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New York Law Journal 

New York Law Journal

Weiner v Weiner
August 13, 2007

Decided: July 18, 2007
Justice Laura Visitacion Lewis
NEW YORK COUNTY
Supreme Court

A hearing on that branch of plaintiff former wife's cross-motion seeking an order of protection against defendant former husband having been held on October 3, 2006; and the court having taken testimony and having received into evidence the parties' Stipulation of Settlement (Stipulation) dated October 25, 2000, together with cards, letters, and an audio tape of telephonic communications; and the court having heard counsel in closing statements;

And the court having observed the manner and demeanor of the witnesses as they testified; having made assessments of credibility; and having reviewed the hearing exhibits; and determined the relevance and reliability of each exhibit;

And the court having made record findings of fact on the basis of the testimony it found to be credible and the documentary and audio evidence it found to be relevant and reliable, and having, in accordance therewith, granted plaintiff's motion to the extent of issuing a temporary order of protection;

And, further on the basis of the record findings made during the October 3, 2006, proceedings, the court having issued an interim decision and order dated October 4, 2006, that granted, pendente lite, plaintiff's application, based upon assertions of defendant's violation of the No Molestation provision, Article XII, of the Stipulation, to terminate defendant's right to periods of exclusive use of plaintiff's home known as the Hideout;

And the court having reviewed the transcript of the October 3, 2006, hearing, and reexamined the exhibits in evidence to determine whether further findings were required for its final determination with respect to plaintiff's applications for an order of protection, and for the termination of defendant's periods of exclusive use of the Hideout based upon his violation of the No Molestation provision, Article XII, of the Stipulation; and due deliberation having been had thereon to determine said issues independently;

NOW, THEREFORE, on the basis of the testimony the court has found to be credible and the documentary and tape recorded evidence it has found to be relevant and reliable, as set forth in the record findings made on October 3, 2006, and as further detailed herein below, the court makes the following findings of fact, and reaches conclusions of law, with respect to plaintiff's application for a final order of protection and for the termination of defendant's periods of exclusive use of the Hideout, premised in the No Molestation provision, Article XII, of the Stipulation.1

FINDINGS OF FACT

Pursuant to Article VI (10) of the Stipulation, "exclusive and sole ownership" of the parties' former marital vacation residence known as the Hideout, located in Hideout, Pennsylvania, was transferred to plaintiff, with post-judgment periods of exclusive use, as set forth in "Schedule C," to be accorded to the defendant until the earlier of November 2013 or plaintiff's sale of the property. The Stipulation further provided, at Article VI (11), that, in consideration for defendant's transfer of property rights in the Hideout, plaintiff waived her rights to the marital rent-stabilized apartment, No. 15E, located at 333 East 34th Street, New York, New York. The Stipulation also contained, at Article XII, a No Molestation provision, that reads as follows:

1. Neither party shall in any way molest, disturb or trouble the other, or interfere with the peace and comfort of the other, or compel or seek to compel the other to associate, cohabit or dwell with him or her by any action or proceeding for restoration of conjugal rights or by any coercive means whatsoever.

2. It shall be lawful for each of the parties to live separate and apart from the other, and continue to live separate and apart from the other, free from interference, authority, or control, directly or indirectly, by the other, as fully as if he or she were unmarried, and each may conduct, carry on, and engage in any employment, profession, business, or trade which to him or her may seem fit or advisable for his or her own sole or separate use, free from any control, restriction, or interference, direct or indirect, by the other party.

Plaintiff credibly testified that she would not have signed an agreement permitting defendant use of the Hideout without a No Molestation clause: " . . . [H]e wanted the house half time, and I gave it to him, finally, for ten weeks. And I knew it would lead to trouble, so I said, 'look the only way I'll sign anything like this is if there is something in that contract that says he cannot bother me anymore, that he has to leave me alone. That he can't force me to talk to him, be with him, that he won't, that he won't hurt me, hurt me psychologically, financially, just leave me alone'" (Tr. p.37, Ins.3-11).

