IN RE: Lloyd GRANT

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IN RE: Lloyd GRANT, Petitioner, v. Darlene PUGH, Respondent.

No. O-18732/08.

Decided: July 06, 2009

Respondent Darlene Pugh moves to vacate the final order of protection in favor of petitioner Lloyd Grant entered on default when Ms. Pugh failed to appear on August 18, 2008.1 Respondent denied that she was served with any papers. Neither party is represented by counsel. The Court held a traverse hearing on December 12, 2008.2

On August 15, 2008, Mr. Grant filed a family offense petition alleging that on August 8, 20083 at Bronx Family Court, Ms. Pugh threatened Mr. Grant when they were leaving the courtroom following their appearances in Part 14 on a delinquency action against their son DG. Ms. Pugh was immediately escorted out of the Family Court building by court officers, but not arrested. The parties were scheduled to appear again in the delinquency matter on August 18, 2008. The court issued an ex parte temporary order of protection to Mr. Grant returnable three days later August 18, 2008, on the same date as the delinquency matter. On August 18, 2008, Mr. Grant and the attorney for the child appeared and informed the court that Ms. Pugh had been present earlier on August 18, 2008 for her son's delinquency proceeding in Part 14. The notarized affidavit of service provides that Kecia Jefferson served Ms. Pugh on August 18, 2008 at 9:30 a.m. at the Family Court on 161st Street in the Bronx with the petition and temporary order of protection. When Ms. Pugh failed to appear in Part 3 on August 18, 2008, the court held an inquest at 12:10 p.m., made findings of fact, and issued a final order of protection on default based on Mr. Grant's credible testimony regarding the August 7 incident.

On October 23, 2008, Ms. Pugh filed a motion to vacate the final order of protection. Under CPLR 5015, an order entered on default may be vacated upon the showing of an excusable default. In her notarized affidavit in support, Ms. Pugh claims she was never served; she maintains she had no reason to be in the Bronx on August 18, 2008; alternatively she challenges the date on the affidavit of service as not correct; and denies having had any contact with Mr. Grant for 12 years.

On December 12, 2008, at the traverse hearing, Ms. Jefferson testified that she is 25 years of age. She knew Ms. Pugh because Ms. Pugh has a child with Mr. Grant, Ms. Jefferson's father. Ms. Jefferson testified that she saw Ms. Pugh in front of the Family Court building on August 18, 2008 and attempted to serve Ms. Grant but she went inside the lobby of the building. Ms. Jefferson followed her inside. When Ms. Pugh refused to accept service again, Ms. Jefferson dropped the papers at Ms. Pugh's feet and stated “You are served.” Ms. Jefferson testified credibly.

During the hearing on December 12, 2008, Ms. Pugh denied that she was ever served. First, she denied she was ever in the Bronx during the month of August, 2008. However, she admitted that she was present for all delinquency proceedings involving her son. The Court's computer shows that proceedings in the delinquency matter, D-15947/07, were held on May 22, 2008, June 3, 2008, June 17, 2008, June 27, 2008, and July 14, 2008, August 7, 2008, and August 18, 2008. She specifically recalled being present when her son was placed in Lincoln Hall, which according to court records occurred on August 18, 2008. Ms. Pugh denies that she has had any reason to have contact with Mr. Grant for 12 years. Mr. Grant states that he was present for all of the delinquency proceedings too. As Ms. Pugh simultaneously states that she appeared at seven court proceedings with their son, the credibility of her testimony is completely undermined by this inconsistency. Ms. Pugh's denial of service at the hearing was inconsistent and completely incredible.

The only question remaining for the court is whether service on August 18 was improper because the summons and petition were served the same day as the return date.

FCA § 826 provides that a family offense petition

“shall be served at least twenty-four hours before the time stated therein for appearance. If so requested, the Court shall not proceed with the hearing or proceeding earlier than 3 days after such service.” (Emphasis added).

