Family Court, Washington County, February 28, 2019

W. Bradley Krause, Latham, for petitioner.

Michael J. Mercure, Hudson Falls, for respondent.

John Kennedy Oswald, Greenwich, Attorney for the Child.

By a petition verified October 4, 2018, and filed with the clerk of this court on October 9, 2018, the petitioner, Paul A. Boyne (Boyne), seeks to modify the custody provisions of a 2007 Connecticut divorce judgment. This is the thirteenth such petition since late 2016. Boyne registered the Connecticut judgment in June 2017.

On two prior pro se petitions, Boyne failed to personally appear for fact-finding hearings, the first one being in February 2018 when the court conditionally granted his request, made on the eve of trial, to discontinue that proceeding, and the second one in June 2018 at which time the respondent, Heather P. Ferguson (Ferguson), testified in opposition to any modification. A decision and order dated July 3, 2018, was thereafter issued dismissing and denying the latter modification petition. Subsequent to that decision and order, Boyne filed almost identical pro se petitions to modify the 2007 divorce judgment's custody provisions, all but the current petition having been summarily dismissed by this court for failure to allege facts which if true would constitute a change of circumstances sufficient to permit this court to consider whether, and to what extent, if any, modification of those provisions would be in the best interests of the child (see Matter of Bjork v Bjork, 23 AD3d 784, 785 [3d Dept 2005], lv denied 6 NY3d 707 [2006]).

Although the present petition for modification is similarly deficient on its face, Boyne sought and was assigned counsel to represent him in this proceeding. His attorney was thus [*2]afforded the opportunity to supplement and correct the pleading or establish that it stated a valid cause of action for modification.

Prior to the February 15, 2019 fact-finding hearing, and despite being represented by counsel, Boyne filed numerous unsworn documents in which he identified himself as acting pro se. In some of those documents, Boyne asserted that there{**63 Misc 3d at 686} were no issues of fact to be determined at trial and that his petition for modification was premised upon the custody terms of the 2007 Connecticut divorce judgment being contrary to New York law and the result of a nonexistent agreement between the parties in the Connecticut divorce action. Specifically, Boyne contends that the divorce judgment clause stating, "The [father] shall have no visitation with the minor children, except at the discretion of the [mother] and initiated only by the [mother]" (see Boyne v Boyne, 2007 WL 1977944, *2, 2007 Conn Super LEXIS 1522, *4 [Conn Super Ct, June 25, 2007, No. FA054018463], affd in part, revd in part 112 Conn App 279, 962 A2d 818 [2009]), violates the rule in Matter of Taylor v Jackson (95 AD3d 1604, 1605 [3d Dept 2012] [citations omitted]) that "Family Court cannot 'delegate its authority to determine visitation to either a parent or a child.' " He also claims that there is no agreement between the parties, as referenced in the Connecticut divorce judgment. For these reasons, it is Boyne's contention that this court must ignore that language and modify the divorce judgment as a matter of law without evidence of any change of circumstances.

The Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) requires New York courts to recognize and enforce child custody determinations of another state which have been registered in this state.

"A court of this state shall recognize and enforce, but may not modify, except in accordance with title two of this article, a registered child custody determination of a court of another state; provided, however, that recognition and enforcement of the determination would not violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act." (Domestic Relations Law § 77-e [2].)

Domestic Relations Law § 240 (1-c) (a) and Family Court Act § 1085 (1) prohibit the award of visitation or custody to "a person . . . convicted of murder in the first or second degree in this state," or a similar offense in another jurisdiction, the victim(s) of which is/are "a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of the child." Except for those two stated exceptions, and because the legislature's use of the word "shall" in Domestic Relations Law § 77-e (2) is mandatory, not permissive (see People v Ricken, 29 AD2d 192,{**63 Misc 3d at 687}193 [1968], affd 27 NY2d 923 [1970]),^[FN1] New York courts are compelled to strictly recognize and enforce out-of-state custody determinations registered here irrespective of whether any of the terms and conditions of such determinations would be made by New York courts under New York law.

By letter dated May 22, 2017, this court communicated with the Connecticut Superior Court which had issued the 2007 divorce judgment, advising of the proceedings commenced by Mr. Boyne in New York and then pending, and inquiring as to whether the Connecticut court was [*3]intent on exercising exclusive, continuing jurisdiction over the custody issues between Boyne and Ferguson (Domestic Relations Law §§ 75-i, 76-b). On June 5, 2017, Connecticut relinquished jurisdiction.

