This action was tried before the Court as a non-jury trial commencing March 22, 2011 and concluding on March 30, 2011. The trial last a total of five days. Plaintiff placed seventeen documents, defendant placed four documents and the attorneys for the children placed four documents into evidence. Both plaintiff and defendant testified on their own behalf.

The Court conducted in camera interviews with the parties' daughters on March 30, 2011.

The parties were married on September 13, 1996. There are four issue of the marriage, "C", born 4/24/92; "Z", born 7/1/93; "V", born 4/9/98 and "I", born 8/14/99. The date of commencement of the action is October 4, 2004.

The parties executed a Stipulation of Settlement (the "Stipulation") on August 15, 2006 which was so ordered by the court (Farneti, J., A.J.S.C.). To date, a Judgment of Divorce has not been submitted despite plaintiff having been directed to do so on or before July 15, 2009 (Order of Bivona, J., J.S.C., dated May 8, 2009).^[FN1]

The parties' Stipulation of Settlement provides that it will survive and shall not merge into any Judgment of Divorce.

The Stipulation also provides, inter alia, for joint legal custody of the parties' children with residential/physical "placement" to the defendant/mother (the "defendant"). The Stipulation also provides for therapeutic visitation between the plaintiff and the children with one Dr. Berghart [sic]^[FN2] as well as an extensive parenting schedule for the plaintiff/ father (the "plaintiff"). The Stipulation further provides that the plaintiff pay child support and certain other expenses for the parties' children.

Plaintiff moved this court in 2007 for temporary sole custody of the parties' four children. That motion was granted on February 29, 2008 (Crecca, J., A.J.S.C). Judge Crecca granted the change of custody and made specific findings with regard to the defendant's alienation of the children and stated, inter alia, "[t]he credible evidence at the hearing established that the defendant consistently attempted to undermine, if not eradicate, the children's relationship with their father, and to portray the plaintiff-father as a dead beat dad and a violent, angry and abusive person. All for which there is no support in the record" . Such order of temporary custody was reversed by the Appellate Division on July 22, 2008, based on a best interests standards. The Appellate Division reversed on the issue of custody, but made no finding or reversal on the alienation issue stating "[u[pon the record presented, it was not in the best interests of the children to award temporary custody to the plaintiff at the present time. Further, we remit the matter to Supreme Court, Suffolk County, for a hearing on the issue of implementing the [*2]recommendations of the current court-appointed therapist for treatment of alienation and the reparation of the relationship between the children and the plaintiff'."

By Order dated February 24, 2009, after a hearing which included the testimony of the court-appointed therapist, Dr. Jennifer Campbell, plaintiff was awarded temporary custody of the parties' daughters, "V" and "I" (Bivona, J., J.S.C.). Justice Bivona based the change in custody "upon a finding of defendant having engaged in a continuous pattern of aggressive parental alienation". By Order dated May 8, 2009, Justice Bivona referred the issue of permanent sole and legal custody of "I", "V" and "C" to trial. Subsequently, the plaintiff withdrew his application for permanent custody of "C".^[FN3]

The issues referred to trial with this Court are plaintiff's application for permanent sole legal and physical custody of "I" and "V", plaintiff's application for a downward modification of his child support obligations for "C" and "Z", plaintiff's application for child support from defendant and plaintiff's application restraining defendant from utilizing the services of CSEB and terminating her entitlement thereto.^[FN4]

Testimony of Jennifer Flynn-Campbell, Ph.D

Dr. Campbell testified that she was appointed in June of 2007 to engage in therapeutic services for the plaintiff and the parties' daughters. She further testified that she had the opportunity to observe the interaction between the girls and plaintiff on approximately thirty occasions.

Dr. Campbell testified that the plaintiff would bring toys or arts and crafts to therapy and often brought food, preparing meals for holidays, Christmas and birthdays, which the girls refused to eat. She testified that plaintiff was cooperative with her instructions. She further testified that plaintiff spoke with the girls appropriately and tried to give guidance and set limits. She stated that at times he would sit and wait patiently.

Dr. Campbell stated that during the years she saw plaintiff, the girls got progressively worse. They became more disrespectful, more defiant and acted out more often. [*3]

Dr. Campbell testified that "V" would oscillate between refusing to be with plaintiff or being on the opposite side of the room. She testified that "V" would wear her sweatshirt backwards to cover her face with the hood, hid in a cabinet and built a fort to hide from plaintiff. She further testified that "V" would leave the therapy room and stay in the bathroom for extended periods of time. Dr. Campbell testified that "I's" behavior was similar. "I" built a fort of stuffed animals and hid herself and was more prone to acting out — she threw things at the plaintiff and Dr. Campbell.

Dr. Campbell testified that defendant never availed herself of the doctor's services and never reached out to assist plaintiff. She further testified that she had a conversation with defendant about the problems with the visits and gave her some directions, but defendant did not follow them when the doctor observed her during the Christmas and birthday celebrations. Finally, Dr. Campbell testified that the defendant never discussed with her resuming having Dr. Dowds see the parties' children.

Testimony of Mary Ann Williams

Ms. Williams testified that she is the defendant's mother.

Ms. Williams testified that she is the title owner of 18 Spring Briar Lane, Kings Park (the former marital residence). She further testified that she pays the mortgage including real estate taxes on that residence and receives no rent.

Testimony of Plaintiff - Custody

Plaintiff testified that at the time of the signing of the Stipulation, he anticipated that Dr. Burkhardt would "get things back on track" with respect to his relationship with his children and he would shortly resume visitation as set forth in the schedule in the Stipulation. He anticipated that defendant would encourage his children to visit with him and assist him in repairing the relationship.

Plaintiff testified that when he attempted to exercise visitation, he would go to the marital residence, the children would come outside sometimes accompanied by defendant, but refused to go with him. He further testified that he had conversations with defendant and asked her to encourage the children to visit him, but she gave him no assistance and told him he had to handle the problem himself.

Plaintiff testified that during the six months following the Stipulation, he observed bumper stickers on signs (Trial Exhibit 11) and buildings around his neighborhood stating that he was a "dead beat Dad" and that his children ate in food pantries. Plaintiff stated that the defendant made no efforts to foster his relationship with the children; that he could not even get [*4]them on the phone. He testified that in the beginning, following the execution of the Stipulation, he made almost daily phone calls to the marital residence. When he spoke to defendant about his inability to visit or get his children on the phone she responded that it was "up to you". He testified that when the children got on the phone, they would say one or two words and end the conversation. The children would be in the driveway when plaintiff came for visitation, but just stood there and refused to come with him. Plaintiff testified that he talked to defendant and asked her to "please have them come", but she gave him no assistance and made no effort to have the children cooperate.

Plaintiff testified that therapeutic visits with Dr. Burkhardt did not begin until November of 2006 due to defendant's lack of cooperation in the process. He testified that he met with the doctor and the children once per week. During the first few months, he made an application to the court to prohibit defendant from coming into Dr. Burkhardt's office during his therapeutic visits. He testified that when she was present, the children would open the door and defendant sat right outside the door and refused to leave. This resulted in a court Order barring defendant from the sessions and from the premises during his therapeutic sessions with the children (See Orders of Crecca, A.A., A.J.S.C. dated August 20, 2007 and April 2, 2008).^[FN5]

Plaintiff testified that after the defendant was excluded from the visits, the children became hostile. They would climb out windows, refused to eat the food he brought for them, refused to go out to lunch with him, wore headphones and put hoods on and ignored him and refused to cooperate with Dr. Burkhardt. Plaintiff testified that this continued to May or June of 2007.

