Opinion
Index No. 52607/2020
10-04-2023
Ab.P., Plaintiff, v. An.P., Defendant.
Unpublished Opinion
JAMES L. HYER, J.
Basic Background & Procedural History
The parties to this matter were married on April 8, 2006, in Monroe, New York, in a civil ceremony. Together, they have three unemancipated children: (1) J.P. (born XX/XX/2009); (2) S.P. (born XX/XX/2011); and (3) X.P. (born XX/XX/2014) (hereinafter referred to as the "Children"). No further children of the marriage are expected.
Plaintiff commenced this matrimonial action on February 21, 2020, with the filing of a Summons with Notice and ancillary documents. On March 19, 2020, Plaintiff filed an Affidavit of Service of Shirley Beyer indicating that the following documents were personally served upon Defendant on March 11, 2020: (1) Summons with Notice Action for Divorce; (2) Notice of Entry of Automatic Orders pursuant to DRL § 236; (3) Notice of Guideline Maintenance; and (4) Notice Concerning Continuation of Health Care Coverage.
On May 8, 2020, Defendant's counsel, Leora T. Wexler, Esq., filed a Notice of Appearance and a Request for Judicial Intervention. On May 27, 2020, Defendant's counsel, Arlene Wexler, Esq., filed a Request for Judicial Intervention and Request for Preliminary Conference. On July 7, 2020, both parties filed Statements of Net Worth.
On July 17, 2020, the Hon. Lewis J. Lubell, J.S.C. entered two Preliminary Conference Orders. The first set forth a discovery schedule. The second was a Preliminary Conference Stipulation/Order With Respect to Grounds, whereby: (1) the parties agreed that Plaintiff would proceed on an uncontested basis to obtain a divorce on the grounds of irretrievable breakdown of the parties' marriage for a period in excess of six months prior to the date of commencement of this action pursuant to New York State Domestic Relations Law § 170(7); and (2) Defendant agreed not to interpose a defense or opposition to the application by Plaintiff for a divorce. The parties further agreed to submit papers to obtain an uncontested default divorce at trial or after the filing of a fully executed Stipulation of Settlement resolving all issues in the matrimonial action, to submit papers for an uncontested divorce or for a conversion divorce.
On August 25, 2020, Defendant's then counsel submitted a letter requesting approval to submit a motion seeking the following relief:
1. Custody. Since our last conference with you on,2020, Mr. P. has instructed me to withdraw his pending custody petition in the Family Court. I have done so. Accordingly, custody is now pending as part of the matrimonial action.
2. AFC. The appointment of Ms. Joseph, who was the AFC in the family court, as the children's lawyer in this Court. Ms. Joseph's fees should be shared by the parties pro rata to income.
3. Fall learning. An application for virtual learning by the children for the upcoming Fall semester. Despite the fact that there is no temporary order of custody, the Plaintiff has consistently attempted to cut Mr. P. out of decision making for the children. Most recently, the children's school reached out to parents asking their preferences for in school or remote learning for this coming Fall. Without any consultation with Mr. P., Ms. P. registered the children for in school learning. Mr. P. believes strongly that the children are at risk during the current pandemic and believes that given current circumstances, the children should learn remotely as they did last semester.
4. Access. Mr. P.'s access to the children has been strictly limited to what Ms. P. would agree. Upon information and belief, the Plaintiff feels empowered to make these decisions after having secured a temporary order of protection against Mr. P., based on false allegations. That TOP has not yet been resolved due to the pending pandemic and court rules. Mr. P. believes strongly that this is not in the children's best interests. By way of reminder, Mr. P. is still unemployed, despite his active job search. (He was last employed in the hotel industry, where, needless to say there is no hiring.) Ms. P. is returning to her work in a school this Fall. Ms. P. has not addressed holidays, summer access and the children's birthdays.
5. Temporary Maintenance. Mr. P. is entitled to temporary maintenance under the guidelines from the Plaintiff.
6. Counsel fees. Mr. P. is seeking counsel fees from Ms. P., who is clearly the monied spouse in this action. He should not be precluded from litigating this matter because of his current financial situation.
On September 16, 2020, the Court (Lubell, J.S.C.) entered an Order Appointing Privately Paid Attorney for the Children, appointing Joy S. Joseph, Esq., as counsel for the Children, with the cost to be paid equally by the parties, subject to reallocation at trial.
On September 29, 2020, Plaintiff filed an Order to Show Cause ("Motion Sequence No.1"), seeking an Order:
(a) granting Plaintiff temporary sole legal and primary physical custody of the Children;
(b) granting Defendant access with the Children on alternate weekends from Friday after school until Sunday at 7:30 p.m. at the Somers Police Barracks; every Wednesday from after school until 7:00 p.m. at the Somers Police Barracks; alternate Thursdays prior to Plaintiff's weekend from after school until 7:00 p.m. at the Somers Police Barracks. In addition, Defendant shall take the Children to all their school activities, extracurricular activities, and sports;
(c) directing that the Children continue in-person learning at the Somers Central School District;
(d) directing Defendant to provide any and all information regarding the status of the marital residence, including but not limited to mortgage payments, foreclosure actions, etc.;
(e) directing Defendant to contact the marital residence mortgage company and request a forbearance on mortgage payments pursuant to Governor Cuomo's Executive Order 202.9 in the event he is not paying the mortgage; and
(f) such other, further, and different relief as to this Court seems just and proper.
On October 6, 2020, five months following her appearance as Defendant's counsel, Defendant's counsel filed an Order to Show Cause (Motion Sequence #2), seeking an Order:
(1) pursuant to Civil Practice Law And Rules Section 321(b) (2), allowing Wexler Law Group PLLC, to withdraw as attorney of record for An.P., the Defendant herein;
(2) directing that all further proceedings in this matter be stayed pending the securing of new counsel by Defendant herein; and
(3) granting the undersigned such other, further and different relief as the Court may deem just and proper.
In support of her application, Defendant's attorney submitted an Affirmation, which noted, in part, that:
6. Most recently, I have been working extensively on negotiating a resolution of the Plaintiff's application brought on by Order to Show Cause dated September 22, 2020. I appeared at a virtual conference with Justice Lubell and counsel on September 29, 2020 and have been simultaneously trying to negotiate the motion and draft a cross motion, and opposition papers for relief.
7. One of the challenges I have had with Mr. P. is his unwillingness to follow my advice with respect to communication with his former wife. I have had to ask him to have me review e-mails first for my review. That has not always been successful. Many of the emails have been inappropriate and damaged his position.
8. Mr. P. has repeatedly asked me for permission to write to the Court directly. Each and every time that he has asked, I have told him that such communication is neither permitted nor advisable. I have advised him that any communications with the Court must be through counsel. Earlier today, despite my admonitions, Mr. P. wrote to the Court directly. A copy of his communication is annexed hereto as Exhibit B.
9. The e-mails sent to the Court show clearly that Mr. P. is neither following my advice nor has the necessary trust and confidence in our firm to allow for the firm's continued representation. Mr. P. has taken to not responding to my communications by e-mail. This breakdown has been on and off over the past few months and has been heightened when I reached out to him about the need to pay for the fees for the AFC, as ordered by this Court.
The Court conformed Motion Sequence #2, and it made returnable on October 21, 2020. The Court directed that it be served upon Defendant and Plaintiff's counsel by October 10, 2020, with answering submissions to be served by October 16, 2020, and reply submissions to be served by October 19, 2020. On October 21, 2020, Defendant's then counsel filed an Affidavit of Service, confirming compliance with the Court's service directive. On October 22, 2020, the Court (Lubell, J.S.C.) entered a Decision and Order on Motion Sequence #2, which held that it was:
ORDERED, that Arlene Gold Wexler, Esq. is hereby granted leave to withdraw as counsel to defendant; and, it is further
ORDERED, that, the relief herein granted is conditioned on Arlene Gold Wexler, Esq. serving a copy of this Decision & Order upon Defendant by e-mail within 5 days hereof; and, it is further
ORDERED, that, the action is otherwise stayed until November 20, 2020, 10:30 AM, to allow defendant time to retain new counsel; and, it is further
ORDERED, that, the Compliance Conference' scheduled before Court Attorney Referee Irene Rather shall take place as currently scheduled through Skype for Business on November 20, 2020, at 10:30 AM, unless otherwise advised by the Court or Court Attorney Referee Irene Ratner to the contrary; and, it is further
ORDERED, that defendant and plaintiff's counsel are directed to inform incoming counsel of the scheduled Compliance Conference and of incoming counsel's need to communicate with Court Attorney Referee Irene Ratner (iratner@nycourts.gov) to join incoming counsel in the Skype for Business conference and, it is further
ORDERED, that if defendant has not retained counsel by the Compliance Conference herein scheduled, defendant shall notify Court Attorney Referee Irene Ratner well in advance so that defendant can participate in the conference as a self-represented litigant; and, it is further
ORDERED, that unless earlier excused by the Court, a party's failure to appear for the conference scheduled herein may result in the striking of their respective pleadings and/or the imposition of sanctions; and it is further
ORDERED, that Motion Sequence 1 is adjourned to November 20, 2020, at 10:30 AM, or any further adjourn date of that Compliance Conference, at which time a new motion schedule will be set by Court Attorney-Referee Irene Ratner upon consultation with Chambers.
The foregoing constitutes the Opinion, Decision, and Order of the Court.
On October 22, 2020, Defendant's then-outgoing counsel filed a Notice of Entry of the Decision and Order for Motion Sequence #2.
On January 27, 2021, the Court (Lubell, J.S.C.) entered a Trial Readiness Order. This Order directed, in part, that Plaintiff shall file a Note of Issue and Certificate of Readiness for Trial within 10 days of the Order.
On October 7, 2021, the Hon. Sam D. Walker, J.S.C., entered an Order Appointing Mental Health Professional, appointing WJCS Court Assessment Program to conduct a forensic evaluation of the parties and children.
On October 13, 2021, the Court (Walker, J.S.C.) entered an Order Appointing Attorney for the Child, appointing Joy S. Joseph, Esq., as counsel for the Children, noting that the Order shall be effective nunc pro tunc to September 16, 2020, with payment for the AFC to be paid through the New York State Attorney for the Children program.
On November 13, 2021, the Court (Walker, J.S.C.) entered an Order Appointing Counsel, appointing John Guttridge, Esq., as Defendant's counsel. On November 30, 2021, John Guttridge, Esq., file a Notice of Appearance with an Affidavit of Service of the same upon Plaintiff's counsel and the AFC.
On December 28, 2021, just over a month following his appointment as Defendant's counsel, Defendant's then counsel filed an Order to Show Cause ("Motion Sequence #3"), seeking to be relieved. Counsel submitted an Affirmation in Support which provided, in part, that:
2. I submit that these circumstances currently exist, Although I was assigned to represent the Defendant on November 22, 2021, Defendant has made clear he is already dissatisfied with my services.
3. I submit that these circumstances currently exist, I do not have a file and while I am waiting to obtain one, the Defendant's expectations during my limited experience are not something I can expect I can meet.
4. I submit that these circumstances currently exist; Defendant is very distrusting and demands I take steps I cannot in good conscious take, given my extremely limited exposure in this matter.
On January 13, 2022, the Court (Walker, J.S.C.) rendered a Decision and Order on Motion Sequence #3, relieving Defendant's attorney, John Guttridge, Esq., who then entered a Notice of Entry of the Decision and Order on January 14, 2021, along with proof of service.
On January 26, 2022, a Court Notice was issued indicating that this matter was assigned to the Hon. Thomas Quinones, J.S.C., and scheduling a Pre-Trial Conference for March 1, 2022, at 2:00 p.m.
On March 4, 2022, the Court (Quinones, J.S.C.) entered a Third Order Appointing Attorney for Parent Pursuant to Judiciary Law § 35, providing:
The Defendant, An.P., having appeared before this Court without counsel, and it appears to the Court that he is without means to employ counsel, and where this action concerns matters of custody and visitation of the parties' children, to wit J.P. [D.O.B.: xx/xx/2009), S.P. [D.O.B.: xx/xx/2011], and X.P. [xx/xx/2014]; and the Defendant not having waived counsel, the Court has determined that the appointment of counsel for the Defendant is required pursuant to the provisions of Judiciary Law § 35. Accordingly, it is hereby
ORDERED that the attorney whose name appears below is hereby appointed to represent the Defendant in this matrimonial action for all issues relating to custody and parenting time; and it is further
ORDERED that the attorney whose name appears below shall be compensated as provided by law, and is authorized, pursuant to County Law 18B, Section 722-b, to present to the Court a claim for compensation and reimbursement for expenses of representation reasonably incurred; and it is further
ORDERED that the Defendant shall contact his assigned counsel immediately to schedule an appointment.
ORDERED that a copy of this Order shall accompany any request for payment.
Counsel Assigned: Andrew Walter Szczesniak, Esq.
Office Address:777 Westchester Avenue, Suite 101, White Plains, NY 10604
Telephone Number: (914) 682-9282
Email: awslaw@verizon.net
This matter is adjourned to April 6, 2022, at 2:00 p.m. at which time the parties and their counsel are directed to appear in-person in Room 1001 of this Court, located at 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York 10601.
On March 30, 2022, just less than one month following his appointment as Defendant's attorney, an Order to Show Cause was filed by Andrew Walter Szczesniak, Esq., Defendant's then attorney ("Motion Sequence #4"). In support of his application, counsel submitted an Affirmation in Support which provided, in part, that:
2. By order of this Court dated March 4, 2022, I was assigned to represent Defendant herein. Despite the elapse of less than one month, Defendant has made it clear that he is already dissatisfied with my services.
3. Defendant is very distrusting. In less than one month, our relationship has become adversarial. Unfortunately, I foresee that relationship only getting worse with the further passage of time. Due to Defendant's fixation on the issue(s) referred to below, I have only been able to obtain pedigree and background information thus far. I have not been able to even start addressing either the facts of the case or how to effectively protect Defendant's interests going forward.
4. Defendant has made it clear to me that he is dissatisfied with my representation of him, because I will not (and cannot in good conscience) take certain steps he is directing me to take and will not make certain applications he is directing me to make. Defendant has recently informed me that he would prefer that I decline my assignment in this case, so that the Court can appointment another attorney who will "... do something..." for him and "... actually represent..." him.
5. I have deliberately avoided setting forth specific facts and circumstances in making this application because [a] to reveal specific details may violate Attorney-Client privilege and [b] because irrespective of the action taken on this application, this Court will still be ultimately adjudicating this action. I do not desire to weaken Defendant's position in this litigation going forward. However, should Defendant oppose this application, or should the Court require more detailed information before ruling on this application, then I reserve the right to file a Supplemental Affirmation, setting forth the same in greater detail.
On April 6, 2022, the Court (Quinones, J.S.C.) entered a Decision and Order on Motion Sequence #4, relieving Andrew W. Szczesniak, Esq., staying the matter for 30 days to allow Defendant the opportunity to seek new counsel, and scheduling a status conference for May 17, 2022 at 4:00 p.m. Defendant's then-outgoing attorney filed proof of service of the Decision and Order. The Court notes, as will be further addressed herein, that Mr. Szczesniak was the final attorney to appear either as a privately paid or court-appointed attorney for Defendant.
On May 20, 2022, Plaintiff filed an Order to Show Cause ("Motion Sequence #5"), requesting an Order: (a) granting Plaintiff and the Children exclusive occupancy of the residence and property located at xxxxxxx, Purdys, New York 10578; and (b) for such other and further relief as this Court may deem just and proper.
On June 30, 2022, Plaintiff filed an Order to Show Cause ("Motion Sequence #6"), which requesting an Order: (a) directing that J.P. shall attend his Baseball Tournament being held in Cooperstown, New York from July 10, 2022 through July 16, 2022; (b) directing that Defendant, An.P., shall return J.P. to the Somers Police Station on July 9, 2022 at 5:00 p.m.; (c) directing that Defendant's access shall be suspended from July 10, 2022 through July 16, 2022; and (d) for such other, further and different relief that this Court may deem just and proper.
On July 7, 2022, a Decision and Order on Motion Sequence #5 was entered by the Court (Quinones, J.S.C.), granting Plaintiff and the Children exclusive use and occupancy of the residence and property located at xxxxxxx, Purdys, New York 10578.
In addition, also on July 7, 2022, the Court (Quinones, J.S.C.) entered a Decision and Order on Motion Sequence #6, which ordered: (1) the parties' son, J.P., shall attend the Baseball Tournament in Cooperstown. New York from July 10, 2022 through July 16, 2022; (2) Defendant, An.P., shall return J.P. to the Somers Police Station on July 9, 2022 at 5:00 p.m.; (3) Defendant's access shall be suspended from July 10, 2022 through July 16, 2022; and (4) there shall be makeups for any access time missed by Defendant as a result of the Baseball Tournament as agreed to by the parties.
On July 7, 2022, the Court (Quinones, J.S.C.) entered a Consolidation Order, which provided:
Plaintiff's application to consolidate the family offense petition with this proceeding is hereby granted. CPLR § 602(a) allows the court, upon motion, to consolidate pending actions that involve a common question of law or fact. Consolidation is favored where there exist common questions of law or fact absent a showing of prejudice to a substantial right (Chinatown Apt. v NYC Transit Authority, 100 A.D.2d 824 [1st Dept 1984]).
The Court finds that the common questions of fact and law exist as it relates to the parties' rights in this proceeding and their rights in the family court proceeding. Moreover, the Court does not find that an order of consolidation will prejudice any substantive right of Defendant in this action. Accordingly, the parties' family court petition currently pending in Westchester County under Docket # 0-00695-20 and 0-00695-20/20A (File # is 160109) shall be consolidated with this matrimonial proceeding.
Based upon the foregoing, it is
ORDERED AND ADJUDGED that upon the payment of the appropriate fee, if any, and upon receipt of a certified copy of this Order, the Clerk of the Westchester County Family Court be and is hereby directed and authorized to transfer the files of the family offense proceeding under Docket under Docket # 0-00695-20 and 0-00695-20/20A (File # is 160109) to the Clerk of the Supreme Court for Westchester County; and it is further
ORDERED AND ADJUDGED that the Clerk for Westchester Supreme Court shall consolidate the family offense proceedings noted hereinabove under Docket # O-00695-20 and O-00695-20/20A (File # is 160109) with this matrimonial proceeding; and it is further
ORDERED AND ADJUDGED that Plaintiff shall serve a certified copy of this Order upon the Clerk of the Westchester County Family Court within five (5) days of the date of this Order.
This shall constitute the decision and order of the Court.
On July 8, 2022, Plaintiff's counsel filed an Affidavit of Service for the Decisions and Orders for Motion Sequence #5 and Motion Sequence #6, as well as the Consolidation Order.
On July 8, 2022, the Court (Quinones, J.S.C.) entered a Temporary Order of Protection, to remain in effect until October 28, 2022, directing that Defendant: (1) stay away from Plaintiff, the home of Plaintiff, the place of business of Plaintiff, the place of employment of Plaintiff, and school of the Children; (2) refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with Plaintiff, except for texts and e- mails regarding visits with the Children; (3) refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offence against Plaintiff and the Children; (4) observe such other conditions as are necessary to further the purposes of protection: Respondent father may attend all school functions. On July 8, 2022, Plaintiff's counsel filed an Affidavit of Service of the Temporary Order of Protection.
On October 11, 2022, Plaintiff's counsel filed a Note of Issue and Certificate of Readiness for Trial, and on October 13, 2022, filed an Affidavit of Service of same.
