C.M.,
Petitioner,
against
C.M., Respondent.
|
5****/12
Erin Colgan Esq. For Plaintiff Husband
390 Manor Rd.
Staten Island N.Y. 10314
718-981-5505
Robert Fileccia Esq. for Defendant Wife
496 Willowbrook Rd.
Staten Island, NY 10314
718-982-1573
Harry Chiu Esq. as Attorney for the Subject Child
136 Bay Street
Staten Island NY 10301
718-818-0321
Catherine M. DiDomenico, J.
Procedural History
By Summons With Notice filed July 24, 2012, Plaintiff Husband, C. M.
(hereinafter "Husband" or "Father") commenced this action for divorce against
Defendant Wife C. M. (hereinafter "Wife" or "Mother"). A Verified Complaint was filed
by Wife on or about October 15, 2012. Defendant appeared by Notice of Appearance
filed September 26, 2012. No Answer was ever filed by Wife according to the official
court file. Prior to the commencement of this divorce proceeding, both parties filed
Custody and Family Offense petitions in Family Court which were consolidated into this
matrimonial case on joint application. The parties agreed that Plaintiff Husband would be
granted a divorce on the grounds that the marriage had broken down irretrievably
pursuant to Domestic Relations Law Section 170(7) (See Order dated May 2, 2014).
[*2]The parties further agreed to settle the issue of
equitable distribution and to waive claims for maintenance and counsel fees (See Orders
dated May 2, 2014 & September 26, 2014). An inquest on grounds was held on May
2, 2014. At this trial, both parties seek custody of the only infant issue of this marriage J.
M. (dob 9/20/07) and an award of child support in the event that they are awarded
custody.
Plaintiff Husband was represented by Ms. Eric Colgan Esq. throughout the
course of these proceedings. Wife was initially represented by Ms. Sheralyn Dow, Esq.
until she was relieved on her application and succeeded by Mr. Robert J. Fileccia Esq.
The subject child was represented by Mr. Harry Chiu Esq. On the consent of the parties,
Dr. N.G. Berrill was appointed as the forensic evaluator by Order dated November 27,
2012. His report dated May 20, 2013 was admitted into evidence at trial without
objection (Def. Ex. T). Dr. Berrill testified on September 26, 2014. Neither party
objected to his qualification as an expert in the field of forensic psychology as supported
by his curriculum vitae (Def. Exs. S,T).The
Trial
/i>
The parties' cross custody and child support causes of action were tried
before the Court on May 2, 2014; May 8, 2014; May 16, 2014; May 28, 2014; June 5,
2014; September 11, 2014; September 12, 2014; September 24, 2014 and September 26,
2014. Plaintiff Husband testified on his own behalf and called the following witnesses:
(1) Sybil M. (paternal grandmother); (2) Vincent M. (paternal grandfather) (3) Mike P.
(co-worker); and (4) Mindy M. (sister in law). Husband offered various documents into
evidence (Pl. Ex. 1-31) not all of which were received. Defendant Wife testified on her
own behalf and called the following witnesses: (a) Plaintiff Husband; (b) Michelina L.
(maternal grandmother), (c) Nancy L. (her sister), and (d) Dr. N.G. Berrill (the forensic
evaluator). Wife attempted to introduce various documents into evidence. (Def. Ex. A-U)
not all of which were received. Judicial notice was taken of, among other documents, all
orders and pleadings in the IDV criminal cases previously pending before this Court.
(Docket Nos. 40003M2013; 40141M2013; 40078M2012; 40079M2012; 40080M2012;
40081M2012; 40082M2012 and 40093M2012). The attorney for the subject
child called Elizabeth C. (the subject child's teacher) as a witness and submitted
documents into evidence (AFC Exs. 1-4). Both parties submitted questions for
consideration at the in camera examination which was held on October 1, 2014. Written
summations were received from all counsel.
At trial, Husband attempted to show that the subject child should remain living
with him and that a Final Order of Sole Legal and Physical Custody should be granted to
him. Husband argued that Wife has had an ongoing problem with both prescription and
illicit drugs, acts impulsively and irrationally, and has demonstrated an inability to
control her anger which has manifested in a number of ways including physical acts of
violence. He also claims Wife has exhibited a consistent refusal to follow Court Orders
as evidenced by her multiple arrests for violating orders of protection. He further testified
that the subject child has been in his primary care since in or around January of 2012 and
has thrived in his care, such that the custodial agreement should not be changed.
Similarly, Wife seeks an Order of Sole Custody of J.M.. She admits
testing positive for [*3]marijuana and Xanax a number of
times during this custody litigation, but denies the veracity of a positive cocaine test.
During the course of this proceeding, Mother completed a drug program recommended
by ACS and mandated by this Court. She is also involved in ongoing mental health and
substance abuse treatment as part of her criminal sentence. Wife claims that she no
longer uses illegal drugs and does not take her Xanax pills, despite having them in her
possession. At trial, Wife attempted to show that Husband is a "workaholic who created
an atmosphere of profound sadness, isolation and loneliness for his Wife and daughter by
working seven days a week" (Def. Summation, p. 2). She also claimed that Father is an
"alcoholic", a drug dealer" and a "pot head". Husband admittedly tested positive for
marijuana in an initial drug test ordered by Family Court, but has tested negative ever
since. Wife claims that Husband crashed his car into another vehicle then left the scene
of the accident. Father admits this incident occurred but denied that alcohol or drugs
were contributing factors.
During the pendency of this divorce action, Wife was arrested eight times
for allegedly violating the no contact provisions of this Court's Temporary Orders of
Protection in favor of Husband. On March 14, 2013, she pled guilty before this IDV
Court to a violation of Penal Law Section 215.50 (3) Criminal Contempt in the Second
Degree, a class A misdemeanor, to cover all pending dockets. On January 10, 2014, after
receipt of the court ordered Pre Sentence Report prepared by the Department of
Probation, and in accordance with the negotiated plea arrangement, Wife was sentenced
to three years probation supervision to include a substance abuse/anger management
program, mental health therapy counseling for a minimum of one year, mandatory drug
testing, a five year Final Order of Protection in favor of Husband against Wife, together
with a $250.00 surcharge and DNA collection fee. Under the terms of this Final
Order of Protection, Wife has been ordered to stay away from Husband, his home, his
place of employment and not to contact him, or use third parties to contact him, unless
such contact is expressly permitted in a Family or Supreme Court Order. This Order
expires on January 9, 2019.Factual
Findings
Plaintiff Husband
Plaintiff Husband was born in March of 1980. He is currently 35 years old. He
graduated from High School in 1998 and received a diploma. The parties were married in
a civil ceremony on May 23, 2007. The subject child J.M. was born in September of
2007. The parties initially lived together in an apartment located over a business entity
known as the "Bike Shop," a family owned business where Husband has worked for the
last twelve or so years. This Court credits Husband's testimony and that while he serves
as a mechanic and manager of the Bike Shop for his father, he has no ownership interest
in that entity. (Tr. 5/8/14 p.9) Currently, Father works six or seven days a week but his
schedule is flexible to allow him to care for J.M.
After J.M. was born the parties rented an apartment above the Bike Shop but
subsequently moved into the two family home owned by Husband's parents. While they
resided in the same house, the paternal grandparents lived separate and apart from the
parties who resided in a basement apartment. (Tr. 5/8/14 p.24). Husband credibly
testified that the parties' marriage began to deteriorate in the Fall of 2011 when he
confronted Wife about her habit of [*4]staying out all
night at bars and clubs. Husband credibly testified that Wife would stay out until two or
three in the morning and come home intoxicated. It was around this time that Father
began to take on the role of J.M.'s primary caregiver as Wife became increasingly
concerned with her social life as a purported remedy to the loneliness caused by
Husband's long work hours. Husband further credibly testified that at or around this time
Wife began using Xanax. (Tr. 5/8/14 p.35).
On or about January 16, 2012, Wife relocated out of the marital home with
the subject child into her parent's home. This event occurred after an argument with
Husband. According to Wife, Husband accused her of having an affair. Wife claimed at
trial that Husband threw her and the subject child out of the marital home following the
argument but Husband disputes this claim. It is undisputed that after Wife's departure
with the child the parties both filed Family Court petitions against each other. Based on
the cross allegation of drug abuse, both parties were ordered by the Family Court to
submit to drug testing.
