The following papers, numbered 1 to 67, were considered in connection with:

1. issuing an Order of Protection instructing Defendant to refrain from committing a family offense, or any criminal offense against Plaintiff and to refrain from harassing, intimidating or threatening Plaintiff;

2. punishing Defendant as and for Contempt of Court for failing to abide by the March 20, 2012 Order including a $250.00 fine with attorney's fees and costs;

3. punishing Defendant as and for Contempt of Court for failing to obey the May 22, 2014 So Ordered Custody Stipulation including a $250.00 fine with attorney's fees and costs;

4. issuing a finding that Defendant violated the March 20, 2012 Order;

5. issuing a finding that Defendant violated the May 22, 2014 So Ordered Custody Stipulation;

6. ordering Defendant to submit to a one-year period of random drug testing where he must submit to urine or hair follicle testing and pay for cost of testing;

7. directing Defendant to allow the children to attend family special events in accordance with the So Ordered Custody Stipulation and to cooperate with Plaintiff to ensure that the children will attend these events;

8. directing Defendant to obey the So Ordered Custody Stipulation and to immediately stop interfering with Plaintiff's phone access with the children;

9. directing Defendant to be flexible with pick-up and drop-off issues as set forth in the So Ordered Custody Stipulation;

10. directing Defendant to regularly take the parties' daughter,, to therapy as set forth in the So Ordered Custody Stipulation;

11. issuing a finding that Defendant violated the financial Stipulation of Settlement dated September 17, 2014;

12. issuing an order enforcing the financial stipulation reached by the parties dated September 17, 2014;

13. ordering Defendant to pay basic child support payments on or before the 1st day of each month;

14. ordering both parties immediately pay all costs incurred by that party on the shared prescription account that is maintained through Defendant's health insurance and utilized for prescriptions for both parties and the parties' children;

15. ordering Defendant to refrain from refusing receipt of

16. awarding Plaintiff counsel fees for legal services rendered and to be rendered in connection with the prosecution of this application.

(i) imposing sanctions upon's Plaintiff's counsel for frivolous conduct for seeking to have a finding of "a violation" and contempt of a March 20, 2012 Order which was withdrawn by Plaintiff and her counsel on May 16, 2012;

(ii) imposing sanctions against Plaintiff's counsel and Plaintiff for frivolous conduct for seeking contempt of this Court's April 29, 2014 Order of Custody and Access for Defendant allegedly not being "flexible" and allegedly not taking the children to their extracurricular activities when the Plaintiff is refusing to abide by the pick up and drop off times for midweek access and refusing to consider the children's best interests including their health in not attending to certain events;

(iii) imposing sanctions against Plaintiff's counsel and Plaintiff for frivolous conduct for Plaintiff and her counsel making false, libelous and slanderous statements that the Defendant is abusing narcotic drugs, in particular Oxi Codeine, and that Defendant is abusing alcohol while the children are in his care when no such proof exists and no evidence was presented of the same;

(iv) imposing sanctions against Plaintiff's counsel for seeking to obtain an Order of Protection based upon Defendant's use of profanity in an effort by Defendant to curb and otherwise slow the onslaught of incessant, daily, dictatorial and inflammatory e-mails from the Plaintiff as Defendant's speech is fully protected and does not constitute a family offense;

(v) imposing sanctions upon Plaintiff's attorney for failing and refusing to withdraw the motion for contempt insofar as it sought enforcement of the Court Order for payment of $7,500.00 as the amount was paid on December 2, 2014; and

(vi) as part of the sanctions herein sought, directing that Mr. Danziger and Plaintiff pay Defendant's reasonable counsel fees in defending the instant application.

Support/Affirmation in Support/Exhs. A-T1-23

Affirmation in Opposition and in Support

of Cross-Motion/Exhs. A-U24-47

"He called me a bad name".

"She's too bossy".

"He started it".

"She started it".