With regard to Boyne's claim that the custody provisions of the Connecticut divorce judgment are invalid because there was in fact no agreement between him and Ferguson in the divorce action, it is noted that Boyne appealed from that judgment but never raised the question of the existence or nonexistence of an agreement, nor did he challenge the custody and visitation terms in his appeal from that judgment (see Boyne v Boyne, 2007 WL 1977944, 2007 Conn Super LEXIS 1522). Indeed, Boyne only challenged the financial terms of the divorce judgment, not those relating to custody and visitation. He could have challenged the custody and visitation terms of the divorce judgment in Connecticut^[FN2] on his appeal from the trial court order, but his failure to do so is fatal to any attack here.{**63 Misc 3d at 688}

"Absent some showing of fraud in the procurement of the foreign country judgment (Feinberg v Feinberg, 40 NY2d 124) or that recognition of the judgment would do violence to some strong public policy of this State (see, e.g., Mertz v Mertz, 271 NY 466), a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of this State." (Greschler v Greschler, 51 NY2d 368, 376 [1980]; see also Kuznetsov v Kuznetsova, 127 AD3d 1031 [2d Dept 2015].)

Boyne is precluded from mounting a collateral attack here upon the 2007 Connecticut divorce judgment as there has been no showing of fraud in the procurement of that judgment over the more than two years he has submitted himself to the jurisdiction of New York courts, only a conclusory allegation that there was no agreement. Moreover, it appears from the Connecticut proceedings that the trial court's findings of fact and conclusions of law were made after a full plenary hearing at which both Boyne and Ferguson appeared with counsel, "presented testimony and introduced documentary evidence" (Boyne v Boyne, 2007 WL 1977944, *1, 2007 Conn Super LEXIS 1522, *1), and were not the result of any final stipulation or agreement. The trial court's opinion does include one reference to an agreement: "The defendant's relationship with his children has deteriorated to the extent that by agreement and court order the plaintiff has sole custody of the children and the defendant has visitation only at the discretion of the plaintiff." (Id.) However, that reference clearly relates to a pendente lite agreement and court order which were contingent upon the outcome of the litigation. The trial court went on to make findings of fact from the evidence and "considered all of the statutory factors concerning custody and visitation set out in Connecticut General Statutes Secs. 46b-56 and 46b-56a" (2007 WL 1977944, *2, 2007 Conn Super LEXIS 1522, *3), [*4]and determined that the evidence warranted continuation of the temporary custody arrangement in the final judgment of divorce. Boyne's focus here upon the existence or nonexistence of the "agreement" is thus a futile, irrelevant pursuit.

"[I]n extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy (see Greschler v Greschler, 51 NY2d at 376-377;{**63 Misc 3d at 689} Rabbani v Rabbani, 178 AD2d 637, 638 [1991])." (Badawi v Alesawy, 135 AD3d 792, 793 [2d Dept 2016].)

"Public policy should not be 'determinable by mere reference to the laws of the forum alone' or 'in the decisions of our courts in the Victorian era'. (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 14.) Rather, public policy should be predicated upon 'the prevailing attitudes of the community'. (Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 580, supra.)" (Greschler v Greschler at 377.)

The divorce judgment's custody provisions do not violate a strong or compelling public policy of this state. Furthermore, "foreign-based rights should be enforced unless the judicial enforcement of such a contract would be the approval of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense." (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 13 [1964].) The custody provisions certainly do not rise to anything close to such a level.

There are, to be sure, custody arrangements ordered in courts of other states, or even this state, which would not be made in New York after trial. Many such arrangements are the result of amicable and thoughtful stipulations and agreements between the parents.^[FN3] Subjecting out-of-state custody determinations, whether made after trial or by agreement of the parents, to modification in New York merely for the asking and without showing any change of circumstances would render the laws mandating the recognition and enforcement of foreign{**63 Misc 3d at 690} custody determinations meaningless, causing New York courts to engage in trials de novo.