Both Husband and Wife tested positive for marijuana in January of
2012. Husband admits that he did smoke marijuana on a recreational basis, and
occasionally smoked with Wife. (Tr., 6/5/14, pp. 27). Since that time, Husband has
submitted to court ordered drug testing but has never again tested positive. By Family
Court Order dated February 8, 2012, the subject child was ordered to reside with
Husband five days and week and visit with Wife on weekends supervised by her parents.
(Pl. Ex. 9).
Wife's parenting time with J.M. was suspended and/or modified several
times during the course of this litigation and in furtherance of multiple applications to
this Court. Currently, Wife has parenting time alternating weekends from Saturday 10:00
to 6:30 pm and on Sunday 10:00 to 6:30 pm. On non weekend visitation weeks Wife sees
the child on Mondays and Wednesdays from after school until 6:30 pm. All visits are
currently supervised by the maternal grandfather or the maternal aunt.
At trial Husband indicated that he has serious concerns regarding Wife's
drug use and her access to the subject child. Husband also testified that Wife was prone
to fits of anger and lacks self control. A few of the instances he credibly testified to are
discussed later in this Decision. Notwithstanding Husband's genuine concerns with
respect to Wife's request for sole custody, he credibly indicated at trial that he recognizes
the importance of J.M. having a consistent relationship with her mother once it is safe
and appropriate. Currently, Husband, his girlfriend, their young child Christina, and J.M.
continue to reside in the former marital residence with the paternal grandparents.
Husband enrolled the child into PS 42, the school she was zoned for, and where she still
attends, now in the Second Grade.
During the course of these proceedings Husband was involved in a motor
vehicle accident of a somewhat questionable nature. The accident occurred on January
13, 2013 at approximately 3:30 in the morning. Husband admitted at trial that this
accident involved his vehicle, a Cadillac SUV and a parked car. Moreover Husband
admitted that after the incident he left the scene of the accident and walked home.
Husband testified at trial that he understands that leaving the scene of an accident was a
crime. Husband attempted to explain his actions by stating that he slid on "black ice" and
hit his head during the accident, which severely disoriented him and clouded his
judgment. Husband also admitted he was scared.
While the Court does not in any way condone Husband's conduct that
morning, the Court notes that Husband mitigated his actions by turning himself in to the
police department the next day, and informing his insurance carrier that he was
responsible for an accident. Husband was not arrested. Husband credibly testified that his
insurance company compensated the injured party for their damages. At trial Wife
attempted to imply that Husband was likely intoxicated at the time of the accident, but
she offered no evidence to support that allegation. (Tr. 5/28/14 pp. 156-168).
Defendant Wife
Wife dropped out of high school as a Junior at the age of 16 years old. She
stated that she did so with her parents consent and subsequently worked at McDonald's.
She claimed she earned her GED but could not attend college because she gave birth to
the subject child. At some point, Wife trained to become a dental assistant and worked as
such. Despite her dental assistant training Wife did not work during the course of the
marriage with the exception of occasionally teaching Zumba classes at a local gym. As of
the date of trial, Wife was employed at a fitness gym on Staten Island. She resides in her
parents' home with her parents and her sister Nancy L.
Wife testified that during the marriage, she often smoked marijuana and
drank alcohol with Husband. She also claims that she shared her Xanax pills with him
and tried synthetic marijuana with him. (Tr. 9/11/14, p. 195). Wife further testified that
because she did not know she was pregnant for the first four months of her pregnancy, it
is possible she smoked marijuana or drank while she was pregnant. She denied any
correlation between her consumption of alcohol and use of marijuana during the first
trimester of her pregnancy and the special needs of this child. (Tr. 9/11/14, pp. 194).
Throughout the pre-trial states of this litigation Wife continued to test positive for
marijuana and benzodiazepines and in one instance cocaine. Wife has repeatedly claimed
that she has a prescription for Xanax but failed to provide the Court with proof of this
prescription during trial despite the requests of Husband's counsel. Wife argued that
since the Department of Probation allegedly had the prescription, her obligation to
produce it was fulfilled.
Wife testified that Husband worked long hours during the marriage leaving
her and the subject child home alone. This made her feel unhappy and unfulfilled. She
also complained that although she agreed to move into the downstairs apartment of the
paternal grandparents' house, the living arrangements were not desirable as the bedrooms
were below ground in a finished basement and were accessible by the paternal
grandmother.
During the forensic evaluation, Wife complained to Dr. Berrill that Husband
was an alcoholic and a drug abuser who had a controlling, angry personality and poor
judgment. She also claimed that Husband failed to understand the nature of the child's
developmental difficulties. Wife did not prove any of these allegations at trial, Husband
presents as fully versed in his child's special needs and the treatment associated
therewith.
With respect to her drug history, Wife admits testing positive for cocaine
during this proceeding on July 31, 2014 which results were reported by TASC, the court
appointed monitoring agency (9/11/14, p. 196). Despite the positive test Wife claimed
that she never used [*5]cocaine and the results were
somehow due to faulty specimen cups. Wife did not provide expert testimony, or other
evidence to support this novel argument. Wife testified that she enrolled in counseling
through her treatment program as ordered by the Court. She claims that through that
therapy she has learned how to refrain from reacting negatively when being provoked,
and essentially how to deal with being falsely accused. Wife also acknowledged she
suffers from anxiety and claims she is trying to manage it without medication. She claims
she is regularly drug tested as part of her probation and that she has consistently tested
negative for all screened substances (9/11/14, p. 198-99, 201-02). Wife identified a
number of recent negative drug tests as evidence at trial. (Def. Ex. I) but that exhibit was
never offered into evidence. (Tr. 9/11/14 p.13). However, Husband testified that he was
aware of the recent negative tests and the Court credits Wife's testimony that she has
been compliant with her substance abuse programs. However, Wife denies that she ever
had a drug addiction. (Tr., 9/11/14, p. 201).
3. The Subject Child J.M.
The subject child J.M. was born in September of 2007. J.M. lived with her mother
until February of 2012 when physical custody was awarded to her father by Family Court
Order. Currently, J.M. resides with her father, his girlfriend, and their child Christina,
J.M.'s sister. She visits with her mother on alternate weekend days and spends time with
her during the week. At this time all visitation is being supervised by the child's maternal
grandfather or her aunt. Wife admits that she has never paid child support for this child
while in Husband's care. J.M. enjoys a loving, but not familial, relationship with
Husband's girlfriend and has a strong bond with her baby sister Christina.
J.M. attends PS 42 and is currently in the second grade. She has attended this school
since Kindergarten. J.M. presents with special needs which are identified in her
Individualized Education Plan. As an infant J.M. was diagnosed with a mild form of
treatable autism. (Tr. 5/8/14 p.19). She is currently in a 12:1:1 classroom setting designed
to meet her needs. She also receives speech and occupational therapy. According to her
kindergarten and first grade teacher, Ms. C., who testified at trial, J.M. has "progressed
academically, socially and emotionally" under Husband's care (Tr. 9/24/14, p. 5). J.M. is
expected to be mainstreamed into a general education setting soon, though Wife has
expressed concerns regarding that placement.
An in camera examination was conducted of the subject child on October 1, 2014
and the transcript sealed. See Matter of Lincoln v. Lincoln, 24 NY2d 270
(1969). At the in camera, then seven year old J.M. was extraordinarily precise and
unusually articulate as to her desired parental access schedule, including specific days
and times that a parental switch should occur. Moreover, the child answered questions
with what appeared to be rehearsed responses, offering her proposed schedule in
response to questions addressing other topics. After a review of the in camera
examination, this Court has no alternative but to conclude that this special needs child
was likely influenced as to what to tell this Court. The Court notes that Husband has
repeatedly expressed a concern regarding Wife's attempts to "coach" the subject child.
(Tr. 5/18/14 p.19); (Tr. 6/5/14 p.64).