FCA § 826 can be read in the following two ways:

Interpretation A

(1) A temporary order of protection must be served at least 24 hours in advance. Otherwise it is ineffective; and (2) regardless of when a temporary order of protection is served, respondent is entitled to an adjournment of three or more days.

or

Interpretation B

If a temporary order of protection is served within 24 hours, then respondent is entitled to an adjournment of three or more days after such service.

Anecdotally, it has been reported to this court in other cases that the police have refused to serve temporary orders of protection within 24 hours of the return date, presumably based on FCA § 826. NYPD's interpretation of FCA § 826 has forced petitioners alleging domestic violence, sufficient to get an ex parte exclusion order from the court, to go home to the respondent whom the court has ordered excluded from the home. However, for the reasons discussed below, the court concludes that Interpretation B, the alternative that protects victims of domestic violence, is the interpretation intended by the New York Legislature. Where a statute is subject to more than one interpretation, it is ambiguous. The court will turn to the legislative history of the statute to determine the legislature's intent, goals and purpose. McKinney's Cons Laws of NY, Book 1, Statutes § 92.

Legislative History of FCA § 826

FCA § 826 was enacted in 1962; the 24 hour provision has been unchanged ever since. Originally, § 127 of the Domestic Relations Law, enacted in 1933 and amended in 1944, provided with regard to orders of protection:

“In all cases service of summons must be made within a reasonable time before the time stated therein for such appearance, as may be provided by the rules of the board.” (Emphasis added).

The source of the 24 hour provision in FCA § 826 is the service provision in the Children's Court Act § 12, enacted in 1924, which stated with regard to permanently neglected children:

“Service of said summons must be made at least twenty-four hours before the time stated thereon for such appearance, but the judge, if requested by a parent, or in case there is no parent, by the person having custody of the child, shall not proceed with the hearing earlier than three days after service.” (Emphasis added).

In 1962 when the FCA was enacted, why was the “reasonable time” for service set forth in Domestic Relations § 127 rejected in favor of the 24 hour service provision of the Children's Court Act? Why in adopting the language of § 12 was the word “but” removed and a period placed after the word “appearance?” An exhaustive review of the legislative history of the Family Court Act was unsuccessful in finding any explanation.4 Rather, the reasons for the changes to the service statute in domestic violence cases appears to be one of expedience.

There is not one word about FCA § 826 in the 562 page transcript of the hearings regarding enactment of the FCA and no discussion of § 826 in the written reports commenting on the enactment of the FCA reviewed by this court, with one exception. The Committee on Family Law of the Association of the Bar of the City of New York complained about unnecessary language variations in provisions of the Family Court Act relating to issuance of summons and service of summons (FCA § 826) and the issuance of warrants (FCA § 827). “Greater uniformity of language could be achieved.” Report on the Family Court Act proposed by the Joint Legislative Committee on Court Reorganization, March 1, 1962 at 39. Similarly, there are many complaints about the haste with which the FCA was traveling through the legislature toward enactment, causing unintended omissions. Transcript, February 16, 1962, Judge Phillip B. Thurston, Presiding Justice and the Board of Justices of the Domestic Relations Court of the City of New York, at 91; Transcript, February 16, 1962, M.L. Rein, representing the Supreme and Surrogate's Court Attaches Association, at 193 (“whoever drafted this worked in a hurry.”); Transcript, February 16, 1962, James F. Tuohy, on behalf of the Archdiocese of New York, at 207 (“time for review has not been adequate for the important purpose involved.”); Transcript, March 1, 1962, Mrs. Jerome Schack, League of Women Voters, at 93 (“It will be a travesty of justice if, after the years of effort which have gone into achieving the court reorganization amendment, mere pressure of time prevents this Committee from implementing it fully and properly”). The Joint Legislative Committee stated:

“Limitations of time do not presently permit the rewriting of every section of the consolidated laws which, with the abolishing of these courts, will contain obsolete matter. Thus the effort has been directed to locate and revise those provisions of law which will no longer be susceptible of application as the legislature intended unless some substitute is found for the obsolete matter.” Introductory Note, Joint Legislative Committee on Court Reorganization III at 1 (February 19, 1962).

