 11, 2013 and to obey the court's May 7, 2014 order and its Order Settling Final Account granted May 7, 2014 issued simultaneously. Although Ms. H. has failed to obey the court's directions given in the January 25, 2008, July 27, 2011, December 14, 2011, and November 29, 2012 orders, because she was only given notice of counsel's request for contempt based on her conduct from the time counsel became involved in this case, particularly her disobedience of the May 7, 2014 Order and Order Settling Final Account granted May 7, 2014 (issued simultaneously), she will not be found in contempt for her wilful disobedience of the January 25, 2008, July 27, 2011, December 14, 2011 and November 29, 2012 orders.

Accordingly, the court finds beyond a reasonable doubt that Ms. H. is guilty of three counts of criminal contempt as well as three counts of civil contempt for: (1) failing to appear in court on May 22, 2014 as directed in the court's May 7, 2014 order; (2) failing to turn over all funds remaining in the Guardianship Estate within 10 days as directed in the court's May 7, 2014 order and Order Settling Final Account granted May 7, 2014 and issued simultaneously; and, (3) failing to turnover to the Estate Representative copies of all recent bank statements from the date of the amended final account submitted August 7, 2012 until present.^[FN14]

The court finds that Ms. H.'s wilful disregard of its orders is an offense against judicial authority. Unfortunately, Ms. H.'s conduct has left the court with no choice but to find her in [*10]criminal contempt in order to vindicate its authority, to compel respect for its mandates and to protect the integrity of the judicial process. In addition, the court's finding of civil contempt against Ms. H. is necessary to vindicate the IP's estate representative's right to the IP's property that was completely foreclosed and prejudiced by Ms. H.'s actions and inactions as detailed above.

It is without question that Ms. H.'s conduct is the sole reason why the IP's son and Estate Representative, Jack K., had to hire an attorney and ultimately bring a contempt motion in order to obtain the monies contained in the guardianship account that were left to him by his mother five years earlier. There is no justification for making the IP's son wait five years after his mother's death to obtain his inheritance. Accordingly, the court orders as a penalty for Ms. H.'s civil contempt, that she pay is directed to pay the IP's son's attorney's fees as set forth below.

On July 8, 2014, at the conclusion of the contempt hearing, the court, on the record, reviewed Mr. Bollhofer's affirmation of legal services dated May 28, 2014 wherein he requested $15,587.00 in legal and paralegal services. Ms. H. only objected to fees incurred in connection with the Surrogate's Court proceeding which Mr. Bollhofer agreed to exclude. Accordingly, the court is eliminating from consideration attorney's services relating to the Surrogate's Court proceeding of $2,555.00 for: October 28, 2013 (1.5 hours); October 31, 2013 (.9 hours); November 12, 2013 (1.8 hours ); December 18, 2013 (1.1 hours); December 20, 2013 (.2 hours); December 23, 2013 (.5) hours and February 4, 2014 (1.3 hours) for a total of 7.3 hours at $350.00 an hour. Pursuant to the same objection, the court will eliminate from consideration paralegal services relating to the Surrogate's Court proceeding of $414.00 for: October 30, 2103 (1.5 hours); November 1, 2013 (.5 hours); November 20, 2013 (.2hours); November 26, 2013 (.2 hours ); December 18, 2013 (.4) hours; December 23, 2013 (.2 hours); and for February 5, 2014 (.6 hours) for a total of 3.6 hours at $115.00 an hour. These deletions bring the total for legal and para-legal reimbursement that counsel is seeking to $12,618.00. The court finds that counsel's approximately 30 years of experience, the results obtained and the quality of the work performed, more than justify his hourly rate $350.00, and the court finds reasonable the hourly rate of $115.00 an hour for the paralegal services performed. It is hereby;

ORDERED that as a penalty for her civil contempt, Ms. H. is to pay Mr. Bollhofer his counsel fees in the amount of $12,618.00 within 30 days of the date below; it is further

ORDERED that Ms. H. is directed to appear on February 23, 2015 at 11:30 a.m., for sentencing on the 3 counts of criminal contempt.

The above constitutes the decision and order in this case.

__________________________

Hon. H. Patrick Leis, III, J.S.C.