On October 18, 2022, Plaintiff filed a Verified Complaint, asserting grounds for divorce pursuant to New York State Domestic Relations Law § 170 (7) in that the parties' marriage had broken down irretrievably for a period in excess of six months prior to the commencement of this action, and demanding judgment against Defendant as follows: (a) absolute divorce based upon the irretrievable breakdown of the marriage for a period of at least six months pursuant to Section 170 (7) of the Domestic Relations Law of the State of New York; (b) dissolving the bonds of matrimony existing between the Plaintiff and Defendant and granting a decree of absolute divorce in favor of the Plaintiff against the Defendant; (c) awarding sole custody of the children to Plaintiff; (d) directing Defendant to pay child support to Plaintiff; (e) directing Defendant to pay maintenance to Plaintiff; (f) awarding an equitable distribution of marital property including, but not limited to Defendant paying a distributive award to Plaintiff; (g) awarding and declaring Plaintiff's separate property; (h) directing Defendant to maintain and provide health, medical, hospitalization, optical, dental, orthodontic, psychological, psychiatric, and pharmaceutical insurance for Plaintiff and the parties' children; (i) directing Defendant to pay for all unreimbursed and uninsured health, medical, hospitalization, optical, dental, orthodontic, psychological, psychiatric, and pharmaceutical expenses for Plaintiff and the parties' children; (j) directing Defendant to provide and maintain life insurance for the benefit of the Plaintiff and the parties' children; (k) awarding counsel fees to Plaintiff; (l) awarding expert fees, appraisal fees, discovery and investigative fees to Plaintiff; (m) granting Plaintiff exclusive use and occupancy of the marital residence and property located at xxxxxxx, Purdys, New York 10578; (n) directing Defendant to pay the carrying charges on the marital residence; (o) directing Defendant to provide exclusive use and possession of a suitable automobile to Plaintiff; (p) directing Defendant to pay the expenses attendant to said automobile; (q) awarding Plaintiff exclusive possession and title of the furniture and personal property of the parties; (r) directing Defendant to pay the debts of the parties; (s) enjoining Defendant from dissipating, disposing, selling or hypothecating marital property; (t) granting Plaintiff costs and disbursements of this action; and (u) granting Plaintiff such other and further relief as to this Court may seem just and proper.
On October 20, 2022, Plaintiff's counsel filed an Affidavit of Service of the Verified Complaint. On October 21, 2022, Plaintiff's counsel filed Plaintiff's Second Statement of Net Worth and Plaintiff's Statement of Proposed Disposition, and on October 25, 2022, filed an Affidavit of Service of the same.
On October 28, 2022, a Court Conference was held before the Hon. Thomas Quinones, J.S.C, wherein he indicated that he would appoint, as Guardian Ad Litem for the self-represented, Defendant Kenneth L. Bunting, Esq. Judge Quinones noted:
I've made a determination to assign you a guardian with regard to this matter. That guardian will be in contact with you and give you advice and counsel with regard to how to proceed in this matter and if that guardian were to need legal counsel advice, that guardian will be free to make that application for an attorney to represent you in this matter.
On October 28, 2022, pro se Defendant filed an Order to Show Cause ("Motion Sequence #7"), requesting an Order that the "judge remove himself immediately," and requesting that pending the hearing on the motion that it be ordered that "this judge recuse himself immediately as he is prejudiced and cannot conduct himself in a professional manner." In support of his motion, Defendant filed an Affidavit, noting, in part, that:
I have reported this judge to the office of judicial misconduct. He continues to flagrantly disregard the rules of conduct to allow: lawyers to commit perjury; lawyers to file fraudulent documents; bias and discriminatory behavior; I am not sure he's sober; ignoring blatant sexual and violent abuse against my children; said the pictures of the bruises don't matter; told me I'm not allowed to speak, restricting my.access to my kids; refusing to appoint a lawyer to represent me; refusing me to make oral motions but allowing opposing counsel to.
On November 30, 2022, the Court (Quinones, J.S.C.), entered an Order Appointing Guardian Ad Litem, thereby appointing as Guardian Ad Litem for the self-represented Defendant, Kenneth L. Bunting, Esq., and directing that GAL Bunting contact Plaintiff's counsel prior to the conference scheduled for January 12, 2023, at 9:30 a.m. Mr. Bunting signed a consent to the appointment.
On January 23, 2023, the Court (Quinones, J.S.C.) entered an Order, which provided the following:
An application having been made by plaintiff, Ab.P., requesting, inter alia, sole legal and physical custody of the parties' children, to wit: *** [the Children].
The matter having been scheduled for trial on October 28, 2022, and attendance for the trial having been made by the plaintiff, her attorney, Stamatia Dewbury, Esq. of Dewbury & Associates, P.C., the defendant, and Joy Joseph, Esq. having appeared as Attorney for the Children, and the trial having been adjourned; and
NOW, it is hereby
ORDERED, plaintiff shall have sole temporary legal and physical custody of the Children; and it is further
ORDERED, defendant shall have access with the Children on alternate weekends from Friday at 7:00 p.m. to Sunday at 4:00 p.m. subject to the Children being willing to attend; and it is further
ORDERED, that pick-up and drop-off shall be conducted at the Somers Police Station; and it is further
ORDERED, that any communication between the Children and defendant shall be initiated by the Children.
On January 31, 2023, Plaintiff's counsel filed a Notice of Entry of the Order, and on February 6, 2023, filed an Affidavit of Service of the same.
On or about March 13, 2023, the matter was administratively assigned to the Hon. James L. Hyer, J.S.C., the undersigned. On April 5, 2023, the Court (Hyer, J.S.C.) entered a Short Form Order on Motion Sequence #7, ordering:
On or about October 28, 2022, Defendant An.P. presented an Order to Show Cause for this Court's signature, seeking the recusal of the Hon. Thomas Quinones, J.S.C. from this action.
The Order to Show Cause remained unsigned. However, because the matter has since been reassigned to the Hon. James L. Hyer, J.S.C., the application has been rendered academic. Accordingly, the Court declines to sign it.
The foregoing constitutes the Order of the Court.
And on April 14, 2023, the Court entered a Pre-Trial Conference Order which directed:
It is hereby ORDERED that:
1. This matter is hereby certified ready for trial. No further discovery shall be permitted except upon a showing of compelling and unanticipated circumstances. Any application for post-note discovery must be pursued in accordance with the Matrimonial Part Rules.
2. Plaintiff shall serve and file a Note of Issue and Certificate of Readiness within three (3) days of this Order, if not done so already.
3. The trial of this action is hereby scheduled to commence on Monday, June 5, 2023, at 10:00 a.m. and proceed day-to-day through Thursday, June 8, 2023, in Courtroom 1003. The Court has allocated four (4) days for the trial. Absent unanticipated circumstances, the trial shall be concluded within these allocated days. The trial shall continue on successive days until completion. As the trial date has already been scheduled, no adjournment requests will be considered (see 22 NYCRR §125.1[g]). Expert reports must be furnished in accordance with NYCRR §202.16(g). Failure to exchange and file the reports not later than sixty (60) days prior to the trial date and replies not later than thirty (30) days before the trial date, may, in the Court's discretion, preclude use of the expert.
4. Counsel and parties are directed to comply with all portions of the Westchester Supreme Court Matrimonial Operational Rules and Individual Part Rules of Justice James L. Hyer in preparation for the Pre-Trial Conference and Trial scheduled herein.
5. A Pre-Trial Conference shall be held on Tuesday, May 2, 2023, at 10:00 a.m., in person at the Westchester County Supreme Court with all parties and counsel present.
6. Motions in limine must be in writing and made returnable on the day of the Pre-Trial Conference. Such motions must be made no less than ten (10) days' notice to opposing counsel and/or self-represented parties. Opposition submissions must be made no less than five (5) days' notice to opposing counsel and/or self-represented parties. No reply submissions may be made. To the extent possible, the Court will decide such motions prior to commencement of the Trial. To the extent that any Motions in limine are not made timely as set forth herein, such applications will be waived.
7. At the Pre-Trial Conference, the Court shall be provided with a hard-copy Trial Notebook with the following included with tabs for each section (except for exhibits which shall be in a separate binder with tabs), a copy of which shall be filed on NYSCEF:
a. Marked pleadings.
b. A copy of all prior Decisions or Orders on motions issued in the case.
c. A fully executed Stipulation of relevant facts that are not in dispute. The Court expects that no matter how contentious the case, there will be at least some facts that are not in dispute (e.g., the date of the marriage, the children's names and birth dates, the location of any residential real estate and the approximate date of acquisition, approximate cost, the approximate balance on any mortgage and the dates of creation of financial accounts and deferred compensation).
d. Any forensic reports, appraisals, evaluations conducted in the matter.
e. 3101(d) Expert Witness Disclosures made in this matter with proofs of service.
f. An exhibit list and pre-marked exhibits. Only those items that are received in evidence will be marked by the reporter. Copies of all exhibits intended to be offered must be presented to the Court in a ringed notebook with a table of contents, with Plaintiff's exhibits numbered, and Defendant's exhibits lettered in the order in which they are generally intended to be used, with external tabs separating each exhibit. Counsel shall exchange their notebooks with proposed exhibits at least seven (7) business days prior to the Pre-Trial Conference. Failure to timely submit an exhibit list and proposed exhibits may result in preclusion. At the Pre-trial Conference, counsel must either stipulate to the admission of the exhibits to be offered by the adverse party or state the ground or any objection to admission of any such exhibit. Such Stipulation must be prepared before the Pre-Trial Conference, in writing, so that it may be presented to the Court at the Pre-Trial Conference. Counsel must be prepared to argue to the Court at the Pre-Trial Conference, the admissibility of any exhibits to which an objection is taken. Counsel are advised that the failure to include an exhibit in the exhibit list and/or to participate in the exhibit exchange provided for herein, may result in preclusion of that exhibit.
g. A List of Witnesses, including the address of each witness, the time anticipated for the witness' direct examination, and the general subject matter of his or her testimony. The failure to identify a witness may result in the preclusion of that witness' testimony.
h. A Joint Statement of Proposed Disposition. To the extent the parties disagree on any item, Plaintiff's position should be set out first, followed by Defendant's position.
i. A Child Support Worksheet, if applicable.
j. A Spousal Support Worksheet, if applicable.
k. Updated Statements of Net Worth (with the latest available supporting documents, such as income tax returns, W-2s, brokerage and retirement plan statements).
l. Memoranda of Law concerning any procedural, evidentiary, or other legal issue which the parties anticipate the Court will need to determine.
NOTICE: FAILURE TO COMPLY WITH THE NEW YORK STATE CIVIL PROCEDURE LAW AND RULES, UNIFORM RULES OF THE SUPREME COURT, THE INDIVIDUAL PART RULES OF JUSTICE JAMES L. HYER AND THIS PRE-TRIAL ORDER MAY RESULT IN PRECLUSION OF WITNESSES AND/OR EVIDENCE AT TRIAL, AND THE IMPOSITION OF SANCTIONS.
On May 9, 2023, Plaintiff's counsel filed a Notice of Entry of the Order pertaining to Motion Sequence #7, and an Affidavit of Service of the same on May 19, 2023.
On May 12, 2023, a Pre-Trial Conference was held at which time Mr. Bunting requested to be relieved as a Guardian Ad Litem for Defendant. The Court granted Mr. Bunting's request and relieved him as Guardian Ad Litem for Defendant. Thereafter, the Court entered a Guardian Ad Litem Order of Appointment, providing:
Whereas a Pre-Trial Conference was held by this Court on May 12, 2023, this Court finds that An.P. (hereinafter referred to as "Defendant"), is not able to effectively defend his rights to protect his interests in the above-captioned action.
As such, it is hereby ORDERED that:
1. Matthew R. Mazzamurro, Esq., with offices at Law Office of Matthew R. Mazzamurro, 1011 Park Street, Suite 6, Peekskill, New York 10566-3808, (914) 736-3074, mazzamurromatthew091@gmail.com is appointed as Guardian Ad Litem for Defendant (hereinafter referred to as the "GAL"), in this action for the purposes stated herein.
2. The GAL is directed to file a written consent and a Financial Affidavit with the court pursuant to CPLR § 1204.
3. The appointment will be effective upon the filing of the documents referenced above and will terminate upon a resolution of this case by Court Order or Judgment, Settlement Agreement filed with the Court, or a Stipulation of Discontinuance as to Defendant.
4. The GAL must make all efforts to meet with Defendant at his home, or other mutually convenient location, and to communicate with him, as best possible, to discuss this case.
5. The GAL must investigate and bring to this Court's attention all facts important to Defendant's case.
6. The GAL must work with Defendant's legal counsel.
7. The GAL must recommend to the Court a final outcome to the case that is in the best interests of Defendant. The GAL must tell the Court how Defendant feels about the GAL's recommendation.
8. The GAL may make an application for fees and expenses pursuant to Judiciary Law § 35 and/or Domestic Relations Law § 237.
9. The Court has provided a copy of this Order to Defendant through his counsel, directing counsel to provide Defendant a copy of this Order within 24 hours of receipt.
10. By way of this Order, upon receipt of the GAL's filing of the written Consent and Financial Affidavit with the Court, supra, the stay previously placed on this action will be lifted and the parties, including the GAL, are directed to comply with all previously entered Orders of this Court, including, but not limited to, discovery schedules.
On May 12, 2023, Plaintiff's counsel filed a Notice of Entry of the Guardian Ad Litem Order of Appointment, and on May 15, 2023, filed an Affidavit of Service of the same. Then, on May 18, 2023, the Court entered an Order, providing:
A Conference was held before the Hon. James L. Hyer, J.S.C., on May 12, 2023, wherein Defendant failed to appear.
An application was made by Plaintiff's counsel pursuant to CPLR § 6401 for the appointment of a receiver for the parties' marital residence, ("Marital Domicile"), asserting that a foreclosure action had been commenced pertaining to the Marital Domicile necessitating the appointment of a receiver to protect the property from waste, dissipation or disappearance, and further seeking that Plaintiff be appointed receiver.
IT IS HEREBY ORDERED THAT:
1. Plaintiff is granted leave to file an Order to Show Cause seeking the appointment of a Receiver and to the extent that it is requested that Plaintiff serve as Receiver that Plaintiff is eligible pursuant to 22 NYCRR 36.2.
On May 19, 2023, Plaintiff's Counsel filed a Notice of Entry of the May 18, 2023 Order, along with an Affidavit of Service of the same.
On June 2, 2023, the October 28, 2022 court conference transcript was "so ordered" by the Hon. Thomas Quinones, J.S.C., and a Notice of Entry of same was filed by Plaintiff's attorney, who filed an Affidavit of Service of same on June 5, 2023.
On June 5, 2023, Defendant filed an Order to Show Cause ("Motion Sequence #8"), requesting an Order: (1) to remove the guardian that was fraudulently appointed and appoint me a lawyer to represent me (as is my right); (2) to immediately do something about the crimes being committed by Ab.P. and lawyers Dewbury and Joseph; (3) to appoint a lawyer; and (4) to obey Judicial Rules of Conduct and NY Law.
The Court declined to sign the Order to Show Cause.
On June 5, 2023, the Court (Hyer, J.S.C.) entered a Temporary Order of Protection for the benefit of Plaintiff against Defendant extending the prior Temporary Order of Protection to September 5, 2023. That same day, Defendant's Guardian Ad Litem filed a Consent to Appointment and Financial Affidavit pursuant to CPLR § 1202(c).
On June 7, 2023, Plaintiff filed an Order to Show Cause ("Motion Sequence #9"), requesting an Order:
(a) directing the appointment of a receiver with respect to the marital residence and property located at xxxxxxx, Purdys, New York 10578;
(b) appointing Plaintiff, AB.P., as receiver for the marital residence and property located at xxxxxxx, Purdys, New York 10578; and
(c) for such other, further and different relief that to this Court seems just and proper.
Then, on June 8, 2023, the Court entered an Order, which provided that:
A trial was held before the Hon. James L. Hyer, J.S.C., on June 5, 2023, wherein counsel and parties appeared. The trial was completed on June 7, 2023, with Plaintiff resting, and Defendant waiving the right to put on a case.
It is hereby ORDERED that:
1. A Lincoln Hearing shall be held with the parties' children on June 8, 2023 at 2:00 p.m.
2. Oral argument on the Order to Show Cause (Motion Seq. #9) filed June 7, 2023, shall be held on June 12, 2023 at 10:00 a.m.
3. Deadline for submission of June 7, 2023, transcript, which parties are to split the cost, shall be submitted to the Court to be "So Ordered" by July 7, 2023.
4. Deadline for submission of Post-trial Briefs, which should set forth each item of relief requested by each party setting forth the factual and legal basis for same, shall be submitted by July 21, 2023.
On June 9, 2023, a Court Notice was issued directing that, "Oral argument scheduled for Monday, June 12, 2023, at 10:00 as per the Court Order dated June 8, 2023, has been rescheduled.
Oral argument shall be held on Tuesday, June 13, 2023, at 11:00 a.m."
Then, on June 12, 2023, Defendant filed an Order to Show Cause ("Motion Sequence #10"), which requested an Order: (1) not granting Plaintiff receiver; (2) removing Plaintiff from the house; and (3) for such other and further relief as may be just and proper.
On June 12, 2023, the Court adjourned the June 13, 2023 conference at Plaintiff's counsel's request to June 22, 2023 at 2:00 p.m. Then, on June 13, 2023, the Court entered an Order, providing:
A trial was held before the Hon. James L. Hyer, J.S.C., on June 5, 2023, wherein counsel and parties appeared. The trial was completed June 7, 2023 with Plaintiff resting, and Defendant waiving the right to put on a case. On June 8, 2023, the Court ordered the parties to order the June 7, 2023 transcript and split the cost, submitting the transcript to the Court to be "so-ordered" by July 7, 2023.
The Court Reporter informed the parties and the Court that Defendant has not yet paid his share of the transcript and she cannot complete the transcript without full payment. Defendant informed the Court, through a conversation with counsel and all parties with the undersigned's court attorney, that he cannot afford the cost of the transcript. The Court directs Plaintiff to pay Defendant's share of the transcript and awards her a money judgment for that sum.
Accordingly, it is hereby ORDERED that:
1. Plaintiff shall immediately pay Defendant's share of the transcript in the amount of $2,160.00.
2. Plaintiff shall submit a proposed money judgment to the Court for the amount paid to the court reporter for Defendant's share of the transcript by June 23, 2023 for the Court's review and signature.
On June 22, 2023, the Court entered an Order, providing a Decision pertaining to Motion Sequence Nos. 9 and 10:
A Conference was held before the Hon. James L. Hyer, J.S.C., on June 22, 2023, wherein counsel and parties appeared. The Court heard argument on Motion Seq. Nos. 9 &.10, reviewed the submissions provided, and made the following determination: It is hereby ORDERED that:
1. The relief requested in Defendant's Order to Show Cause, Motion Seq. #10 is denied.
2. The relief requested in Plaintiff s Order to Show Cause, Motion Seq. #9 is granted to the extent that:
a. Plaintiff is appointed as receiver for the marital residence and property located at xxxxxxx, Purdys, New York;
b. Plaintiff shall submit a proposed Order of Appointment of Receiver by June 26, 2023, with Notice of Settlement on Defendant and Defendant's Guardian Ad Litem.
3. Plaintiff s counsel shall order a copy of this transcript, pay the cost of same, and submit it to the Court to so order.
4. Plaintiff s counsel shall file a Notice of Entry with proof of service within 20 days following the filing of a so ordered transcript.