As further reflected in the testimony provided by plaintiff during the hearing on her application for a temporary order of protection, and confirmed by the documentary and tape recorded evidence admitted at that proceeding, defendant has, since the Stipulation was executed on October 25, 2000, and incorporated, but not merged, into a judgment of divorce filed on January 24, 2001, stalked and subjected plaintiff to a continuing barrage of telephone calls, cards, and letters.

Plaintiff described the emotional and psychological pain that she has sustained as a result of defendant's unwanted communications, which continued unabated throughout the divorce proceedings, and into the years since the divorce. In these telephone calls, cards, and letters, defendant has questioned plaintiff's sanity; dredged up her painful childhood history of having been raised in foster homes and subjected to child abuse; alternately expressed undying love and desire to reunite, with curses, harassment, and threats; and threatened to damage her property and hurt their son and her boyfriend.

Various of the written communications were placed into evidence, documenting plaintiff's description of letters:

. . . in which side by side he is very nice, and then he is irrationally vengeful, and very hurtful *** in some cases you know just on the same page, where you could see that his altered states is like you know he feels one way, and then he switches gears, and feels another way. And I have to tell you that that's very frightening and troublesome, because I just - I don't - I know - I know that he's clinically obsessive compulsive and that he has, that is clinical behavior that's been proven, and he's on several drugs, and if he ever goes off them, or even on them it's all very troublesome to me (Tr.p.28, Ins. 14-25).

Plaintiff's testimony elaborated upon the unwelcome and "horrible" telephone messages, cards, and letters that she has received on a continuing basis, despite a history of having obtained orders of protection against defendant, and despite the No Molestation clause. She described calls at night to her office when defendant could see from the street that her light was still on at 9:00 or 9:30 p.m., and how he would call repeatedly if plaintiff hung up:

[H]e would just push me and push me, and drive me crazy, and I'd hang up, and he would call me back. If I didn't answer he would call me back and back and back, keep the phone busy in the office and it was - and then I was afraid to leave my office and go outside, because I know sometimes he stayed out to see if my lights went off in my office, so he could follow me home, or he would run around the block. to make it look accidental. (Tr. p.30, Ins.2-19).

During this testimony, the court noted that plaintiff was emotionally distraught and crying.

Plaintiff's testimony also included references to various of the cards and letters introduced into evidence as examples of defendant's communications during his lengthy campaign of continued, unwelcome contact, and as sources of upset, alarm, and devastation to her. In a March 25, 2002, card covered with rambling handwritten notes that spill over onto handwritten sheets numbering six pages, defendant ominously states:

I have nothing to lose, so I can speak like this. You said that we're never getting together *** I won't call you a bitch or curse you out - because, as you know, I apologized for that *** I tried to stop loving you, by not calling you, not giving you the mail, and hopefully, by not seeing you. All for nothing. I haven't lost any love for you in 3 years + 4 months of separation. However, at the same time, strangely, I have grown to hate you for what you have done to my life (Plaintiff's Exhibit 3).

Defendant's general pattern of harassment, menacing, taunting, and stalking, which served as the basis for this court's issuance of a temporary order of protection in favor of plaintiff on October 3, 2006, also included disturbing actions and comments specifically related to his use of the Hideout. In a reference to having found an early pregnancy test kit while rummaging through plaintiff's underwear drawer at the Hideout, defendant's March 25, 2002, letter ridicules his former spouse as being in "[d]enial that you're in menopause. You think that you can still get pregnant the usual ways. You couldn't get pregnant if you danced naked, yelling, 'come + get it!' in the Bethesda Fountain in Central Park on some sunny, summer Sunday" (Plaintiff's Exhibit 3).

