Upon the foregoing cited papers, the Decision and Order of this Orders to Show Cause is as follows:

Plaintiff moves to hold Defendant in civil and criminal contempt pursuant to Judiciary Law §§ 753(A)(3) and 750(A)(3) based upon his purported failure to comply with this Court's Order dated February 13, 2020. Plaintiff also moved for an order (1) directing Defendant to remove from his website his recording of the conference call with Judge McShan, his February 14, 2020 blog post entitled "Time for judge Eddie McShan to go to prison," their son's photographs and the Court's Order dated February 13, 2020; (2) restraining Defendant pursuant to CPLR § 6301 from posting any further recordings and transcripts of recordings of the Court proceedings; and (3) directing Defendant to refrain from discussing modifications to the access schedule with their son. Defendant did not submit any opposition papers to Plaintiff's various applications. The Court decides Plaintiff's Order to Show Cause on default.

By Order of this Court dated February 13, 2020, Defendant was directed to immediately remove from his website the recording made by him of a conference call with the parties and the Court. The Order also provides that "Defendant's failure to remove the unauthorized recording may result in a finding of contempt." The Court also temporarily restrained the Defendant "from posting any further pictures of the parties' son on his website that is the subject of the Plaintiff's O.S.C. until a determination can be made regarding the child's best interest."

Plaintiff argues on this application that Defendant did not comply with the Court's directive to remove the recording from the website, and defied the Court's temporary restraining order that prohibited him from posting further photographs of their son. Plaintiff emphasizes [*2]that on February 14, 2020, the Defendant published a post entitled "Time for judge Eddie McShan to go to prison" along with two new photographs of their son despite the Court's Order. Plaintiff contends that their son is depicted making a "villain" face in one picture and a "sick" face in the other picture with respective captions of "We laugh at perverted, incompetent, and corrupt cowardly criminals" and "Perverted, incompetent, and corrupt cowardly criminals make us visibly disgusted." In support, Plaintiff annexes the purported photographs.

Plaintiff notes that the Defendant also posted this Court's Order dated February 13, 2020 on the website. Plaintiff also notes that the Defendant subsequently posted a recording of a conference call held during an unspecified date with Judge McShan, the attorney for the child, herself and her attorney. Plaintiff annexes a copy of the audio recording downloaded form the Defendant's website as of February 27, 2020.

Plaintiff argues that Defendant's refusal to remove the recording and his posting of additional photographs of their son was deliberate and willful. Plaintiff contends that Defendant's "own words on his website" establish that he is intentionally refusing to abide by this Court's mandates. Plaintiff asserts that she is concerned about the Defendant's mental health because he is using their son as a tool to defy this Court's orders and to attempt to gain additional access time with him. Plaintiff suggests that the Defendant is "growing increasingly unhinged." Plaintiff emphasizes that their son will be able to access these statements on the internet when he is older. Plaintiff insists that the content of the website is harmful to their son and must be taken down immediately. Plaintiff states that Defendant's "willful and flagrant violations of this Court's Order should not be condoned and should be remedied immediately."

Plaintiff requests that the Defendant be restrained from discussing with their son any modifications to the access schedule including but not limited to telling their son that he will visit him at school, extend their visits or go to see him at her house. She also requests that telephone access between the Defendant and their son be suspended based upon her allegations that the Defendant uses those calls to improperly involve their son in his requests for increased access time.

It is well-settled that the same act may be punishable as both a civil and a criminal contempt, but each serves a distinct purpose (see Dept. of Env. Protection of City of NY v Dept. of Env. Cons. of State of NY, 70 NY2d 233 [1987]). "A civil contempt is one where the rights of an individual have been harmed by the contemnor's failure to obey a court order. Any penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate or both" (Dept. of Env. Protection of City of NY, 70 NY2d 233, 239). "A criminal contempt, on the other hand, involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates" (Dept. of Env. Protection of City of NY at 239). Upon a finding of criminal contempt, the court imposes a penalty on the contemnor that is intended to be punitive rather than compensatory (Id. at 239). "To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect. It must also appear with reasonable certainty that the order has been disobeyed. Of course, the party charged must have had knowledge of the court's order" (Dept. of Env. Protection of City of NY at 240).

"An essential element of criminal contempt is willful disobedience. Knowingly failing to [*3]comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance" (Gomes v Gomes, 106 AD3d 868 [2d Dept 2013]). An application for criminal contempt is a criminal proceeding and proof of guilt must be established beyond a reasonable doubt (Gomes, 106 AD3d 868). In the instant matter, Plaintiff has made a prima facie showing, beyond a reasonable doubt, that Defendant is in criminal contempt of court. Plaintiff presented uncontested allegations that Defendant violated a clear and unequivocal lawful order of this Court. This Court's Order clearly and unequivocally directs Defendant to immediately remove the recording of the court proceeding from any website. The Court's Order also temporarily restrained Defendant from posting additional pictures of the parties' son until a determination can be made regarding the child's best interest. Plaintiff not only provides uncontested allegations on this record that Defendant did not remove the recording, she also provides proof that Defendant posted a second recording of a different conference call held with the Court.