On June 23, 2023, Plaintiff's counsel filed a Notice of Entry of the Order pertaining to Motion Sequence #9 and Motion Sequence #10, and on June 24, 2023, filed an Affidavit of Service of the same.
On June 23, 2023, Plaintiff's counsel filed a proposed Money Judgment with Notice of Settlement and filed an Affidavit of Service of the same on June 24, 2023.
On June 26, 2023, Plaintiff's counsel filed a proposed Order with Notice of Settlement pertaining to Motion Sequence #9, and on June 27, 2023, filed an Affirmation of Service of the same.
On July 3, 2023, Plaintiff's counsel filed the June 22, 2023 transcript from the court appearance with a request for it to be "so ordered" and filed an Affidavit of Service of the same.
On July 5, 2023, the Court "so ordered" the June 22, 2023 transcript and uploaded it to NYSCEF. On July 11, 2023, Plaintiff's counsel filed a Notice of Entry of the this "so ordered" transcript.
On July 6, 2023, the Court entered a Money Judgment in the amount of $2,160.00 in favor of Plaintiff against Defendant for his share of the cost of the trial transcript in this action. In addition, on July 7, 2023, the Court entered an Order of Appointment of Receiver, which provided:
An application having been made by plaintiff, Ab.P., requesting that plaintiff Ab.P., be appointed as receiver for the marital residence and property located at xxxxxxx, Purdys, New York 10578.
The matter having been scheduled for a conference on June 22, 2023 and attendance for the conference having been made by the plaintiff her attorney, Stamatia Dewbury. Esq. of Dewbury & Associares, P.C., the defendant. and the defendant's Guardian Ad Litem, Matthew Mazzamurro, Esq. and the court having heard arguments on Motion Sequence Numbers 9 & 10, reviewed the submissions provided, and made determinations: and
Now, it is hereby
ORDERED, that pursuant to CPLR Section 6401, a receiver shall be appointed for the marital residence and property located at xxxxxxx, Purdys, New York 10578 ("subject property"), currently the subject of a foreclosure proceeding in the New York State Supreme Court, County of Westchester, entitled Wilmington Savings Fund v. P., et al, Index No. 66199/2022; Plaintiff, Ab.P., is represented by Clair Gjertsen & Weathers with respect to said proceedings; and it is further
ORDERED, thar pursuant to Section 36.2 of Part 36 of the Rules of the Chief Judge, plaintiff, Ab.P., is appointed receiver of the subject property, currently the subject of a foreclosure proceeding in the New York State Supreme Court, County of Westchester, entitled Wilmington Savings Fund v. P., et al, Index No. 66199/2022 and it is further
ORDERED, that plaintiff, Ab.P., shall comply with Part 36 of the Rules of the Chief Judge; and it is further
ORDERED, that Plaintiff, Ab.P., along with all other responsibilities and authorizations as receiver, is hereby authorized to execute a deed on behalf of both parties whereby plaintiff, Ab.P., and defendant An.P., transfer the subject residence to plaintiff, Ab.P.
On July 18, 2023, the Court granted Plaintiff's counsel's request for an extension to submit Post-Trial submissions to the Court for all parties to do so to 30 days after receipt of the transcripts. The Court directed Plaintiff's counsel to serve a copy of the letter providing the extension to opposing counsel and pro se Defendant by July 18, 2023, and to file an Affidavit of Service of the same by July 19, 2023. Plaintiff's counsel filed an Affidavit of Service on July 19, 2023.
Post-Trial submissions were made by AFC Joseph on August 16, 2023; pro se Defendant on August 24, 2023; and Plaintiff's counsel on August 24, 2023. The Court notes that while Post-Trial submissions were expressly limited by the Court on Page 494 of the Trial Transcript to 15 pages in length, the parties disregarded this directive. Plaintiff's submission was 18 pages long, and Defendant's submission was 48 pages long. Nonetheless, the Court reviewed and took into consideration the entirety of all Post-Trial submissions, including those portions beyond the court-directed limitation.
With respect to his Post-Trial submission, Defendant repeatedly stated that he is unable to receive fair treatment due to the discrimination of the court system based upon his gender. Further, Defendant attacked virtually all persons who have been involved in this litigation and utilized pejorative, offensive, and combative language which the Court is compelled to note herein (hereinafter referred to as the "Defendant's Statements"):
1. Reference to "lawyers and judges in Westchester County Courts" as "scumbag pieces of garbage." [Page 1]
2. Reference to the Hon. Thomas Quinones, J.S.C., as "scumbag loser Quinones." [Page 2]
3. Reference to the attorney for the children as a "pig" who "whines in court", "scumbag pig loser" and "scumbag loser." [Page 3]
4. Reference to the attorney for the children as "sick scumbag pig that she is." [Page 4]
5. Reference to Plaintiff's attorney [Stamatia K. Dewbury, Esq.] as "Scumbag Stigmata Dewbury." [Page 4].
6. Reference to Plaintiff's mother as "Ab.P.'s garbage mother." [Page 4]
7. Reference to "scumbags of the court." [Page 5]
8. Reference to Plaintiff as a "violent animal." [Page 5]
9. Reference to "scum judges of the courts." [Page 5]
10. Reference to Plaintiff as a "sociopath." [Page 6]
11. Reference to Plaintiff's attorney as "Scumbag Dewbury." [Page 6]
12. Reference to "scumbag games the judges play." [Page 6]
13. Reference to Plaintiff's "scumbag games." [Page 6]
14. Reference to Plaintiff as a "fat girl." [Page 6]
15. Reference to "scumbag's games." [Page 6]
16. Reference to the attorney for the child as "Scumbag Joy Joseph." [Page 7]
17. Reference to Plaintiff as a "sick sociopathic person." [Page 7]
18. Reference to the attorney for the children as "scumbag pig Joy." [Page 8]
19. Reference to "scumbag lawyer games." [Page 8]
20. Reference to the Hon. Thomas Quinones, J.S.C., as a "pimp" of the attorney for the children. [Page 8]
21. Reference to "scumbags." [Page 8]
22. Reference to Plaintiff as a "scumbag." [Page 8]
23. Reference to "morons on the bench" and "scumbags," engaging in "blatant cumbaggery." [Page 8]
24. Reference to Plaintiff's "sick games" and "sociopathic games." [Page 11]
25. Reference to "games of the Westchester judges." [Page 16]
26. Reference to attorney as "sick, violent animals." [Page 17]
27. Reference to "delusional members of the court." [Page 18]
28. Reference to "brain trusts of the court." [Page 18]
29. Reference to Plaintiff's counsel as a "criminal of a lawyer." [Page 19]
30. Reference to Plaintiff's "nonsensical garbage." [Page 19]
31. Reference to "corrupt Judge Quinones." [Page 19]
32. Reference to "garbage on the benches." [Page 20]
33. Reference to judges as "Russian oligarchs." [Page 20]
34. Reference to Plaintiff's family as "sociopathic." [Page 21]
35. Reference to Plaintiff's family as "sick sociopathic." [Page 22]
36. Reference to the attorney for the children "Joy Joseph's reckless and scumbaggery" and that she "waddled in" to Court. [Page 23]
37. Reference to the attorney for the children as "this sick disgusting pig." [Page 24]
38. Reference to the attorney for the children as "this joke of a lawyer." [Page 24]
39. Reference to "joke of a judge." [Page 25]
40. Reference to Plaintiff as a "psychotic alcoholic." [Page 25]
41. Reference to Plaintiff as "an immature child." [Page 26]
42. Reference to the attorney for the children as a "liar." [Page 27]
43. Reference to Plaintiff's counsel and the attorney for the children as "scum garbage." [Page 28]
44. Reference to Plaintiff's counsel and the attorney for the children as "cocky and pathetic." [Page 29]
45. Reference to "corrupt judges." [Page 33]
46. Reference to Plaintiff as a "scumbag" and her attorneys as "scumbag lawyers." [Page 33]
47. Reference to Plaintiff's counsel as "her loser lawyer." [Page 34]
48. Reference to corrupt Judge Quinones" as "what kind of sick scumbag garbage is on the bench." [Page 35]
49. Reference to attorneys as "sick animals." [Page 36]
50. Reference to Plaintiff as a "sociopath." [Page 38]
51. Reference to Plaintiff as a "sociopath." [Page 39]
52. Reference to Plaintiff as a "sociopath." [Page 40]
53. Reference to Plaintiff as a "psychotic animal."" [Page 41]
54. Reference to Plaintiff as a "liar." [Page 43]
55. Reference to Plaintiff's counsel as "her shady lawyer." [Page 43]
56. Reference to the Hon. Thomas Quinones, J.S.C, "And this from a joke of a judge we cannot even tell if he's sober." [Page 43]
The Court will also note that as Defendant asserted on Page 33 of his submission that Plaintiff threatened to commit suicide, on Page 7, he then stated, "The only hope my children have is when their mother finally goes through on her threats to kill herself "
The Court notes Defendant's assertion that there is a need to share information about this case and his positions pertaining to Plaintiff with the public and specifically her employers [Defendant's Post Trial Submission at 17]:
"This also needs to be exposed and broadcast all over to not only keep my children safe, but also to keep safe the countless children put in danger throughout Westchester in the Croton Harmon School District & Pocantico Hills Day Camp that Ab.P. and her violently unstable family are working in every day! When you have sociopathic, unstable women who think they're entitled to abuse anyone they want because they have the delusion that the law doesn't apply to them, and when women like this violently attack their own children because they think as mother, they're entitled to; no child is safe around them! You cannot have violent sociopathic animals like this in schools and camps around anyone's children where, God forbid, the children stand up to the abuse from these women-because we know all to well that what will happen to those kids! One only needs to look at the trail of sexual and violent abuses, mystery bruises, mystery black eyes, mystery stiches from our own children to see what these psychopaths are capable of "
Trial Testimony and Documents in Evidence
The Court held the trial on June 5, 2023, June 6, 2023, and June 7, 2023. Plaintiff and Plaintiff's counsel appeared. Defendant appeared as a self-represented litigant with his court-appointed Guardian Ad Litem.
Defendant was precluded from offering any evidence at trial due to his failure to comply with the undersigned's Part Rules and the Pre-Trial Conference Order, which was entered by the Court on April 14, 2023 as NYSCEF Doc. No. 101. The Court notes that the Pre-Trial Order was available to Defendant who is a registered NYSCEF user and who has utilized the system to file documents. Moreover, Defendant was appointed a Guardian Ad Litem tasked with several responsibilities, including a review of all orders entered in this case. Guardian Ad Litem Mazzamurro advised the Court on the first day of trial that he attempted to assist Defendant, but Defendant refused to respond to his telephone calls or to communicate with him otherwise meaningfully. Finally, the Court did not receive any requests for adjournments of the deadlines set forth in the Pre-Trial Order by Defendant or Defendant's Guardian Ad Litem.
During trial, 38 exhibits were admitted into evidence, including:
Plaintiff's Exhibit 1 - Family Offence Petition
Plaintiff's Exhibit 2 - Temporary Order of Protection
Plaintiff's Exhibit 3 - Petition (Violation of Order of Protection)
Plaintiff's Exhibit 4 - E-Mails Between the Parties
Plaintiff's Exhibit 5 - Consolidation Order
Plaintiff's Exhibit 6 - September 30, 2019 Text Messages
Plaintiff's Exhibit 7 - Fall 2019 Text Messages
Plaintiff's Exhibit 8 - November 14, 2019 Text Messages
Plaintiff's Exhibit 9 - Domestic Incident Report
Plaintiff's Exhibit 10 - Order to Show Cause
Plaintiff's Exhibit 11 - Order
Plaintiff's Exhibit 12 - Cooperstown E-Mails
Plaintiff's Exhibit 13 - Cooperstown Order to Show Cause
Plaintiff's Exhibit 14 - Cooperstown Order
Plaintiff's Exhibit 17 - Custody Order
Plaintiff's Exhibit 18 - Plaintiff's Net Worth Statement
Plaintiff's Exhibit 19 - Active International Employment Severance Records
Plaintiff's Exhibit 20 - Defendant's Retirement Distribution
Plaintiff's Exhibit 21 - Director of Sales Salary Ranges
Plaintiff's Exhibit 23 - Appraisal of Marital Residence
Plaintiff's Exhibit 24 - Foreclosure Documents
Plaintiff's Exhibit 25 - Mortgage Statement
Plaintiff's Exhibit 26 - Amortization Schedule
Plaintiff's Exhibit 28 - Rental Searches
Plaintiff's Exhibit 29 - Honda Kelley Blue Book Value
Plaintiff's Exhibit 30 - Traffic Tickets and EZ Pass Violations
Plaintiff's Exhibit 31 - License Suspension
Plaintiff's Exhibit 32 - Verizon Bill for February 2020 and Proof of Payment
Plaintiff's Exhibit 33 - Bee & Jay Receipts
Plaintiff's Exhibit 34 - EnerBank USA Loan
Plaintiff's Exhibit 35 - Extracurricular Activities and Sports Spreadsheet
Plaintiff's Exhibit 36 - School Related Costs Spreadsheet
Plaintiff's Exhibit 37 - Children's Medical Bills Spreadsheet
Plaintiff's Exhibit 38 - Cancelled Checks
Plaintiff's Exhibit 39 - Venmo Payments
Plaintiff's Exhibit 40 - Retainer Agreement
Plaintiff's Exhibit 41 - Invoices
Plaintiff's Exhibit 42 - Video
Plaintiff and Defendant were the only witnesses who testified at the trial.
a. Defendant's Statements and Admonishment
As a preliminary issue, the Court must address Defendant's statements in his Post-Trial submission, which have been listed above and collectively referred to as Defendant's Statements, as well as Defendant's assertions that the court system has not provided him with a fair process based upon his gender.
[1] Defendant's Statements
Pursuant to Part 130 of the Rules of the Chief Administrative Judge, the Court may impose sanctions upon a party upon either motion or upon its own initiative for frivolous conduct which includes action undertaken to harass or maliciously injure another:
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under Article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.(22 NYSCRR § 130-1.1).
"Offensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable (see, Annotation, Attorney's Verbal Abuse of Another Attorney as Basis for Disciplinary Action, 87 ALF.3d 351 [1978])" (Laddcap Value Partners, LP v Lowenstein Sandler P.C., 18 Misc.3d 1130 [A], *6 [Sup Ct\, NY County 2007]; see People v Fagan, 104 A.D.2d 252 [4th Dept 1984] [noting that while the correct resolution of civil disputes is indeed an important goal of our legal system, it may fairly be said that society's primary interest in the resolution of civil disputes is that they be settled in a peaceful, orderly, and impartial manner]; see also Blumberg v Carol O'Neil & Assocs., Inc., NYLJ, June 18, 1999 at 26, col 6 [Sup Ct 1999] [imposing sanctions against plaintiff's counsel for "numerous personal, unprofessional, demeaning attacks" directed at defendant's counsel, both in correspondence and during a deposition]). In addition to the imposition of sanctions, a court has the authority to hold a party in contempt if they engage in "[d]isorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority" (Judiciary Law § 750[A][1]).
Although not taking any action with respect to Defendant's Statements in his Post-Trial submission, the Court admonishes Defendant and directs that in future submissions to this Court, Defendant shall comply with the applicable law and this Court's Rules as is required of all attorneys and self-represented litigants who appear before the Courts of the State of New York.
[2] Defendant's Claims of Discrimination
Defendant's Post-Trial submission is replete with claims that he has been subjected to gender-based discrimination by the Court. The Court has not seen any indicia of any alleged discrimination based upon gender, or otherwise, in any aspect of this action. With respect to the issues of custody of the parties' Children, the Court will note that it has long been held that the role of gender in making child custody determinations has no place in current law; custody determinations must be born of gender-neutral precepts in both result and expression (see Linda R. v Richard E., 162 A.D.2d 48, 53-54 [2d Dept 1990]).
b. Defendant's Right to Counsel
A second preliminary issue, as reflected by the procedural history set forth above, is that Defendant was afforded right to counsel in this matter and thereafter afforded the assistance of a court-appointed Guardian Ad Litem during the period within which he did not have privately paid counsel, or a court-appointed attorney.
Defendant's first attorney was privately retained. After approximately several months of representation of Defendant, that attorney filed a motion to be relieved as Defendant's counsel. The attorney's affirmation in support noted the reason for the request as Defendant's "unwillingness to follow my advice," causing him to engage in conduct that "have been inappropriate and damaged his position"; Defendant's failing to follow her advice, including communicating with the Court directly against her directions not to do so; and Defendant not having the trust and confidences in her firm to permit the firm's continued representation.
Defendant's second attorney was court-appointed and, after less than two months, filed a motion to be relieved as Defendant's counsel. The Attorney's Affirmation noted the reason for the request as: "Defendant has made clear he is already dissatisfied with my services"; "the Defendant's expectations during my limited experience are not something I can expect I can meet"; and "Defendant is very distrusting and demands I take steps I cannot in good conscious take, given my extremely limited exposure in this matter."
Defendant's third attorney was also court-appointed and, in less than one month, filed a motion to be relieved as Defendant's counsel. The Attorney's Affirmation noted the reason for the request as: "Despite the elapse of less than one month, Defendant has made it clear that he is already dissatisfied with my services"; "Defendant is very distrusting. In less than one month, our relationship has become adversarial"; "Defendant has made it clear to me that he is dissatisfied with my representation of him, because I will not (and cannot in good conscience) take certain steps he is directing me to take and will not make certain applications he is directing me to make. Defendant has recently informed me that he would prefer that I decline my assignment in this case, so that the Court can appointment another attorney who will "... do something..." for him and "... actually represent..." him."
Thereafter, the Court provided Defendant ample opportunity to retain new counsel and appointed a Guardian Ad Litem. The Court appointed a second Guardian Ad Litem immediately following the application to be relieved by the first. The Court notes that during trial, Defendant's GAL stated that Defendant was uncooperative with him and:
"He would not speak to me over the phone. He only-he only would engage with me through e-mail. * * * I tried to reach out to him and he would not talk to me. He did talk to me today. But prior to that, he would not speak to me."
On June 5, 2023, the first day of trial, following many adjournments, Defendant filed Motion Sequence #8, which sought, in part, the appointment of an attorney for Defendant and the removal of his court-appointed Guardian Ad Litem. While the Court declined to sign the Order to Show Cause, oral argument was provided at trial.
The court-appointed Guardian Ad Litem, himself a New York State licensed attorney, requested the appointment of an attorney for Defendant and further requested an examination of Defendant under Article 730 of the Criminal Procedure Law, citing Defendant's behavior.
Both Plaintiff's counsel and the AFC opposed the appointment of counsel for Defendant. Plaintiff's counsel noted:
Your Honor, my understanding he filed an application for the guardian ad litem to be removed, AFC to be removed, that he have an attorney. He has had three attorneys in the past. He has continuously made fabrications throughout this. He makes allegations against my client. Your Honor, the only way that Mr. P. can be heard is if we actually have a trial as opposed to delaying it, not only month to month, but year to year. This action was filed in February 21, 2020. So I would ask that we proceed to trial.
The Attorney for the Children noted:
I would support the position set forth by Ms. Dewbury. At one point in the papers filed by Mr. P., Mr. P. states that the judge refuses to have a trial. Well, I would submit to Your Honor that the reasons that the trial has not gone forward to date are those that Ms. Dewbury cites; namely, that Mr. P. habitually come[s] in with an 11th hour applications. He states - he alleges that one of us are competent, I am not competent to properly represent his children; that somehow Ms. Dewbury is engaging in fraudulent criminal conduct. It has been my position that this case should have gone to trial quite some time ago. The fact that it has not, is due to what I perceive has Mr. P.'s extrepidious tactics. Yet he himself states in his papers it would seem he wants a trial. So I support going forward."