Accordingly, the legislative history does not resolve the ambiguity and the court turns to other sources demonstrating the legislature's purpose in enacting the 24 hour service provision in domestic violence cases.

Analysis

Interpretation A is contrary to the legislature's purpose of protecting victims of domestic violence. A temporary order of protection is effective when served, but Interpretation A leaves petitioners unprotected for a full 24 hours. The time subsequent to service is the most dangerous for a victim of domestic violence as that is the time that the batterer becomes of aware of the victim's attempt to protect herself/himself.5 It is the worst time to leave a victim unprotected. If a respondent is served with a temporary order of protection within 24 hours of the return date, is the order ineffective? Under Interpretation A, the answer is yes. The court would be without jurisdiction over the respondent even though the respondent has notice of the order of protection. In Alix A. v. Erika H., 45 A.D.3d 394, 845 N.Y.S.2d 306 (1st Dept 2007),6 the Appellate Division held that the family court lacked jurisdiction over a petition for a violation of an order of protection which was served on the mother on the very same day that the violation petition was filed and the court found a violation without a hearing and issued a 5 year order of protection as a result of the violation. It appears that the mother was present for a custody proceeding for which she was properly served and over which the court had jurisdiction. It also appears that the mother was served with the violation petition by the court in the courtroom. Without a hearing, the family court not only transferred custody from mother to father, but the court found a violation of an earlier order of protection for the father, extended the final order of protection to five years and added the child to the order of protection. In the violation petition, the father did not request the ultimate relief awarded by the court. Given the trial court's wholesale violations of the mother's due process rights in Alix A., it is difficult for Alix A. to apply for any proposition other than that a party is entitled to due process. The due process violation would have been averted if the trial court had simply adjourned the case for at least three days from service as required by FCA § 826 under interpretation B.

Interpretation A provides an unnecessary procedural safeguard to address the risk of erroneous deprivation of respondent's constitutional rights since a post deprivation hearing must be held by the court immediately. CPLR 6313(a). FCA § 842 authorizes the court to exclude respondent upon consideration of whether “the order of protection is likely to achieve its purpose in the absence of such condition.” Domestic Relations Law § 252(8) authorizes exclusion upon a showing that immediate and irreparable harm will result without an exclusion.7 Respondent who is excluded has a constitutional right to be heard immediately when excluded from the home by the court's order of protection. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (14th Amendment violated when a state's prejudgment replevin law authorizes seizure of goods by state agents based on private person's civil complaint), rehearing denied, 409 U.S. 902 (1972); Nadeau v. Sullivan, 204 A.D.2d 913, 612 N.Y.S.2d 501 (3d Dept 1994)(respondent not denied due process with issuance of ex parte temporary order of protection. There was no finding of wrongdoing); People v. Forman, 145 Misc.2d 115, 129, 546 N.Y.S.2d 755 (N.Y.C Crim Ct, N.Y. County, 1989)(respondent is entitled to a prompt hearing after exclusion from the home). “While these private interests are deserving of constitutional protection, the state's extraordinary interest in protecting victims of domestic violence from actual or threatened injury and children from the effects of exposure to domestic violence justifies the use of immediate measures to stop the violence.” Breger, Elkins and Fosbinder, New York Law of Domestic Violence, 2d ed., at 509 (2007). Courts often balance these interests and make exclusion orders returnable the next day to reduce the impact of the exclusion on the excluded respondent while at the same time protecting petitioner until both parties simultaneously appear before the court on the return date. The immediate hearing renders the procedural safeguard of Interpretation A unnecessary.