Under these circumstances, the in camera examination has been afforded less weight
than it would ordinarily be afforded by this Court in rendering this decision. See Ashmore v. Ashmore, 92
AD3d 817 (2d Dept. 2012); Matter of Bronson v. Bronson, 63 AD3d 1205 (3rd [*6]Dept. 2009); Matter of Thompson v. Gibeault, 305
AD2d 873 (3rd Dept. 2003). However, in what appeared to be a credible moment
the child clearly indicated that she frequently switches her opinion as to who she desires
to live with.
4. The Forensic Evaluator.
Dr. N.G. Berrill conducted a complete forensic examination which was provided to
the Court on or around May 20, 2013. As part of his forensic evaluation Dr. Berrill
interviewed such collateral sources as he deemed clinically appropriate. Dr. Berrill's
report was entered into evidence without objection (Def. Ex. T). Dr. Berrill
testified before this Court on September 26, 2014. In his report Dr. Berrill does not make
a definitive recommendation regarding custody, however, he suggests that the parties
should both have input into decision making and shared parenting time. He further
acknowledged that Wife may be in need of treatment for impulse control and anger. He
also suggested that Wife's multiple criminal cases alleging violations of this Court's
Orders of Protections "maybe fueled by a sense of anxiety and a sense of powerlessness "
(Tr. 9/26/14, pp. 52). In Dr. Berrill's opinion, the subject child is an "at risk" child due to
her diagnosis of Pervasive Developmental Disorder (PDD).
Applicable Law
/i>
Custody of J.M.
When determining custody cases the primary concern is the best interests of the
child. See Matter of Islam v. Lee, 2014 NY Slip Op 2045 (2d Dept.
2014). There is "no prima facie right to custody of the child in either parent."
DRL §70[a]; DRL §240 [1][a]. When determining
custody, the Court must consider the "totality of the circumstances" including the relative
fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher, 11
AD3d 458 (2nd Dept. 2004). Factors to be considered include "the quality of
the home environment and the parental guidance the custodial parent provides for the
child, the ability of each parent to provide for the child's emotional and intellectual
development, the financial status and ability of each parent to provide for the child, the
relative fitness of the respective parents, and the effect an award of custody to one parent
might have on the child's relationship with the other parent." See Salvatore v. Salvatore, 68
AD3d 966 (2d Dept. 2009); see also, McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009).
The Court must also specifically consider claims of domestic violence. See Bressler v. Bressler, 122 AD3d
659 (2d Dept. 2014). The weight to be afforded to each of the various factors is
within the discretion of the trial court and requires an evaluation of the testimony,
character and sincerity of all of the parties involved. See Bourne v. Bristow, 66 AD3d
621 (2d Dept. 2009). While the child's preference must be considered, it is not
determinative, particularly where the child is of young age. See Granata v.
Granata, 289 AD2d 527 (2nd Dept. 2001).
A final award of joint custody is not a viable option for this child because, as
conceded by the parties, the relationship between them is too volatile and acrimonious to
support such an arrangement. See Bliss on behalf of Ach v. Ach, 56 NY2d
995 (1982). Joint custody is inappropriate where the parties are antagonistic towards
each other and have demonstrated an inability to cooperate on matters concerning the
child. See Matter of
Lawrence v. Davidson, 109 AD3d 826 (2d Dept. 2013.) Accordingly, the
Court is faced with the difficult determination of [*7]which parent would be the more suitable custodial resource
for J.M. In making this determination, the Court has considered whether each parent
would foster the relationship between J.M. and the other parent. See Matter of Feliccia v. Spahn,
108 AD3d 702 (2d Dept. 2013). The Court has also considered which parent is
better equipped to provide for the child's educational, emotional and social development.
See Matter of Ganzenmuller
v. Rivera, 40 AD3d 756 (2d Dept. 2007).
At trial, both parties testified as to a litany of events that occurred during the course
of their relationship and throughout this litigation. Many of these incidents were
insignificant to this Court's determination of custody. Rather than dignify each and every
dispute between the parties, or character flaw belabored at trial, this Court discusses
herein only those significant findings of fact that weighed most heavily in this decision.
In making its Custody determination the Court has specifically considered the following
factors:
Wife's Drug and Alcohol Use
During the course of this litigation Wife has had more than one positive drug
test for a variety of substances both, illicit and prescription, including marijuana, alcohol,
benzodiazepine (Xanax) and cocaine. It is undisputed that Husband initially tested
positive for marijuana use, but he has credibly testified that he has since ceased his use.
Unlike Husband, rather than accepting responsibility for these positive test results and
her past drug use, Wife has sought to minimize her actions, and make excuses for her
positive test results. Her testimony regarding her use of Xanax was vague and not
credible. While Wife claimed at times throughout this proceeding to have a prescription
for Xanax, no such prescription was offered into evidence at trial. When asked why she
did not bring a prescription to Court she testified "I don't need to". (Tr. 9/12/14 p.40).
Moreover, after being instructed that she could not attend her Court mandated drug
program (TASC) while on Xanax Wife proceeded to go to a different doctor to obtain
the pills. (Tr. 9/12/14 p.33). When asked on cross examination as to if she informed her
new doctor about her drug treatment program Wife testified "I don't need to discuss my
situations with my doctor. He doesn't need to know all of my information that way." (Tr.
9/12/14 p.34). While there is no evidence in the record that Wife legally obtained Xanax
pills, this testimony indicates that even assuming she did, she did so without informing
her doctor about her drug abuse issues. Wife's lack of incite as to the severity of her
prescription and illicit drug use is concerning to this Court.
Wife's testimony regarding the extent and severity of her drug and alcohol
use was not credible. More credible was the testimony of the paternal grandmother Sybil
M. who testified that Wife often returned home high or intoxicated, including on one
occasion when she found her passed out on the coach laying in her own urine and
reeking of liquor. (Tr. 5/16/14 p.138; 173). Husband also credibly testified that Wife
mixed Xanax with alcohol on a regular basis, would go out four or five nights a week,
come home very late, leaving her unable to wake up in the morning to care for J.M. (Tr.
5/8/14, p.33). Paternal grandmother, with whom the parties lived, also testified that Wife
would spend an inordinate amount of time sleeping after going out all night. (Tr. 5/16/14
p. 137).
Husband credibly testified that Wife's alcohol and drug abuse resulted in her
failing to do housework, or attend to the needs of the subject child. (Tr. 5/8/14, p.36).
While Mother has admittedly entered into programs, some court mandated, through
which she is seeking treatment [*8]for her addictions, the
Court has serious concerns with her longstanding history of drug abuse and the potential
effect that a relapse would have on the subject child. While the Court encourages Mother
to continue her road to a drug free lifestyle, and acknowledges her recent negative drug
tests, the Court has considered the profound lack of judgment exhibited by Mother by
using drugs, and alcohol to excess, during a time when she lived with the subject child.
See Matter of Luis O. v.
Jessica S., 89 AD3d 735 (2d Dept. 2011); See also, Matter of Horan v.
Famolaro, 46 AD3d 891 (2d Dept. 2007).
During the course of trial Wife attempted to show that Husband frequently
used marijuana, both with and without her. Wife's sister, Nancy L., testified at length as
to Husband's drug use during the parties' relationship. The Court notes that Husband has
openly admitted past marijuana use. However the Court credits Husband's testimony that
he ceased using drugs in or around January of 2011 after he separated from Wife. The
Court does not condone Husband's past drug use, especially during a time when the
parties lived together and J.M. was in their custody. However, between two imperfect
parents who both used marijuana during their marriage, the Court acknowledges that
Husband has tested negative for a significantly longer period than Wife. Wife on the
other hand has had longstanding drug abuse problems that have continued throughout
this proceeding including a positive test for cocaine. While Wife attempted to explain
that the positive test for cocaine was erroneous due to "expired sample cups" she offered
no expert testimony to indicate how such a "false positive" could be triggered. (Tr.
9/11/14 p.201). On balance with Husband past history with marijuana, Wife's
longstanding issues with both prescription and illicit drugs make her the less suitable
custodial parent for J.M. See Matter of Luis O. v. Jessica S., 89 AD3d 735 (2d Dept.
2011); See also Matter of Diana
B. v. Lorry B., 111 AD3d 927 (2d Dept. 2013).
Wife's Disregard for Court Orders
Throughout the course of these proceedings, Wife has shown a consistent
resistance to following Court Orders and an utter lack of respect for the authority of this
Court. "The failure to comply with a court order is a factor to be considered when
determining the relative fitness of the parties " See Matter of Morrissey v.