Initially, with respect to the Guardian Ad Litem's application for an examination of Defendant pursuant to Criminal Procedure Law § 730, the Court denied this application. The Court's observation during Defendant's appearances before the Court evidenced that he was competent to proceed and understood the proceedings (see People v Johnson, 52 A.D.3d 1040 [3d Dept 2008]).
With respect to the application for a fourth attorney to be appointed to represent Defendant, the Court denied that relief. In a matter involving contested custody, wherein the court declined to appoint an attorney, the Supreme Court of Monroe County noted the law pertaining to court-appointed counsel in custody matters and that the right to an appointed attorney is not unlimited in situations involving misconduct of the party seeking the appointment (Stephanie D v Rick D, 71 Misc.3d 1204 [A], **3-4 [Sup Ct, Monroe County 2021]):
It is well established that a defendant may not manipulate the right to counsel for purposes of delaying and disrupting a trial. People v Rosenberg, 58 Misc.3d 1203 (A) (Crim Ct 2017), quoting People v Howell, 207 A.D.2d 412 (2d Dept. 1994):
When it becomes apparent that a defendant is merely seeking to manipulate the court by toying with the right to counsel as a means of delaying the case, the Court is permitted to take appropriate action, even if it means forcing a defendant to proceed pro se. This can sometimes be the only means of advancing a case where the defendant is particularly recalcitrant.
People v. Rosenberg, 58 Misc.3d 1203 (A) at 15. A party does not have the right to multiple court appointed attorneys, as the Second Department in People v Howell held that the defendant was not entitled to have a fourth court-appointed attorney replace the third. In People v Enriquez, 3 N.Y.3d 210, 211 (2004), the Court of Appeals held "[in cases where defendants have refused self-representation and restricted the participation of counsel... defendants hav[e] voluntarily waived the right to the effective assistance of counsel." Id. at 216.
In addition to waiver, New York courts have held that the related doctrine of forfeiture can apply to strip parties of their right to counsel. Indeed, the Court of Appeals has indicated that there may be situations where "egregious conduct by defendants can lead to a deemed forfeiture of the fundamental right to counsel." People v Smith, 92 N.Y.2d 516, 521 (1998). As an example, in People v Best, 19 Misc.3d 561, 569 (Crim Ct 2008) the court held that the defendant had forfeited his right to counsel where he had "engaged in repeated manipulation and dilatory tactics and ha[d]... purposely sought out to sabotage his relationship.... [n]ot only with this attorney but [with] all of the attorneys who ha[d] represented him." In People v. Best, the defendant had already gone through four attorneys when his fifth attorney asked to be relieved because defendant had threatened to file baseless grievances against him, and would not communicate with him. Finding this to be a pattern of behavior akin to a "modus operandi" designed to impede the proceedings, the Court granted counsel's motion and forced the defendant to proceed pro se. See People v. Lineberger, 282 A.D.2d 369 (1st Dept 2001)(defendant forfeited counsel when he unjustifiably refused the services of, refused to cooperate with, and engaged in abusive conduct toward his competent appointed counsel, the third one appointed by the court). In Matter of Rodney W. v Josephine F., 126 A.D.3d 605 (1st Dept 2015), the Court in a custody matter concluded that a litigant's own misconduct toward her attorneys resulted in their being relieved as counsel, and she effectively exhausted her right to assigned counsel. See also Matter of Montrell A.D. (Miguel D.-Cinnamon Nyree P.), 161 A.D.3d 411 (1st Dept 2018)(due process arguments are unavailing in view of the fact that his court-appointed attorneys in a family court proceeding were relieved due to his own misconduct adding "[he] effectively exhausted [his] right to assigned counsel"). In Matter of Baby Boy B. (Eddie M.), 138 A.D.3d 578 (1st Dept 2016), the court noted that the father's own misconduct toward his multiple assigned attorneys resulted in their being relieved as counsel and the court properly determined that he effectively exhausted his right to assigned counsel. See also Matter of Micah T. (Josette D.), 171 A.D.3d 546 (1st Dept 2019)(six different attorneys had been appointed to represent the mother in a termination proceeding in family court, all of whom were relieved because she refused to work with them, such that she effectively exhausted her right to assigned counsel). Finally, in People v. Rosenberg 2017 NY LEXIS 5041, 2017 WL 6601839 (Crim. Ct. City of New York 2017), the court held that a litigant's repeated efforts to sabotage his relationships with each of the five attorneys who represented him, a threat to file a complaint with the Grievance Committee against his fifth assigned attorney, repeated manipulation and use of his right of self-representation and his right to assigned counsel was a dilatory tactic designed to delay the prosecution of these matters and to disrupt the orderly administration of justice. The First Department also applied the forfeiture doctrine in People v Wilkerson, 294 A.D.2d 298, 298 (1st Dept 2002), holding that the defendant's conduct, with the apparent motive of manipulating the court into providing him with yet a sixth attorney on the eve of the suppression hearing, resulted in a forfeiture of his right to counsel.
While the Court acknowledges a litigant's right to counsel set forth in Judiciary Law § 35, that right is not without limitation, and the Court made the determination that due to the Defendant's conduct that no further attorneys would be appointed to represent Defendant. As noted above, Defendant engaged in a clear course of conduct, which resulted in three separate attorneys' requests to be relieved as Defendant's counsel. With respect to the two attorneys who were court-appointed, they filed their motions to be relieved after a very short time, citing an inability to proceed due to Defendant's conduct. Notably, both noted that they could not engage in the conduct that Defendant instructed in good conscience. Moreover, Defendant's refusal to cooperate with court-appointed individuals continued with his Guardian Ad Litem, with whom he also refused to meaningfully communicate up to trial.
Accordingly, the Court concluded that Defendant's actions had caused each of his attorneys to be unable to represent him. As Defendant's conduct presented a clear pattern of conduct, this Court would not appoint further attorneys for Defendant. Nonetheless, to ensure Defendant was afforded an attorney to provide advice in the context of an appointed Guardian Ad Litem, the Court made two appointments, each of which were New York State licensed attorneys, who assisted him during most of the time he was not represented by counsel, including during the trial.
c. Defendant's Allegations of Misconduct Against Plaintiff's Counsel and the Attorney for the Children
As to the third preliminary issue, the Court addresses Defendant's allegations against both Plaintiff's attorney and the AFC, which were asserted in support of his application to remove the AFC Joseph. In addition to the serious allegations against both counsels, with respect to the AFC, Defendant asserted that she has not met with the parties' children for more than one hour in three and a half years.
Pursuant to 22 NYCRR § 100.3(D)(2), "[a] judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (22 NYCRR Part 1200) shall take appropriate action" (see Grasso v Grasso, 25 Misc.3d 1244 [A] [Sup Ct, Nassau County 2009]). Following Defendant's application, the Court conducted an inquiry as to the alleged misconduct, hearing from Plaintiff's counsel, the Attorney for the Children, and Defendant's Guardian Ad Litem.
Both attorneys advised the Court that they had engaged in no misconduct in this action and had no conflicts of interest that would permit them from proceeding to represent their respective clients in this action. The AFC noted that her records reflected that she met with her clients on nine separate occasions since she was first appointed. She further noted that despite Defendant's claims that the parties' children had been abused, her requests that Defendant provide proof of such abuse were met with nothing being provided to her to substantiate the allegations. Plaintiff's attorney stated, "Mr. P. throughout this action has made false allegations against me, against Ms. Joseph, against every single judge that has been before him." Finally, the Court requested that the Guardian Ad Litem advise the Court if, upon his review of the file on this action, he found any evidence of unethical behavior of Plaintiff's counsel and/or the AFC. The Guardian Ad Litem stated that he had found no such proof.
The Court found the statements made by Plaintiff's counsel, the Attorney for the Children, and the Guardian Ad Litem credible. Moreover, the Court found Defendant's statements as to the alleged misconduct of Plaintiff's counsel and the Attorney for the Children to lack credibility as the statements were unspecific, vague, and conclusory, and were uncorroborated. Accordingly, Defendant's application to remove the AFC was denied as Defendant failed to show that removal of AFC Joseph was warranted (see Ermini v Vittori, 163 A.D.3d 560, 563 [2d Dept 2018]). Further, as the Court found no proof to substantiate the alleged misconduct of Plaintiff's attorney or the AFC, no further action was taken with respect to the allegations.
Plaintiff's Testimony
Plaintiff testified that she is 45 years old, and Defendant is 49 years old. The parties were married on April 8, 2006, and during the marriage had the Children. Plaintiff attained a master's degree and has been employed as a Guidance Counselor at the Henrick Hudson School District for the past four years. While she initially worked following the parties' marriage, she was a stay-at-home parent for approximately 10 years, returning to work in Fall 2018 as a teaching assistant until she was offered her current position. Plaintiff testified that she earned approximately $32,000.00 per year as a teacher's assistant. According to Plaintiff, Defendant has a bachelor's degree and was employed in 2019 as a Vice President for Active International, a position involving direct travel resources.
Plaintiff testified that during the early years of their marriage, she believed they were a typical, newly married couple - they were content, happy, and enjoyed spending time together. Plaintiff testified that on April 28, 2014, she discovered Defendant was having multiple extramarital affairs, engaging in unprotected sex with strangers, and paying for sex. She testified that at the time, she was eight months pregnant, humiliated, and completely devastated. Defendant instructed her to keep the information secret, and if she told anyone, he would kill himself. She explained that he had told her he was sexually abused as a child, was acting out inappropriately, and needed therapy to work out his issues. She testified that she supported his seeking therapy. While Defendant was initially remorseful, Plaintiff later felt that he was more concerned about keeping the information secret.
Plaintiff testified that when she returned to work in 2018, Defendant became financially controlling, directing her to deposit her income into his bank account. His demeanor also changed with respect to the Children, as he was controlling, negative, explosive, and relentless. She testified that Defendant also sought to prevent her from talking to, or visiting with, other people, and that the Children were also isolated. Plaintiff testified that her sister and Defendant's brother are the Children's Godparents, and Defendant stopped wanting them to share holidays with the parties and Children. Plaintiff testified that in Fall 2019, the Children were alone with the parties and saw nobody else for Thanksgiving or Christmas. She testified that Defendant would park his car behind her car to prevent her from leaving the house, and he also would take the keys to the vehicles, causing her to sleep on her keys to prevent Defendant from taking them.
Plaintiff testified that after discovering Defendant had engaged in unsafe extramarital affairs, she was concerned about having sex with him and being infected with a sexually transmitted disease. She asked that he use protection during sexual relations with her, but he refused. She testified that if she refused to have sexual relations with Defendant, he would follow her around the house and berate her, causing her to eventually give in.
Plaintiff testified that Defendant also harassed her by following her around the house and shake her to wake her up from her sleep. As a result, she was sleep deprived. Defendant became angry at Plaintiff when her family wanted to give one of the children birthday gifts, and said that if anyone gave the child presents, he would burn them on video and post the recording on Facebook. Plaintiff testified that Defendant threatened to call the police to report that she was unfit to care for the Children, that he would tell everyone that Plaintiff's mother could not care for the Children due to dementia, and he would tell everyone Plaintiff's 12-year-old niece was sexually abusing the Children. Plaintiff testified that Defendant further threatened to stop paying the bills and cause the house to be foreclosed if she left him. Plaintiff testified that Defendant called her a "stupid cunt" and constantly said "stop playing cunt games to me."
According to Plaintiff, Defendant monitored her phone calls and contacted her at work incessantly. In December 2019, Defendant called Plaintiff repeatedly only to say that she should not divorce him, causing her to leave work as she was concerned his calling would impact her employment. Plaintiff testified that Defendant made negative statements to the Children about her. He told them that Plaintiff would kidnap them and that it was not safe for them to be alone with her. Plaintiff stated that Defendant told one of the Children that he had to wear a tracking watch so that Defendant could monitor his movements because it was unsafe for him to be with Plaintiff.
Plaintiff stated that she believes Defendant can hurt her, and that she fears for her life. She further testified that she believed Defendant can hurt the Children to get back at her. In April 2019, Defendant dragged J.P. "by the ear and told him that he was dirty and wanted to wipe him off with Lysol wipes."
Plaintiff testified that on September 30, 2019, after she had brought the Children to a party, Plaintiff explained, "At the park we saw my sister and my two nieces and when we got home [Defendant] started screaming at the kids and said, you guys are real nice, you would rather spend time with those pigs then your own father and berated J.P. so much, that J.P. started to cry hysterically and he got a bat and he ran up the stairs." When asked if she believes Defendant provides stability for the Children, Plaintiff responded that she did not, noting:
"And I think that [Defendant] is driven by his desire to get back at me for leaving him and that is how he makes decisions. I think that he is explosive and rageful towards the children and that's really concerning."
Plaintiff testified about another incident that occurred on April 11, 2019, which was her birthday:
"Normally, I enjoy spending time with friends or family, with my husband, my children. But as he became more controlling, [Defendant] told me that I needed to spend my birthday with him, and I needed to focus on him and our marriage. He got rageful towards me when I said I wanted to at least have birthday cake with our children. He arranged for my mom to watch our children and so that he could have me go out with him. When I took too long having a slice of birthday cake with my kids, he started screaming and yelling at me. I started to cry. I got in the car, and as we continued to drive, he was saying profanities to me, telling me I was a child, I was mentally ill. He was spitting profanities at me and raging at me all the way to our destination which was about like 45, 50 minutes away."
Plaintiff testified that on Mother's Day 2019, which was also her mother's birthday, Defendant told her she could not spend time with her mother, she should be a mother to his Children, she was not permitted to see her mother, and she needed to refocus her attention back to him and the Children.
Plaintiff testified that in June 2019, Defendant began making allegations of child abuse. She testified that on one occasion, the Children and her nieces had been "pantsing" each other, and when she discovered this, the Children were told to stop. Plaintiff testified that Defendant told her that this was sexual abuse and if she tried to leave him, he would say that her nieces sexually abused the Children. Plaintiff testified that from that point forward, Defendant did not want her family to visit at the marital residence. Plaintiff testified that in the Fall 2019, "things completely deteriorated" when Defendant continued threatening her that she would never see her children again, and that she and her sister would lose their jobs.
In September 2019, Plaintiff began asking Defendant to discuss their finances. Defendant would become irate. He refused to discuss their family budget with Plaintiff, and he did not give her access to any of the bills. She testified that Plaintiff would place the bills into a duffle bag and carry them around or place them him a locked room so that she could not see them.
Plaintiff testified that in October 2019 another incident occurred on Columbus Day weekend:
"I came home from work to find him there. He was not at work and he told me he had booked a trip away for us. I said I really didn't want to go away. I didn't want to be stuck in a hotel with him all weekend to be honest. He said too bad. We need to focus on our marriage, and he then in front of the children told me, your mother's playing cunt games. She has to go with us. If she won't get in the car and go, she is going to ruin our weekend. I am not able to take care of you guys without your mom. She doesn't care about you guys having a fun weekend. She is mentally ill and unstable. He was following me around during this time. Like if I would start to cry, he would start videotaping me, so I would just like lay down. I felt overwhelmed and emotionally drained constantly, and I was tired, and he started videotaping me, and telling me he was going to show the videotape that I was mentally unfit to be around the children. So I got in the car crying. I tried to pull it together and went and was with him for the weekend. All the way down, he kept saying you are so ungrateful. You are mentally ill. You are acting like a child. Pull it together."
Plaintiff then about an incident that took place in November of 2019:
"Yes, I recall a time when he was yelling at me over and over again berating me, telling me I needed to stay home and clean the house actually. And I wanted him to leave me alone. Like I said, these are just constant snapshots of what was happing, but on that particular day he kept following me around, and I became more and more frightened because of his behavior and the way he was thinking. So I locked myself in the bathroom and he was turning the doorknob so much that he broke the lock. So then I put my body, I sat on the floor and put my body against the door, and he was just ponding on the door over and over again. I was afraid. I had to wait until I felt like he was really calm. And I didn't know what to do because I didn't think that I could get out of the bathroom."
Plaintiff testified about another incident on November 20, 2019, where Defendant became enraged in front of the Children:
"November 20th, I think it is actually the anniversary of his mother's passing which is a particularly rough day because he was completely enraged. He came home screaming at me. He told me - all in front of the children - I remember so clearly, we were sitting in the kitchen at the table. He walked in, I remember exactly what he was wearing, he threw the door open, and he started screaming. Stop playing your pig games. I am done with you. I am filing for a divorce. Again, in front of the children, if you want a divorce so bad from me why do you continue to have sex with me. He said to the children, let's see once I call the police and get the courts involved, if you ever see your mother, your grandmother, or your aunt again."
Plaintiff discussed another incident that occurred on November 29, 2019, when she attempted to have the Children visit with her cousins for Thanksgiving. Defendant became irate, told her she was not to spend time with her family, followed her around, and would not let her sleep.
Then in December 2019, J.R. told Plaintiff that Defendant was trying to get him to say things that were untrue and was pretending not to record him, but that he knew Defendant was. Plaintiff filed a Family Offense Petition in January 2020, fearing for her and the Children's safety. She testified that an Order of Protection was entered for her benefit against Defendant [Plaintiff's Exhibit #2] which directed that Defendant, until the expiration date of June 9, 2023, observe the following conditions of behavior: (1) stay away from Plaintiff; the home of Plaintiff; the school of the Children, except for school events; the place of business of Plaintiff; the place of employment of Plaintiff; (2) Refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic means with Plaintiff, except for texts and e-mails regarding visits with the subject children; (3) Refrain from assault, stalking harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication if intimate image(s) or any criminal offense against Plaintiff and the Children.
Plaintiff testified that she commenced this matrimonial action in February 2020. In June 2020, Plaintiff filed a Violation Petition due to prohibited communications from Defendant, including an e-mail [Plaintiff's Exhibit #4] wherein Defendant states:
"It is a shame that my kids have to look at such a pathetic and disgusting excuse for a mother each day and here you go again disappointing and proving it to them yet again, just like the pathetic abusive garbage that you call a mother. My kids are growing up knowing that they were spawned from mental ill trash. If you think you're filling them or they don't see through you and your sick lies and games then you're more delusional than we thought. You are so petty and immature that you aren't capable of being an adult and putting these three little boys first - three little boys you continue to severely traumatize for sport. On Monday, the court will once again here how unless I agree to the whims of a mentally ill child, then my kids are kept from me. You are disgusting and this isn't coparenting - it's me having to deal with an immature child that thinks she can continue to make up lies and games to traumatize my children while abusing me and my kids and putting them at continued risk of additional sexual and violent attacks from you and your deranged family. You are proving every day that you are not a person capable of acting in good faith as a parent so I have a hard time believing that any proposed custody agreement would be honored considering the way you've behaved and committed such sick and abusive acts towards my children. I'm not sure that I want to continue any discussion about it until you undergo severe mental health treatment to work on your anger issues and abuse. It's time to grow up and stop-my kids deserve better and when they continually look at you with disgust - it's a mirror for your gross actions to hurt them. Grow up."
Plaintiff further testified about a video Defendant posted on You Tube [Plaintiff's Exhibit #42] wherein she believes Defendant was making false allegations against her which endanger her employment. Plaintiff is asking that the Court grant her an Order of Protection against Defendant which includes directing that this video be taken down and prohibiting Defendant from posting further videos pertaining to her, the Children, or the proceedings.