Under Interpretation A, the only way to address the 24 hour absence of protection would be for the court to issue ex parte at intake a warrant for respondent's arrest under FCA § 827. However, arrest is not always necessary to protect the petitioner. Rather, there is a less intrusive measure which is to exclude respondent and return the case to the court immediately. In contrast, under Interpretation B, a temporary order of protection is effective even if service is made less than 24 hours before the return date. The court must reject Interpretation A's incongruous result. See, Doctor's Council v. New York Employee's Retirement System, 71 N.Y.2d 669, 674, 529 N.Y.S.2d 732, 525 N.E.2d 454 (1988) (“This is not to say, however, that the language of a statute must in all circumstances be literally or mechanically applied when, due to significantly changed circumstances, such application would cause an anachronistic or absurd result contrary to the contextual purpose of the enactment.”).

The New York legislature has repeatedly demonstrated in a variety of statutes its understanding of the urgency of service of a temporary order of protection in a domestic violence case. McKinney's Cons Laws of NY, Book 1, Statutes § 75 (other statutes are a consideration in legislative construction but are not controlling). Other statutes demonstrate the legislature's intent to protect victims of domestic violence from the moment the petitioner enters the courthouse. Any person requesting a temporary order of protection must be permitted to file a petition without delay on the same day or the next day that the court is in session. FCA § 153-c. The Family Court is open in the evening to accommodate such filings. Judiciary Law § 212(n). FCA § 153-b (a) allows for service on any day of the week and at any time, day or night. FCA § 153-b (d) requires prompt service by the police and FCA § 153-b (c) and Dom Rel Law § 240(3-a) require that the court “immediately” deliver a copy of the temporary order of protection to the police for service. While process in other cases cannot be served on Sunday, Judiciary Law § 5, or Saturday, if it is the Sabbath, GBL § 13, orders of protection may be served on any day and at any time. Consistent with these other statutes, in FCA § 826, instead of making the temporary order of protection ineffective because it was served within 24 hours of the return date, the legislature makes the temporary order of protection effective but allows for an adjournment of at least three days after the short return date to allow respondents time to seek (1) help understanding the temporary order of protection and/or (2) legal assistance.

Interpretation B is also consistent with the general service statute. In all civil cases, process must be served by a non-party who is 18 or over. CPLR 2103(a). Otherwise, there is a lack of due process and the petition is dismissed. E. v. H., 53 A.D.2d 891, 385 N.Y.S.2d 748 (2d Dept 1976)(petitioner/mother served respondent/father with service in a support proceeding). However, service by an improper person, though jurisdictionally defective, is an irregularity which may be waived or disregarded. Ahner v. N.Y. New Haven & Hartford R.R. Co., 14 N.Y.S. 365, NOC (City Ct of NY, Gen Term 1891)(where defendant was served, but statute required sheriff to serve, objection to person who served is “trivial at most and not encouraged.”) Indeed, service procedures have been liberalized further. Kjeldsen v. Ballard, 52 Misc.2d 952, 277 N.Y.S.2d 324 (Sup Ct, Suffolk County, 1967) (defendant served again constitutes proper service nunc pro tunc). For example in Dunne v. Dunne, 148 Misc.2d 136, 560 N.Y.S.2d 77 (Family Court, Rockland County, 1990), where the father mailed the summons and petition to the mother in Florida in a UCJA custody case, the fact that the father himself mailed the papers was sufficient to confer jurisdiction because it was a mere irregularity rather than jurisdictional. This liberalization, where there is no question that respondent received the papers and was thus on notice, is consistent with the court's preference to resolve issues on their merits. Kandel v. State Division of Human Rights, 70 A.D.2d 817, 418 N.Y.S.2d 755 (1st Dept 1979)(where petitioner/employee served respondent /employer, court found mere irregularity' and moved on to address the issues of merit).

The rules of statutory construction as well dictate that the court reject interpretation A in favor of B. Interpretation B gives effect to all of the language of FCA § 826. “Such” service at the tail end of FCA § 826 must refer to service within 24 hours. Otherwise “such service” would mean any service or all service or simply service. Interpretation A renders the term “such” superfluous. However, courts must give meaning to every word of a statute. Bliss v. Bliss, 66 N.Y.2d 382, 388-389, 497 N.Y.S.2d 344, 488 N.E.2d 90 (1985)(“In the construction of a statute, meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give each a distinct and separate meaning” quoting McKinney's Cons Laws of NY, Book 1, Statutes § 231).