Morrissey, 124 AD3d 1367 (4th Dept. 2015); See also Radford v.
Propper, 190 AD2d 93 (2d Dept 1993).
At trial, Wife admitted various violations of this Court's Orders. In one such
example Wife admitted that while she was aware of the various Orders of Protection
protecting Husband, she went to Husband's place of business on September 6, 2012 to
confront him because "when it comes to [her] daughter, [she] really didn't care " (Tr.
9/12/14, pp. 64-65). In another example, although Wife knew that her mother was not to
be present at pick up or drop offs of the subject child, Wife disregarded the terms of
another Court Order and allowed her mother to be present at the pick up on August 1,
2014 (Tr., 9/12/14, pp. 81-83). Wife's mother testified, and Wife admitted, that when an
issue arose at the pickup location (see below) Wife's mother was forced to walk home as
she knew she was in violation of this Court's Order. (Tr. 9/12/14 pp 94-95) (Tr. 9/11/14
p.146). When asked why she knowingly allowed maternal grandmother to be present in
violation of a Court Order Wife testified that "I understood the fact that my mom was
relieved, but she is my mother. I can't seem to understand why my mother wouldn't be
able to take a ride with me to pick up my daughter". (Tr. 9/12/14 p.78). Moreover, when
faced with prior [*9]conflicting testimony under oath
Wife admitted that she initially lied to the Court when she indicated that her mother was
not present on that date. (Tr. 9/12/14 p.81). Wife's admitted false statement under
oath raises serious questions about her credibility in general. See People v. Romain, 5 AD3d
611 (2d Dept. 2004).
Wife further testified at trial that regardless of any Order this Court issues, she
believes that as parents of the child they "should make rules before anyone else does"
(Tr. 9/11/14, p. 195). By this statement Wife has clearly indicated that she is willing to
disregard any Order of this Court that she disagrees with. Wife attempted to explain her
eight arrests for violating the Orders of Protection by arguing that she had a "phone
addiction" which she was not aware of until her trial lawyer brought it to her attention
(Tr. 9/11/14, p. 3, Tr. 9/12/14, p.6). Wife offered no expert testimony at trial to elicit that
such an "addiction" exists, or that she suffers from it. Wife's repeated and flagrant
disregard for Orders of Protection and visitation Orders of this Court was a factor
considered by this Court in making its custody determination. Wife's actions exhibit a
lack of good judgment and a general defiance towards court orders. See Barnes v.
Barnes, 234 AD2d 959 (4th Dept. 1996); See also, Vernon Mc. v. Brenda N.,
196 AD2d 823 (2d Dept. 1993); Gagliardo v. Gagliardo, 151 AD2d 720 (2d
Dept. 1989).
In addition to the Orders of this Court, Wife has shown a reluctance to honor
agreements between the parties. Wife tested positive for cocaine and benzodiazepine on
or about July 31, 2014. (Tr. 9/12/14 p.89). In response to this positive test all of the
attorneys in this action, including Wife's lawyer, agreed that Wife's next visit with the
subject child should be cancelled until the Court could address the positive test.
(Tr.5/28/14 p.105). Husband's attorney simultaneously served 22 NYCRR 202.7(f)
notice indicating that she would be making an emergency application before the Court.
Wife argues that she had no idea of the agreement between the parties until she was
already at the pickup location, but despite becoming aware she did not leave. This Court
finds that Wife was aware of this verbal agreement made between counsel and
nevertheless attempted to pick up the child for her August 1, 2013 visit relying on the
fact that there was no "written Court Order" preventing the same. (Tr. 9/12/14 p.91).
When Husband refused to release the child, Wife called the police to enforce her
visitation, despite the fact that she was in contact with her attorney. When asked whether
she thought it was appropriate to call the police in front of the child, Wife thought there
was "nothing wrong" with having the police involved in the exchange because J.M. "has
seen worse'. (Tr. 9/12/14, p. 98). Mother then attempted to blame her attorney for not
advising her of this agreement until after the fact (Tr. 9/12/14, pp. 89-99). Her testimony
was not credible.
As shown above, throughout the proceedings Wife has shown that while she is aware
of various Orders of the Court, or agreements between counsel, she is unable, or
unwilling to follow them. It follows that if awarded custody, Wife would be less likely to
honor the parenting time schedule that would be awarded to Husband, or any other
provisions set forth by this Court that she disagreed with. Wife has consistently shown
that she is willing to put her own self interest above the interests of all others. See Matter of Fargasch v. Alves,
116 AD3d 774 (2d Dept. 2014). On balance, between the two parents, the Court
finds that Wife's inability to follow Orders, and her failure to respect authority makes her
the less suitable custodial parent for J.M. See Grenier v. Allen, 296 AD2d
619 (3rd Dept. 2002); See also, Oseid v. Daugherty, 254 AD2d 600 (3rd Dept.
1998); Gast v. Gast, 50
AD3d 1189 (3rd Dept. 2008).
In contrast, Husband has clearly indicated at trial that he is willing to follow any
Order of parenting time issued by this Court even if he disagrees with it. (Tr. 5/28/14
pp.31-32). Moreover, Husband has indicated that he will be able to put aside any hostility
that he has for Wife and promote and encourage a relationship between Wife and the
subject child. Wife, on the other hand, presented as overly hostile and angry towards
Husband during trial. This hostility, which was apparent in Wife's demeanor, was also
exhibited during the marriage as best described by Husband's sister in law, Mindy M. Ms.
M. credibly testified that she often witnessed Wife demeaning Husband in front of J.M.
(Tr. 6/5/14 pp.163-164). After considering Wife's reluctance to follow Court Orders,
together with her demeanor during trial and demeaning conduct during the marriage, the
Court believes that Husband is the parent who is better suited to foster a meaningful
relationship with the non custodial parent. See Matter of Lawlor v. Eder, 106 AD3d 739 (2d Dept. 2013);
See also, Matter of O'Loughlin
v. Sweetland, 98 AD3d 983 (2d Dept. 2012).
Acts of Domestic Violence
At trial Husband credibly testified that in January of 2012 the parties got into
a heated argument regarding who would be taking the subject child to a party. Husband
testified that Wife had been out late the night before and did not want to wake up to take
her. (Tr. 5/8/14 p.49). According to Husband, his parents offered to drive but Wife
objected. The argument escalated as J.M. got ready to leave and resulted in Wife
repeatedly punching Husband in the back of the head. When paternal grandmother got
involved, Wife pushed her into a glass door. (Tr. 5/8/14 p.50). The subject child J.M.
was present during at least part of this altercation and informed paternal grandmother of
what was occurring crying that mommy was hitting daddy.
Wife testified as to the same incident though her recollection differs greatly
from Husband's. Wife claims that she only "slapped" Husband on the back of his head
and only after Husband threw a can opener at her, cutting her face. (Tr. 9/11/14 p.176). A
picture of what Wife alleges to be a cut from the incident was admitted into evidence as
Defendant's N. This picture shows what appears to be a small laceration on her forehead.
There is no indication on the picture to indicate when or where it was taken. Wife admits
that the child was in the home that day but claims that she was upstairs with her paternal
grandmother.
While both parties versions of this event differ, the incident also involved
the paternal grandmother, Sybil M., who credibly testified at trial. Paternal grandmother
credibly testified that she witnessed Wife punching Husband in the head after being
informed by the subject child that "mommy was hitting daddy". She further credibly
testified that she physically intervened between the parties to keep Wife from striking her
son. In response to her intervention Wife shoved her against a sliding glass door and
threatened to hurt herself to make it look like someone had attacked her. (Tr. 5/16/14
p.133). Grandmother testified that she was "afraid for her life" and that Wife was
"enraged". The Court notes that Wife knew, or should have known, that at this time Mrs.
Sybil M. was in a highly weakened state as she was recovering from cancer treatments.
While Wife claims that she never pushed the paternal grandmother, and only told her to
"mind her own business" her testimony was not credible. (Tr. 9/11/14 p.177). In making
this determination the Court notes that Wife contradicted her own testimony when she
later indicated that paternal grandmother did not witness, and was not told about the
argument [*10]between Husband and Wife. (Tr. 9/11/14
p.187).