Boyne has asserted throughout this and his prior proceedings that he is entitled to [*5]modification of the Connecticut divorce judgment as a matter of law because that judgment denies him visitation rights with the subject child, now 16 years of age, and gives Ferguson the discretion to interfere with his contact with the child in a manner that is "inimical to the best interests of the child" (Matter of Turner v Turner, 260 AD2d 953, 954 [3d Dept 1999]) by improperly delegating to her the authority to determine when and under what circumstances he visits with the child, all without "compelling reasons . . . [or] substantial evidence that visitation would be detrimental to the child" (Katz v Katz, 97 AD2d 398, 398 [2d Dept 1983]). This contention ignores the facts and history of his relationship with his four offspring, three of whom are now adults and intentionally have no contact or relationship with him. It also fails to take into account the findings of not only the Connecticut court in issuing the divorce judgment but also those made by this court in its July 3, 2018 decision and order made after conducting a fact-finding hearing at which Boyne refused to personally appear. In filings before and on the date of fact-finding, June 29, 2018, he indicated that he had no facts to present and demanded that his then-pending modification petition be granted absent proof that he was unfit:

"The petition is sworn, the petition states all the facts, the petition even references Katz and Turner. We have been at this game for over a year and a half, all the facts have been recited in prior hearings and testimony by the respondent and in irrational blitherings of the AFC. Respondent cannot produce a compelling state interest to isolate the child from her father. Either visitation is ordered under Katz or my parental rights are terminated. Simple."

The burden of proving a change of circumstances rested with Boyne as the parent seeking to modify the Connecticut divorce judgment.

" 'A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that [would then] warrant the court undertaking a best interests analysis in the first instance; assuming this threshold requirement is met, the parent{**63 Misc 3d at 691} then must show that modification of the underlying order is necessary to ensure the child[ren's] continued best interests' (Matter of Menhennett v Bixby, 132 AD3d 1177, 1179 [2015] [citations omitted])." (Matter of LaBaff v Dennis, 160 AD3d 1096, 1096 [3d Dept 2018].)

"It is only when this threshold showing has been made that Family Court may proceed to undertake a best interest analysis (see Matter of Griffin v Griffin, supra at 999)" (Matter of Meyer v Lerche, 24 AD3d 976, 977 [3d Dept 2005]; see also Matter of Kerwin v Kerwin, 39 AD3d 950, 951 [3d Dept 2007]). "A parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing" (Teuschler v Teuschler, 242 AD2d 289, 290 [2d Dept 1997]; see also Matter of Grassi v Grassi, 28 AD3d 482, 482-483 [2d Dept 2006]; Matter of Gerow v Gerow, 257 AD2d 718, 719 [3d Dept 1999] ["petitioner's conclusory and unsubstantiated assertion that 'she is capable of unsupervised visitation outside of . . . respondent's home and in the presence of (her) boyfriend' falls far short of the evidentiary showing required to trigger a hearing on this issue"]).

To determine whether there has been a change of circumstances, the starting point is the July 3, 2018 decision and order of this court made after fact-finding. The credible evidence at that time established that little had changed since the divorce judgment was entered. At the time [*6]of the divorce, Boyne was not having any contact with the children. The Connecticut court had determined that Boyne was unfit to be awarded custody and should not have visitation or contact with the children beyond such visitation as Ferguson deemed safe and appropriate:

"The [father's] relationship with his children has deteriorated to the extent that by agreement and court order the [mother] has sole custody of the children and the [father] has visitation only at the discretion of the [mother].

"The mood in the home was dark and depressed. The [father] had substantial mood swings. Extensive counseling failed and ultimately the [father] stopped going whereas the [mother] continues to go. The [mother] finally felt that the marriage had broken down irretrievably and filed the present summons and complaint in November of 2005.

"During the pendency of this action the parties appeared{**63 Misc 3d at 692} in court a number of times on pendente-lite matters. The [father's] hostility was palpable. The court released the original guardian-ad-litem because she felt she was in fear of her safety by the [father]. The successor guardian was also released because of the failure of the [father] to cooperate. A family court judge was concerned because the [father] had attempted to obtain her home address." (Boyne v Boyne, 2007 WL 1977944, *1, 2007 Conn Super LEXIS 1522, *2-3.)