Plaintiff testified that in June of 2007 the court appointed Jennifer Flynn-Campbell, Ph.D (Trial Exhibit 2 - Order of Judge Crecca dated June 27, 2007) to replace Dr. Burkhardt to effectuate family counseling and therapeutic visitation between plaintiff and the three remaining children.^[FN6] That Order also provided that the defendant was to drop off the children and leave immediately.

Plaintiff testified that he did all he could to commence with Dr. Campbell immediately, [*5]but defendant was resistant. He testified that the first session with Dr. Campbell did not occur until mid-August, 2007. He further testified that between June 27 and mid-August of 2007 he reached out to defendant on a weekly basis asking her to cooperate with visitation. He further testified that he attempted to exercise visitation during this time period, but had no contact with his children. He testified that defendant would bring the children to the driveway and stand in the driveway "shoulder to shoulder" with them about 40' or 50' from the end of the driveway where he was, but would make no attempt to facilitate their visitation with plaintiff. Plaintiff testified that he would exit the car and tell them to get inside the car to no avail. He testified that he would not step on the property, but stood on the curb. He further stated that when he did go onto the driveway, his son, "C", would get between him and the girls and the police were called.

Plaintiff further testified that from June, 2007 to December, 2007 defendant refused to allow the children to visit with plaintiff, contending that the visits were supposed to be supervised.^[FN7] Defendant testified that he once again had to resort to a court order to deal with this incorrect contention (Order of Crecca, A.A., A.J.S.C. dated August 20, 2007).

Plaintiff testified that bumper stickers began to appear around his neighborhood (Trial Exhibit 11) stating "attorney MM is a deadbeat dad: he drives a Hummer and his 4 kids have to eat at the food pantry". One of them (Trial Exhibit 11) appeared on the community mailbox at his apartment complex.

Plaintiff testified that during the visits with Dr. Campbell ^[FN8] his children would ignore him, but respond to the doctor on the same questions he would ask. He testified that there was no dialogue between him and his children despite his repeated efforts. He further testified that the girls would cover their faces and hide in the toy cabinet (Trial Exhibit LGNo.2). He stated that defendant would not allow the children to be taken from Dr. Campbell's office to engage in an activity such as going for pizza ^[FN9]. Defendant took the position that these forays would be in violation of a court order and "made a big stink", got "into Dr. Campbell's face" and called the law guardian, so much that plaintiff had to once again seek court assistance to accomplish this adjunct to therapy.

Plaintiff testified that he continued to make attempts to exercise visitation in accordance with the Stipulation with no results. Plaintiff testified that he made application for a change of custody in September 2007. A hearing was held and by Order dated February 29, 2008 the court (Crecca, A.A., A.J.S.C.) awarded temporary sole custody of the parties four children to plaintiff. [*6]Plaintiff testified that a stay was issued by the Appellate Division which eventually reversed the award of sole custody (2008 NY Slip Op 06362 (July 22, 2008)). Plaintiff testified that the therapeutic visits with his sons stopped during the appellate process. Plaintiff further testified that one year later a hearing was held before Justice Bivona who granted plaintiff's application for temporary custody (Order dated February 24, 2009) as to the parties' daughters, "I" and "V".

Plaintiff testified that from February, 2008 to February 2009 the therapeutic visits ceased and he had no visits with his children despite numerous attempts to establish contact by phone and in person. Plaintiff further testified that during that period of time he had four or five conversations a week with the defendant about having visits, virtually begging defendant to facilitate contact; defendant took no steps to do so and never reached out to the plaintiff. Plaintiff further testified that he was hospitalized during that time and did not hear from his children or defendant; he received no birthday or Father's day cards.

Plaintiff testified that when Justice Bivona granted him temporary custody, he also authorized the plaintiff and his daughters to attend the Rachel Foundation in Texas. Plaintiff testified that he left with his daughters within two days of their delivery to him to go to the Rachel Foundation ("Rachel"). He testified that he was at Rachel for ten days. During that time the Sheriff's Department came to Rachel and inquired about his daughters. Plaintiff testified that he showed them Justice Bivona's Order of February 24, 2009 and they left. However, he testified that his daughters became upset, overwhelmed and frightened by this visit by the police. On cross examination, plaintiff was asked if Rachel was licensed. He testified that it is not a therapeutic facility and, thus, licensing is not required.

Plaintiff testified that things "eased a bit" when he was at Rachel and he "got closer" with his daughters. The plaintiff testified that they returned to New York and the girls came to live with him. At that time, defendant was directed that neither she nor any of her friends or family were to have contact with "I" and "V" pending further order of the court (See Order of Bivona J.C., J.S.C., dated February 24, 2009). Plaintiff testified that while this was in effect he witnessed a friend of the defendant's, one Jeannie Weller, trying to talk to his daughters at school. He further testified that he observed her come into school and that she had to be forcibly removed by school security. He observed Weller trying to speak to "I" twice at her school. Plaintiff testified that he raised this in a conversation with defendant, and she responded that she would "do what she wanted". Plaintiff testified that the "no contact" provision remained in effect until about June of 2009 when Justice Bivona allowed defendant Sunday visits, but no contact at other times.

Plaintiff testified that during the period February to June of 2009 the girls started settling in at his home. Their relationship was harmonious — the girls told him they loved him, they hugged him, played games with him, watched movies. Plaintiff testified that while they started to relax and "open up" they would also intermittently tell him to go "f" himself, put hoods over their faces when he took them to visit his family at Easter and would not speak to his family. Plaintiff testified that gradually things got better — the volatility dissipated and they would visit [*7]plaintiff's family with him. Plaintiff testified that all of that changed in June of 2009 when Justice Bivona, in the middle of a trial transferred custody to defendant on a Friday and reversed his finding on the following Tuesday. Plaintiff testified that when the girls returned they were fresh, nasty, screaming, not listening, that they refused to enter his house and tried to run away. In short, plaintiff testified that it was "bedlam" for three or four days after they returned.

Plaintiff testified that when the girls first came to live with him, they would not call him Dad, did not want a dialogue with him, refused his help with homework, refused to wear the clothes he had purchased for them ^[FN10]. He testified that even today the girls refuse to pose for any pictures with him, but will smile and pose for pictures with the defendant. He testified that now the girls call him "Daddy" instead of "Mark" or referring to him as "him". He further testified that they cuddle with him on the couch, that he sits with them at bedtime and that they like to be awakened by him. He further testified that they climb on him during play, dive with him in the pool, play games with him and go walking. Plaintiff testified they the girls argue about who gets to sit in the front of the car with him when previously they both sat in the back. He testified that "V" picks out his clothes and that the girls shave the back of his head. They also will now go to plaintiff's sister's home.

Plaintiff testified that when the girls visit defendant on Sunday, they start becoming uneasy on Saturday. They exhibit temper tantrums and cursing and when they return on Sunday evenings, they exhibit screaming, cursing, temper tantrums and will run outside. This pattern will continue for several days and then things will go back to normal until the next visit. This pattern continues to present although the episodes are less angry and shorter. He testified that he still has problems getting the children to allow him to take photos and has stopped trying. (See, e.g. Trial Exhibit LG#3).

Plaintiff testified that since he was awarded temporary custody in February, 2009, he has had three or four CPS complaints lodged against him including accusations of "no food" for the children, lack of medical attention, leaving the children unattended. He testified that no Family Court proceedings have ever been commenced as a result of these complaints.

Plaintiff testified that when he was granted custody, the girls changed schools. When questioned about the change on cross examination, plaintiff testified that the schools they attend are in the same school district and that he changed schools because he received a letter from the district indicating that they should be in the schools mandated by his residence and because he wanted to lessen the girls' contact with the Wellers and other friends of defendant who had engaged in picketing at the courthouse and whom he believes encourage alienation ^[FN11]. He further testified that he feared getting into a conflict and feared for his own safety vis a vis those [*8]individuals. He testified that he has spoken to his daughters' teachers, principals, assistant principals and guidance counselors explaining the matrimonial situation and asking to be notified of any concerns.