A second physical incident occurred in September of 2012 wherein the
parties got into an argument regarding J.M.'s schooling and Wife's objection to the child's
teacher. This argument initially occurred outside the child's school. Following the
argument at the school Husband returned to work. Husband credibility testified that at
the school Wife appeared "wide eyed and jittery" (Tr. 5/28/14 p.128). Approximately an
hour and a half later Wife appeared at the bike shop and Husband believed she was
intoxicated. Husband credibly testified that Wife entered the bike shop, further
confronted Husband about J.M.'s schooling and became violent. When Husband
attempted to call the police, Wife "ripped the phone lines out of the wall and threw the
phones on the floor". (Tr. 5/8/14 p.89). The Court notes that Wife's mere presence at the
bike shop was a violation of the then existing Temporary Order of Protection. (Tr.
5/28/14 p.134).
Following this incident both Husband and Wife were arrested. Husband
claims to not know why he was arrested. The Court notes that the official court record
indicates that the charges against Husband were dropped by the District Attorney's office
before arraignment as the assistant district attorney declined to prosecute the matter. This
was corroborated by Husband's testimony. (Tr. 5/28/14 p.148). Wife was arrested a few
days after the incident for criminal contempt and that charge became one of the eight
charges that were ultimately pending against her in this Integrated Domestic Violence
Part. (See IDV Docket no. 40093M-2012).
As with all of the incidents addressed at trial Wife's recollection of the event
differs. Wife admits that she knew about the Order of Protection and decided to go to
Husband's place of employment anyway because she "really didn't care". (Tr. 9/12/14
p.65). Despite admitting to knowingly violating an Order of Protection Wife denied
causing a commotion or ripping the phones off the wall, however, her testimony was not
credible. More credible was the testimony of Mike P. who was also present at the bike
shop that day in September of 2012. According to Mr. P., who is an employee of the bike
shop, he heard Wife screaming, saw her leaving the store, and witnessed broken phones
within the bike shop. Mr. P. was the person who called the police that day. (Tr. 6/5/14
p.94).
In addition to the September 2012 incident Mr. P. also testified as to a
different incident, in January of 2012 wherein Wife entered the bike shop demanding to
see Husband. Wife was accompanied by her parents at the time. When Mr. P. informed
Wife that Husband was not there, she stormed into the back room to disable the cameras.
Upon learning that they were not operational, Wife broke the cash register in a rage,
knocked over bicycles and stormed out. (Tr. 6/5/14 p.92;105). At trial Mr. P. indicated
that after this incident he received a Temporary Order of Protection which prohibited
Wife from approaching him, or his place of business. A review of the official court file
(40078M2012) indicates that a temporary Order of Protection was issued by Criminal
Court (Meyer J.) against Wife in favor Mr. P. on January 31, 2012 and Wife signed to
acknowledge receipt of that Order. Accordingly, when Wife appeared at the bike shop in
September of 2012 she was in violation of the Orders protecting Husband, and the Order
protecting Mr. P.
During the course of this matrimonial proceeding Wife has been charged
eight different times for various violations of the temporary Orders of Protection issued
by this Court. During [*11]trial the Court took judicial
notice of these criminal matters. When "domestic violence is alleged, and such
allegations are proven by a preponderance of the evidence, the court must consider the
effect of such violence upon the child." See Matter of Tejada v. Tejada, 2015
NY Slip Op. 02488 (2d Dept. 2015). These eight pending matters were all
consolidated for disposition into Docket Number 40079M-12 and were resolved on
March 14, 2013 when Wife plead guilty to one count of Criminal Contempt in the
Second Degree (Penal Law '215.50) an A misdemeanor. Wife was sentenced to three
years probation with a five year Order of Protection which shall expire on January 9,
2019. As a condition of her sentence Wife was Ordered to attend and complete a "mental
health and therapy counseling for a minimum term of one year" together with "substance
abuse and anger management programs as recommended by the Department of
Probation." (See Probation Form under Docket No. 40079M2012).
Notwithstanding a full allocution on the record in the presence of her
privately retained attorney, Mother testified at this trial, before this same Judge, that she
had not committed any of the acts she was accused of and only pled guilty because she
lacked the funds to continue litigating the cases against her (Tr. 9/12/14, 105-06). Wife
maintained throughout the course of the trial that she was "falsely accused" of practically
every incident. The Court finds Wife's trial testimony patently incredible, especially in
light of her guilty plea which arguably operates as basis for collateral estoppel on the
issues raised. See City of
New York v. College Point Sports Assn., Inc., 61 AD3d 33 (2d Dept. 2009);
National Bank of Pakistan v. Basham, 148 AD2d 399 (1st Dept. 1989). As
Wife admitted guilt to resolve her criminal cases and then attempted to retract that
admission during this custody trial, she has indicated for a second time that she is willing
to lie under oath to further her own interests, raising serious concerns regarding her
credibility in general. See Mastrangelo v. Strype, 39 AD2d 922 (2d Dept.
1972).
The Court has specifically considered Wife's acts of domestic violence
against Husband by repeatedly violating the Orders of Protection issued in his favor and
striking him on at least two occasions. Beyond resulting in a misdemeanor conviction,
the Court notes that Wife's seeming inability to control her actions and refrain from
harassing Husband with incessant phone calls, and at least two acts of physical violence,
indicates a lack of self control and proper temperament such that Wife does not present
as the more suitable custodial parent for J.M. See Matter of Rena M. V. Derrick A., 122 AD3d 457 (1st Dept.
2014). "Mother's acts of domestic violence demonstrate that she possesses a
character which is ill-suited to the difficult task of providing her young child with moral
and intellectual guidance." Matter of Julie v. Wills, 73 AD3d 777 (2d Dept.
2010). In making this determination the Court notes that at least one of the incidents
of physical violence occurred in the presence of the subject child. (Tr. 6/5/15 p.42).
Stability
In determining the proper custodial arrangement for J.M. the Court has
considered the fact the subject child has been in Husband's care since February of 2012.
Along with the factors considered in any custody determination, the court must also
consider the stability and continuity afforded by maintaining the present arrangement."
See Cervera v. Bressler,
90 AD3d 803 (2d Dept. 2011).
At trial, Husband and paternal grandmother both credibly testified that J.M.
has been well cared for since she has resided with Husband. This testimony is
corroborated by statements [*12]from the subject child's
former special education teacher, Ms. C. While Ms. C. indicates that J.M. initially had
some behavioral problems, she explains that her conduct and schoolwork have steadily
improved since Husband has had custody. Husband testified that after being informed by
Ms. C. of the subject child's educational issues, he spent extra time going over her
schoolwork. (Tr. 5/28/14 p.7). In various letters written by Ms. C., she specifically notes
that "it is evident that she is getting assistance at home". (AFC Ex. Nos. 1-4) The Court
notes that these letters were written during a time when Husband had primary physical
custody of the subject child, and Wife had limited parental access. Ms. C. also testified
that after spending weekends with her mother it took J.M. a few days to "get back on
track" (Tr. 9/24/14 p.16). While Wife attempted to attack the credibility of Ms. C. at trial
by introducing pictures of her holding bottles of alcohol, these pictures were not
persuasive in the Courts determination of credibility.
The Court further notes that even when the parties lived together, it appears
from the record that Husband was J.M.'s primary caregiver as he was primarily
responsible for feeding her breakfast and getting her ready for the day. In particular, the
Court credits paternal grandmother's testimony that she personally observed Wife
spending hours outside talking on the phone while J.M. was left the marital apartment
unattended. (Tr. 5/16/14 p.197). The Court also credits Husband's testimony that Wife
was a chronic late sleeper as she recovered from her nightly excursions. Wife's inability
to recover from her late nights left Husband as the only parent available for J.M.'s care.
While Wife contested the testimony of Husband and argued that she was J.M.'s primary
caretaker, her testimony was not credible. (Tr. 9/12/14 pp.17-19) Moreover, even if the
Court were to credit her testimony, it is outweighed by the fact that Husband has been
taking care of the subject child throughout this litigation without support from Wife,
financially or otherwise.