Anyone who has enjoyed the pitter-patter of little feet has heard the footsteps of children grow to an age where such tantrums, teasing and name-calling are but a phase that the children outgrow. Here, however, the childish tantrums have extended far into adulthood, as the parties continue to behave like children. It is all the more disappointing when one considers the parties should know better. Defendant is a police officer, who has been trained to defuse difficult situations. Plaintiff has a Master's Degree in Psychology. Yet, at times, both have behaved like preschoolers. Unfortunately, the Court cannot send the parties to their rooms.

The parties' three children have two parents whose embarrassing behavior has set a horrible example. Thankfully, the children have multiple outlets where they can see responsible adult behavior. The Court is concerned about the emotional well-being of one of the children, for whom the parents also claim concern, but their claims are little more than lip-service with words and ideas tailored to the litigation of the moment. The Court also has observed how counsel for each of the parties has personalized the conflict to the point where they are incapable of communicating effectively beyond a litigating posture, to promote their clients' interests. The Court is disappointed, but not surprised, to find the parties once again having their tantrums, complete with legal fees, which they claim they cannot afford, seeking vindication of their behavior while simultaneously hoping to condemn the behavior of the other party.

A custody Stipulation was placed on the Record in open Court on April 29, 2014 and was "SO ORDERED". A September 17, 2014 open court Stipulation related to financial matters has also been "SO ORDERED". To date, neither counsel has submitted proposed Findings of Fact and/or Judgments of Divorce.

Against this background, Plaintiff moves to hold Defendant in contempt and other relief including counsel fees, and for an Order of Protection with specific findings or violations and related relief. She alleges 16 different violations. Not to be outdone, Defendant responds with a Cross-Motion seeking counsel fees and sanctions on six different grounds. All claims and cross claims are set forth above. In the course of submissions, Plaintiff has conceded that items numbered 2, 4, 12(b) and 12(c) have been addressed, and are withdrawn. Essentially, Plaintiff seeks to hold Defendant in contempt for the following reasons:

1.Defendant refused to undergo drug and alcohol testing on September 2, 2014.

2.Defendant refused to agree to modify the access schedule for certain family events.

3.Defendant has withheld telephone access.

4.Defendant refused to show any flexibility on pick up and drop off issues.

5.Defendant did not take their daughter to therapy.

6.Defendant failed to reimburse Plaintiff for certain expenses.

Plaintiff is concerned that Defendant is under the influence of alcohol and/or pain killers [*2]while he is caring for the children. Defendant denies the allegations. Similar allegations arose prior to the Stipulation resolving custody issues. The Stipulation provided for:

Plaintiff also claims that Defendant refused to submit to a hair follicle test on September 30, 2014. In response, Defendant argues that he is not obligated to submit to a hair follicle test. Defendant also suggests that, as a police officer, he is required to submit to such testing and if anything is revealed by such job-related testing he would lose his job.^[FN1]

However, the language of the Stipulation is quite clear, and it does not allow for Defendant to ignore the request. Defendant has violated a Court Order by refusing to submit to testing when demanded. The Court can infer from his violation that the test would reveal alcohol and/or drugs in his system while he cared for the children. The Court is not persuaded by Defendant's law enforcement position or claimed submission to drug testing on a regular basis, as Defendant has not shared any of those results with the Court and the Court is unwilling to assume the results. Defendant, according to the Stipulation, may not pick and choose which tests he will take.^[FN2] The appropriate result of such violation is to address the goals of drug testing, i.e. to ensure that the parent's ability to adequately care for three young children is not compromised by the use of drugs or abuse of alcohol. Accordingly, the drug testing obligation contained in the Stipulation shall be extended for 180 days from service of a copy of this Order with Notice of Entry.