Plaintiff testified that he scans and emails copies of all school reports to defendant, has kept her apprized of any illnesses and progress in school. He testified that "I" is a B+ student and that "V" obtains higher grades and is excelling at school. He testified that he works with them on their school work and takes them to the library. He further stated that he has reached out to defendant to help as well. He further testified that he lets defendant know if extra help is needed and that defendant has helped with school projects. He testified that he attends parent-teacher conferences and even did so between 2006 and 2009.

Plaintiff testified that in addition to Sunday visits, he agreed that the defendant have parenting time with the girls for a couple of nights overnight at Thanksgiving and four or five days at Christmas. Currently, defendant picks up the girls on Sundays and drops them off at school Monday morning. He testified that Monday nights and Tuesday are still tough — the girls make comments to him about the litigation and the prospects of custody going to defendant. He indicated that he does not discuss the litigation with his daughters, but they know a lot of details. He further testified that "I" still engages in erratic behavior when she returns from the defendant's home. She slams the front door and her bedroom door repeatedly, screams and runs out of the house. He testified that he has had to drive around his complex with "V" in the car to find "I".

Plaintiff testified that he keeps defendant informed of all doctor's appointments and that she often comes to those appointments. He testified that "I" fractured her thumb and also hurt her foot during the last year. He notified defendant and asked that she meet him at the hospital when "I" needed surgery. Defendant was also present when "I" had to be taken to the doctor during a blizzard because part of a needle had lodged in the bottom of her foot. Plaintiff called defendant who came to the doctor's office. Eventually, the doctor had to take "I" to the emergency room to remove the needle under general anesthesia. Plaintiff testified that he allowed "I" to go home with the defendant for several days after that because he had promised "I" that if she allowed the doctor to remove the needle she could stay with her mother for the night. Plaintiff testified that "V" is physically very well; that she has eczema, but that he obtained cream to deal with the condition. He further testified that he has dealt with "I's" menstruation issues and had conversations with her "about changes". He personally purchases her protection and explained the monthly cycle to her.

Plaintiff testified that he was in a motor vehicle accident on a Saturday in 2009 with his daughters in the car. He testified that they were both wearing safety harnesses. The police came, but no medical help was provided because the children were not injured. When asked on cross examination as to whether there were any marks or bruises on "V", he testified that at a party the following day "V" indicated a red mark from the shoulder harness. He stated that he brought her to a doctor on Sunday or Monday and that subsequent to that, she saw an orthopedic surgeon, was sent to the hospital for an x-ray and that "everything was fine". [*9]

Plaintiff testified that he makes every attempt to foster a familial relationship with defendant. He saves seats for her and his sons at the girls' recitals and texts defendant accordingly. He testified that prior to his having custody of his daughters, he was "the odd man out". His daughters did not want to sit with him, would not talk to him and would not go out with him after an event. Plaintiff testified that he now invites his sons to come along after an event, but his sons refuse to come in his car; they meet him and have defendant pick them up. Plaintiff testified that this is all part of a pattern of alienation by defendant. Plaintiff further testified that he calls defendant about school assignments to encourage her to work with the girls and to continue on the weekends what he has started with them at home. He testified that he emails and texts defendant about the children's activities. He stated that using the phone can be problematic because defendant's message center is usually full.

Plaintiff testified that he gets up at 6:00 a.m. and makes breakfast for the girls. He often makes two different meals to suit their tastes. He testified that he either gets them on the bus at 7:05 am. or drives them to school, usually three times a week. He further testified they stay after school in the library for an hour and he picks them up at about 3:45 p.m. Plaintiff testified that he plays outside with them, plays games and then the girls study and take their showers. He further testified that he makes dinner, does the laundry and sometimes does the girls' hair. Plaintiff testified that Saturdays are the girls' one day to sleep late. They play with their friends on Saturdays. Plaintiff testified that on Friday nights, the three of them plan the following week's meals and that the girls like to help with preparing dinners. He testified that he cooks five or six nights a week. Plaintiff further testified that both girls take religion and play the flute. He further stated that he has encouraged other extracurricular activities, but they have refused to participate. He testified that he enrolled them in soccer, but when he took them to the activity, they refused to get out of the car.

Plaintiff testified that despite the Stipulation's proviso that the parties' children would continue in the Catholic religion and be raised in the Catholic faith, he recently learned that the defendant is now taking them to a Jehovah's Witness place of worship. He testified that he was never consulted or told. He continues to take them to a Catholic church. He testified that he takes them to religious instruction. On Sundays, plaintiff drops off "V" for religious instruction and the defendant picks her up there for her parenting time.

Plaintiff testified that he currently has a two-bedroom apartment. He stated that if he is awarded permanent custody, he plans to find a house to give the girls more stability. He will ask for assistance in child care from family members and he is also reconfiguring his practice to avoid conflicts. He testified that he is somewhat embarrassed about the small living quarters but that the girls have new friends and that "V" and "I" invite friends over after school and that the girls are outside almost every day because there are at least fifteen other children in their apartment complex who play together.

Plaintiff testified that he has been in therapy with both Drs. Burkhardt and Campbell and engaged in any therapy directed or offered by the court. He further testified that defendant has [*10]not been in therapy over the last three years and never availed herself of any therapy offered by the court. Plaintiff testified that he has suggested therapy to the defendant, even suggesting that they go together; defendant refused.

Plaintiff testified that defendant has custody of the parties' two sons. Plaintiff further testified that since the withdrawal of his constructive emancipation application with regard to his son, "C",^[FN12] he has had about eight conversations with "C" and one visit from "C" when "C" came to get medicine from plaintiff. Plaintiff testified that he has called "C" and left messages approximately fifty times. Plaintiff further testified that both his sons came to his sister's home last Thanksgiving for about twenty minutes which was the first time they had seen their cousins "in years". Plaintiff further testified that when he asked defendant to accompany him recently to pick out a dress for "I", "Z" came with defendant. Plaintiff stated that defendant and the girls went to pick out a dress and he spent some quiet time with "Z" — the first time since June of 2007.

Plaintiff testified that when the Stipulation was signed, he fully expected the provisions of the Stipulation regarding cooperation and fostering a relationship would be complied with by defendant. He further testified that he contacted Dr. Burkhardt the day the Stipulation was signed, but did not see his children until mid-November even though regular visitation was not contingent on his seeing Dr. Burkhardt.

Plaintiff testified that he has gotten nothing from defendant; none of the Stipulation's terms have been fulfilled by her. His goal was to see and have a relationship with his children and that goal has been thwarted by defendant "at every turn". Further, plaintiff testified that he believes his children are instructed by defendant to behave badly toward him. He explained that he has told defendant she is having a negative impact on their children, but she denies any wrongdoing and blames plaintiff. Plaintiff further testified that defendant is the only one in the family who has not engaged in therapy. Plaintiff testified that Justice Bivona's attempts to have defendant participate in the therapy process were rebuffed (See Order dated May 8, 2009 - Trial Exhibit 18).^[FN13] Plaintiff further testified that he has suggested to defendant that she engage in therapy to no avail. Plaintiff testified that defendant's interaction with him and the girls when the girls are present is 100% proper. [*11]

Plaintiff testified that he wants contact with the defendant to be limited because of the tumultuous effects of the girls' visits with her. He testified that he has already lost two children and if defendant has more time with the girls "I will lose them". He testified that he wants defendant's visitation to be supervised. He further stated that his efforts to get defendant to change her behavior have been to no avail. Plaintiff testified that he wants the ability to limit visitation when the children "act out" when they come back from visiting defendant. He testified that he believes this pattern is harming his daughters. He testified that he knows that his daughters need two parents and he wants to foster that without the acrimony that he claims defendant is creating. Plaintiff testified that his daughters, who are eleven and twelve years of age, come home from defendant's house and call him "a fucking asshole", slam doors and engage in tantrums for hours on end at times.