Considering that J.M. has lived with her father throughout these
proceedings, and that J.M.'s contact with her mother has been severely limited due to
concerns over her drug use, and domestic violence, the Court finds that stability and
continuity will be best served by an Order of Custody to Husband. See Melissa C.D. v. Rene I.D., 117
AD3d 407 (1st Dept. 2014); See also, Matter of Chase v. Matanda-Chase, 41 AD3d 475 (2d Dept.
2007). In this case, where neither parent is unfit to have access to J.M., "the interests
of the children would be best served by preserving that status quo and leaving the child
in the custody of [her Father] " Matter of Peroglu v. Baez, 54 AD3d 416 (2d Dept.
2008). While the Court is concerned regarding the frequency and extent of J.M.'s
dental care during the time she has resided with Husband, that issue will be addressed
below.
Christina M.-
Husband currently lives in the former marital home, which is owned and co-occupied
by his parents. In addition to his parents, and J.M., Husband also resides with his
girlfriend Trisha and their infant child Christina. Christina is the subject child's sister.
While not a determining factor, it is often in a child's best interests to live with siblings.
See Matter of Ivory B. v.
Shameccka D.B., 121 AD3d 674 (2d Dept. 2014); See also, Matter of
Stramezzi v. Scozzari, 106 AD3d 748 (2d Dept. 2013). At trial Husband
credibly testified that J.M. has a good relationship with her sister, which was
corroborated by the subject child's in camera testimony.
In contrast, Wife could not refrain from opining on J.M.'s relationship with
her new baby half sister. Rather than acknowledging Husband's new baby and
encouraging a healthy relationship between the siblings, Wife told J.M. that "she is not
your sister. She is your half-sister because daddy had a baby with another woman." (Tr.
9/11/14, pp. 212-13). The effect this conversation had on J.M. was evidenced by the fact
that she returned home and asked her father why he "lied" to her about having a sister.
(Tr. 9/11/14 p.6). Even assuming that the distinction between a "sister" and a "half-sister"
was relevant, it would have been lost on a child as young as J.M. There was no reason for
this purported enlightenment other than to serve Wife's need to minimize and demean the
relationship between J.M. and Christina and cast a disparaging light on Husband. The
Court notes that the same consideration afforded to the strengthening of relationships
between siblings has been afforded to "half-siblings". See Matter of Shannon J. v. Aaron
P., 111 AD3d 829 (2d Dept. 2013); See also, Matter of Brown v. Brown, 97
AD3d 568 (2d Dept. 2012); See also, Matter of Chery v. Richardson, 88 AD3d 788 (2d Dept.
2011). Wife's attempt at minimizing her statements by indicating that J.M. has
special needs and couldn't possibly be affected by what she said is unpersuasive. (Tr.
9/12/14 p.123).
The Forensic Evaluator
During the course of these proceedings the parties were Ordered to participate in a
forensic evaluation to be conducted by Dr. N.G. Berrill. The recommendation of the
Forensic Evaluator was a factor considered by this Court in making its custody
determination. "While the recommendation of a court-appointed evaluator is not
determinative, it is a factor to be considered and is entitled to some weight." Matter of Doyle v. Debe, 120
AD3d 676 (2d Dept. 2014).
Dr. Berrill issued his report on or about May 20, 2013 and testified on September 26,
2014. In his report, which was admitted into evidence as "Defendant's exhibit T", Dr.
Berrill recommends that physical custody remain with Husband "for part of the week"
with a schedule of parenting time awarded to Wife for the "other part of the week."
While Dr. Berrill's report did not offer a definitive recommendation to this Court
regarding who he believed would be the more appropriate legal custodial parent, his
testimony was considered in this Court's determination. Dr. Berrill credibility testified
that Wife's violations of the Orders of Protection issued by this Court concerned him, and
moreover that Wife was very reluctant to admit responsibility for those violations. (Tr.
9/26/14 pp.49-51). Dr. Berrill also indicated that he "got the impression" that Wife
believed Husband was not a good father. (Tr. 9/26/14 p.54). However, Dr. Berrill further
indicated that J.M. genuinely missed her mother and that Wife's steps towards improving
herself and that she has refrained from recent violations of the Order of Protection were
factors that weighed in her favor.
The Court notes that Dr. Berrill admitted the limitations of his report as it was based
upon "self reporting" from the parents. Dr. Berrill also indicated that at the time he wrote
the report he was not aware of Wife's positive drug tests, or the extent of her criminal
charges. Dr. Berrill stated that knowledge of drug use might change his recommendation,
and that multiple criminal cases would be a concern. (Tr. 9/26/14 p.60;77). When asked
if he could offer a recommendation on custody Dr. Berrill indicated that while he
believed that Wife should be awarded significant parenting time and input on decisions,
Husband should retain custody. (Tr. [*13]9/26/14 p.86).
Although Dr. Berrill suggested that spheres of decision making might be appropriate
to explore in this case, Dr. Berrill was admittedly not aware of the history of substance
abuse by Wife, the details as to the number of criminal cases against her, the plea of
guilty entered by her, or the conditions of her sentencing. He also was not fully familiar
with the instances in which Wife violated this Court's Orders. For the reasons stated
herein and based on the findings made by this Court after trial, this Court finds that
decision making spheres would not be in the child's best interest as Mother has failed to
show any particular dimension of child-rearing where she would be better suited than
Husband. See Arenson.v Arenson, 2003 WL 1389057 (Sup. Ct. Onondaga
County 2003) See also, Chamberlain v. Chamberlain, 24 AD3d 589, 808
N.Y.S.2d 352, 355 (2d Dep't 2005).
The Position of the Attorney for the Child
While only one of many factors to be considered, the position taken by the subject
child's attorney was also considered by the Court. See Matter of Guiracocha v.
Amaro, 122 AD3d 632 (2d Dept. 2014); See also Matter of Conway v.
Gartmond, 108 AD3d 667 (2d Dept. 2013). In this matter, the attorney for
the subject child has indicated that his "direct advocacy must be tempered" by the
circumstances of this case. In support of this position J.M.'s attorney indicates that J.M. is
of young age, presents with special needs, and has intentionally been kept uniformed of
the allegations of drug use by either parent, or criminal actions by her mother. [FN1]
The attorney for the subject child's stated position is that it would be in the best interests
of the child for the "Court [to] grant a final order of sole legal and physical custody to the
father " (AFC Summation P. 17).
Separate and apart from the position set forth by the attorney for the subject child,
the child's stated wishes must be considered by the Court. While not determinative, a
child's expressed preference is a factor to be considered by the Court "particularly where
the attorney for the child recommend[s] that the child's wishes be given weight, and
where the [in camera] interview demonstrates the child's level of maturity " Matter of Ivory B. v. Shamecca
D.B., 121 AD3d 674 (2d Dept. 2014). For the reasons set forth above, the
subject child's stated opinion was considered, but not given considerable weight in this
Court's decision after considering her age, maturity level and the appearance of being
coached.
For the reasons set forth above, and after considering all the relevant factors
presented by [*14]both parties at trial, including the
recommendations of the forensic evaluator and the position of the attorney for the child,
Husband is hereby granted an Order of sole physical and legal custody of the subject
child herein subject to Wife's parenting time schedule as detailed herein. See Matter of Edwards v.
Rothschild, 60 AD3d 675 (2d Dept. 2009); see also, Matter of Lovitch v. Lovitch,
64 AD3d 710 (2d Dept. 2009); Matter Osbourne S. v. Regina S., 55 AD3d 465 (1st Dept.
2008). While far from perfect, Husband presents as the parent better fit to be the
sole custodial parent of J.M. and better able to provide a stable, nurturing, environment
for this child long term. See Matter of Andrews v. Mouzon, 80 AD3d 761 (2d Dept.
2011).
Husband is hereby directed to confer with Wife by email on all issues
relating to education, religion and medical matters. Wife shall be entitled to respond to
discuss the matters and offer her input on those decisions. Communication between the
parties which is directly connected to the parenting time set forth herein or related to the
safety and welfare of J.M. shall not be deemed a violation of the Final Order of
Protection unless such communication constitutes a Family Offense until Article 8 of the
Family Court Act or a violation of the Penal Law.