In responding to a note from plaintiff with respect to defendant's request for use of the Hideout during certain dates, defendant wrote, on August 24, 2002:

If you thought that the notes from last week and 8-21-02 were nasty, after reading this note, you'll know the real meaning of the word *** LADY GET OFF MY BACK! You have been bitter, vicious, vengeful, vindictive, and 'menopausal' to me since Nov. 16, 1998. You feel 'uncomfortable' about my leaving notes at your building. TOO BAD!! *** As I told you, I will always love you - always. For some strange reason, I still want you. However I don't need you any longer (Plaintiff's Exhibit 15).

Defendant's letter of June 3, 2003, is addressed "Dear Bitch," and warns, "If you thought that the letter from 8-24-02 was nasty, this letter is nasty [to the tenth degree] [emphasis in original]." It goes on to taunt plaintiff for having agreed to pay $25,000 per year in spousal support to him, noting, "You should have spoken to Judge Glenda Hatchett before you did what you did"; and for permitting defendant to keep the marital apartment, as well as agreeing to his "using the country house for 10 weeks a year for 11 years (this is only the third year)." The letter ends by commenting that plaintiff and the parties' son "are perfectly suited for each other - the bitch and the son-of-a-bitch" (Plaintiff's Exhibit 16).

Plaintiff's Exhibit 20, an audiotape of telephone messages left by defendant on plaintiff's answering machine, includes a call with similar taunts regarding plaintiff's obligations to support him and to permit him access to the Hideout, while noting that she has no rights to the New York City apartment. This call, as others on the tape, is menacing in tone and riddled with obscenities, beginning with, "Okay, bitch, it's Jay again . . . . By the way, you have an extremely fucked up [voice mail] system . . . ." In another, particularly angry and menacing call, defendant refuses plaintiff's request to remove his clothing from the Hideout at the end of his stays, and then goes on to warn that he has directed his doorman not to permit plaintiff or their son, Jared, to enter the building without his permission, and to demand that Jared remove all of his personal property - but not the bed or any other furniture - from his room in defendant's apartment. This call culminates with defendant telling plaintiff that, "that's the last time you're going to hang up on me," and threatening further litigation - the costs and counsel fees of which defendant repeatedly threatened to saddle plaintiff with - if she did not accede to a Hideout schedule change he was demanding.

Despite his demands that plaintiff and Jared stay out of his apartment, defendant saw no need to accord plaintiff reciprocal privacy and respect when using the Hideout. Responding to plaintiff's request that he not enter her bedroom at the Hideout, defendant wrote on July 26, 2004:

You told me on the phone and in your letter, there is no need for me to go into your bedroom. Your bedroom, like all the other rooms in the house, is part of the house. I have exclusive use of the house for 10 weeks a year through 2013. I could, if I want, sleep in your bed, open the venetian blinds, play with your underwear, but I don't [emphasis in original].

By card dated November 3, 2004, defendant makes reference to plaintiff's boyfriend getting a divorce, and warns that plaintiff can be named a co-respondent in that action for alienation of affection, and that she should "tell that to the judge when [she] file [s] for another order of protection." This card, sent nearly four years after the parties divorced, also informs plaintiff that, although "[t]here may not be a glimmer of interest on your part . . . there is more than enough on my side . . . more than burning embers. There is a torch on my part" (Plaintiff's Exhibit 12).

On May 18, 2005, defendant sent plaintiff a card that inquired, "Is it possible that my favorite, nicest person has become a shit? If so, I am truly sorry for you" (Plaintiff's Exhibit 7).

The most recent evidence of conduct by the defendant that underlies plaintiff's application for an order of protection and the termination of defendant's shared use of the Hideout, was provided both through plaintiff's testimony and in a taped telephone message left on her office answering machine at approximately 11:30 p.m. on March 27, 2006. During this call, defendant threatened to break the locked glass door leading to plaintiff's bedroom, unless someone returned his call within an hour. Plaintiff testified that, upon hearing the message, she was "panicked" and likened this to defendant's longstanding pattern of menacing and tormenting her:

. . . [T]his started just bringing back everything about how he's always trying to exert control, to scare me, to threaten me, to frighten me. How he always just you known puts me in a position where he knows I'm going to be very upset, that he's basically a terrorist, he's an emotional terrorist. He tries to strike terror in me constantly, constantly (Tr.p.102, Ins.1-8).