Plaintiff testified that there is no remedy for what has already happened between him and his boys, but he wants to preserve his relationship with his daughters. He testified that at the time of the signing of the Stipulation, there were conversations about resolving the matrimonial action which resulted in provisions written into the Stipulation for future cooperation and the fostering of plaintiff's relationship with his children by the defendant.

Plaintiff testified that after he was given temporary custody of the girls, he nevertheless permitted the children to visit their mother outside the scope of the court-ordered visitation. When asked why he gave defendant more time if he considers her a threat to his relationship with the girls, he testified that he was hopeful that it would stem the alienation and that he was trying to do something for his children.

Plaintiff testified that when he obtained custody of the parties' daughters, they came to him with the clothes they were wearing, their school books and flutes, one pair of pants, a shirt and a set of underwear each. He testified that defendant never provided him with anything else. He further testified that when the girls return from a visit with their mother, they put the clothes they are wearing in a bag and that bag goes back with them on the next visit.In addition, he testified that he has received no financial assistance from defendant.

Plaintiff testified that although defendant advised him of regular medical appointments when she had the girls, she never advised him relative to any emergency medical problems until they were over. Further, she did not provide all of the report cards.

Plaintiff testified that he is aware of "V's" desire to live with her mother, but does not believe it is in her best interest to do so. He further stated that he does not believe the lack of contact with defendant has a negative impact on the girls. Plaintiff further testified that he is willing to facilitate visits between the girls and their brothers and would be willing to drop off and pick up for any visits. He testified that he will foster a relationship with the girls such that they have two parents, not excluding one. He testified that he can provide a more rounded aspect to their lives. [*12]

Plaintiff testified that his mother and sister occasionally watch the girls. He further testified that he keeps little alcohol in his home; he does not drink. He stated that his mother may have an occasional glass of wine and that she has never been intoxicated in the presence of his children nor have any of his other family members.

Plaintiff's Testimony - Downward Modification & Child Support

Plaintiff testified that he has been an attorney for 21 years and in private practice for 20 years. He testified that he does criminal defense and car accident cases.

Plaintiff testified that prior to obtaining custody of his daughters, he worked six days a week and worked until ten or eleven o'clock in the evening on some nights. He regularly saw clients after hours and worked "a tremendous amount of hours".

Plaintiff testified that after he was awarded temporary custody of his daughters, his work schedule changed dramatically. He is home by 4:00 p.m. at the latest and cannot go to his office to meet clients in the evening. He returns calls at ten o'clock at night after his daughters are in bed. When he needs assistance, he asks his two sisters to watch the girls, but rarely asks. He testified that he sometimes brings the girls to court with him on weekends so that he can take care of arraignments ^[FN14]. Plaintiff further testified that his hours of work have been reduced by about 50% and his income has decreased.

Plaintiff testified that his income has also decreased because the personal injury practice has changed — settlements are more difficult and require more hours and paperwork. He further testified that his criminal practice has suffered because he can no longer visit a lockup at night when a client is arrested. He testified that his costs have also increased. He further testified that prior to 2009 he spent $50,000 to $100,000 on advertising and now spends a minimal amount for an ad in the yellow book. He testified that he can no longer afford a large advertising budget; this has resulted in a reduction in his business.

Plaintiff's income as reflected on his tax returns is as follows:

2006$ 88,858 (Trial Exhibit 4)

2007$149,951(Trial Exhibit 5)

200829,664(Trial Exhibit 6)

200964,191(Trial Exhibit 7)

201047,726(Trial Exhibit 9)

Plaintiff testified that the income imputed to him in the Stipulation is $185,500 (Trial Exhibit 1, page 28). He further testified that he agreed to that imputation because he wanted the [*13]divorce to be over and he wanted to move on to re-establish a relationship with his children. He testified that the parties "backed into" that figure so that defendant could keep the children in the former marital residence.

Plaintiff testified that since 2009 he has borrowed $20,000 - $30,000 from family members and $50,000 from his friend, John Hayes. The money has been borrowed with the understanding that he will repay it; he is not being charged interest. He testified that he works as hard as he can. He further stated that he is not going out to eat and has taken no trips or vacations. He testified that obtaining child support from defendant would lighten his load and perhaps enable him to survive financially without borrowing.

Plaintiff testified that prior to February of 2009 he had no arrears in his $4650 monthly child support obligation. He is now obligated to pay $2325 monthly and has to continuously borrow to meet his obligation, but is current on his child support.

Plaintiff testified that he turned in a 2007 Jaguar and paid a $7,000 fee to be released from the lease because he could no longer afford the vehicle. He borrowed the money from John Hayes. Plaintiff further testified that he had a Hummer which was also turned back in.

Plaintiff testified that since 2009 he has made over 100 court appearances and nine trips to the Appellate Division in this litigation. He has paid $5000 in legal fees. He provided documentation (Exhibits 14 & 15) which substantiate that he has paid $5950 to Dr. Burkhardt and $19,000 to Dr. Campbell ^[FN15], as well as $286 in unreimbursed medical expenses (Trial Exhibit 16). He testified that he has forwarded receipts for medical expenses to defendant, but has received no money from her. In addition, plaintiff testified that he incurred over $9,000 in fees from the original attorney for the children, Robert Gallo, which resulted in a judgment which he negotiated to $3,000, $1500 of which has been paid thus far.^[FN16] In addition, he paid $10,000 for transportation and his stay with the girls at Rachel House. The parties' stipulation provides that defendant will pay 40% of all unreimbursed medical, optical and dental expenses including orthodonture. The Stipulation is silent as to the fees of Dr. Burkhardt. Plaintiff further testified that the cost of providing health insurance for his children is $14,000 per year.

Plaintiff testified that no judgment of divorce has yet been entered in this matter. He [*14]further testified that he files tax returns as a single parent with four exemptions. He has asked defendant to file joint tax returns with him which would result in significant savings, but she has refused.

Plaintiff testified that defendant has a BS in Paralegal Studies from Adelphi. He testified that they met at a law firm where she was employed as a paralegal. He testified that plaintiff has no physical limitations and that "Z" is seventeen and "C" is away at college.

Testimony of Defendant - Custody

Defendant testified that her belief as to the type of contact by plaintiff with his children when the Stipulation was signed was that it would be therapeutic visitation only which would last until Dr. Burkhardt notified the attorney for the children that regular visitation as outlined in the Stipulation could begin. She testified that, other than therapeutic visitation, plaintiff had daily phone contact with the parties' children initiated either by the plaintiff or "us".

Defendant testified that during the period that Dr. Burkhardt was conducting therapy, defendant was asked to refrain from driving the children to therapy for a time and then resumed doing so. She testified that she always brought them.

Defendant testified that when therapy with Dr. Burkhardt ceased, plaintiff's visitation changed to weekend visits on a schedule of three on, one off. She testified that visitation lasted "a few weeks". Defendant further testified that visitation stopped because it was changed again to alternating weeks between plaintiff and defendant through the summer of 2007. Defendant further testified, however, that the children did not go; there wasn't an exchange. She testified that she packed for the children and walked them outside. When plaintiff arrived, she brought the childrens' packs to him.