The credible evidence at the June 2018 fact-finding established that shortly after the divorce, Ferguson offered supervised visitation but Boyne refused. For the next few years, Boyne's contact with the children was limited, by his own choice, to periodic letters to the children, some of which were age and content appropriate but most of which were not, and very brief episodes of social media and telephone contact. The oldest child became an adult in 2011. The second oldest child had contact with Boyne on Facebook and social media, but after two weeks this child wanted no further contact with him. There was one brief telephone contact after Boyne served a jail sanction for nonpayment of alimony and child support because a term of his release required that he submit to a mental health evaluation at the Sheppard Pratt Institute in Baltimore, Maryland. A social worker working with Boyne called Ferguson's home so he could speak to the children. The phone call lasted approximately five minutes. Boyne also sent packages through his friends and associates to the children at their schools without Ferguson's prior knowledge, permission or consent. These packages contained wrapped items, including on one occasion a book about parental alienation, which were very disturbing to the children.

In or about 2012, Boyne filed a custody modification petition in Connecticut. The court ordered Boyne to participate in a therapeutic effort to reestablish his relationship with the children. This therapeutic effort ended after only two or three supervised visits due to Boyne's behavior which included his telling one son that he had been brainwashed and that there was something wrong with him. That child and the child who is the subject of this proceeding went to a second, supervised visit but the son met alone with the counselor and told her that he wanted no more contact with Boyne. Boyne did have a supervised visit with the subject child at which he gave her a present and a book with his family information in it consisting{**63 Misc 3d at 693} of his email address, phone number and contact information for the paternal grandparents. Despite being asked by the counselor to remove that information because it was not appropriate at that time, Boyne refused to do so and the visit ended. Boyne has not had contact with the subject child since, and all visits between Boyne and the parties' children ceased when he became upset with the counselor, called her a "witch doctor" and "voodoo doctor," and stated that reunification therapy was not real.

Following the 2007 divorce judgment, Boyne had no involvement in the children's education or medical care. He made no requests to Ferguson for visits with the children, including the subject child, and except for the unsuccessful therapeutic visits in 2012-2013 Ferguson did not offer any further visits. After Ferguson moved to New York in 2016, Boyne reported her to police and social services agencies numerous times for holding the children against their will and for welfare checks. Some of these reports were made in the late evening and early morning hours such that the agencies responded at those hours and subjected the children and Ferguson to being awakened by police and the children to being questioned about whether they were being held by Ferguson against their will.

Nothing has changed either since the divorce judgment was entered or following the July 3, 2018 decision and order. Boyne has demanded court-ordered visitation but he has provided no specifics on when, where or under what circumstances. According to the Attorney for the Child, the child does not wish to have any contact with Boyne. Boyne has previously made it clear that he will not participate in any supervised or therapeutic visitation.^[FN4] Prior efforts by this court to have the parents and the subject child submit to a forensic psychological evaluation{**63 Misc 3d at 694} to assist the court in devising a visitation protocol and schedule which is in the child's best interests have been refused, condemned^[FN5] and thwarted by Boyne despite the consent of Ferguson and the Attorney for the Child to participate in such an evaluation. Boyne went so far as to contact three possible forensic psychologists who, after speaking with him,^[FN6] felt threatened. At least one of the psychologists retained counsel as a result. Boyne has been abusive and hostile to Ferguson, her counsel, and the Attorney for the Child throughout all of the New York proceedings. Boyne is unable, or refuses, to take into account the history, context and unique circumstances of his relationship with the subject child and how her best interests can be served in reestablishing contact and a relationship with him. He does not understand or recognize that the best interests of the subject child are not served by forcing her to have unsupervised visitation with him, a man she has seen once or twice over the past 111/2 years, three quarters of her young life, particularly since she is averse to having any{**63 Misc 3d at 695} contact whatsoever. Boyne does not appear to appreciate the emotional and mental impact upon the child from their past history, the potential adverse effects which may result from contact with him now due to past and present circumstances, or how visitation with him can be implemented in the child's best interests.

Boyne's failure, for the third time, to appear on the pending petition for the February 15, 2019 fact-finding hearing in support of his allegations is troubling. His attorney appeared and informed the court that he had no evidence to submit to establish a change of circumstances and that it was Boyne's position that modification of the custody and visitation provisions of the 2007 divorce judgment was required as a matter of law. There are simply no facts arising subsequent to either the 2007 divorce judgment or the June 29, 2018 fact-finding hearing upon which any change of circumstances can be found.

"[T]he determination of visitation is within the sound discretion of the trial court based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Cashel v Cashel, 46 AD3d 501 [2007]). Although a child's wishes are not determinative, his or her wishes, age, and maturity should be given considerable weight (see Matter of Cornell v Cornell, 8 AD3d 718, 719 [2004]; Matter of Eric L. v Dorothy L., 130 AD2d 660, 661 [1987])." (Matter of Sinnott-Turner v Kolba, 60 AD3d 774, 775 [2d Dept 2009].)