Plaintiff also claims that Defendant refused to adjust the access schedule to accommodate two Christenings on April 12, 2014 and June 7, 2014, and a Confirmation on May 13, 2014. She [*3]points to the provision of the Stipulation which provides:

Unfortunately, for purposes of a contempt finding, the agreed upon imposition of flexibility does not create a clear mandate with respect to any specific event or family gathering. The supposed shared intent "to make sure the children don't miss out on these events" does not create a priority for family events; the parties could have so provided had they chosen to do so. The Stipulation provides for a sharing of holidays where family can enjoy each other's company. The parties, by acknowledging the need to be flexible, agreed to do more than the specific schedule they set forth. Presumably, they understood — and understand — the value of extended family in their's children's lives, but their inability to agree cannot be resolved by a finding of a violation or contempt. Instead, failing agreement, the parties may find themselves returning to court for relief relating to specific events.

With regard to the issue of telephone access, the events outlined on October 27, 2014 and November 17, 2014 are not sufficient to warrant a finding of contempt.

The need for flexibility with respect to pick-up and drop-off and the needs of three children, with the backdrop of two different parental work schedules, is clear, but "flexibility" is a two-way street and cannot be ordered. It is also a component of making a joint custody agreement reach its full potential. The parties need to recognize the mutual value of cooperation; the Court cannot define it for every family unit. While the Court is prepared to enforce that which can be enforced, it cannot mold either party into what the other party would like.

The parties agreed their middle child would continue her therapy with Jennifer Culley. That agreement carries with it an obligation to get their daughter to her appointments. The failure to do so is an act that is inimical to the best interests of the parties' child, and may render one parent unfit as a custodial parent. Unfortunately, the moving papers rely on too much hearsay for a determination to be made. Consequently, a hearing will be held on this issue. If it is determined that Defendant has failed to address his daughter's needs, the Court shall determine what remedies are appropriate.

Plaintiff also seeks to hold Defendant in contempt for violating the "So Ordered" April 29, 2014 Stipulation, entered on May 22, 2014. " A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence.'" El-Dehdan v. El-Dehdan, 114 AD3d 4, 10 (2d Dept. 2013), quoting Matter of Hughes v. Kameneva, 96 AD3d 845 (2d Dept. 2012). Civil contempt must be proved " with reasonable certainty.'" Matter of McCormick v. Axelrod, 59 [*4]NY2d 574, 583 (1983). "The reasonable certainty' standard requires a quantum of proof ... greater than a preponderance of evidence but less than proof beyond a reasonable doubt ... akin to the clear and convincing evidence standard.'" El-Dehdan v. El-Dehdan, supra, quoting Kihl v. Pfeffer, 47 AD3d 154, 163-64 (2d Dept. 2007). "[T]he proponent of a civil contempt motion must establish the contemnor's failure to comply with a court order ... since it is the movant's burden to establish that the court's mandate was clear and unequivocal." El-Dehdan v. El-Dehdan, supra at 17, citing Bennett v. Liberty Lines Tr., Inc., 106 AD3d 1038, 1040 (2d Dept. 2013)(no disobedience established where dispute over interpretation of order), and Massimi v. Massimi, 56 AD3d 624, 625 (2d Dept. 2008)(burden not met because order not clear and unequivocal).

Defendant was present in Court on April 29, 2014, when his attorney placed a Stipulation on the record. He sat next to his attorney, who stood when the words were spoken. He was present when his attorney expressed the limitation of communication between the parties to one e-mail per day, and further limited that single e-mail to matters involving their children with the following language:^[FN3]

The basis for the Contempt finding is a series of embarrassing and harassing e-mails from Defendant to Plaintiff. They are set forth in the moving papers. They show Defendant insolently mentioning issues between the parties and then repeatedly and gratuitously adding language one would expect to hear from drunken sailors or college students at a fraternity party. They include:

Because Defendant does not deny the content of the e-mails or that he wrote and sent them to Plaintiff, a hearing is not required. Raphael v. Raphael, 20 AD3d 463 (2d Dept. 2005); Garbitelli v. Broyles, 257 AD2d 621 (2d Dept. 1999); Muller v. Muller, 233 AD2d 486, 487 (2d Dept. 1996). Instead, he tries to justify his conduct by claiming Plaintiff is condescending and [*6]demeaning. He gives examples such as the time Plaintiff wrote "IS THAT CLEAR?" in capital letters to end an e-mail.