Defendant testified that she made a concerted effort to get "V" and "I" into the plaintiff's car. She stated that she talked to them and told them what plaintiff had planned and that it would be fun. Defendant further testified that she tried to get the children to get on the phone with plaintiff, but that the conversations "were not long." She admitted on cross examination that these conversations were strained and were not a healthy dialogue. When asked if the girls were inappropriate with plaintiff on the phone between August of 2006 and February of 2009, she testified they were not; that they never cursed at him and never discussed outstanding financial matters such as asking that he pay certain bills.

Defendant testified that from August of 2006 until the end of 2006, the girls spoke to plaintiff on the phone three or four times a month. She admitted that at times "V's" conversations were limited to "hello" and "goodbye".

When asked if defendant was ever notified of certified letters addressed to the girls in [*15]care of her, she acknowledged that she had received notification, but never picked up the letters. On cross examination, she admitted that she became aware that these letters were from plaintiff to the children, but did not do anything about it.

Defendant testified that she did not know who was responsible for the bumper stickers about plaintiff and had never seen one until a court appearance about two years ago. She testified that she has been to plaintiff's apartment complex, but never saw the bumper sticker on his complex mailbox. She further testified that she never made inquiry of her friends and those people who came to court with her if they were responsible.

Defendant testified that she has no problem getting the girls to obey her, but testified that she could not get them to go with plaintiff. She testified that plaintiff had to "build his own relationship instead of it being all me doing it". She further testified on cross examination that she did not believe her position that plaintiff's visits should be supervised and her testimony that she prompted and encouraged visits outside of therapy were incompatible.

Defendant testified that plaintiff came for visitation on two occasions after the Stipulation was executed. She testified that on the first occasion, she had a conversation with plaintiff at the end of her driveway in which plaintiff asked her to help him get the children to go with him. She testified that she complied. The children did not go. Plaintiff further testified that on the second occasion, she sent the children outside with their bags and remained in the dining room where she could observe. She stated that the children were coming back into the house and she told them they had to go with plaintiff. She testified that she tried to encourage the girls, but that plaintiff was getting angry "in the street" stating to the children that he had a court Order. She further testified that she punished the children when they refused to go. For example, she took away privileges of going out with friends, took away television, cell phones and games.

Defendant testified that there was a court Order for another week-long visit with plaintiff at the end of the summer of 2007. She dropped the children off at Dr. Campbell's office and was called forty minutes later by the doctor to pick them up. She testified that when she arrived, she did not see either plaintiff or Dr. Campbell.

Defendant testified that the next scheduled visitation, per court Order, was in the fall of 2007 when she brought the children to Mr. Gallo's office for a visit ^[FN17]. She testified that they were supposed to spend the weekend with plaintiff, but that Mr. Gallo called her to come back and pick up the children. She stated that the plaintiff was not present when she returned.

Defendant testified that the next visitation commenced in April of 2008 until January of 2009 and was therapeutic visitation with Dr. Campbell two times per week. She testified that she drove the girls to visitation. She stated that during this time period she invited defendant to have [*16]a dinner visit with her and the children and he accompanied her on a shopping trip with her and the children.

Defendant testified that there was an additional trip to a nail salon. She stated that she was supposed to drop "I" off for that excursion, but "I" did not want to stay.

Defendant testified that since the Stipulation was signed she has done everything according to the ^[FN18]"agreement". She testified that she took the children to scheduled visits, offered to have plaintiff come to the house, spoke to the plaintiff "trying to figure out what to do" and spoke to Mr. Gallo about trying to get the children to feel comfortable. She testified that she came into therapy and bought Christmas gifts for the children to give plaintiff.

Defendant testified that she had a conversation with the plaintiff about "V's" behavior and suggested that he listen to the children and not be defensive. She further testified that one day the plaintiff would ask for help and the next he would accuse her of interfering.

Defendant testified that the children were out of school "for an extended period of time" when they went to Rachel House. She testified that she discussed the girls school progress with the plaintiff and notified him of projects and school events.

Defendant testified that since the Stipulation was signed, when she had the girls, plaintiff attended mostly just emergency medical appointments. She then stated that plaintiff came to some of "I's" visits to the endocrinologist.

Defendant testified that when the girls visit her, "V" goes to religion for part of the day and she uses that time to work with "I" one-on-one. She testified that she and the girls watch movies, go to the mall, ride bikes, walk the track and play outside. Defendant further testified that "I's" school work is not completed every week by the time of visitation and she works with "I" to bring up her grades and improve her reading. She testified that plaintiff sometimes asks her to assist with homework during the week and calls to ask her questions.

Defendant testified that she took the girls to another "Christian" church twice. She testified that she does not know what church it was. She testified that she brought the girls there for Mother's Day and Father's Day, then stated it was only Father's Day and another regular Sunday. On cross examination, defendant testified that she did not know what kind of religion it was and did not explore the issue. She was asked if she felt taking the children to another church on Father's Day was in their best interest, to which she responded "it was more of a celebration" than church, then stated that it was "pretty consistent" with the Roman Catholic church.

Defendant testified that "V" was involved in a motor vehicle accident in which plaintiff [*17]was driving on July 25, 2009. She testified that the Sunday after the accident she discovered marks on "V". She introduced into evidence (Trial Exhibit A) a photo of "V" holding a newspaper which showed two marks on her front shoulder. Defendant testified that she took "V" to the doctor and for x-rays and that there was no diagnosis. She admitted on cross examination that she gave "V" the newspaper to hold in the picture. Defendant further testified that she also took a picture of "V" (Trial Exhibit B) which shows small bruises on her arms and asked her to hold a newspaper when posing for that picture. Defendant admitted on cross examination that her children have gotten bruises while in her care.

Defendant testified when asked if posing the girls with newspapers was in their best interest that she "had to document". When asked if she thought having the child hold a newspaper next to a bruise or mark was harmful to the child, she testified that it was good parenting and saw no detrimental effect. She further testified that she documented the date because she learned that from plaintiff who did that in his law practice.

Defendant testified that when "I" had the incident with the pin in her foot, the plaintiff discussed it with her. She testified that the injury occurred on a Saturday and "I" came for visitation the next day. She admitted that she did not take "I" to the doctor and testified that she and plaintiff took her on the following Tuesday, that "I" received x-rays and then had the pin surgically removed. Defendant testified that she brought "I" to the hospital while plaintiff dropped off "V" to stay with the parties' son. Both she and plaintiff were present when the object was removed.

Defendant was asked about one Jeannie Weller ^[FN19], who defendant testified was a friend. She further testified that she "heard" that Ms. Weller was among protesters at the courthouse picketing against Justice Bivona while he was presiding over this litigation.She testified that she did not know the picketers were at the courthouse about her case. She further testified that despite having seen a picket sign at Ms. Weller's house prior to the actual picketing, she was not involved and had no knowledge of what was unfolding. She admitted on cross examination, however, that she knew in advance about the picketing ^[FN20] and did not approve or disapprove and when asked if she had an opinion of the picketing, her response was "I would say no." She further testified that she did not think it was coincidental that Ms. Weller had a picket sign about the Justice before whom she was litigating her case. Defendant also testified that any contact between Ms. Weller and her children had stopped pursuant to court order.

Defendant testified that plaintiff was "indicated" as a result of one of the CPS complaints, but admitted on cross examination that the "indication" was later vacated; she admitted that she [*18]was present in court when the finding was vacated. Defendant further testified that she called CPS about the plaintiff once. When asked if Ms. Weller called, she testified that she did not know, but admitted that she had a conversation with Ms. Weller about CPS.