Finally, Boyne's assertion that the custody provisions of the Connecticut divorce judgment terminate his parental rights or constitute a denial of visitation is incorrect. As was [*8]noted in the February 23, 2018 decision and order of this court, the divorce judgment's visitation provision does not prohibit or preclude the father's visitation, nor does it require that his visitation occur under supervision or a therapeutic setting, limitations which are more restrictive and which are legally appropriate when such will serve the best interests of the child (see e.g. Matter of Lane v Lane, 68 AD3d 995, 997 [2d Dept 2009] ["mother's past conduct of absconding with the son, coupled with her evasive testimony and disruptive behavior at the fact-finding hearing, provided an ample basis for the Family Court's determination to deny her unsupervised visitation"]; Matter of Khan v Dolly, 39 AD3d 649, 651 [2d Dept 2007] ["Family Court also providently exercised its discretion in {**63 Misc 3d at 696}directing that visitation by the mother take place within a therapeutic, supervised setting"]). Since 2013, Boyne has not contacted Ferguson to schedule or arrange for visitation, nor has he proposed any specific visitation plan. Instead, beginning with Ferguson's move to New York in late 2016, Boyne has engaged in filing numerous petitions, during the course of which he has filed hundreds of "motions" and "requests," demanding unconditional, unfettered visitation without anything more specific. According to Ferguson's testimony at the June 29, 2018 fact-finding hearing, prior to moving to New York she had been engaged in litigation with Boyne in Connecticut since 2005, including over 700 motions in proceedings after the divorce regarding financial issues such as child support and alimony, but only the one custody modification petition in 2012. His actions then and now have the appearance of following through on his threat to Ferguson, which she testified he made at a dinner together before the divorce action, that he would make her life "hell" if she went through with the divorce.

For all of the foregoing reasons, the legal arguments advanced by Boyne are without merit. As a result, the petition verified October 4, 2018, and filed with the clerk of this court on October 9, 2018, must be, and hereby is, denied and dismissed.

"Although it is recognized that the words 'shall' and 'must' when found in a statute are not always imperative (Munro v. State of New York, 223 N. Y. 208; Matter of State of New York, 207 N. Y. 582), 'in the absence of ameliorating or qualifying language or showing of another purpose, the word "shall" is deemed to be mandatory.' (Matter of Mulligan v. Murphy, 19 A D 2d 218, 223.)" (Id.)

"It is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened without the assent of the parties if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or because of mutual mistake. The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time." (Kenworthy v Kenworthy, 180 Conn 129, 131-132, 429 A2d 837, 838-839 [1980] [citations omitted].)

"no agreement as to custody can bind the court so as to render inoperable its supervisory power. When the court recognizes or gives attention to an agreement, it does so, 'not because the parties' compact binds the court, but for the light it sheds on the motives and disposition of the parties'. (Agur v. Agur, 32 A D 2d 16, 19-20.) The court looks at the total picture and attempts to consider and weigh all factors in determining what is for the best interests of the child." (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 94 [1973], affd 34 NY2d 660 [1974].)

"The petitioner . . . warns the court that any visitation orders of therapeutic coloring are a violation of the ADA and will be duly attacked in federal court. . . . Meyer, J, is put on notice that application of psychological quackery and witchcraft under application of 'therapeutic visitation' is discriminatory conduct under the Act and implementing regulation 28 CFR § 35.130, General prohibitions against discrimination. . . . Wherefore, the court [is] limited to ordering visitation or terminating father's parental rights, is warned that further games of the judicial authority in application of therapeutic quackery of court whores will be squarely addressed in federal court as a willful and malicious violation of ADA Title II. The court is so warned."

"Remember, your court whores, Merrigan, Brayton and Schockel [sic] all declined their appointments as they were not going to defend themselves under the ADA in a federal lawsuit. Nothing to do with my charming personality or the tone of voice in which their witchcraft was challenged. Their professional liability insurance carriers would not even let them take up the ap[p]ointments. I have every right to enforce my civil[ ] liberties codified in the ADA. You have no standing to retaliate against me for a hat-trick on court whores. Your retaliatory OTSC directing me to find replacement whores was so far outside FCA § 251 as to be comical."