Plaintiff stated that during this action, she was forced to file a motion with the Court, asking for an amendment to the interim access schedule with Defendant and the Children because Defendant refused to agree to take J.P. to Cooperstown, New York for a baseball tournament that J.P. had been working towards for almost three years. Plaintiff testified that the parties agreed to this baseball program in October 2020, but Defendant would not agree to J.P. attending as it would interfere with his parenting time. Plaintiff testified that her application to the Court had been granted, and Defendant has been granted three additional alternative days but never utilized same.
Plaintiff explained that she was and remains the Children's primary caregiver. She testified that during her years as a stay-at-home parent, she took care of the Children's daily needs, took them to their medical appointments, assisted with their educational needs, and continued in this role following her return to work. Plaintiff testified that Defendant is unwilling and unable to communicate effectively with the Children. She stated that the Children feel isolated when they are with Defendant because he does not allow them to use their cell phones. Plaintiff also testified about examples of difficulty scheduling access time with Defendant. She filed a police report when Defendant failed to return the Children home on time [Plaintiff's Exhibit #9]. On Father's Day 2020, Defendant demanded to have the Children for an overnight visit even though it fell on her access weekend. After many e-mails, Plaintiff offered Defendant to take the Children for the entire day and he decided not to take them at all which made the Children unhappy.
Plaintiff testified that while Defendant indicated he supported the Children attending therapy, the Children have gone through a few therapists as Defendant does not like the therapists resulting in him not bringing the Children to the sessions or telling the therapists that the therapy is done. Plaintiff further testified that Defendant has kept the Children home from school during the weekday without sufficient basis. Defendant kept certain shoes that X.D. had when he visited Defendant after discovering that the shoes had been a gift from his aunt. Defendant told the X.D., "Aunt Rita is not your real aunt anyway." Defendant never returned the shoes to X.D. Plaintiff testified that for approximately three years, Defendant has conducted inspections of the Children's bodies, taking photographs of any bruises or cuts, which the Children have as they are active.
Plaintiff further testified that Defendant had obtained a dog as a pet for the Children:
"So the dog-[Defendant] got a dog during COVID for the children that they love very much. They talk about the dog all the time. They get so excited to have the dog as their pet. Recently, as [Defendant] has been working out of state on-and-off through October, they have had very limited to no access to the dog at all. X.P. brought this up to his father and his father said, if the court keeps on taking away time from me with you children, then you might not see your dog again.
* * *
They were extremely upset. When I tell you that the highlight of the visit is with their dog, that's what they get most excited about. They have not been able to see the dog in quite some time, as I believe the dog is living with his sister in the Carolinas."
Defendant is unwilling to take the Children to events that occur during his scheduled parenting time. Plaintiff testified that Defendant has attended school events, but not without issue:
"Yes, so the order of protection specifically says [Defendant] can attend school events. He has volunteered from time to time, many times unsuccessfully. The kids have been embarrassed when he has done stuff like approached other parents and said, I don't know if you know this or not, but Ab.P. has been committing crimes. To the point where parents have come to me distressed about what he has said to them and then he is isolating the children because no parent is going to send their child on a play date with their child when they are with T."
Plaintiff testified that she is seeking full legal and physical custody of the Children, with Defendant having limited access to every other weekend with the Children being able to opt out if they so choose. In defining weekend, Plaintiff stated that the weekend would begin on Friday evening around dinnertime to Sunday around 4:00 p.m. Plaintiff is also seeking to limit Defendant's telephone contact with the Children to only telephone access initiated by the Children. This is due to a history of Defendant calling the police to do welfare checks if the Children did not call him at certain times, yelling at the Children during the calls, and making the Children uncomfortable during calls.
When asked if she sought supervised versus unsupervised access between Defendant and Children, Plaintiff responded that:
"It is an incredibly hard decision to make. I really feel like all I can do is listen to what my kids are saying to me and follow through on that. I have thought a lot about supervised visits. I think about what the best interest for the kids are. I listen to what their voice is. And there are times when they have fun with their dad and they love their dad, but I don't know that prolonged time with him is okay. I don't want them subject to photographs of their body all the time. I don't want them to have to listen to him rage on various topics or start crying, have circling thoughts over and over again. I have experienced that. I don't want them to have to experience it. I wrestle with this all the time about what is best for them. I don't want to be the person that says no you can't see your father, or you can only see him in a supervised situation. I only want to do what is best for them. I feel like I am going - I am like I am in a really hard situation because all I can do is think about them. I don't care about me. If the right decision was no access, okay, I will deal with that. If it were other things, I would deal with that. I am dealing with it right now. All I care about is the right thing for the boys and I have struggled with that and figuring out what the right time is."
Plaintiff does not believe midweek access is appropriate, and that vacation time with the Defendant and Children should be limited to less than seven days. Plaintiff further testified that splitting holidays with Defendant has been problematic and felt that alternating holidays would be more effective.
Plaintiff testified that she grew up in Somers, New York, and made the decision for the parties to move there as it would be a great place to raise a family and for Defendant to commute to New York City. Plaintiff testified that the parties' home is a three-bedroom cape with a big back yard located in a neighborhood with a pond for fishing and swimming; the kids ice skate there in the winter, and then directly across the street from their home is a large park that the Children use to play sports and go sledding in the winter. Plaintiff testified that she has extended family in the area with her mother located in Brewster, and her sister and brother-in-law in Somers. Plaintiff has a relationship with her family where they provide support for her and the Children. Plaintiff's mother helps put the Children on the bus in the mornings.
According to Plaintiff, the parties' home was purchased on May 1, 2015. Plaintiff's mother provided $30,000.00 towards the down payment, and both parties were placed on the title. Plaintiff testified that at the time of the purchase, the amount of the mortgage was approximately $322,000.00 for which only Defendant was listed as a borrower. Plaintiff testified that in January 2020, Defendant stopped paying the mortgage on the parties' home, has not made any mortgage payments since then and as she is not on the mortgage note the bank would not speak with her. Plaintiff testified that she also did not make any payments on the mortgage. Plaintiff stated that a foreclosure action had been commenced pertaining to the house [Plaintiff's Exhibit #24].
Plaintiff testified that while COVID-19 programs existed to assist with mortgage payments and Defendant was unemployed, she asked Defendant to utilize these programs, but he refused. Plaintiff made a request to this Court for an Order directing Defendant to contact the mortgage company. She had the home appraised, and an Appraisal Report was prepared providing a value of $478,000.00 [Plaintiff's Exhibit #23]. Plaintiff stated that the total amount owed on the home to the mortgage holder is approximately $485,895.34, which includes principal amount of the mortgage of $350,893.52 and the amount due of $135,001.82 according to the April 17, 2023 statement [Plaintiff's Exhibit #25]. Plaintiff testified that if payments had been made timely that pursuant to an amortization schedule for the mortgage, the amount owed would be $320,281.66 as of June 20, 2023, reducing the principal by $30,000.00 [Plaintiff's Exhibit #26].
The Children have asked to remain in the home, and Plaintiff testified that it would cost more to rent a smaller home or an apartment in her present community than to try to modify the loan and keep the house. According to Plaintiff, the approximate monthly mortgage payment on the house would be $3,000.00, while the cost for a rental would be between $3,000.00 and $5,000.00 per month [Plaintiff's Exhibit #28]. Plaintiff requests that this Court order the deed to the property be transferred to her and if the house is directed to be sold, that she be credited for any past child support arrears from the net proceeds. Plaintiff testified that these funds would be used to obtain new housing for her and the Children.
According to Plaintiff, during the parties' marriage, Defendant was earning between $120,000 and $150,000, plus bonuses, annually from his employment as director of sales and marketing for various hotels located in New York City. Plaintiff testified that in 2019, Defendant earned approximately $135,000.00. Since the commencement of this action, Defendant has provided no child support for the Children. In December 2019, Defendant was terminated from his position. Plaintiff testified that in 2020, Defendant earned income of approximately $137,063.00, including $76,063.00 in severance, $26,000.00 in unemployment, and $35,000.00 in a COVID supplement. Plaintiff testified that Defendant is currently employed in Hawaii and California. Defendant missed six or seven weekends and weekday access visits with the Children, and Defendant told her it was due to work. Plaintiff completed a Statement of Net Worth [Plaintiff's Exhibit #18] which included her 2021 income of $68,000.00.
Plaintiff asks the Court to impute Defendant's income to be $135,000.00 per year and require that he provide child support to her of approximately $3,000.00 per month. Plaintiff testified that pursuant to Glass Door, Defendant may earn in his past employment positions an annual salary of $152,000.00 to $200,001.00 [Plaintiff's Exhibit #21]. Plaintiff testified that she is seeking retroactive child support for the Children from Defendant for approximately $128,000.00.
Plaintiff testified that she has paid for the Children's extracurricular activities totaling $12,206.78 with no contribution from Defendant [Plaintiff's Exhibit #35]. Plaintiff states that she has paid for the Children's education costs totaling $2,205.70 with no contribution from Defendant [Plaintiff's Exhibit #36]. Plaintiff also stated that she has paid for the Children's unreimbursed medical expenses costs totaling $8,221.93 with no contribution from Defendant [Plaintiff's Exhibit #37], and for the Children's health insurance with no contribution from Defendant. Plaintiff testified that she would like Defendant to be responsible for half of these costs and for half of all future add-on expenses for the Children.
Plaintiff testified that Defendant had one retirement with a balance of $315.89, which, unbeknownst to Plaintiff, was liquidated, and retained, by Defendant [Plaintiff's Exhibit #20]. Plaintiff requested that she be permitted to retain her retirement accounts, while Defendant be permitted to retain his.
Plaintiff testified that she owns a 2011 Honda Pilot that is driven by Defendant, with a Kelley Blue Book value of between $8,087.00 to $10,592.00 [Plaintiff's Exhibit #29]. Plaintiff asked that the Court select the average of that range and direct Defendant to pay half to Plaintiff to buy her out. Plaintiff testified that during this action, Defendant caused traffic tickets to be issued arising out of his operation of the vehicle, during a time in which Defendant failed to pay for the vehicle's automobile insurance, resulting in DMV notifying Plaintiff that her New York State Driver's License would be suspended due to a lack of insurance. Defendant incurred EZ Pass payments utilizing the EZ Pass tag registered to Plaintiff despite her request that the tag be returned to her. Plaintiff requests reimbursement from Defendant for payments made for the tickets and EZ Pass payments [Plaintiff Exhibit #30 & 31]. The amounts include:
1. Notice of Liability Red Light Camera Violation-Violation Date: 2/18/2020, Citation #: S20-xxxx36899, Fine: $80.00
2. Notice of Liability Red Light Camera Violation-Violation Date: 3/12/2020, Citation #: S20-xxxx56834, Fine: $80.00
3. Notice of Liability/Certificate of Charging Liability-Violation Date: 7/19/2021, Notice #: xxxxxx3493, Fine: $50.00
4. New Jersey Turnpike First Notice of Enforcement Action-Violation Date: 6/14/2020, Violation Number: Txxxxxxxx8554-01, Fine: $50.75
5. EZ Pass Invoice-Account Number xxxx7675, Activity Period 6/1/2020-6/30/2020, Due: $37.78
6. EZ Pass Invoice-Account Number xxxx7675, Activity Period 7/1/2020-7/31/2020, Due: $164.80
7. EZ Pass Invoice-Account Number xxxx7675, Activity Period 6/1/2021-6/30/2021, Due: $73.53
8. New York State Department of Motor Vehicles Suspension Order
Registration Suspension Order #: C106251, Document #: xxxxx7073, Due: $200.00
Total: $736.86
Plaintiff testified that after commencement of this action, she asked Defendant to remove his name from her Verizon cell phone account, but he refused to do so. Plaintiff testified that Defendant did not make payments for his cell phone or for his cell phone usage totaling $275.61. As result, the bill was placed in collections [Plaintiff's Exhibit #32].
Plaintiff has completed repairs on the marital residence during the past several years, including plumbing. She presented two invoices from Bee Jay: (1) Invoice 94307, Dated: 4/1/2020, Due: $298.03; and (2) Invoice 94624, Dated: 5/14/2020, Due: $1,313.40, with a total amount paid of $1,611.43 [Plaintiff's Exhibit #33].
Plaintiff also completed HVAC work on the home, following her obtaining a loan from Enerbank, USA [Plaintiff's Exhibit #34]. Plaintiff testified that the August 13, 2019 loan in the amount of $6,861.00 has a monthly payment of $174.19. Plaintiff testified that both parties incurred this loan, but since the commencement of this action, Defendant has made no payments.
Plaintiff testified that she has credit card debts. While she is unaware of if Defendant has any credit card debts, Plaintiff asks that each be responsible for their own credit card debts, or to the extent that Plaintiff is determined to be responsible for any portion of Defendant's credit card debt that it be offset by the child support arrears owed to Plaintiff by Defendant.
Plaintiff retained her counsel pursuant to a retainer agreement [Plaintiff's Exhibit #40], and she received invoices from her attorney for work performed as her legal counsel in this action, which she received and confirms are accurate as to the amount due [Plaintiff's Exhibit #41]. Plaintiff requests that Defendant pay for her legal costs due to the prolonged litigation being without merit and should have been resolved long ago.
e. Defendant's Testimony
The Court will note that following Defendant cross examination of Plaintiff, Defendant did not call any witnesses, but he did provide a closing statement under oath.
Defendant testified, "I have been abused, I have been abused by the courts since this, it has been three and a half years where I have been told I have no rights. I have been told there is nothing to file, nothing you can do. It is unacceptable."
Defendant provided testimony regarding Plaintiff's family:
"This is what her mother did to her father for 35 years. This is what she bragged about.
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I have never said you don't have a mother, you can't spend time with her. In any of the recordings were I to present them, if I had been able to present them, they all said they can't be around her family, her family can't control themselves. I never said they can't be around Ab.P. I never said that because I grew up without my father. I know how hard that is. I know when you play mother's game, they tell you, oh, it doesn't matter, he is a drunk, he is this, he is this, all of these things, her father calls it little bits of poison each day what her mother did. But you don't say, oh, when your father screams at you, when your father does this, screw with the visitation time. Go mess with your family. Do this, ask him for money, say I can't get money from him, can you give me cash, all of the same things that that her mother did that she cried for the 20 years we were together or together before this, what her mother did to her father was abuse and it was. But now she is doing the same things using the court as a tool to get a house.
* * *
Her mother has been doing these things. She has no relationship with her father, and her mother has been doing things to him for 35 years. At our wedding, as full on adults, she could not even stop and take a picture or even be civil with each other. I don't want that for my children."
Defendant testified that he is concerned that the Children have no advocate in this action and that they have suffered abuse:
"Nobody will speak to the Children. They don't have an advocate. We have been begging for years.
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I have taken pictures of them because they have mystery black eyes, all of sudden they have stiches. When you ask what happened, I understand active children, I have active children, I am a father. I am not a visitor. I have been present a huge part of their life since the day they were born. I have children. When they have three black eyes on one child in a year, that's not how children play.
* * *
Nobody has spoken to them about the abuse.
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In her petition, what she told the original petition when we went to court, he was dragged by his ear, he was dragged by his ear. No, she drafted our son... and did that.
* * *
My son X.P. doesn't like to sleep alone. He was abused on his birthday July 19th. He told me he goes every night to sleep with J.P. because he doesn't want to sleep alone because he is still afraid. He should be in counseling.
* * *
These kids are traumatized and they are scared, as the other attorneys have said as well as in January, they are traumatized and scared."
Defendant testified that during his access time with the Children, he plays with them, he interacts with them, they play video games together, they write songs, they spend time in the park, and that he recorded a bedtime story podcast for them. However, later in his testimony Defendant testified, "I haven't had access to my children in three and a half years," and continued, "This is distressing to them as well as me." Defendant testified that he was seeking joint custody - "We should have 50/50 custody from the beginning and equitable access."
Defendant testified that he earned less than $40,000.00 in 2020, that the pandemic ravished hotels, and that no hotels are hiring leadership positions right now where in the past, they would start at $150,000.00. Defendant stated that this year, he earned less than $20,000.00. Defendant explained that he is working freelance at hotels, looking for a job, but has been unable to find one. Defendant had also worked at Starbucks.
Defendant stated he did not have a working car and that his car needs approximately $3,000.00 in repairs. Defendant testified that he is $6,500.00 behind in rent payments.
Defendant offered testimony with respect to his position that Plaintiff has failed to provide payments towards the parties' home mortgage and clothes for the Children:
"I don't want to lose their home. I want my children to stay in their home. I don't want my children to lose their home. Throughout this, she has not been responsible for housing. She has not paid for housing for three and a half years. She has been paid full salary throughout the pandemic.
* * *
When my son showed up with the sole of his shoe hanging off, that he needed new sneakers. They didn't have clothes because she would not send clothes. When they came here, I have clothes that don't fit them. They are too small. They are hand-me-down clothes. They are getting to the age where they want new things. They don't want to wear hand-me-downs. My younger son just turned nine. He doesn't want to wear hand-me-downs. My middle son has clothing that has been passed down, but it is not in good condition. They need clothes. We need to be able to work together. She is not able to."
f. Attorney for the Children's Closing Statement
The Attorney for the Children did not call any witnesses or seek to have anything admitted into evidence, but she did make a closing statement. The AFC stated that it was her position that it would be in the best interests of the Children if Plaintiff were provided with sole legal and physical custody of the Children with Defendant having regular unsupervised access. The AFC noted on the record the following:
"The evidence shows that the parties are not able to make joint decisions with regarding the children's health, education, and general welfare. They are not even able to communicate with one another in a meaningful way. The father has demonstrated a mistrust and hatred of the mother that according to the evidence presented does interfere on occasion with his ability to make decisions in the children's best interests.
That same hatred and suspicion precludes him from meaningfully coparenting with the mother.
The evidence shows that the father's anger regarding the mother permeates his entire relationship and his interactions with the children as well as his suspicion of the mother. There has been a lot of evidence, credible testimony by the mother that this anger and suspicion on Mr. P.'s part has been expressed to the children and in the children's presence in a manner that is very upsetting and stressful, certainly detrimental to the children.
The evidence shows that the mother has attempted to foster a relationship between the father and the children but that the father has attempted to undermine that relationship in such ways as making heinous accusations against the mother that causes the children to suffer, putting his own needs in front of and ahead of the needs and best interests of the children.
Another example of such putting his own needs in front of the children is when he has refused to take the children to activities that they love as J.P.'s baseball games on the grounds that it interferes with his time.
Another example is when he has called the police subjecting the children to a stressful situation when the children have to answer a wellness check by the police because they were busy at the time they were supposed to have a phone call with their father.
Things like, J.P. being made to wear a tracking device, all of these are examples of the father's apparent anger at the mother and suspicion of the mother that have negatively impacted the children.
Your Honor, in light of all of the above, my request, again, is that the mother have sole legal and physical custody.
There should be a refrain from order or protection. I am requesting two years on behalf of my clients."
g. Lincoln Hearings
In Matter of Lincoln v. Lincoln, the Court of Appeals held that a trial court in a custody case has discretion, without the consent of the parties, or even over their objection, to interview the child without the parents or their counsel present, "to obtain a full understanding of the effect of parental differences on the child, as well as an honest expression of the child's desires and attitudes" (24 N.Y.2d 270, 272 [1969]). These interviews are commonly referred to as "Lincoln Hearings" and are attended by the judge, attorney for the child[ren], and court reporter so that a record may be kept of what transpired (s ee Family Court Act § 664[a] and CPLR § 4019[a]). Lincoln Hearings are usually held during, or after, a fact-finding hearing or trial (s ee Spencer v Spencer, 85 A.D.3d 1244 [3d Dept 2011]).