Defendant admitted that she was curious as to who would call the police in Texas to go to Rachel House to check on the girls, but testified that she did not ask any of her friends about it.

Defendant testified that during the times she remained during plaintiff's therapeutic sessions with the girls, she would sit in a chair. She testified that she moved the chair nearer to the door where the therapy was taking place for the convenience of other doctors who were seeing patients.

Defendant testified that the Church gave her food and gifts for the children at Christmas and that she had to go to a food pantry. On cross examination, she admitted that she was receiving $4650 each month in child support when she was forced to go to a food pantry, but explained that the plaintiff was late in paying which necessitated her going.

Defendant testified that her daughter's clothes "go back and forth" and that when custody was transferred to plaintiff he "did not want anything".

Defendant testified that some time after 2008 she began to have the children seen by Dr. Patricia Dowds, a psychologist ^[FN21]. She first testified that she conferred with plaintiff about Dr. Dowds, then stated she was not sure. She acknowledged that there was a court Order of June 27, 2007, removing Drs. Burkhardt and Dowd from any involvement with the children, but stated she did not construe that as preventing her from resuming with Dr. Dowds. She further testified that she asked Dr. Campbell if the children could see Dr. Dowds and stated that Dr. Campbell was "lying" when she testified that she was unaware of the resumption of visits to Dr. Dowds.

Defendant testified that when Dr. Campell testified that the girls curse and throw things at the plaintiff, she was "misinformed", then claimed the doctor was "lying".She also testified that she does not believe Dr. Campbell's testimony that plaintiff followed the doctor's directions and improved his relationship with the girls. [*19]

When defendant was asked if any therapeutic services were offered to her by the Court, she testified that "Judge Bivona mentioned the possibility", but she never availed herself because she had her own therapy. She testified that she has seen a

domestic violence counselor at Brighter Tomorrow, but ceased eight months ago. She further testified that she considers herself a victim of domestic violence, but then admitted that she had no problem sitting with plaintiff at the children's school functions.

When asked if there was anything she could have done differently to foster a relationship between the girls and the plaintiff, defendant testified that she did everything according to the court orders. When asked if she thought plaintiff was a good Dad, she responded "sometimes". She testified that he is violent, abusive, meanspirited at times and neglectful at times. When asked to name five good qualities about plaintiff, she testified that he is very loving, likes to tell stories, tells the girls about his experiences, likes to do things with them and likes to cook with them.

Defendant was asked for her opinion as to why the girls relationship with their father deteriorated during the years they were in therapy and in her custody, yet since his custodial relationship began, the relationship has improved. Defendant testified that was "not exactly what I heard"; that she felt the relationship was "up and down". She testified that the girls have the same relationship with the plaintiff as when they lived with her.

Testimony of Defendant - Downward Modification & Child Support

Defendant testified that she received a BA in political science in 1989 and that she has no training in secretarial skills. She testified that she has taken courses on computers in the last couple of years through Displaced Homemakers both in their facility and at an outside school.

Defendant testified that she has looked for employment since the signing of the Stipulation. She testified that she has had four interviews: one with Huntington Hospital in 2007 for a receptionist position; one with Who's Who in 2009 for a phone sales position; one with Coldwell Banker in 2007 which resulted in her obtaining employment for eight hours on Sundays at the rate of $10 per hour; this employment ended in 2009; and one in 2010 which resulted in her being hired by the Department of Social Services as a part-time temporary employee.

Defendant testified that she worked for the Department of Social Services for 35 hours per week at the rate of $9.50 for 22 weeks beginning in September of 2010. She stated that she was then laid off for two weeks and rehired. She further testified that at the time of trial she has two weeks left of that employment. She stated that she received no benefits at the Department.

Defendant testified that she has sent "quite a few resumes" and looked in Newsday for work as well as the internet.She testified that she made no applications for any retail positions. She further testified that she recently took a civil service test for employment at the Department [*20]of Motor Vehicles.

Defendant testified that from 2006 to present she has not been able to secure full time employment because she lacked computer skills.

Defendant testified that prior to 2006 she was the joint owner of the former marital residence. After the signing of the Stipulation, title was transferred to her, her mother and her step father. She testified that at some later date, she could not recall when, she transferred the residence to her mother and step father. She could not recall when that occurred or how much she received; at another point in her testimony she stated the second transfer was two years after the original transfer. She then testified that she received $400,000, but changed her testimony and stated that was money that she owed her mother. She testified that she stopped making mortgage payments at the time of the second transfer. She later testified that she was paying the mortgage until the last two years. Defendant testified that the mortgage was refinanced at the time of the second transfer and some of the proceeds were used to pay an attorney's lien of $62,000. She could not remember how much the refinancing was for nor did defendant produce any documents relative to the transfers or refinancing.

Defendant testified that she did not remember a provision in the parties' Stipulation that stated she is self-supporting (Trial Exhibit 1 - page 16).^[FN22] She then testified that she understood that to mean that "I would take care of myself as long as he was taking care of the children".

Defendant testified that she did not prepare an updated Statement of Net Worth ^[FN23]. She testified that her monthly expenses are approximately $1,500 to the extent she could remember expenses. She testified that her money comes from her mother, her earnings and child support. Defendant further testified that she assists with "C's" college tuition and contributed "a few thousand" for that. Later in her testimony she stated that she pays the difference between loans and grants and "C's" tuition.

Defendant acknowledged that she has spent "hundreds of thousands on lawyers" and testified that the money came from her mother and Tom and Terry Gallo. She further testified that since 2006 she has spent over $300,000 on attorneys' fees.^[FN24] She testified that none of the [*21]money she received in child support went to pay legal fees. On cross examination, she admitted that she had sought "poor person" relief from the Appellate Division and was denied.

Defendant testified that she has borrowed from her mother, father, sister and friends, but could not recall how much she borrowed and testified that she did not keep records regarding these loans.

Defendant testified that she had to go to a food pantry on two occasions for food when she had custody of all four children. When asked why she did not ask friends or her mother, she responded that it was "hard to keep asking". She then testified that she continues to ask friends and family for help up to the present. Defendant further testified that she has never calculated the shortage between her salary and child support and the money she needs.

Defendant testified that her mother had recently listed the marital residence for sale ^[FN25] and that she was listed as the contact person for the sale. She testified that she made improvements to the home and that "every room needed something". She testified that her mother paid $100,000 to improve the home. She testified that 90% of the money spent was for repairs as the parties had begun an addition and renovation during the marriage. On cross examination, she testified that she had a ceramic floor and granite counter tops installed in the kitchen stating that she went through with the "original plans".^[FN26] She further testified that she replaced the bedroom ceilings, painted the bedrooms and installed stairs to access the addition of a second floor. In addition, she testified that wood floors were installed on the second floor.

Defendant testified that she does not have a financial plan in the event the Court grants her custody. She testified that she was "supposed to" get a part time job and the plaintiff would support the children. She further testified that her plan was to start working and that she tried to fulfill that plan.

Credibility

The Court finds credible the testimony of both Dr. Campbell and Ms. Williams.

The plaintiff testified in a forthright and credible fashion and the Court credits his testimony. The Court concludes that plaintiff's emotions exhibited during the trial were genuine.

The Court has never subscribed to the theory of "falsus in unum, falsus in omnibus". However, defendant's testimony was so replete with dissembling, falsehoods and untruths that [*22]this Court can credit little of what she said.

By way of example, defendant testified that the Appellate Division had ordered "supervised visitation" for plaintiff which is easily belied by the decision dated July 22, 2008, which is entirely silent as to visitation. Defendant more than once testified that plaintiff had unilaterally cut her child support in half when not only is there a court order (Trial Exhibit 1) relieving plaintiff from paying child support, but all attorneys on the case acknowledged that Justice Bivona directed that plaintiff pay half of the original child support obligation.