As a literal construction, Interpretation A does not correctly reflect the legislative intent. The court “may not reject a literal construction unless it is evident that a literal construction does not correctly reflect the legislative intent.” Matter of Schinasi, 277 N.Y. 252, 259, 14 N.E.2d 58, rehearing denied, 278 N.Y. 624, 16 N.E.2d 128 (1938). “The court must read and interpret the language of a statute in a way that furthers [the statute's] goals and purposes.” Commissioner of Social Services v. Vito G., 171 Misc.2d 315, 318, 657 N.Y.S.2d 850 (Family Ct, Ulster County 1996). Originally in 1962, the only reference to victims of domestic violence was found in FCA § 811, Finding and Purpose, which provided:

“In the past, wives and other members of the family who suffered from disorderly conduct or assaults by other members of the family or household were compelled to bring a “criminal charge” to invoke the jurisdiction of a court. Their purpose, with few exceptions, was not to secure a criminal conviction and punishment, but practical help.”

“The family court is better equipped to render such help, and the purpose of this article is to create a civil proceeding for dealing with such instances of disorderly conduct and assaults. It authorizes the family court to enter orders of protection and support and contemplates conciliation procedures. If the family court concludes that these processes are inappropriate in a particular case, it is authorized to transfer the proceeding to an appropriate criminal court.” Enacted L.1962, c 686. Repealed. L.1981, c. 416, § 13.

FCA Article 8's goal of protecting victims of domestic violence has not changed in 45 years. Indeed, the legislature has articulated its goal much more clearly and enacted much more effective legislation. In 1986, the Office of the Prevention of Domestic Violence was established. In 1994, the legislature enacted the Family Protection and Domestic Violence Intervention Act which consisted of 50 substantive revisions including, inter alia, mandatory arrest, made violation of certain orders of protection a felony criminal contempt, allowed for restitution up to $10,000, added harassment in the first and second degree and menacing in the second degree to the definition of family offense, and created a statewide tracking of orders of protection. The court has a duty to harmonize FCA § 826 with these other statutes. McKinney's Cons Laws of NY, Book 1, § 98.

Reality renders the three day adjournment under interpretation A meaningless.

“[B]ecause of the short time which a summons may specify for the respondent's appearance (24 hours), subsection 826(a) gives the respondent a right to a three day delay before the court can proceed with the case․ Of course, the reality of high caseloads and large court backlogs means that the period of adjournment between the respondent's appearance and the first “scheduled” hearing may be a month, two months, and even three months-making the issuance of a temporary order of protection of even greater potential importance .” McKinney's, FCA Practice Commentaries, Douglas J. Besharov, 226 (1998).

As a party may always request an adjournment, it is unclear why the legislature would require courts to grant a 3 day adjournment regardless of when the temporary order of protection was served. Interpretation B recognizes that if served within 24 hours, respondent may not have had time to, for example, consult an attorney or determine whether respondent's union provides legal services to respondent. If a respondent were served with a temporary order of protection three months ago, and appears on the return date requesting the statutory three day adjournment, why must the court grant the three day adjournment? Is it a reasonable request? Would respondent accomplish in three days what she/he has not accomplished in three months? The question of whether respondent's request for an adjournment is reasonable under the circumstances of that case is typically a determination the legislature has left to the courts.

Finally, Interpretation B is consistent with service provisions for temporary orders of protection in other states. In recognition of the urgency in domestic violence cases, service provisions for orders of protection in other states do not set time limits. Indeed, Illinois allows expedited service. “The summons ․ shall be served by a sheriff or other law enforcement officer at the earliest time and shall take precedence over other summonses except those of a similar emergency nature.” The time of service with regard to the return date does not affect the validity of the temporary order of protection.