In this matter, the Court determined that Lincoln Hearings were required for each of the parties' three minor children. The Court held Lincoln Hearings wherein each child individually met with the Court and the AFC.
Findings of Fact & Conclusions of Law
a. Grounds for Divorce
Pursuant to New York State Domestic Relations Law § 170(7):
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
* * *
(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
A spouse's statement under oath that the marriage was irretrievably broken for a period of six months is, by itself, sufficient to establish a cause of action for divorce as a matter of law (s ee Hoffer-Adou v Adou, 121 A.D.3d 618, 619 [1st Dept 2014]).
Based upon the submissions to this Court, the parties' agreement to proceed with a divorce pursuant to DRL § 170(7) in the Preliminary Conference Order, dated July 17, 2020, filed as NYSCEF Document No. 17, and the testimony and evidence received at trial, Plaintiff's request is granted to the extent that she is seeking that a judgment be entered granting a divorce in her favor and against Defendant, dissolving forever the bonds of matrimony existing between Plaintiff and Defendant upon the grounds of the Irretrievable Breakdown of the Relationship pursuant to DRL § 170(7).
b. Custody & Access of the Parties' Children
The Appellate Division Second Department has noted the manner child custody determinations are to be made:
The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208, quoting Matter of Julie v. Wills, 73 A.D.3d 777, 777, 899 N.Y.S.2d 669; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). In determining an initial petition for child custody, the court must consider, among other things, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915). Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and deference is accorded to the Family Court's credibility findings (see Matter of Frankiv v. Kalitka, 105 A.D.3d 1045, 963 N.Y.S.2d 393). The court's custody and visitation determination will not be disturbed unless it lacks a sound and substantial basis in the record (see id.; Matter of Andrews v. Mouzon, 80 A.D.3d 761, 763, 915 N.Y.S.2d 604).(Gibson v Gibson, 152 A.D.3d 592 [2d Dept 2017] [quotation marks omitted]).
Trial courts are required to take into consideration the effect of domestic violence upon the best interests of the child along with all relevant factors when the allegations of domestic violence have been proved by a preponderance of the evidence (see Scott v Thompson, 166 A.D.3d 627, 628 [2d Dept 2018]; see also Rodriguez v Guerra, 28 A.D.3d 775, 776-777 [2d Dept 2006]). In making a custody determination it is appropriate for the Court to consider the demeanor of each parent, including, erratic conduct (see Bonet v Bonet, 121 A.D.3d 978 [2d Dept 2014]), and volatility:
Moreover, there is a sound and substantial basis in the record for the Family Court's determination that it was in the best interests of the child to award sole custody to the mother based upon, inter alia, the father's volatile temper, limited insight into his behavior, and tendency to blame the mother for his strained relationship with the child (see Matter of O'Loughlin v. Sweetland, 98 A.D.3d at 984, 951 N.Y.S.2d 160; Matter of Shaw v. Antes, 274 A.D.2d 679, 681, 710 N.Y.S.2d 719; Matter of Spencer v. Small, 263 A.D.2d 783, 785, 693 N.Y.S.2d 727; Matter of Hotaling v. Hotaling, 249 A.D.2d 707, 708-709, 671 N.Y.S.2d 542; Matter of Notley v. Schmeid, 220 A.D.2d 509, 510-511, 632 N.Y.S.2d 195).(D'Amico v Corrado, 129 A.D.3d 718, 719 [2d Dept 2015]).
Trial courts have the discretion to determine if supervised access is warranted and if so are required to examine the economic realities to determine how such visits are to be paid for by the parties:
Supervised parental access is appropriately required only where it is established that unsupervised parental access would be detrimental to the child (Matter of Masri v. Masri, 171 A.D.3d 1183, 1185, 99 N.Y.S.3d 61; see Matter of Livesey v. Gulick, 194 A.D.3d 1045, 149 N.Y.S.3d 479). The determination of whether parental access should be supervised is a matter within the sound discretion of the hearing court, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record (Matter of Masri v. Masri, 171 A.D.3d at 1185, 99 N.Y.S.3d 61; see Matter of Livesey v. Gulick, 194 A.D.3d at 1045, 149 N.Y.S.3d 479; Cervera v. Bressler, 50 A.D.3d 837, 839, 855 N.Y.S.2d 658).(Gray v Tyson, 205 A.D.3d 720, 722 [2d Dept 2022] [internal quotation marks omitted]).
In upholding a trial court decision directing supervised access, the Second Department Appellate Division noted that supervised parental access was supported by sound and substantial basis in the record; mother interfered with child's relationship with father, mother lacked appropriate judgment in many of her decisions regarding child, and the mother acted erratically in ways affecting her ability to competently parent the child (see Reilly v Hager-Reilly, 166 A.D.3d 825, 827 [2d Dept 2018]). An order of supervised parenting time will be warranted where the court "'finds that unsupervised parenting time would be detrimental to the children's safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly'" (Lynn X. v Donald X., 79 N.Y.S.3d 328 [3d Dept 2018], quoting Matter of Williams v Patinka, 144 A.D.3d 1432, 1433 [3d Dept 2016]).
In making this determination here, the Court has considered numerous factors as to what custody and access arrangement would serve the best interests of the Children, including, but not limited to: (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires. In addition to the testimony and evidence received, the Court also witnessed the parties' conduct and demeanor during the trial, and has determined that Plaintiff was calm and organized, while Defendant was volatile and erratic.
The Court further took into consideration both parties' allegations of domestic violence. The Court did not find Defendant's allegations of domestic violence by Plaintiff against him or the Children to be credible. The Court did find, however, that Plaintiff's allegations of domestic violence by Defendant against her and the Children to be credible and proven by a preponderance of the evidence. Accordingly, the existence of domestic violence was another factor considered by the Court in deciding what custody and access determination would be in the Children's best interests.
The Court concludes that Plaintiff is best suited to have full legal and physical custody of the Children. Furthermore, in addition to the Court's belief that Plaintiff would provide a stable home for the Children, the Court is particularly concerned about Defendant's volatile temper, limited insight into his behavior, and tendency to blame Plaintiff for his strained relationship with the Children. Accordingly, the Court has further determined that permitting the Children to have unsupervised access with Defendant would not be in their best interests but would be detrimental to the Children.
While both Plaintiff's attorney and the AFC have requested that unsupervised access be permitted, the Court cannot ignore the serious instances of domestic violence, poor judgment, and erratic behavior of Defendant as testified to by Plaintiff, including her testimony that she believes Defendant is capable of physically hurting the Children to get back at her. The Court will note that among the poor judgment exhibited by Defendant throughout this action, the Court is shocked by Defendant's statements that he believes Plaintiff has repeatedly threatened suicide and she should do so thereby depriving the parties' Children of both parents.
Tellingly, Plaintiff is seeking a five-year order of protection against Defendant, while the AFC is seeking a two-year order of protection including refrain from language protecting the Children from Defendant's conduct. Plaintiff's counsel noted this concern and upon inquiry to her client as to how she was not seeking supervised access, her response was that she did not want to be the person to tell the Children they could not see their father. While Plaintiff may not want to be responsible for requesting that the Children's access time with Defendant be limited to supervised access, the Court must require same to protect the Children from Defendant's troubling conduct.
Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, Plaintiff's request is granted to the extent that Plaintiff is granted sole legal and physical custody of J.P. (born XX/XX/2009); (2) S.P. (born XX/XX/2011), and; (3) X.P. (born XX/XX/2014), subject to Defendant having supervised access with the Children which they may opt out of attending. The cost of such supervised access shall be shared by the parties with Plaintiff providing 38% and Defendant providing 62%. Such supervised access shall take place at YMCA White Plains & Central Westchester Supervised Visitation and Safe Exchange Program located at 515 North Street, White Plains, New York 10605 or another supervised visitation service agreed to in writing by the parties and filed with the Court. The supervised access shall be one day per week on Saturday mornings from 10:00 a.m. to 1:00 p.m., and further subject to any telephone access initiated by the Children with Defendant.
c. Plaintiff's Request for a Determination that Defendant Violated an Order of Protection
The Appellate Division, Second Department has set forth the burden of a movant seeking a determination that a party has violated an Order of Protection:
The determination as to whether a violation of a lawful order has been committed is a factual issue to be resolved by the hearing court, whose determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record (see Blamoville v. Culbertson, 151 A.D.3d 1058, 58 N.Y.S.3d 463). In light of the Family Court's credibility determinations and the evidence adduced at the hearing, the court properly dismissed the father's violation petition.
Contrary to the father's contention, the Family Court providently exercised its discretion in declining to draw a negative inference against the mother for not testifying at the hearing. The father, as the petitioner, had the burden of proof to establish that the mother willfully violated the June 2, 2016, order of protection (see Matter of Graham v. Rawley, 140 A.D.3d 765, 33 N.Y.S.3d 371), and he failed to make a prima facie showing that the mother violated the order of protection.(Lashlee v Lashlee, 161 A.D.3d 866, 867 [2d Dept 2018]).
Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, Plaintiff's request is granted to the extent that the Court finds that Defendant violated the Order of Protection entered by this Court for the benefit of Plaintiff against the Defendant as Defendant engaged in prohibited communication with Plaintiff.
d. Plaintiff's Request for an Order of Protection
It is well established that the party seeking an order of protection has the burden of establishing by a preponderance of the evidence that the party for which the order is seeking to restrain has committed the alleged family offense, and whether a family offense has been committed is a factual issue to be resolved by the court, and its determinations regarding the credibility of witnesses are entitled to great weight (see Susan WW. On Behalf of Karri-Ann WW. v Alan WW., 161 A.D.3d 1249, 1250 [3d Dept 2018]; see also Family Court Act § 812). In a family offense proceeding, to establish that the husband committed the family offense of disorderly conduct, the wife was required to prove that the husband's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm (s ee Cassie v Cassie, 109 A.D.3d 337, 344 [2d Dept 2013]).
The Court turns to Plaintiff's application that Defendant refrain from posting anything on social media with respect to Plaintiff, the Children, and the litigation, and to remove the YouTube Video posted by Defendant [Plaintiff's Exhibit 42] (hereinafter referred to as the "Video"). The Video is of Defendant speaking wherein he asserts:
"My name is T.P. and I need your help protecting my children. They are being abused by my wife and her family.
* * *
They were covered in bruises consistently when they were with the mother and her family.
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We are in Westchester County, New York.
* * *
My name is T.P. Google my name please Westchester County, New York. My wife works in a school and camps. These women are in your camps and in your schools. Its unacceptable with your children. With their animal behavior. It is psychotic."
Beyond this single You Tube video, Defendant has set forth statements in his sworn Post-Trial submission which the Court believes constitutes a clear intent to engage in further communications to cause professional harm to Plaintiff, and consequently financial harm to the Children:
"This also needs to be exposed and broadcast all over to not only keep my children safe, but also to keep safe the countless children put in danger throughout Westchester in the Croton Harmon School District & Pocantico Hills Day Camp that Ab.P. and her violently unstable family are working in every day! When you have sociopathic, unstable women who think they're entitled to abuse anyone they want because they have the delusion that the law doesn't apply to them, and when women like this violently attack their own children because they think as mother, they're entitled to; no child is safe around them! You cannot have violent sociopathic animals like this in schools and camps around anyone's children where, God forbid, the children stand up to the abuse from these women-because we know all to well that what will happen to those kids! One only needs to look at the trail of sexual and violent abuses, mystery bruises, mystery black eyes, mystery stiches from our own children to see what these psychopaths are capable of" [Page17]
The Second Department, Appellate Division recently set forth how applications of this nature are to be reviewed:
A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech's content and in advance of its actual expression (Karantinidis v. Karantinidis, 186 A.D.3d 1502, 1503, 131 N.Y.S.3d 363). A party seeking to impose such a restraint bears a heavy burden of demonstrating justification for its imposition (Ash v Board of Mgrs. of 155 Condominium, 44 A.D.3d 324, 325, 843 N.Y.S.2d 218). Such a party must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest (Rosenberg Diamond Dev. Corp. v. Appel, 290 A.D.2d 239, 239, 735 N.Y.S.2d 528, quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131). An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case (Karantinidis v. Karantinidis, 186 A.D.3d at 1503, 131 N.Y.S.3d 363).(Kassenoff v Kassenoff, 213 A.D.3d 822, 824 [2d Dept 2023] [internal quotation marks omitted]).
In Kassenoff, the trial court entered an Order which included provisions prohibiting the defendant from communicating with any employee of the plaintiff's employer "regarding the plaintiff,... the facts and circumstances of this divorce (in the broadest meaning of the terms), the facts and circumstances of the parties' marriage prior to the filing of this divorce, or the parties' children," and further prohibiting both parties from "criticizing, denigrating or disparaging the other on any form of social media" (213 A.D.3d at 823). The Appellate Division held that restrictions placed on the wife's communications with employees of the husband's employer and placed on parties' statements on social media were not unconstitutional prior restraints on parties' First Amendment rights to free speech, in the parties' divorce case, where, under the circumstances, the restrictions were narrowly tailored to the exact needs of the case (Kassenoff v Kassenoff, 213 A.D.3d at 824).
Here, the Court finds that Plaintiff has met the burden necessary to impose a restraint on Defendant's speech to the extent that it is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest, but is a restriction necessary to prevent professional reputational harm to Plaintiff and financial harm to the parties' Children. The Court recognizes that the Video clearly identifies Defendant, the parties' State and County of residence, Plaintiff's nature of employment, asserts Plaintiff is unfit for her employment and calls upon those viewing the Video to act. Defendant's Post-Trial submission, which appears to have been copied to multiple non-parties, makes similar assertions against Plaintiff, and goes further by naming Plaintiff's employers. Accordingly, Defendant shall refrain from posting anything on social media with respect to Plaintiff, the Children, and the litigation, and Defendant shall remove the subject YouTube Video that he posted [Plaintiff's Exhibit 42].
Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, Plaintiff's request is granted to the extent that this Court has determined that Plaintiff has met the burden for this Court to determine that Defendant has committed a family offense of disorderly conduct against Plaintiff having found that that Defendant's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm. Therefore, this Court shall enter an Order of Protection for the benefit of Plaintiff against Defendant, restraining Defendant for a period of five years which shall terminate on August 10, 2028, in the following manner:
1. An.P. (DOB xx/xx/1973) shall observe the following conditions:
a. Stay away from Ab.P. (DOB: xx/xx/1978)
b. Stay away from the home of Ab.P. (DOB: xx/xx/1978)
c. Stay away from the business of Ab.P. (DOB: xx/xx/1978)
d. Stay away from the place of employment of Ab.P. (DOB: xx/xx/1978)
e. Refrain from communication or any other contact by mail, telephone, e-mail, voicemail, social media or other electronic or any other means, with Ab.P. (DOB: xx/xx/1978), except for texts and e-mails regarding the parties' minor children.
f. Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against Ab.P. (DOB: xx/xx/1978).
g. Refrain from posting any material, directly or indirectly, on social media, the internet or any other medium that disparages, embarrasses, criticizes, denigrates, or otherwise seeks to interfere with the employment of Ab.P. (DOB: xx/xx/1978).
h. Remove the You Tube video posted and entered into evidence as Exhibit 42 in the trial held in this matter within ten (10) days of this Decision.
e. The Attorney for the Children's Request for an Order of Protection on Behalf of the Parties' Children.
Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, the Attorney for the Children's request is granted to the extent that this Court has determined that Plaintiff has met the burden for this Court to determine that Defendant has committed a family offense of disorderly conduct against each of the Children having found that that Defendant's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm. Therefore, this Court shall enter an Order of Protection for the benefit of each of the Children against Defendant restraining the Defendant for a period of two years which shall terminate on August 10, 2025, in the following manner:
1. An.P. (DOB xx/xx/1973) shall observe the following conditions:
a. Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against: (1) J.P. (born XX/XX/2009); (2) S.P. (born XX/XX/2011); and (3) X.P. (born XX/XX/2014);
f. Child Support for the Parties' Children
In calculating the basic child support obligation, the Appellate Division, Second Department has noted:
The Child Support Standards Act "'sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Matter of Peddycoart v. MacKay, 145 A.D.3d 1081, 1083, 45 N.Y.S.3d 135, quoting Matter of Freeman v. Freeman, 71 A.D.3d 1143, 1144, 898 N.Y.S.2d 65). "Where... the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to apply the factors set forth in Family Court Act § 413(1)(f), or to apply the statutory percentages, or to apply both" (Matter of Good v. Ricardo, 189 A.D.3d 830, 831, 136 N.Y.S.3d 472, citing Family Ct Act § 413[1][c][3]; see Matter of Giraldo v. Fernandez, 199 A.D.3d 796, 798-799, 158 N.Y.S.3d 149; Matter of Calta v. Hoagland, 167 A.D.3d 598, 89 N.Y.S.3d 247). "However, the Family Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap" (Matter of Peddycoart v. MacKay, 145 A.D.3d at 1084, 45 N.Y.S.3d 135; see Matter of Keith v. Lawrence, 113 A.D.3d 615, 616, 978 N.Y.S.2d 316). "This articulation should reflect 'a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage'" (Matter of Peddycoart v. MacKay, 145 A.D.3d at 1084, 45 N.Y.S.3d 135, quoting McCoy v. McCoy, 107 A.D.3d 857, 858, 967 N.Y.S.2d 137; see Matter of Good v. Ricardo, 189 A.D.3d at 831-832, 136 N.Y.S.3d 472).(Butta v Realbuto, 214 A.D.3d 973, 974-975 [2d Dept 2023]).
Trial Courts are permitted to impute income of a party when determining a party's income for child support purposes:
A court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings (see Brown v. Brown, 239 A.D.2d 535, 657 N.Y.S.2d 764). The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives (see Matter of LoCasto v. Chiofolo, 89 A.D.3d 847, 848, 932 N.Y.S.2d 365; Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955). A Support Magistrate may properly impute income in calculating a support obligation where he or she finds that a party's account of his or her finances is not credible or is suspect (see Matter of Sena v. Sena, 65 A.D.3d 1244, 1244-1245, 885 N.Y.S.2d 738; Matter of Barnett v. Ruotolo, 49 A.D.3d 640, 854 N.Y.S.2d 155).(Rohme v Burns, 92 A.D.3d 946, 947 [2d Dept 2012]; Brown v Brown, 239 A.D.2d 535 [2d Dept 1997] ["Here, the court properly imputed an income of $100,000 to the husband, a financial consultant, based on his own testimony that in the three years preceding the commencement of this action, he earned $107,000, $143,000, and $146,000, respectively "]).
In addition to the basic child support obligation, trial courts customarily decide the manner in which certain add-ons are to be paid by the parents, including the child's medical, dental, pharmaceutical, psychiatric and/or psychological, insurance and unreimbursed expenses, childcare, and school tuition expenses (see Landau v Landau, 214 A.D.2d 541, 542 [2nd Dept. 1995]; Cassano v Cassano, 203 A.D.2d 563 [2d Dept 1994]).
It is also appropriate for a trial court to award child support retroactive to the date of commencement of a divorce action with the party responsible for such support being provided credit for any amounts already paid (see Vasilopoulos v Vasilopoulos, 278 A.D.2d 315 [2d Dept 2000]; see also Matter of Taraso v Taraso, 165 A.D.3d 952 [2d Dept 2018]).
Based upon Plaintiff's submissions, along with the testimony and evidence received at the Inquest, the Court grants Plaintiff's request to the extent that:
1. The Court has imputed Defendant's gross annual income for child support purposes to the amount of $140,424.00, based upon Defendant's employment history, past earning history, future earning capacity, and educational background.