Defendant continuously referred to plaintiff's visitation as "supervised". Plaintiff's visitation was "supervised therapeutic" which has an entirely different connotation.

Defendant's testimony that she knew nothing about the picketing at the courthouse was unbelievable. Her statement that it was pure coincidence that her friend had a picket sign and engaged in picketing without her own involvement is ludicrous. Her testimony that she never saw the bumper stickers slandering the plaintiff is likewise incredible. The Court also suspects that not only was plaintiff involved with the stickers, but she caused the police to be sent to Rachel House. She testified that plaintiff brought them to Rachel House for "an extended period of time", but in fact it was a ten-day visit sanctioned by the court.

At one point in her testimony, plaintiff was asked about a complaint she made to the Commission on Judicial Conduct. She acknowledged that one Victoria Brown was a neighbor of hers who has been to her home. When asked if she attached a letter from Victoria Brown to her complaint, she testified that she did not. When shown the complaint with the letter attached, she still denied that she attached it and claimed never to have seen the letter.

Defendant testified that she lived with renovations going on in the house for a long time claiming she did not have the money to complete them. On cross examination she was asked if she took $150,000 from the parties' home equity line which was supposed to be used for the construction. She denied it and then changed her testimony indicating that she moved it to an account in her name, had to return it and it was used to complete the home.

Defendant's testimony about leading the children to the end of the driveway to facilitate defendant's visitation is likewise unbelievable. She testified that she stayed inside on one occasion, then changed her testimony to state that she assisted getting the children into plaintiff's car. On the one hand, she testified that her children obey her and on the other she testified that she could not get them to cooperate with the visitation.

Defendant's documentation of minor injuries and trying to pawn them off on the Court as child abuse is not only despicable, it insults this Court's intelligence. There is absolutely no evidence whatsoever that the plaintiff ever engaged in any abusive behavior towards his children.

Defendant's testimony about her attempts to find employment is equally unavailing. She [*23]claims that she is actively looking, but has had four interviews in three years — hardly the track record of someone who wants to obtain employment.In addition, despite having ample opportunity to do so during the trial, defendant never produced a resume for the Court's review. Defendant was also remiss in not filing an Updated Statement of Net Worth for the Court to review as well. The last Statement of Net Worth filed was in 2006 which clearly cannot be relied upon by this Court. Defendant further testified that she could not find work because she lacked computer skills, while at the same time testifying that she has taken computer courses.

Defendant's affect during the trial showed no emotion whatsoever — not even during closing arguments. The only time defendant showed emotion was when the words "food pantry" were used. Each time defendant said "food pantry", she would be on the verge of tears. This Court is certain that these reactions were feigned. Further, this Court does not believe that defendant ever went to a food pantry, particularly in light of the fact that by her own testimony she had hundreds of thousands of dollars available to her for counsel fees and court costs. Finally, defendant never testified that she would foster a relationship between the girls and their brothers or how she would do that if custody was given to plaintiff.

Custody

There has been much dispute and discussion in this case as to the standard this Court should apply when considering plaintiff's application for a change in custody. While this Court has considered a change in circumstances since the parties' Stipulation and found that there has been a sufficient change in circumstances to warrant a review of custody, the ultimate test to be applied is the totality of the circumstances with the best interests of the children being the critical factor, Morton v. Morton, 158 AD2d 458 (2nd Dept. 1990), citing Friederwitzter v. Friederwitzter, 55 NY2d 91 (1982). The factors this Court must consider are the quality of the home environment and the parental guidance the custodial parent provides, the ability of the respective parents to provide emotional and intellectual development, the financial status and ability of each parent to provide for the children, the length of time the present custody has been in place and the disruption, if any, of any sibling relationship, Keating v. Keating, 147 Ad2d 675 (2nd Dept. 1989).

In this case the plaintiff has had temporary custody of the parties' daughters for over two years. In that time, plaintiff has been able to effectuate, albeit slowly, a dramatic improvement in his relationship with his daughters. He has provided an acceptable home environment and guidance for his daughters. Plaintiff is able to provide economically for his children. Plaintiff expressed more than a willingness to foster and encourage his daughters' relationship with their brothers.^[FN27] [*24]

The Court is also satisfied as well that the plaintiff has been careful not to disparage defendant to his children and, although understandably hesitant to expand defendant's parenting time, has nonetheless demonstrated that he is willing to foster his daughters' relationship with their mother. In that regard, this Court must also consider the effect that an award of custody to one parent might have on the children's relationship with the other parent. "Interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be an act so inconsistent with the best interest of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent", In the Matter of Carl J.B. v. Dorothy T., 186 AD2d 736 (2nd Dept. 1992). The Court finds that plaintiff has not interfered and will not interfere with the defendant's relationship with the parties' daughters.

However, the defendant has interfered to such an extent that the Court concludes she is unfit to be the custodial parent. This Court has heard literally hundreds of custody cases. The Court has never seen a more calculated and crafty pattern of alienation. The defendant has made certain that she appears to be helping the plaintiff, but this Court concludes, based upon the credible evidence and testimony, that nothing is further from the truth. Defendant is skilled at complying with court orders to the letter when it suits her purpose while doing everything in her power to undermine the plaintiff's relationship with his daughters. In addition, she has refused to implement recommendations made by professionals and has not sought psychological counseling herself, which this Court concludes she badly needs.

Nor can this Court ignore the fact that two judges have also found that defendant has engaged in aggressive alienation of plaintiff, one on February 9, 2008 (Crecca, A.A., A.J.S.C.)^[FN28] and one on February 24, 2009 (Bivona, J.C., J.S.C.).^[FN29]

Further, plaintiff has now had custody for over two years. It is well settled that children should not be shuttled back and forth between divorced parents so long as the custodial parent has not been shown to be unfit to continue as the custodial parent, Matter of Lang, 9 AD2d 401, aff'd 7 NY2d 1029 (1st Dept. 1959). This Court is convinced that to again transfer custody is not in the best interest of the children. The Court is mindful that the children have another view, but these children are of tender years and have been subjected to what amounts to "brainwashing". While their wishes have been considered, the unfitness of a custodial relationship with the defendant is an overriding factor, See, Eschbach v. Eschbach, 56 NY2d 167 (1982).

Based upon the totality of the circumstances, the best interest of the children and the [*25]credible evidence and testimony, this Court awards permanent sole physical and legal custody of the parties' daughters to plaintiff. Plaintiff shall have all decision making authority as well.

Further, the Court is hesitant to expand defendant's visitation without benefit of both a forensic examination of the defendant and defendant's enrollment in therapy. Therefore, defendant shall submit to a forensic evaluation by Matthew G. Campbell, Ph.D., 11 Whitney Gate, Smithtown, NY (631-361-6858) who is hereby appointed to conduct such evaluation. The cost of the evaluation shall be shared equally by the parties. In addition, the defendant shall enroll in therapy with a psychologist or psychiatrist approved by the Court ^[FN30]. Defendant shall submit names for approval on or before May 15, 2011. The cost of therapy shall be borne by defendant.

No application for an expansion of defendant's parenting time will be considered until the forensic report has been completed and forwarded to the Court and the attorneys for the subject children have conferred with the psychologist or psychiatrist selected by the defendant and reported to the Court. To that end, the defendant shall execute and deliver HIPPA releases to the attorneys for "I" and "V". Defendant's parenting time shall be limited to the current Sunday/Monday arrangement. Further, there shall be no contact by defendant with the parties' daughters outside of the Sunday/Monday visitation pending further order of this Court. The girls shall continue to be prohibited to have any cell phones at their disposal. In addition, there shall be no third-party contact with the girls by the defendant's friends or family or any doctor, therapist, psychologist or counselor unless expressly authorized by this Court.