The Court is well aware that parties often exchange harsh words in matrimonial disputes. The Court is knowledgeable of the vicissitudes of marital strife that winds its way through the judicial process. Here, however, we have examples of more than a harsh word or comment uttered in anger. The inexcusable repetitious pattern of demeaning abuse can neither be accepted nor tolerated as a response to Plaintiff's "dictatorial" e-mails, nor can it be excused because Defendant, as a law enforcement officer, might face some discipline or sanction for his actions.^[FN4] His badge is one of honor, respect, and authority; it is not a badge of immunity.

The parties are joint custodial parents, at least for the moment. They live in the same community. Their children are entrenched in the school district, community athletic events, and extracurricular activities. They go to doctors and dentists from time to time. They have extended families in the area. As a practical matter, these obligations require cooperation and adjustment. Instead, Defendant feels slighted at Plaintiff's tone and the cooperation is limited. The solution is simple: Get over it. If the parties want their joint custody to work, they must make it work. Otherwise, their joint custody status becomes another name for the mutually assured destruction of their children.

When the parties agreed to a joint custodial framework, they implicitly expressed their willingness to put aside their differences and act in their children's best interests. One would hope neither party was trying to deceive the Court in the process. They are both intelligent enough to know that their choice of words will stifle the communication that is necessary to promote joint custody. Perhaps their anger is so great that the welfare of their children is secondary to their desire to express themselves so poorly. Defendant's First Amendment right to be rude, crude, obnoxious and disgusting is not matched by Plaintiff's First Amendment right to voice her (perceived by Defendant) superiority. Still, there is no equivalence between the words used by the Defendant and those used by Plaintiff.

Defendant takes great offense at Plaintiff's e-mail reference "Is that clear"? Indeed, he uses it three times in his Affidavit supporting his Cross-Motion, incredibly stating that Plaintiff, by using these words is "worse than the profanity [he] ultimately uttered". He goes on to say the profanity he "ultimately uttered" was in an effort to cause the Plaintiff to stop being such a bully. While it is true that the phrase "Is that clear ?" is condescending and disrespectful, in no way does it compare with, or justify, the language used by Defendant. At the very least, Plaintiff's words, compares to Defendant telling Plaintiff to "fix it" referring to Plaintiff's car. The Court will not search for a supposed equivalence in language and tone where it does not exist.

Plaintiff also seeks an Order of Protection pursuant to DRL §252, prohibiting Defendant from:

There is no violation of Harassment in the First Degree (PL §240.25) which requires, inter alia, a course of conduct which places a person, here Plaintiff, in reasonable fear of physical injury, a fact not alleged here. People v. Demisse, 24 AD3d 118 (1st Dept. 2005).

Harassment in the Second Degree (PL §240.26) approximates the conduct and should be applied here. For PL §240.26(3) to apply, Defendant must, "with intent to harass annoy or harm another person ... engage[] in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." The parties, in their April 29, 2014 Stipulation, limited their communication to "one e-mail a day for the purpose of discussing issues concerning the children." See Stipulation, p. 7. Generally, parties may contract as they wish and the Courts will enforce their agreements without passing on the substance of them". New England Mutual Life Ins. Co. v. Caruso, 73 NY2d 74, 81 (1989). It follows then, that any content of the e-mail that does not concern the children is gratuitous and serves "no legitimate purpose" within the meaning of PL §240.26(3). The parties defined the "legitimate purpose" as they are free to do. The numerous e-mails between September 29, 2014 and November 19, 2014 establish a course of conduct. Their communications are limited to issues concerning the children, and the inquiries and responses must remain within those bounds. Put another way, that part of any e-mail which does not involve an issue concerning the children (or individual child of the parties) does not belong in the e-mail as it does not serve the legitimate purpose defined by the parties. Based on the past behavior of the parties, the Court anticipates being asked to parse future communications between the parties. The Court does not relish that possibility, but will do what is necessary to maintain a modicum of behavior between the adult parties as they agreed. The parties are forewarned that doing what is necessary will be more severe than sending someone to bed without their dinner. Accordingly, an Order of Protection will be issued in favor of Plaintiff and against Defendant.