While Husband has a duty to confer with Wife and consider her opinion on all major
issues, Husband shall have final decision making authority with respect to these and all
other major issues. Each party shall retain authority to make simple day to day decisions
while they are with the child. Both parents shall have free access to J.M.'s medical and
educational records. Each parent shall be responsible for securing said information on
their own. To facilitate this access Husband is hereby directed to ensure that Wife is
named on all emergency contact cards and that Wife is made aware of all of J.M.'s
educators, doctors and service providers. Both parties shall be entitled to attend all
school, extracurricular and significant events in J.M.'s life at their own expense.
2. Parenting Time
While Husband is granted an Order of sole legal custody with final decision making,
this does not end the analysis. Wife shares a loving, close bond with the child which
cannot be minimized. The evidence at trial indicates that this special needs child should
not switch home during the week to promote stability and ensure the continuity of her
improvement in school. These considerations suggest that the following parenting
schedule is in the subject child's best interest. This schedule shall commence On April
21, 2015. Wife's first period of parenting time shall begin after school on that
date and continue in accordance with the schedule set forth below.
Wife shall have parenting time with J.M. on Tuesday and Thursday nights from
afterschool until 8:00 pm. Wife shall also have overnight parenting time on alternate
weekends from Friday pick up at school until Sunday evenings at 8:00 p.m. Wife's first
weekend of weekend visitation shall be the weekend starting April 24, 2015. All pick up
and drop offs shall be by Wife at school or if school is not in session, then curbside at
Husband's home unless the parties otherwise agree by email, text or other writing. Wife's
parenting time, including holiday and vacation time, shall continued to be supervised by
her current supervisors for a period of three months from the date of this decision to
ensure a smooth and safe transition to overnight visitation.
Thereafter, Wife's parenting time shall be modified to unsupervised without
need for further application to the Court. At all times, Wife shall refrain from the use of
illegal substances and comply with all other aspects of her probation sentence. Wife is
further ordered to comply with all the Final Order of Protection issued by this Court.
a. Holiday Time.
The parties shall alternate all of the major holidays and school vacations as
set forth below. Parenting time shall commence at 11:00 a.m. on the first day of the
holiday or vacation period and shall conclude 8:00 p.m. on the final day of the visit
unless otherwise specified below.
Holidays that fall on school days such as Halloween and the child's birthday shall
commence at school dismissal (or 4:00 p.m. if there is no school) and end at 8:00 p.m.
Parenting time for Christmas break, Spring break, and Winter break shall include
overnights for any weekday parenting time.
Mother's Day shall always be with Mother and Father's Day shall always be with
Father. Each parent shall have a total of two non-consecutive weeks of vacation with the
child during the months of July and August. One week shall be in July; the other week
shall be in August. Each party shall designate by email their vacation weeks by May 10
of each calendar year or be subject to the other parent's designated weeks. Mother shall
be granted first choice in the event that both parties seek the same weeks provided she
has timely designated her weeks in accordance herein.
The following holidays shall be alternated:
Child's Birthday:even years: Motherodd years: Father
Thanksgiving:even years: Motherodd years: Father
Christmas Eve:even years: Fatherodd years: Mother
Christmas Eve visit shall begin at 4 p.m. and end at 12 p.m. on Christmas
Day.
Christmas Day:even years: Motherodd years: Father
New Years Eve:even years: Motherodd years: Father
New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m on New
Years Day.
New Years Day:even years: Fatherodd years: Mother
Martin Luther King Day:even years: Motherodd years: Father
President's Day:even years: Fatherodd years: Mother
Good Friday:even years: Fatherodd years: Mother
Easter:even years: Motherodd years: Father
Memorial Day:even years: Fatherodd years: Mother
Fourth of July:even years: Fatherodd years: Mother
Labor Day:even years: Motherodd years: Father
Halloween:even years: Motherodd years: Father
Columbus Day:even years: Fatherodd years: Mother
Veteran's Day:even years: Motherodd years: Father
Midwinter Recess (February): the parent with the weekend directly
preceding midwinter recess shall have parental access with the subject child until
Wednesday of the vacation week at 4:00p.m. The parent with the second weekend shall
have the subject child from 8:30 p.m. Wednesday until Sunday at 8:00 p.m.
Spring Recess (April): the parent with the weekend directly preceding spring
recess shall have the subject child until Wednesday of the vacation week at 4:00 p.m.
The parent with the second weekend shall have the subject child from 4:00 p.m.
Wednesday until Sunday at 8:00 p.m.
b. General Matters:
Each parent shall ensure that homework, if any, is completed and the child attends
her school activities. The parent who is enjoying time with the child shall be responsible
for arranging at least one phone conversation per day to allow the child to have daily
phone contact with the other parent. It is the responsibility of the parent enjoying
parenting time to arrange for child care, or to take off time from work, as may be
appropriate in that parent's discretion. Each parent shall inform the other if the child has
missed school due to illness. Illness of the child shall not be a basis to withhold visitation
absent hospitalization which shall be immediately communicated to the other parent.
Each parent is responsible for notifying the other parent in writing at least 48 hours
before they intend to take the subject child to a distance beyond the states of New York,
New Jersey, Connecticut or Pennsylvania. If the child is to be taken out of New York
State overnight, then an itinerary of the travel plans must be provided with contact
information at least 48 hours before.
During trial Husband was extensively cross examined on the issue of J.M.'s dental
care. (Tr. 5/28/14 pp.78-80) As the Court is concerned with the frequency and extent of
the subject child's necessity for dental work at a young age, both parties are hereby
directed to ensure the J.M. brushes her teeth regularly during their parenting time.
The parenting time schedule delineated herein may be modified or supplemented by
such additional and further visitation as agreed upon by the parties in an email or other
writing. While the Court has strived to craft a comprehensive schedule of parenting time,
and address many of the issues that normally arise during periods of parenting time, there
is no way that this Court can create a perfect parenting schedule. Accordingly, the parties
are hereby directed to confer with each other by email in an attempt to amicably resolve
any unforeseen issues that arise regarding either parties' parenting time before seeking
Court intervention. Husband is reminded [*15]of his
obligation under the law to "foster a meaningful relationship between the child and the
non-custodial parent". Matter of O'Loughlin v. Sweetland, 98 AD3d 983 (2d
Dept. 2012).
Child
Support.
In Husband's Summons with Notice, filed on July 24,
2012 he makes an application for child support for the subject child. Interim child
support was not sought by Husband during these proceedings and Wife admitted at trial
that she has not voluntarily paid child support.
The Child Support Standards Act (CSSA) presumptively results in the correct
amount of child support to be awarded to the custodial parent. Applying the statutory
percentage of 17% to the combined parental income will provide the appropriate level of
support to meet the basic needs of the subject child.
When determining child support under the guidelines the Court is directed to utilize
the income as it was, or should have been, reported on the parties most recent tax return.
See DRL '240(1-b)(b)(5)(i); See also, Matter of Lynn v. Kroenung, 97 AD3d 822 (2d Dept.
2012). However, there is authority to use more recent income information where
available. See Eberhart-Davis v. Davis, 71 AD3d 1487 (4th Dept. 2010).
Court is also not bound by the financial information supplied by the parties, and may
impute income where appropriate. See Matter of Maharaj-Ellis v. Laroche, 54 AD3d 677 (2d
Dept. 2008).
The most recent tax return provided by Husband is his 2012 tax return which
indicates a gross income of $17,080, $2,700 of which is derived from
his employment at the bike shop and $14,380 of which is derived from
Husband's EBAY business. Husband's 2013 tax return, if filed, was not offered into
evidence at trial nor was it annexed to the Statement of Net Worth submitted at trial. (Pl.
Ex. No.22).
The Court finds that Husband's testimony at trial regarding the income reported on
his tax return was not credible. First, despite his tax return, Husband indicated that he
currently works approximately 48 hours, and earns $500 a week. (Tr. 5/28/14
p.42). This alone amounts to $26,000 a year without contribution from his
EBAY business. When faced with this discrepancy, and the obvious financial hardship
that would be imposed by supporting two children on a gross income of $17,084
Husband admitted that a good portion of his income is derived in the form of "support"
from his Father who owns the family business. Husband indicated that in return for his
employment at the bike shop, Husband lives rent free, and many of his bills are paid for
by paternal grandfather. (Tr. 5/28/14 p.53). Generally, "a court may impute income
where the parent has received money, goods, or services from a relative or friend".