If the defendant fails to comply with this Court's direction concerning a forensic evaluation and the commencement of therapy, the Court will entertain an application to cease defendant's parenting time.

Although the Court is convinced the all of the parties' children would benefit from further therapy, the Court is hesitant to require it at this time. The parties' daughters have been damaged significantly by this litigation, during which the use of therapy did not achieve its desired goal.

Downward Modification of Child Support for "Z" and "C"

The party seeking a downward modification of child support has the burden of establishing an unanticipated and unreasonable change in circumstances, Brescia v. Fitts, 56 NY2d 132. That change "is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order of judgment", Basile v Wiggs, 2011 WL924506 (2nd Dept. 2011, slip opinion 01964), citing Matter of Prisco v. Buxbaum, 275 AD2d 461. [*26]

The problem with this case, as the Court sees it, is that at the time of the Stipulation, plaintiff agreed to an artificial amount of income. He did so willingly in order that his family could continue to live in the home they knew. However, that is no longer a factor as the two oldest children will be out of the house shortly and, of course, the girls will not be living in that residence. The second problem is that because the Stipulation was executed prior to the effective date of the Child Support Standards Act (CSSA), no calculation of child support was required. Thus, when confronted with a change in temporary custody for two of the parties' four children, Justice Bivona merely cut the amount in half, which this Court agrees was the appropriate measurement at the time. Further, there is no credible evidence that the children's needs were not being met with the amount of support plaintiff was required to pay.

Plaintiff has borne the brunt of the financial obligations arising from this litigation. It is not surprising that plaintiff's income has diminished with over 100 post-Stipulation court appearances alone to interfere with his income and the Court is not hopeful that these will abate. In addition, plaintiff has and the Court is confident he will continue to, sacrifice work time to devote to his daughters. These children need that attention as they have been severely damaged by the litigation and resulting alienation. On the other hand, plaintiff has stated that he is confident he can improve his financial circumstances.

The Court will not disturb the current award of child support to the defendant. Defendant has custody of one child in college ^[FN31] and one about to enter college. There was no evidence that the needs of these children are not being properly met at this time. Further, the plaintiff anticipates that he will pull himself out of his financial woes. Based upon all of the relevant considerations and the child support obligations awarded, infra, the Court declines to disturb the current award of $2350 per month. When the first of the parties' two sons becomes emancipated, the plaintiff's child support obligation shall be reduced to $1175 per month until the second of the parties' sons becomes emancipated.

However, the issue of child support does not end with plaintiff's application for a downward modification. With a permanent change in custody comes the issue of defendant's responsibility to pay child support for the parties' daughters. It is well settled that defendant's income and child support obligation are at issue.

Child Support of Defendant

The defendant has acknowledged access to literally "hundreds of thousands" of dollars to utilize in litigation which she has never stated has to be repaid. Based upon the relevant evidence and testimony regarding defendant's education, employment history, current familial obligations and lack of impediment to employment, the Court imputes income to defendant of $35,000. [*27]

Pursuant to Domestic Relations Law§240(1-b)(c), for purposes of determining basic child support obligation, the court shall (1) consider the combined parental income, (2) multiply the combined income up to $130,000 by the appropriate child support percentage and prorate it in the same proportion as each relates to the combined parental income, and (3) recite the factors set forth in Domestic Relations Law §240(1-b)(f) if the court determines that the amount of child support on combined income in excess of $130,000 should be considered.

Domestic Relations Law§240(1-b)(b)(3)(ii) fixes the amount of child support to be paid for two (2) children as 25% of combined parental income.

The award of child support is made in accordance with Domestic Relations Law§240(1-b) and is based upon the following findings: the children of the marriage entitled to receive parental support are "I" and "V". This Court finds the defendant's income to be $35,000 subject to FICA and Medicaid of 0565%, or $1977.50. The defendant's adjusted income for CSSA purposes is $33,022.50. The applicable child support percentage is 25%. The defendant's child support obligation is $8255.63 per year or $158.76 per week retroactive to November 29, 2010. The retroactive portion shall be paid within sixty (60) days of the date of this decision.

Pursuant to Domestic Relations Law §240 the defendant is directed to pay to plaintiff $158.76 per week child support for the two infant children. Defendant is directed to forward such child support to plaintiff each Friday commencing with the Friday following the date of this decision.

The provisions of the parties' Stipulation regarding pro rata shares shall remain the same. The defendant shall continue to be responsible for 40% of the unreimbursed medical, optical and dental expenses as well as co-payments on behalf of the children (Trial Exhibit 1, page 30).

CSEB

The Court denies plaintiff's application to prevent defendant's use of CSEB as this Court has no authority to enjoin defendant's use of CSEB. However, the CSEB is restrained from collecting any monies in excess of $2350 per month retroactive to April 29, 2009 (See Order of Bivona, J.C., J.S.C., dated May 8, 2009, eliminating payment of child support by plaintiff for the parties' daughters retroactive to the date of plaintiff's application (April 29, 2009)). This Court's Order restraining the County of Suffolk (CSEB) or any agent acting thereof,"... from "taking any action, seizure, levy or restraint upon any asset, account, license or any other measure enforcing the child support obligations as reflected in the stipulation dated August 15, 2006... or otherwise withhold any property or money of Plaintiff's based upon the child support obligations appearing in the parties' August 15, 2006 stipulation" shall remain in full force and effect for any supposed obligation of the plaintiff retroactive to April 29, 2009, as this Court has determined there are no [*28]monies owed for that period.^[FN32]

Reallocation of Expenses

With respect to plaintiff's request for a reallocation or contribution by defendant for expenses attendant to therapy, Mr. Gallo and unreimbursed medical expenses, the Court awards plaintiff, in accordance with the terms of the parties' Stipulation, the sum of $ 114.40 representing 40% of the $286 in unreimbursed expenses submitted to the Court by the plaintiff. That amount shall be forwarded to the plaintiff by the defendant within thirty (30 ) day of the date of this Decision. The Court also directs that defendant pay the outstanding sum of $1500 to Mr. Gallo for his past services as the attorney for the children.^[FN33] The Court directs that defendant remit such payment to Mr. Gallo within thirty (30) days of the date of this decision.

Having found that the defendant engaged in a degree of alienation which necessitated more therapy than was ever anticipated in this matter, this Court directs that defendant shall pay 50% of the expenses incurred by the plaintiff for the services of Dr. Burkhardt as well as 50% of the expenses incurred by plaintiff for the services of Dr. Campbell. Plaintiff shall submit to the Court itemized bills with amounts paid to each doctor within thirty (30) days of the date of this Decision. The Court will review the bills and issue a separate Order with respect to how much is to be paid by defendant to plaintiff.^[FN34]

The Court is hopeful that this Decision will end the parties' long-standing

litigation. There have been over thirty motions filed in this matter and hundreds of hours of court intervention. The parties' children are of paramount concern to the Court and they are entitled to closure of this matter. To that end the Court ordered all counsel to be present on April 25, 2011 for the issuance of this Decision and a determination of how best to proceed notifying the parties' [*29]children.^[FN35]

The defendant's contention that plaintiff has failed to comply with the terms of the Stipulation and that plaintiff is somehow not entitled to ask for custody because Dr. Burkhardt never issued a letter resuming unhampered visitation is belied by the record and is without merit.

The foregoing shall constitute the Decision of this Court.

Plaintiff shall submit judgment on notice to defendant.

_______________________________

Carol MacKenzie, J.S.C.