Plaintiff further testified at the October 3, 2006, hearing that she was "tried . . . tried of the exorbitant legal bills . . . tired of the stress . . . tired of the fear . . . tired of the harassment *** I want him out of my life. I don't want him stalking me. I don't want him calling me. I don't want him writing me. I don't want him threatening me, calling people I love and threatening them" (Tr.p.105, Ins.9-12, 15-19).

In testimony that this court rejects in light of the documented, ongoing campaign of harassment credibly provided by plaintiff, defendant denied stalking plaintiff and attributed any physical encounters with her in the vicinity of her apartment or office to happenstance. Defendant's testimony did not address the contents of his telephone calls, cards, or letters that were the subject of plaintiff's testimony, except to state, incredibly, that the purpose of his writing to her was "to show affection, and appreciation of what she was doing in the house, and to keep in touch about the family . . . ."(Tr.p.116. Ins.2-4).

CONCLUSIONS OF LAW

On the basis of this record, the court issued a temporary order of protection in favor of plaintiff and against defendant. Given the nature of plaintiff's testimony and the strength of the corroborating evidence, defendant was also temporarily precluded from further use of the Hideout pending the instant further review, findings, and order of this court. In this, its final determination with respect to plaintiff's applications for an order of protection and for the termination of defendant's periods of exclusive use of the Hideout based upon his violation of the No Molestation provision, Article XII, of the Stipulation, the court now extended its ruling to the issuance of a final order of protection pursuant to Domestic Relations Law ("DRL") §252 and Family Court Act ("FCA") §842, which order shall remain in effect for a period of two (2) years commencing July 30, 2007, the date upon which the temporary order of protection will expire. The final order of protection shall set forth the identical conditions of behavior to which defendant has been subject under the temporary order of protection.

The court further finds that defendant has repeatedly violated the No Molestation provision, Article XII, of the Stipulation, and has done so in a manner and to such a degree that his continued use of the Hideout will not only conflict with, and create difficulty in enforcement of; the permanent order of protection herewith issued to plaintiff; but also threatens plaintiff's personal and property rights, subjecting her to severe emotional and psychological distress, and preventing her from the peaceful enjoyment of her home. The conduct that defendant has relentlessly engaged in for years following the execution of the Stipulation included his continued pursuit of a romantic relationship with plaintiff, and verbal and written attacks upon her when she rebuffed him.

Despite the No Molestation clause, defendant has continued to use the Hideout, under cover of legal right, to insinuate himself into plaintiff's life, both literally and figuratively, gaining access to her bedroom and rummaging through her most personal items. Defendant's egregious abuse of the extraordinary privilege of enjoying periods of exclusive use of his former spouse's home compels the termination of his contractual right, which he has employed to facilitate the perpetuation of his campaign to taunt, humiliate, menace, and otherwise torment plaintiff.

In opposing plaintiff's application to terminate his use of the Hideout, defendant argues that a violation of the No Molestation clause cannot serve as the basis for such relief, because the two clauses in issue are independent of each other. The court rejects this claim. First, plaintiff's testimony, which defendant did not refute, and which is fully credited by this court, established that plaintiff's agreement to defendant's post-judgement use of her vacation home was specially conditioned upon the defendant's cessation of his lengthy campaign of harassment, menacing, and taunting of her.

Second, and more important, defendant's abuse of the right to use plaintiff's home has served to enable him to continue - indeed, to testify - the offending conduct and interference in her life. These factors establish not only a linkage, but an interdependency between the No Molestation clause and the provision affording defendant periods of exclusive use of the Hideout (see generally, Reybold v. Reybold, 45 AD2d 263 [4th Dept. 1974]). To paraphrase the Reybold court, it would be anomalous to permit defendant to insist upon his part of the bargain while depriving plaintiff of the freedom from molestation that served as the consideration therefor (Id at 266).