There have been suggestions raised in various conferences with counsel, proceedings herein, and Defendant's Cross-Motion that Defendant's position as a law enforcement officer might be jeopardized by the existence of an Order of Protection against him ^[FN5] . Suffice it to say, he controlled his own destiny. The Court does not excuse the attitude or language used by Defendant. The Court cannot grant mutual Orders based only on Plaintiff's application. In the event Defendant makes application for an Order of Protection, the Court will consider it on the basis of the evidence presented.

Defendant, while conceding he "used profanity in expressing my frustration in an effort to cause the Plaintiff or Plaintiff's incessant dictatorial communications," and stating that he has "no intention of sending such e-mails again," admits the impropriety of his conduct. The admission [*8]is belied, however, by his attempts to justify that conduct as a response "to the dictatorial e-mails Affiant receives from the Plaintiff everyday," "and his belief that Plaintiff's instant motion" is a part of a non-stop effort by the Plaintiff to make me miserable." He tries to avoid or escape liability for his conduct by claiming there is "nothing within the e-mails that is criminal or proscribed conduct within the meaning of Article 8 of the FCA." In effect, Defendant proves too much. He is willing to express himself repeatedly in a rude, obnoxious and offensive manner without a "legitimate purpose" (PL § 240.26[3]), but claims he has not crossed the line into criminal conduct. The e-mails attached to Defendant's Cross-Motion demonstrate that he does know better than to express himself in the manner he has, and, more important, that he is capable of doing so. The Court does not accept Defendant's explanation. Any belief in that explanation is strained beyond credulity by subsequent facts.

Defendant's claimed lack of intention "of sending such e-mails again" is hollow. At some point between November 2014 and January 6, 2015, Defendant changed his e-mail salutation for Plaintiff from "Lisa" to "CUNT". He expects this Court to accept the following sworn explanation:

The Court neither believes Defendant's story nor accepts his apology. He resorted to a careless infantile contemptible behavior and got caught. The only issue before the Court is the appropriate sanction, especially after Defendant acknowledged his improper conduct, said it would not continue, and then continued it.

The violations of the drug testing and e-mail provisions of the "So Ordered" Stipulation have been established by proof beyond a reasonable doubt. Rubackin v. Rubackin, 62 AD3d 11, (2d Dept. 2009). "The failure to obey a lawful order of a court is a species of contempt." Rubackin, supra at 15. The contempt may be civil or criminal, or both civil and criminal. A period of incarceration can be imposed on a finding of civil or criminal contempt. The civil contempt is often, but not always, remedial in nature. The remedial component is achieved by coercing the party into doing that which he refused; it is often accompanied by a purge component. Matter of Department of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY, 70 NY2d 233, 239 (1987). The criminal contempt is a punitive effort to vindicate the authority of the Court. Gompers v. Bucks Stove and Range Co., 221 US 418, 441-42 (1911). In addition, civil contempt under Judiciary Law §753 has, as its focus, the vindication of private parties to the litigation by the additional requirement that the rights of the injured party be injured, defeated, impeded or impaired. Criminal contempt under Judiciary Law §750 requires no showing of prejudice as the goal in maintaining the authority of the Court. McCormick v. Axelrod, 59 NY2d 574, 582-83 (1983).