In addition, Plaintiff presented proof that Defendant further violated this Court's Order by intentionally posting additional pictures of the parties' son one day after the court appearance on February 13, 2020. It is unquestioned that Defendant had knowledge of the Order dated February 13, 2020 because he was present in Court on that day and received a copy of same. The Court finds that the Defendant's conduct immediately after the issuance of the February 13, 2020 Order is demonstrative of his wilful disobedience and more than gives rise to an inference of willfulness (Gomes, 106 AD3d 868).

Nevertheless, the Court reserves decision to hold the Defendant in criminal contempt of court at this time in light of the fact that the appointment of counsel may be necessary as a sentence of incarceration is possible based upon the facts and circumstances in this matter (see for example State University of New York v Denton, 35 AD2d 176 [4th Dept 1970]). Although a hearing is not necessary when there is no factual dispute as to a party's contemptuous conduct Gomes, 106 AD3d 868), due process dictates that Defendant be granted the opportunity to consult with a lawyer. Accordingly, the parties shall be prepared to present arguments and proofs of Defendant's ability to afford an attorney to represent him on the contempt of court issues.

The Court takes notice that its ability to conduct an in-person conference or hearing is limited due to the limited access to the courthouse as a result of the COVID-19 pandemic. The Court declines to conduct a virtual conference with the Defendant in light of the facts and circumstances warranting the applications to hold him in contempt of court. Accordingly, the Court shall notify the parties of the date and time of their in-person court appearance once it regains access to the courtroom.

The Court must deny Plaintiff's application to hold Defendant in civil contempt of court despite the findings above based upon this Court's related Decision and Order also dated April 2, 2021. This Court determined in the related decision that Plaintiff was not entitled to a prior restraint prohibiting Defendant from posting pictures of their son or information relating to this matrimonial proceeding on the internet. The Court also determined that Plaintiff failed to meet her heavy burden that the imposition of such a restraint is justified to restrict Defendant's First Amendment rights (see for example Ash v Board of Mgrs. of the 155 Condominium, 44 AD3d 324 [1st Dept 2007]; Shak v Shak, 484 Mass 658 [2020] citing Alexander v United States, 509 US 544 [1993]).

Based upon these findings, it would be inconsistent to determine, by clear and convincing evidence, that Plaintiff's rights have been impaired and impeded by Defendant's violation of the Court's Order prohibiting him from posting the pictures and information on the internet, a requirement for a finding of civil contempt (Gomes, 106 AD3d 868).

Plaintiff's application seeking an order directing the Defendant to remove the second recording of a conference call with the Court uploaded on February 14, 2020 is granted. 22 NYCRR § 29.1(a) clearly prohibits the recording of any proceeding in the courthouse. The parties' conference call with the Court unquestionable occurred in the courthouse. In addition, this Court's Order dated February 13, 2020 specifically directed Defendant to immediately remove the first recording. Accordingly, Defendant must immediately remove the second recording uploaded on or about February 14, 2020. Defendant's failure to remove the recordings will further be considered on Plaintiff's request to hold Defendant in criminal contempt.

Plaintiff's application seeking an order restraining the Defendant from discussing modification of the access schedule with their son is denied at this time without prejudice. The Court recognizes that these alleged discussions may be problematic for the Plaintiff. However, there is nothing on this record to suggest that Defendant's conversations seeking to expand his parenting time goes against their son's best interest. Moreover, such a prior restraint may violate Defendant's First Amendment right and Plaintiff has not met that heavy burden to warrant the imposition of such a restraint (Shak, 484 Mass 658).

In light of the foregoing, it is hereby

ORDERED that the Court reserves decision on Plaintiff's applications to hold the Defendant in criminal contempt of court in accordance with the Court's finding's above; and it is further

ORDERED that Plaintiff's applications to hold the Defendant in civil contempt of court is denied in accordance with the Court's finding's above; and it is further

ORDERED that Plaintiff's application for an order directing the Defendant to remove the recording of a second conference call with Court uploaded on or about February 14, 2020 is granted denied in accordance with the Court's findings hereinabove; and it is further

ORDERED that Plaintiff's application seeking an order restraining the Defendant from discussing modification of the access schedule with their son is denied at this time without prejudice in accordance with the Court's findings hereinabove.

The foregoing shall constitute the decision and order of this Court.