See Baumgardner v.
Baumgardner, 98 AD3d 929 (2d Dept. 2012). However, while support from
relatives is a basis for the imputation of income, Wife failed to appropriately quantify the
reasonable value of this support to enable the Court to impute a sum certain. See Matter of Ambrose v. Felice,
45 AD3d 581 (2d Dept. 2007).
As there is no support in the record for the imputation of an amount of income to
Husband for the support received from his father, Husband's income shall be limited to
his bike shop wages and EBAY business. As Husband has admitted that he earns
$500 a week, the sum of $26,000 shall be imputed to him as this
amount more appropriately reflects his established earning capacity. See Hainsworth v. Hainsworth, 118
AD3d 747 (2d Dept. 2014). This imputed [*16]amount will take the place of the $2,700 in wages
reported on Husband's 2012 tax return. To this amount the Court must add the sum of
$14,380 which reflects Husband's reported 2012 EBAY business profits.
Accordingly, Husbands gross income for the purpose of determining CSSA child support
shall be $40,380. This reflects that approximate amount that "should have" been
reported on Husband's 2012 tax return. See Matter of Lynn v. Kroenung, 97 AD3d 822 (2d Dept.
2012).
When determining child support, the Court must deduct payments of Social Security,
Medicare and New York City taxes that have been "actually paid". See Kaufman v. Kaufman, 102
AD3d 925 (2d Dept. 2013). As Husband has not shown that he actually paid
taxes on the $500 a week he receives from his employment, the Court is unable
to deduct the allowable statutory taxes. Moreover, the Court notes that the "tax
deductions" section of Husband's Statement of Net Worth has been left blank, and he has
not provided the Court with a 2012 W2. Husband is, however, entitled to a deduction of
the reported sum of $1,766 which represents "self employment tax" related to
his EBAY business. See Matter of Myesha M. v. Omel Mcl., 61 AD3d 534 (1st
Dept. 2009). Accordingly, Husband's adjusted income for the purpose of CSSA
calculations shall be $38,614.
Wife is currently employed by a fitness gym on Staten Island. According to Wife's
Statement of Net Worth she currently earns $450 a week gross from this
employment. (Def. Ex. U). Annexed to Wife's Statement of Net Worth is a 2013 tax
return which shows income of $6,282. While the Court is generally directed to
utilize a parties last tax return there is support for using more recent income information
where available. See Pauk v. Pauk, 232 AD2d 386 (2d Dept. 1996);
Kimmel v. Mifflin, 240 AD2d 471 (2d Dept. 1997). "A court is not required
to use reported income but rather, may base its determination on [a party's] actual income
and ability to support the child". Eberhart-Davis v. Davis, 71 AD3d 1487 (4th Dept.
2010). Accordingly, for the purpose of calculating Wife's income the Court shall use
the admitted sum of $450 a week which amounts to $23,400 a year.
When determining child support the Court must deduct payments of Social Security,
Medicare and New York City taxes that have been "actually paid". See Kaufman v. Kaufman, 102
AD3d 925 (2d Dept. 2013). Here, the Court notes that the monthly tax
deduction section of Wife's Statement of Net Worth has been left blank. Moreover, Wife
has not provided recent pay stubs, as required by statute. Without this information the
Court is unable to determine what taxes, if any, she actually pays on her income.
Accordingly, the full amount of Wife's income, or $23,400 will be utilized for
purposes of determining child support.
The combined parental income for purposes of calculating child support is
$62,104. Applying the statutory percentage of twenty five percent (17%) to the
combined parental income results in a combined child support obligation of
$10,542. Husband's pro rata share of this guidelines child support obligation is
62%, Wife's pro rata share is 38%. Accordingly, Wife's child support obligation equates
to $4,006 a year, $334 a month or $77 a week. For the reasons
set forth above Wife is hereby Ordered to pay child support in the amount of
$334 a month. This payment shall be made directly to Husband on or before the
24th of every month starting May 24, 2014.
This child support award may be revisited by a Court of competent jurisdiction upon
a [*17]showing of "(i) a substantial change in
circumstances; or (ii) that three years have passed since the order was entered, last
modified or adjusted; or (iii) there has been a change in either party's gross income by
fifteen percent or more since the order was entered, last modified or adjusted." See
Mejia v. Mejia, 106 AD3d
786 (2d Dept. 2013).
1. Retroactivity
The award of child support Ordered herein shall be retroactive to Husband's
Summons with Notice which was filed on July 24, 2012. Wife has not claimed any
credits at trial as she indicated that she did not pay voluntary child support and Husband
did not make a motion for pendente lite support.
Accordingly, The retroactive award of child support under the amount awarded
herein is $11,022 (33 months x $334 a month). This amount shall be
paid in monthly installments of $100 to be paid in addition to Wife's child
support obligation each month until all arrears are paid. In the event that Wife wishes to
pay off the balance in a lump sum payment she may do so at any time.
2. Children as Tax Dependents
The record is silent as to applications regarding who can claim J.M. as a tax
dependant. As both parties are employed, each will be able to claim J.M. on their tax
return on an alternating basis with Wife being able to claim her on her 2016 Taxes.
See Kim v. Schiller,
112 AD3d 671 (2d Dept. 2013).
3. Additional Child Support Expenses
The record is equally silent in regard to additional child care expenses including
unreimbursed medical expenses. The parties are hereby directed to split all reasonable
and necessary unreimbursed medical and reasonable and necessary childcare expenses on
a pro rata basis. See Cassano v. Cassano, 85 NY2d 649 (1995); See also,
Leuker v. Leuker, 72 AD3d 655 (2d Dept. 2010). Husband's pro rata share
shall be 62% and Wife's pro rata share shall be 38%. See Harris v. Harris, 97 AD3d
534 (2d Dept. 2012). As the custodial parent Husband shall have the obligation
of sending Wife any bills to which he seeks financial contribution.
Motions
During the course of these
proceedings a number of motions were filed by the parties subsequently referred to the
trial court. Specifically motion sequence numbers 001, 002, 003, 006 and 011 remain
open to be addressed in this Decision. The Court has reviewed each of these motions and
all papers related thereto and determined that the applications raised therein have either
been resolved by the issuance of this Decision, or addressed by the So Ordered
Stipulations between the parties resolving the issues of maintenance, equitable
distribution, and counsel fees. Accordingly, the motions identified above are hereby
denied to the extent they were not previously resolved by Short Form Order, or resolved
herein.
Conclusion
/i>
For the detailed reasons set forth above, Judgment of Divorce is granted to Plaintiff
[*18]Husband on the ground that the parties' marriage
has broken down irretrievably pursuant to DRL Section 170(7). The issues of
maintenance, counsel fees, and equitable distribution were resolved by Short Form
Orders dated May 2, 2014 and September 29, 2014. For the reasons set forth herein
Husband shall be granted a Final Order of Sole Custody of the subject child. Wife shall
be granted parental access as set forth herein.
Plaintiff Husband is hereby directed to file a Judgment of Divorce, Findings of Fact
and Conclusions of Law in accordance with the terms of this Decision, together with all
supporting documentation within 60 days of the issuance of this Decision.
This Constitutes the Decision of the Court
Dated:April 15, 2015
E N T E R:
__________________________________
HON. CATHERINE M. DIDOMENICO
Acting Justice Supreme Court
Footnotes
Footnote 1: As per the New York
State Bar Association, Committee on Children and the Law "Standards for Attorneys
Representing Children in Custody, Visitation and Guardianship Proceedings June 2008".
The standards direct, in part, the limited circumstances wherein an attorney may
substitute judgment; "(1) [t]he attorney has concluded that the Court's adoption of the
child's expressed preference would expose the child to substantial risk of imminent,
serious harm and that this danger could not be avoided by removing one or more
individuals from the home, or by the provisions of court-ordered service and/or
supervision; or (20 the attorney is convinced that the child is not competent due to an
inability to understand that factual issues involved in the case, or clearly and
unequivocally lacks the capacity to perceive and comprehend the consequences of his or
her decisions . . . ."