2. Upon review of the factors set forth in Domestic Relations Law § 240(1-b)(f) the Court has determined that exceeding the statutory cap for combined parental income to the entire amount of the combined parental income is warranted in this matter due to factors. The Court notes the limited financial resources of the custodial parent and the high standard of living that the parties' Children enjoyed during the marriage in Westchester County, which has a high cost of living.
3. Plaintiff is granted basic child support in the amount of $34,621.11 per year, in the amount of $2,885.09 per month, calculated in the following manner: The adjusted gross income for Plaintiff is $73,090.22 ($68,080.00 less FICA of $5,208.12 plus maintenance of $10,218.34), and Defendant's adjusted gross income is $119,463.24 ($140,424.00 less FICA of $10,742.44 less maintenance of $10,218.34). The total income for child support purposes is $192,553.46. Multiplying $163,000.00 by 29% for three children, the total annual amount of child support is $47,270.00. Defendant's pro rata share is 62% or $29,307.40 per year. The amount of combined parental income over $163,000.00 is $29,553.46, which multiplied by 29% is $8,570.50 of potential support over the cap of child support, of which Defendant's pro rata share is 62% or $5,313.71 per year. Upon review of the statutory factors, including the lifestyle of the Children during the parties' marriage and Plaintiff's lack of finances, the Court concludes that in calculating the child support obligation, the parties' combined income exceeding the cap should be considered when calculating child support.
4. To effectuate this provision, Defendant shall provide Plaintiff with $2,885.09 on the 15th day of each month, commencing on October 15, 2023. These payments shall be payable through the Support Collections Unit.
5. Plaintiff is granted child support from Defendant retroactive to the date of commencement to September 15, 2023, totaling the amount of $133,364.99, for which Plaintiff may submit to the Court a money judgment against Defendant on notice of settlement. This amount was calculated in the following manner which deviates from the amount set forth above for future child support as the retroactive child support does not include adjustments based upon maintenance as none was paid by Defendant to Plaintiff during that period. Plaintiff is granted basic child support in the amount of $37,413.14 per year, in the amount of $3,117.76 per month, calculated in the following manner: The adjusted gross income for Plaintiff is $62,871.88 ($68,080.00 less FICA of $5,208.12) and Defendant's adjusted gross income is $129,681.56 ($140,424.00 less FICA of $10,742.44). The total income for child support purposes is $192,553.44. Multiplying that figure by 29% for three children, the total annual amount of child support is $55,840.50. Defendant's pro rata share is 67% or $37,413.14 per year, or $3,117.76 per month. The calculation per year is:
a. 2/21/2020-12/31/2020 = $32,037.68 ($31,117.60 [$3,117.76 x 10 months] + $860.08 [pro-rated February 2020])
b. 1/1/2021-12/31/2021 = $37,413.14
c. 1/1/2022-12/31/2022 = $37,413.14
d. 1/1/2023-9/15/2023 = $26,501.03 ($24,942.08 [$3,117.76 x 8 months] + $1,558.95 [pro-rated September 2023])
6. Plaintiff shall pay 38% and Defendant shall pay 62% of the following child support add-ons pertaining to the Children's future: (1) medical insurance; (2) unreimbursed medical, dental, pharmaceutical, psychiatric and/or psychological expenses; and (3) childcare incidental to employment.
7. With respect to the Children's medical bills during the pendency of this litigation totaling $8,221.93 [Plaintiff's Exhibit #37], Plaintiff shall be responsible for 33%, totaling $2,713.24, and Defendant shall be responsible for 67%, totaling $5,508.69. As Plaintiff has made payment of these costs, Defendant shall be responsible for providing $5,508.69 to Plaintiff by October 15, 2023. To the extent such payment is not made, Plaintiff may submit with notice of settlement, a money judgment for the amount unpaid for the benefit of Plaintiff against Defendant. The Court notes that it has utilized the child support calculation and pro rata percentages based upon child support with no maintenance being considered as the expenses were incurred during a time when no maintenance was awarded to Plaintiff from Defendant.
8. With respect to the Children's extracurricular costs [Plaintiff's Exhibit #35] and school costs during the pendency of this litigation [Plaintiff's Exhibit #26], the Court declines to grant Plaintiff any "reimbursement" or to otherwise require Defendant to pay any portion of same.
g. Spousal Support and Maintenance
New York State Domestic Relations Law sets forth the way spousal maintenance and support shall be calculated, and the duration determined by the court (see Emmanuel D. v Ximena D., 73 Misc.3d 1208 [A] [Sup Ct, Kings County 2021]). Further, courts are permitted to award increased spousal support and maintenance to an abused spouse and the subject of domestic violence by the other (see J.N. v T.N., 77 Misc.3d 894 [Sup Ct, NY County 2022]).
This Court recognizes that the focus and purpose of awarding increased maintenance to an abused spouse is different than the focus and purpose of awarding an abused spouse a greater share of marital property. Maintenance is meant to remedy the abused spouse's diminished earning capacity as a result of the abuse and enable them to live a lifestyle similar to that enjoyed in the marriage. Jessica T. v. Kieth T., supra It simply cannot be the case that the equities prohibit the Court from taking into account the actions of an abusive spouse who is intent on ruining the other spouse's professional reputation, career, financial security, and health, simply because they have not yet totally destroyed their partner The fact that Wife is still gainfully employed despite Husband's unabated harassment and abuse should not bar application of DRL § 236 B (5)(d)(14) to this Court's analysis and conclusions as to equitable distribution of assets. Indeed, it is clear from this record that Husband's "main desire seems to be to inflict some sort of harm upon [Wife] in any manner possible as displayed throughout the entirety of this case." Jessica T. v. Kieth T., supra. His harassment did not stop at commencement but has continued and in fact accelerated over the past four years. By all accounts, this is an insidious case of domestic violence, the end of which has yet to be reached. Consequently, this Court is empowered to, and must on this record, find that Husband's acts resulted in "actual... emotional injury" and has "created a substantial risk of... emotional harm" to Wife, and has negatively impacted her professional reputation and career and threatened her ability to make a living. DRL § 236 B (5)(14).(J.N. v T.N., 77 Misc.3d at 933-934).
Based upon Plaintiff's submissions, along with the testimony and evidence received at the trial, as well as in Defendant's Post-Trial submission, the Court finds that Plaintiff was subjected to domestic violence by Defendant, resulting in her diminished earning capacity due to Defendant's abuse. This finding warrants an increased spousal support award to enable Plaintiff to live a lifestyle like that enjoyed during the parties' marriage.
The Court grants Plaintiff's request to the extent that Plaintiff is awarded spousal support and maintenance in the amount of $10,218.34 per year, payable in 12 monthly installments of $851.53, for a duration of three years and nine months, payable on the 15th day of each month, commencing on October 15, 2023. This amount is calculated in the following manner:
| Step A | 1. Enter Maintenance Payor's income from Line 2A on Page 1 of the Worksheet if this amount is greater than $203,000, enter $203,000. 2. Enter Maintenance Payee's income from Line 2B on Page 1 of the Worksheet | $129,681.56 $62,871.88 |
| Step B(1)(3) | Multiply Line 1 (Maintenance Payor's Income) by 20% | $25,936.31 |
| Step B(1)(4) | Multiply Line 2 (Maintenance Payee's Income) by 25% | $15,717.97 |
| Step B(1)(5) | Subtract Line 4 from Line 3: Result 1 | $10,218.34 |
| Step B(2)(3) | Multiply Line 1 (Maintenance Payor's Income) by 30% | $38,904.47 |
| Step B(2)(4) | Multiply Line 2 (Maintenance Payee's Income) by 20% | $12,574.78 |
| Step B(2)(5) | Subtract Line 4 from Line 3: Result 2 | $26,330.09 |
| Step C | Will child support be paid for children of the marriage | Yes |
| Step D | Is the maintenance Payor the Non-Custodial Parent | Yes |
| Step E(8) | Add Lines 1 and 2 | $192,553.44 |
| Step E(9) | Multiply 40% of Line 8 | $77,021.38 |
| Step E(10) | Subtract Line 2 from Line 9: Result 3 | $14,149.50 |
| Step E(11) | Enter the lower of Result 3 from Line 10 and Line 5 (from Step B Result 1 or Result 2, whichever applies), but if Line 11 is less than or equal to zero, enter zero) | $10,218.34 |
| Step F(12) | Enter Maintenance Payor's income from Line 1 | $129,681.57 |
| Step F(13) | Enter calculated guideline amount from Line 11 | $10,218.34 |
| Step F(14) | Subtract Line 13 from Line 12 | $119,463.23 |
| Award | Step G does not apply | $10,218.34 |
The parties were married for 13 years and 10 months, having been married on April 8, 2006 through the date of commencement of February 21, 2020. The statutory range of maintenance would range from one year and nine months to three years and nine months. After having considered the statutory factors, including Defendant having engaged in domestic violence against Plaintiff, the Court has determined that the maintenance range should be three years and nine months, or 45 months.
h. Equitable Distribution of Marital Assets & Separate Property Claims.
The Appellate Division, Second Department has noted the way a trial court is to decide equitable distribution in the context of a matrimonial action:
The Equitable Distribution Law mandates that, whenever a marriage is terminated, absent an agreement of the parties, the court must determine the rights of the parties in their separate and marital property and provide for the disposition of the property in the final judgment (see Domestic Relations Law § 236[B][5][a]). In determining the equitable distribution of marital property, the court is required to consider 14 specific factors and may take into account any other factor the court finds just and proper (see Domestic Relations Law § 236[B][5][d]). The court is obligated to render a decision in which it sets forth the factors it considered and the reasons for its decision, a requirement that cannot be waived (see Domestic Relations Law § 236[B][5][g]). In the absence of express findings of fact and of a detailed discussion of the enumerated factors, meaningful appellate review is precluded and a remittal for further fact finding may be required (see Gape v. Gape, 110 A.D.2d 621, 487 N.Y.S.2d 111; see also Kluge v. Kluge, 159 A.D.2d 968, 552 N.Y.S.2d 771). Facts must be sufficiently developed at trial to enable a reasoned determination of the issues of equitable distribution and, if not, a new trial may be ordered (see Madu v. Madu, 135 A.D.3d 836, 837, 24 N.Y.S.3d 678; McLoughlin v. McLoughlin, 74 A.D.3d 911, 915, 903 N.Y.S.2d 467).(Kaufman v Kaufman, 189 A.D.3d 31, 52 [2d Dept 2020]).
The New York State Domestic Relations Law § 236[B][5] notes, in part, that:
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;
(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
(16) any other factor which the court shall expressly find to be just and proper.
e. In any action in which the court shall determine that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties. The court in its discretion, also may make a distributive award to supplement, facilitate or effectuate a distribution of marital property.
f. In addition to the disposition of property as set forth above, the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property.
g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel.
The Court is not required to engage in a "point-by-point catechistic discussion" of each factor under DRL § 236B(5)(d) (see Sykes v Sykes, 43 Misc.3d 1220 [A], *4 [Sup Ct, NY County 2014]). "There is no requirement that the distribution of each item of marital property be made on an equal basis (see DeSouza-Brown v Brown, 71 A.D.3d at 946, 897 N.Y.S.2d 228; Peritore v. Peritore, 66 A.D.3d 750, 752-753, 888 N.Y.S.2d 72; Griggs v. Griggs, 44 A.D.3d 710, 713, 844 N.Y.S.2d 351)" (Baumgardner v Baumgardner, 98 A.D.3d 929, 931 [2d Dept 2012]). And if the court determines that one spouse engaged in domestic violence against the other that has impacted the spouse emotionally, financially, and reputationally, the court can provide the spouse who engaged in the domestic violence a decreased distributive award of the martial assets (see J.N. v T.N., 77 Misc.3d at 931-932 ["Husband's verbal and emotional abuse of Wife throughout the marriage constituted harassment - his threats to take custody of the children and degrading comments alarmed her, were made without provocation, and served no legitimate purpose. The prior jurist, upon a complete trial record, expressly found that Husband engaged in "domestic violence of an emotional nature" against Wife, and this Court finds the same. Wife was subject to consistent, persistent verbal and emotional abuse. Husband called her names and degraded her in all aspects of her life. He told her to her face and in front of her family that she was diseased and an unfit parent who could not be around her children. He called her "bitch" and "cunt" at will and then callously blamed her for his despicable speech. As to her professional skills, he called her "different flavors of you're an idiot. You're stupid. You don't know what you're doing." This conduct continues unabated, albeit in a different form, and has the potential for destroying Wife's ability to make a living."]).
Separate property, which is an exception to marital property, is construed narrowly (s ee Fields v Fields, 15 N.Y.3d 158, 163 [2010]). The party claiming that an asset is separate property has the burden of proof on the issue (see DeJesus v DeJesus, 90 N.Y.2d 643, 652 [1997] ["statutory presumption that all property, unless clearly separate, is deemed marital property and must further recognize the titled spouse's burden to rebut that presumption."]; Saasto v Saasto, 211 A.D.2d 708, 709 [2d Dept 1995] ["A court is not bound by a party's own account of his or her finances, and where a party fails to trace the sources of money claimed to be separate property, the court is justified in treating it as marital property."]).
With respect to retirement accounts, generally that portion of a pension's value that accrues during the marriage constitutes marital property subject to equitable distribution; however, the spouse seeking an equitable share of the participant spouse's retirement account is required to provide proof of the value of the retirement account and absent proof, will not be entitled to a share (see Seckler-Roode v Roode, 36 A.D.3d 889, 889-890 [2d Dept 2007]). To the extent one party has withdrawn funds from a retirement account after the commencement of a divorce action, the other is entitled to receive a credit for half of that amount (see Iacono v Iacono, 145 A.D.3d 972, 974 [2d Dept 2016]). With respect to the equitable distribution of real property, the court is required to determine the net equity of the property upon review of a current appraisal report and payoff statements for any liens against the real property (see Donovan v Szlepcsik, 52 A.D.3d 563, 563-564 [2d Dept 2008]).
Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, the Court has determined that Plaintiff and the Children were the subject of domestic violence by Defendant, which has impacted the Plaintiff emotionally, financially, and reputationally. Accordingly, as set forth below, the Court has awarded Plaintiff increased percentages of equitable distribution as to certain marital assets. As to the parties' marital assets, the Court directs the following equitable distribution:
1. 2011 Honda Pilot - The Court determines that this vehicle is a marital asset having a value of $9,339.50. The evidence and testimony provided to the Court established that there are no liens on the vehicle, leaving a marital equity in the vehicle of $9,339.50, and each party entitled to fifty (50%) percent of such equity in the amount of $4,669.75. The evidence and testimony provided at trial established that Defendant currently possesses and utilizes this Honda Pilot. Accordingly, the Court awards Defendant sole title and ownership of the Honda Pilot, and in return, Defendant shall pay Plaintiff the sum of $4,669.75 by October 31, 2023. In the event this amount is not paid in full by October 31, 2023, Plaintiff shall be permitted to submit a money judgment, noticed for settlement, against Defendant in the unpaid amount. To effectuate the terms of this provision, the parties are directed to complete all documents to transfer title to the vehicle into Defendant's sole name by October 15, 2023, at which time Defendant shall be solely responsible for obtaining and paying for any automobile insurance or other carrying costs for the vehicle.
2. Retirement Accounts - The parties have retirement accounts consisting of: (1) Plaintiff's NYSTRS Pension; (2) Plaintiff's 403B Pension; and (3) Defendant's ESOP/401(k). During the trial, Defendant failed to provide any evidence as to the value of Plaintiff's pensions or as to any claims Defendant asserted as to Plaintiff's pensions. Plaintiff provided evidence as to Defendant's ESOP/401(k) that he obtained a distribution of $315.89, being the balance of the account. Plaintiff requested that the Court determine that both parties would be entitled to maintain sole ownership of their own respective retirement accounts. The Court awards 100% interest to Plaintiff in: (1) Plaintiff's NYSTRS Pension; and (2) Plaintiff's 403B Pension. The Court awards Defendant 100% interest in:(1) Defendant's ESOP/401(k); and (2) any other retirement accounts of Defendant.
3. Former Marital Domicile - The parties' former marital domicile is determined to be a marital asset, being the real property located at xxxxxxx, Purdys, New York 10578 (hereinafter referred to as the "Domicile"). While Plaintiff testified that she requested that the Domicile be transferred to her, the Court cannot do so, as it is unable to determine what the net equity is for the Domicile to then apportion that net equity between the parties. At trial, the Court was provided with an Appraisal Report, dated November 9, 2021 [Plaintiff's Exhibit #23], approximately one and a half years before the date of trial. The Court is concerned that it fails to provide a current and accurate valuation of the Domicile. At trial, the Court was further presented with a Mortgage Statement, dated April 17, 2023 [Plaintiff's Exhibit #25]; however, a clear reading of the Statement, which includes an asterisk (*) next to the section Principal Balance notes, "Your current Principal Balance is not a payoff quote. See page 3 for Loan Payoff Information." Page 3 of the Statement then notes, "Loan Payoff Information. The current Principal Balance on Page 1 is not your payoff amount. Payoff requests may be obtained by" While Plaintiff testified that she has a separate property credit for $30,000.00 dollars arising from a gift Plaintiff's parents made to Plaintiff for the purchase of the Domicile, at trial the Court was not presented with any evidence to support Plaintiff's separate property claim. To the contrary, the Court was not provided with any transfer documents, copies of checks for the down payment, or any testimony beyond that of Plaintiff. Accordingly, Plaintiff has failed to meet the burden required by the law for a separate property claim. Accordingly, the Court is directing that:
a. The Domicile's fair market value be determined by an appraisal report to be prepared by a New York State Licensed Real Estate Appraiser from the Part 36 List being: Anthony F. Navarro, Navarro Realty Group, LLC., Post Office Box 252, 124 Titicus Road, North Salem, New York 10560, 914-356-3461, afnrealty@aolcom.
b. The Domicile shall be listed for sale at the fair market value set forth in the Appraisal Report, by a New York State Licensed Real Estate Broker from the Part 36 List being: Lucille C. Ettere, Houlihan Lawrence, Inc., 325 Route 100, Suite B140, Somers, New York 10589, 914-879-5211, lettere@houlihanlawrence.com.
c. Plaintiff and Children shall remain in exclusive occupancy of the Domicile until the Domicile is transferred, during which time Plaintiff shall be solely responsible for all carrying costs associated with the Domicile, excluding the mortgage payments, real estate taxes and property insurance, for which both parties shall be equally responsible.
d. Plaintiff shall ensure that the interior and exterior of the Domicile is kept clean; signage is placed on the property listing the property for sale to the extent same is permitted by any homeowner association and/or local ordinances; and that a lock box be placed on the property.
e. The parties shall cooperate in the marketing and transfer of said property, including, but not limited to: [1] executing any transfer documents; and [2] appearing at a closing.
f. The parties shall accept any purchase offer within five (5%) percent of the amount the Domicile is listed for sale (hereinafter referred to as "Acceptable Offer").
g. Plaintiff shall have a right of first refusal to purchase the Domicile for and by the same terms of an Acceptable Offer which must be exercised within forty-eight (48) hours of the parties' receipt of an Acceptable Offer by providing written notification, sent via e-mail to Defendant, Defendant's Guardian Ad Litem, and any legal counsel then representing Defendant.
h. To the extent that the property is sold to a non-party, following payment of all usual and customary transfer costs (including, but not limited to, real estate attorney fees, real estate broker commissions, mortgage payoff, title fees, transfer taxes, etc.), the net proceeds of the sale shall be distributed as follows:
i. 40% to Defendant; and
ii. 60% to Plaintiff; and
iii. Plaintiff shall be entitled to receive as a credit from Defendant's share of the net proceeds the amount up to and including all sums owed by Defendant to Plaintiff herein.
i, To the extent that Plaintiff exercises the right of first refusal, the net equity in the property shall be defined as the fair market value of the Domicile (as set forth in an updated Appraisal Report prepared pursuant to this Decision), reduced by the then mortgage payoff amount (as set forth in a payoff statement provided by the mortgage company) (hereinafter referred to as the "Net Equity"). The Net Equity shall be distributed as follows:
i. 40% to Defendant; and
ii. 60% to Plaintiff; and
iii. Plaintiff shall be entitled to receive as a credit from Defendant's share of the net proceeds the amount up to and including all sums owed by Defendant to Plaintiff herein.