In practice, the line is not so clearly drawn, especially where the challenged conduct has both civil and criminal components. A violation of a court order giving rise to civil contempt has, as its origin, the disobedience of a lawful mandate. The same is true of a criminal contempt. The criminal contempt further requires an element of willfulness. Further, in the area of family disputes, there are circumstances, as here, that entail viewing the harms and remedies more broadly. Here, the violations with respect to drug testing and e-mail contact may ultimately affect the best interests of the parties children more than an inchoate or temporal harm to Plaintiff. Thus, except for the frustration of Plaintiff's ability to function with Defendant as a joint custodial parent, the rights that are defeated, impaired, impeded or prejudiced are not capable of measurement or correction. Still, such interests are entitled to and deserving of protection.

The Second Department has recognized the need for such protection where a mother violated the custody and visitation provisions of a stipulation "by intentionally doing certain things which would have the natural affect of turn[ing]' the children away from' the father and which actually had that effect." Rubin v. Rubin, 78 AD3d 812 (2d Dept. 2010). Here, the parties stipulated and agreed "the best interests of the child[ren] would be furthered by the child[ren] being nurtured and guided by both of the natural parents." Bostinto v. Bostinto, 207 AD2d 471, 472 (2d Dept. 1994). Neither the parties nor the Court should tolerate any behavior that is contrary to that goal.

Unfortunately, the expressive behavior exhibited by Defendant in his e-mails and his refusal to submit to drug testing is not capable of corrective measures. The powers of the Court cannot change what has been done, but those same powers may be effective in limiting a repetition of behaviors that are violative of the Stipulation/Order. There is a concern that Defendant believes he can continue acting as he has — a belief the Court will not accept. His behavior, while the instant motion was pending, in changing the identification of the e-mail recipient from "Lisa" (Plaintiff) to "CUNT" cannot be excused despite his hollow apologies. On March 30, 2012, Justice Nicolai observed:

Defendant's application for sanctions and counsel fees is denied. It is true that the financial issues, which were resolved, should have been brought to the attention of the Court, and withdrawn from the motion. It is also true that Plaintiff's reliance on the March 20, 2012 Order was misplaced, and the withdrawal of that branch of relief sought should have been brought to the Court's attention and withdrawn much sooner. However, given the history of this matter, the ill-feelings between the parties and their counsel, the Court declines to impose sanctions or counsel fees.

In summary, Plaintiff has established the following violations of the Orders of this Court:

1.Defendant has violated the drug testing provision of the Stipulation of April 29, 2014, which was "So Ordered" and entered on May 22, 2014.

2.Defendant has violated the limitations contained in the e-mail provisions of the April 29, 2014 Stipulation. These actions were calculated to, or actually did, defeat, impair, impede, or prejudice the rights of Plaintiff, who relied on the parties "SO ORDERED" Stipulation to limit their communications to issues regarding their children, and also relied on the "SO ORDERED" Stipulation to ensure that Defendant would be drug and alcohol free while caring for the children, and to promote the best interests of the children as a joint custodial parent, but Defendant violated that obligation by failing to submit to testing as agreed.

3.Plaintiff has established the right to a hearing on the issue of whether Defendant complied with the therapy needs of his middle daughter.

Accordingly, it is

ORDERED the drug testing shall be continued for a period of twelve months from the date of this Order with Notice of Entry. Any violations will be addressed on appropriate application; and it is further

ORDERED that on Monday, April 27, 2015, at 10:a.m., Defendant shall surrender himself to the Sheriff of Putnam County at the Putnam County Correctional Facility, where he shall serve a sentence of fifteen (15) days imprisonment; and it is further

ORDERED, that Defendant be and hereby shall refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offense against Plaintiff; and it is further

ORDERED that a hearing will be held on May 15, 2015 at 2:00 p.m. to address the issue of Defendant's compliance with his daughter's therapy obligations as set forth in the Stipulation of April 29, 2014, and the parties should be prepared to proceed on that date and have their witnesses ready and available.

The foregoing constitutes the Decision and Order of the Court.

__________________________________

HON. VICTOR G. GROSSMAN, J.S.C.