Conclusion

If Ms. Pugh had threatened Mr. Grant again on August 18, 2008 after she had been served with the temporary order of protection, would she have violated the temporary order of protection? Under Interpretation A, the answer is no. Under Interpretation A, service within 24 hours of the return date would be ineffective rendering the temporary order of protection void and the court would have no jurisdiction. Interpretation B saves FCA § 826 from this dangerous situation.

Ms. Pugh's recourse was to appear in court and request an adjournment of at least three days to which she was entitled under FCA § 826; lying about whether she was served and failing to appear when she was in the Family Court building that very day were not appropriate responses.

Accordingly, the court finds that Ms. Pugh was properly served on August 18, 2008, giving the court personal jurisdiction over Ms. Pugh. However, because she was served within 24 hours of the return date, she is entitled to a three day adjournment. It is ordered that the final order of protection is vacated for 30 days from the date of this order. The temporary order of protection is re-instated. The court grants Ms. Pugh's request for an adjournment, nunc pro tunc. Ms. Pugh may move by order to show cause with notice to Mr. Grant to set a date for trial on Mr. Grant's family offense petition. If Ms. Pugh fails to so move within 30 days of the date of this order, the final order of protection shall be re-instated.

FOOTNOTES

1.  On August 18, 2008, the court entered a final order of visitation for Mr. Grant with their son DG on default as well (V-18733/08). On October 7, 2008, Ms. Pugh filed a motion to vacate the order of visitation. Ms. Pugh appeared on November 12, 2008, the return date for her motion, but her affidavit of service of the motion to vacate was not complete. Both parties and the attorney for the child appeared on November 13, 2008 and stipulated to a visitation schedule. Ms. Pugh withdrew her motion regarding visitation. This decision will address the family offense petition only.

2.  The motion to vacate the order of protection was returnable on November 12, 2008 when Ms. Pugh appeared with an incomplete affidavit of service. Both parties appeared on November 13, 2008, but the file for O-18732/08 could not be found. The parties agreed to adjourn the matter to December 12, 2008. The court directed the parties to bring all witnesses and evidence concerning service and to be prepared for a traverse hearing.

3.  In his family offense petition, Mr. Grant states that the incident occurred on August 8, 2008, at 10:30 am. However, court records show a proceeding was held in DG's delinquency matter in Part 14 on August 7, 2008.

4.  In addition to the reports of the Committee, the court reviewed the transcripts of the legislative hearings and Association of the Bar of the City of N.Y. (“ABCNY”) reports. Joint Legislative Committee on Court Reorganization, Report I, Judicial Administration: Organization of the Unified Court System of the State of New York (January 30, 1962); Joint Legislative Committee on Court Reorganization, Report II, The Family Court (January 30, 1962); Joint Legislative Committee on Court Reorganization, Sixth Interim Report (December 15, 1962).

5.  “Because a civil protection order is not enforceable until it has been served-and the intervening time can create serious danger of renewed or even increased violence-quick service is critical.” Peter Finn and Sarah Colson, Civil Protection Orders: Legislation, Current Court Practice, and Enforcement, 60-61, National Institute of Justice, March 1990.

6.  The only reported case discussing FCA § 826.

7.  “A preliminary injunction appears to be effective upon its issuance, and a party subject to the injunction is subject to the court's contempt power once he or she has knowledge of the injunction, even if that person has not been served with the injunction. However, in the common situation in which the plaintiff obtained the temporary restraining order ex parte before the court has obtained personal jurisdiction over the defendants, a different rule appears applicable. In that circumstance, the parties to be restrained must be served with the appropriate process (i.e. summons and complaint, summons with notice or a petition) as provided in CPLR Article 3, before the temporary restraining order can be binding on them and before they can be subject to contempt for its violation.” Weinstein-Korn-Miller, N.Y. Civ Pro ¶ 6313.02.

ANDREA MASLEY, J.