The court further notes that, even were it to find that the clauses at issue are independent, plaintiff would be entitled to the termination of defendant's use of the Hideout as a form of equitable relief, given that defendant's contractual breach cannot adequantely be redressed with a legal remedy such as money damages (see e.g., Fur & Wool Trading Co., Ltd. v. George I. Fox, Inc., 219 AD 398, 400 [1st Dept 1927], rev'd on other grounds, 245 NY 215 [1927]).

Plaintiff's further application (Motion Seq. No. 5) to terminate her obligation to pay maintenance of $2,083 per month to defendant for a period of eleven years, and her related obligation to maintain life insurance for his benefit, is denied for failure to demonstrate, prima facie, that the continued enforcement of these obligation has or will result in extreme financial hardship (see Luftig v. Luftig, 239 AD2d 225 [1st Dept. 1997]).2

Finally, plaintiff's application for counsel fees is granted to the extent of an award for counsel fees and costs incurred in obtaining the temporary and final orders of protection granted by this court (see DRL §252 [1][f]; FCA §842[f]).

Each party's application for counsel fees incurred in connection with defendant's order to show cause seeking to restrain plaintiff from interfering with his exclusive use of the Hideout is denied. Plaintiff's assertion that defendant's claim is sanctionable as frivolous pursuant to 22 NYCRR 130-1. 1(c) is rejected in light of the extension she built onto the house, which provided defendant with a colorable claim that he was being prevented from fully exercising his right of use. Following its review of plaintiff's response and the attorneys' oral arguments, the court ruled that the area of the house in question consisted of a bedroom for plaintiff that was added to the premises after the Stipulation was executed, and was therefore not contemplated within the terms of the Stipulation. As such, defendant's application for enforcement counsel fees must also be rejected.

WHEREFORE, it is hereby

ORDERED, that plaintiff shall be granted a final order or protection pursuant to DRL §252 and FCA §842, which order shall remain in effect for a period of two (2) years commencing July 30, 2007, the date upon which the temporary order of protection will expire, and which shall set forth the identical conditions of behavior to which defendant has been subject under said temporary order of protection; and it is further

ORDERED, that the periods of exclusive use of the Hideout accorded defendant under the Stipulation are hereby terminated as a matter of law and of equity; and it is further

ORDERED, that plaintiff's application to terminate her obligation to pay maintenance to defendant, and her related obligation to maintain life insurance for his benefit, is denied without prejudice to the filing of a plenary action to set aside the Stipulation; and it is further

ORDERED, that plaintiff's application for counsel fees is granted to the extent of an award of counsel fees and costs incurred in obtaining the temporary and final orders of protection granted by this court; and it if further

ORDERED, that, within twenty (20) days of the date of this decision, counsel for plaintiff shall submit an affirmation setting forth the services provided, hourly rates billed therefore, and costs incurred in obtaining the temporary and final orders of protection granted by this court; ad it is further

ORDERED, that, within forth (40) days of the date of this decision, counsel for defendant shall file responsive papers, if any, to plaintiff's counsel fee submission; and it is further

ORDERED, that each party's application for counsel fees incurred in connection with defendant's order to show cause seeking to restrain plaintiff from interfering with his exclusive use of the Hideout is denied.

1. In establishing the parameters of the October 3, 2006, hearing the court noted that, although the immediate inquiry was directed to whether there was a need for an order of protection, the evidence presented could be determinative of plaintiff's related claim that defendant was in violation of the No Molestation clause of the Stipulation.

2. To the extent that plaintiff further argues that aspects of the Agreement, including the maintenance obligation, should be set aside as unfair and inequitable, this ruling is without prejudice to the filing of a plenary action for that purpose, if so warranted.