4. Tangible Personal Property - To the extent that tangible personal property exists within the Domicile, the Court determines that the property be distributed in the following manner:
a. Defendant - Defendant is awarded ownership of the following (hereinafter collectively referred to as "Defendant's Property"):
i. Defendant's clothing; and
ii. Defendant's personal hygiene products; and
iii. Defendant's jewelry.
b. Plaintiff - Plaintiff is awarded ownership of all other tangible personal property located in the Domicile.
c. Property Removal - To effectuate the terms of this provision, Plaintiff is directed to package Defendant's Property, place Defendant's Property in the Domicile's garage, and through her counsel, schedule an appointment with Defendant to remove Defendant's Property from the Domicile by October 31, 2023. In the event Defendant fails to retrieve and or all of Defendant's Property by said date, those items shall be deemed abandoned and Plaintiff may dispose of them.
5. Financial Accounts - Both parties are awarded sole ownership, title, and interest in any financial accounts held in title in their respective names, subject to any claims made by the other arising from financial responsibilities set forth in this Decision.
6. Stimulus Check - Both parties are awarded 50% interest in any stimulus funds that the parties would have received prior to the commencement of this action.
7. Debts - Both parties shall be solely responsible for any debts held in their respective names, except for the following:
a. Mortgage - The parties shall remain equally responsible for the mortgage currently encumbering the Domicile.
b. Enerbank USA Loan - The parties shall remain equally responsible for the Enerbank USA Loan arising out of the HVAC work done to the domicile [Plaintiff's Exhibit #24]. To the extent that Plaintiff elects to exercise the right of first refusal, resulting in the need to payoff this loan and Defendant is unable to provide payment of his 50% share of the payoff amount, Plaintiff shall be entitled to file a proposed money judgment, noticed for settlement, with the Court totaling Defendant's 50% percent share of the payoff amount.
c. Traffic Tickets, Suspension Order & EZ Pass Statements - Plaintiff is awarded $736.86 from Defendant arising out of traffic tickets and EZ Pass fees accumulated due to Defendant's conduct which shall be payable by Defendant to Plaintiff by October 15, 2023. In the event this amount is not paid in full by October 15, 2023, Plaintiff shall be permitted to submit a money judgment, noticed for settlement, against Defendant in the unpaid amount.
d. Verizon Bills - Plaintiff is awarded $275.61, arising out of Plaintiff's Verizon Bill totaling said amount which shall be payable by Defendant to Plaintiff by October 15, 2023. In the event this amount is not paid in full by October 15, 2023, Plaintiff shall be permitted to submit a money judgment, noticed for settlement, against Defendant in the unpaid amount.
e. Plumbing Bills - Plaintiff is awarded $805.71, which constitutes half of the total plumbing bills accumulated pertaining to the Domicile of $1,611.43. The $805.71 award shall be payable by Defendant to Plaintiff by October 15, 2023. In the event this amount is not paid in full by October 15, 2023, Plaintiff shall be permitted to submit a money judgment, noticed for settlement, against Defendant in the unpaid amount.
i. Counsel Fees
The Appellate Division Second Department has noted how trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:
In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 A.D.3d 1304, 84 N.Y.S.3d 786; Patete v Rodriguez, 109 A.D.3d 595, 599, 971 N.Y.S.2d 109). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 A.D.3d 1252, 1253, 945 N.Y.S.2d 409; Finnan v. Finnan, 95 A.D.3d 821, 943 N.Y.S.2d 559; Prichep v. Prichep, 52 A.D.3d 61, 64-65, 858 N.Y.S.2d 667).
In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 A.D.3d 1304, 84 N.Y.S.3d 786; Chesner v. Chesner, 95 A.D.3d 1252, 945 N.Y.S.2d 409; Prichep v. Prichep, 52 A.D.3d at 64-65, 858 N.Y.S.2d 667).(Brockner v Brockner, 174 A.D.3d 567, 568 [2d Dept. 2019]).
Plaintiff has requested that Defendant pay her legal fees totaling $44,535.81. Plaintiff testified that she entered into a Retainer Agreement with her attorney for services pertaining to this action on February 21, 2020, including a provision that the hourly fee rates would include $450.00 for partners; $375.00 for senior associates and counsel; $300.00 for associates; and $150.00 for legal assistants. [Plaintiff's Exhibit 40]. Plaintiff then testified that she received invoices from her Plaintiff's counsel totaling $44,535.81 and did not dispute the charges.
The Court has examined the equities and financial circumstances in this case. Initially, the Court notes that throughout the parties' marriage, Defendant was the primary wage earner with Plaintiff assuming the role of a stay-at-home spouse whose responsibility was to manage the house and be the primary caregiver for the parties' three children. Plaintiff only returned to work shortly before the commencement of this action with an annual income significantly less than that of Defendant's then-annual income. Even now, Plaintiff earns far less than Defendant's imputed annual income. This Court has also taken note of the parties' conduct throughout the litigation. While Plaintiff has complied with the Court's orders and directives, Defendant has not.
Accordingly, the Court directs that:
1. Defendant's Legal Fees - Defendant shall be solely responsible for all legal fees and litigation costs of this action incurred by him; and
2. Plaintiff's Legal Fees - Defendant shall be responsible for Plaintiff's legal fees incurred by Plaintiff in this matter in the amount of $22,267.90, which shall be payable by Defendant to Plaintiff by October 31, 2023. In the event this amount is not paid in full by October 31, 2023, Plaintiff shall be permitted to submit a money judgment, noticed for settlement, against Defendant in the unpaid amount. Plaintiff shall be responsible for all other legal fees and litigation costs of this action that she incurred.
j. Use of Prior Sur-Names.
In the context of a matrimonial action, trial courts have the authority to grant the parties' request to resume the use of prior pre-marriage names. Based upon the submissions made to this Court, along with the testimony and evidence received at the Trial, both parties may resume the use of any pre-marriage sur-names.
k. Other Relief
Any relief specifically not granted or otherwise addressed herein is denied.
* * *
Based upon the foregoing, it is hereby
ORDERED that Plaintiff is granted a judgment of divorce against Defendant, dissolving forever the bonds of matrimony existing between Plaintiff and Defendant upon the grounds of the Irretrievable Breakdown of the Relationship pursuant to DRL § 170(7); and it is further
ORDERED Plaintiff is granted sole legal and physical custody of J.P. (born XX/XX/2009); (2) S.P. (born XX/XX/2011); and (3) X.P. (born XX/XX/2014), subject to Defendant having supervised access with the Children which they may opt out of attending. The cost of such supervised access shall be shared by the parties with Plaintiff providing 38% and Defendant providing 62%. Such supervised access shall take place at YMCA White Plains & Central Westchester Supervised Visitation and Safe Exchange Program located at 515 North Street, White Plains, New York 10605 or another supervised visitation service agreed to in writing by the parties and filed with the Court. The supervised access shall be one day per week on Saturday mornings from 10:00 a.m. to 1:00 p.m., and further subject to any telephone access initiated by the Children with Defendant; and it is further
ORDERED that this Court has determined that Plaintiff has met the burden for this Court to determine that Defendant has committed a family offense of disorderly conduct against Plaintiff and this Court shall enter an Order of Protection for the benefit of Plaintiff against Defendant restraining the Defendant for a period of five years which shall terminate on August 10, 2028, in in the following manner:
1. An.P. (DOB xx/xx/1973) shall observe the following conditions:
a. Stay away from Ab.P. (DOB: xx/xx/1978)
b. Stay away from the home of Ab.P. (DOB: xx/xx/1978)
c. Stay away from the business of Ab.P. (DOB: xx/xx/1978)
d. Stay away from the place of employment of Ab.P. (DOB: xx/xx/1978)
e. Refrain from communication or any other contact by mail, telephone, e-mail, voicemail, social media or other electronic or any other means, with Ab.P. (DOB: xx/xx/1978), except for texts and e-mails regarding the parties' minor children.
f. Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against Ab.P. (DOB: xx/xx/1978).
g. Refrain from posting any material, directly or indirectly, on social media, the internet or any other medium that disparages, embarrasses, criticizes, denigrates, or otherwise seeks to interfere with the employment of Ab.P. (DOB: xx/xx/1978).
h. Remove the You Tube video posted and entered into evidence as Exhibit 42 in the trial held in this matter within ten (10) days of this Decision; and it is further
ORDERED that within twenty (20) days of the Court having entered the Order of Protection for the benefit of Plaintiff, that Plaintiff's counsel shall serve same upon the law enforcement agencies with jurisdictions including the then residence of Plaintiff and shall file an Affidavit of Service with the Court; and it is further
ORDERED that this Court has determined that Plaintiff has met the burden for this Court to determine that Defendant has committed a family offense of disorderly conduct against each of the Children and this Court shall enter an Order of Protection for the benefit of each of the Children against Defendant restraining the Defendant for a period of two years which shall terminate on August 10, 2025, in the following manner:
1. An.P. (DOB xx/xx/1973) shall observe the following conditions:
a. Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against: (1) J.P. (born XX/XX/2009); (2) S.P. (born XX/XX/2011); and (3) X.P. (born XX/XX/2014);
ORDERED that within twenty (20) days of the Court having entered the Order of Protection for the benefit of the parties' children, that the Attorney for the Children shall serve same upon the law enforcement agencies with jurisdictions including the then residence of Plaintiff, any schools of the parties' children, any extra-curricular activities of the parties' children, any camps of the parties' children, and shall file an Affidavit of Service with the Court; and it is further
ORDERED that the Court has imputed Defendant's gross annual income for child support purposes to the amount of $140,424.00, based upon the Defendant's employment history, past earning history, future earning capacity, and educational background; and it is further
ORDERED that Plaintiff is granted basic child support in the amount of $37,413.14 per year, in the amount of $2,885.09 per month. To effectuate this provision, Defendant shall provide Plaintiff with $2,885.09 on the 15th day of each month, commencing on October 15, 2023. These payments shall be payable through the Support Collections Unit; and it is further
ORDERED that Plaintiff is granted child support from Defendant retroactive from the date of commencement to September 15, 2023, totaling the amount of $133,364.99, for which Plaintiff may submit to the Court a money judgment, noticed for settlement, against Defendant; and it is further
ORDERED that Plaintiff shall pay 38% and Defendant shall pay 62% of the following child support add-ons pertaining to the child: (1) medical insurance; (2) unreimbursed medical, dental, pharmaceutical, psychiatric and/or psychological expenses; and (3) childcare incidental to employment; and it is further
ORDERED that with respect to the medical bills of the Children during the pendency of this litigation totaling $8,221.93 [Plaintiff's Exhibit #37], Plaintiff shall be responsible for 33%, totaling $2,713.24, and Defendant shall be responsible for 67%, totaling $5,508.69. As Plaintiff has made payment of these costs, Defendant shall be responsible for providing $5,508.69 to Plaintiff by October 15, 2023. To the extent such payment is not made, Plaintiff may submit with notice of settlement, a money judgment for the amount unpaid for the benefit of Plaintiff against Defendant; and it is further
ORDERED that with respect to the extracurricular costs of the Children during the pendency of this litigation [Plaintiff's Exhibit #35] and school costs of the Children during the pendency of this litigation [Plaintiff's Exhibit #26], the Court declines to grant Plaintiff any "reimbursement" or to otherwise require Defendant to pay any portion of same; and it is further
ORDERED that Plaintiff is awarded spousal support and maintenance in the amount of $10,218.34 per year, payable in twelve monthly installments of $851.53, for a duration of three years and nine months, or 45 months, payable on the 15th day of each month, commencing on October 15, 2023; and it is further
ORDERED that with respect to the parties' 2011 Honda Pilot, the Court awards Defendant sole title and ownership of the Honda Pilot, and in return, Defendant shall pay Plaintiff the sum of $4,669.75 by October 31, 2023. In the event this amount is not paid in full by October 31, 2023, Plaintiff shall be permitted to submit a money judgment, noticed for settlement, against Defendant in the unpaid amount. To effectuate the terms of this provision, the parties are directed to complete all documents to transfer title to the vehicle into Defendant's sole name by October 15, 2023, at which time Defendant shall be solely responsible for obtaining and paying for any automobile insurance or other carrying costs for the vehicle; and it is further
ORDERED that the Court awards 100% interest to Plaintiff in (1) Plaintiff's NYSTRS Pension; and (2) Plaintiff's 403B Pension. The Court awards Defendant 100% interest in (1) Defendant's ESOP/401(k); and (2) any other retirement accounts of Defendant; and it is further
ORDERED that with respect to the parties' former marital domicile is determined to be a marital asset, being the real property located at xxxxxxx, Purdys, New York 10578:
a. The Domicile's fair market value be determined by an appraisal report to be prepared by New York State Licensed Real Estate Appraiser Anthony F. Navarro, Navarro Realty Group, LLC., Post Office Box 252, 124 Titicus Road, North Salem, New York 10560, 914-356-3461, afnrealty@aol.com. To effectuate this provision, Plaintiff's counsel shall obtain the cost of the Appraisal Report within ten (10) days of this Decision; the cost of the Appraisal Report shall be shared 38% by Plaintiff and 62% by Defendant; and in the event either party fails to provide payment of their share within five (5) days of demand, the other party shall have leave to file a money judgment, noticed for settlement, against them in the amount that is owed;
b. The Domicile be listed for sale at the fair market value set forth in the Appraisal Report, by a New York State Licensed Real Estate Broker Lucille C. Ettere, Houlihan Lawrence, Inc., 325 Route 100, Suite B140, Somers, New York 10589, 914-879-5211, lettere@houlihanlawrence.com; which shall occur within ten (10) days of the parties' receipt of an Appraisal Report from the court-appointed Appraiser;
c. Plaintiff and Children shall remain in exclusive occupancy of the Domicile until the Domicile is transferred, during which time Plaintiff shall be solely responsible for all carrying costs associated with the Domicile, excluding the mortgage payments, real estate taxes and property insurance, which both parties shall be equally responsible for payment;
d. Plaintiff shall ensure that the interior and exterior of the Domicile is kept clean; signage is placed on the property listing the property for sale to the extent same is permitted by any homeowner association and/or local ordinances; and that a lock box be placed on the property;
e. The parties shall cooperate in the marketing and transfer of said property, including, but not limited to: [1] executing any transfer documents; and [2] appearing at a closing;
f. The parties shall accept any purchase offer within five (5%) percent of the amount the Domicile is listed for sale (hereinafter referred to as "Acceptable Offer");
g. Plaintiff shall have a right of first refusal to purchase the Domicile for and by the same terms of an Acceptable Offer which must be exercised within forty-eight (48) hours of the parties' receipt of an Acceptable Offer by providing written notification, sent via e-mail to Defendant, Defendant's Guardian Ad Litem, and any legal counsel then representing Defendant;
h. To the extent that the property is sold to a non-party, following payment of all usual and customary transfer costs (including, but not limited to, real estate attorney fees, real estate broker commissions, mortgage payoff, title fees, transfer taxes, etc.), the net proceeds of the sale shall be distributed as follows: (1) 40% to Defendant; (2) 60% to Plaintiff; and (3) Plaintiff shall be entitled to receive as a credit from Defendant's share of the net proceeds the amount up to and including all sums owed by Defendant to Plaintiff herein;
i. To the extent that Plaintiff exercises the right of first refusal, the net equity in the property shall be defined as the fair market value of the Domicile (as set forth in an updated Appraisal Report prepared pursuant to this Decision), reduced by the then-mortgage payoff amount (as set forth in a payoff statement provided by the mortgage company) (hereinafter referred to as the "Net Equity"). The Net Equity shall be distributed as follows: (1) 40% to Defendant; (2) 60% to Plaintiff; and (3) Plaintiff shall be entitled to receive as a credit from Defendant's share of the net proceeds the amount up to and including all sums owed by Defendant to Plaintiff herein;
j. To effectuate the terms of this provision, the prior Order appointing Plaintiff as Receiver shall remain in full force and effect, and be expanded in scope to permit Plaintiff to execute any real estate listing and transfer documents, with the understanding that all documents shall be first provided to Defendant who shall have five (5) days to review and/or object to by seeking court intervention; and it is further
ORDERED that to the extent that tangible personal property exists within the Domicile, the Court determines that the property be distributed in the following manner:
(A) Defendant is awarded ownership of the following: (1) Defendant's clothing; (2) Defendant's personal hygiene products; and (3) Defendant's jewelry (hereinafter collectively referred to as "Defendant's Property");
(B) Plaintiff is awarded ownership of all other tangible personal property located in the Domicile.
To effectuate the terms of this provision, Plaintiff shall package Defendant's Property, place Defendant's Property in the Domicile's garage, and through her counsel, schedule an appointment with Defendant to remove Defendant's Property from the Domicile by October 31, 2023. In the event Defendant fails to retrieve Defendant's Property by said date, they will be deemed abandoned and Plaintiff may dispose of Defendant's Property; and it is further
ORDERED that both parties are awarded sole ownership, title, and interest in any financial accounts held in title in their respective names, subject to any claims made by the other arising from financial responsibilities set forth in this Decision; and it is further
ORDERED that both parties are awarded a fifty (50%) percent interest in any stimulus funds that the parties would have received prior to the commencement of this action, with Plaintiff receiving all funds received with a credit to Defendant against any funds due Plaintiff in this Decision. To effectuate the terms of this provision: (1) within thirty (30) days of this Decision, the parties shall cooperate in completing any documents necessary to obtain a replacement stimulus check; (2) any replacement checks shall be mailed to Plaintiff with a copy being sent to Defendant via e-mail within ten (10) days of receipt; and it is further
ORDERED that both parties shall be solely responsible for any debts held in their respective names, with the exception of any debts specifically addressed otherwise in this Decision; and it is further
ORDERED both parties shall remain equally responsible for the mortgage currently encumbering the Domicile; and it is further
ORDERED that the parties shall remain equally responsible for the Enerbank USA Loan arising out of the HVAC work done to the Domicile. To the extent that Plaintiff elects to exercise the right of first refusal as set forth herein, resulting in the need to payoff this loan and Defendant is unable to provide payment of his fifty (50%) percent share of the payoff amount, Plaintiff shall be entitled to file with a proposed money judgment, noticed for settlement, with the Court totaling Defendant's fifty (50%) percent share of the payoff amount; and it is further
ORDERED that Plaintiff is awarded $736.86 from Defendant arising out of traffic tickets and EZ Pass fees accumulated due to Defendant's conduct which shall be payable by Defendant to Plaintiff by October 15, 2023. In the event this amount is not paid in full by October 15, 2023, Plaintiff shall be permitted to submit a money judgment against Defendant, noticed for settlement, in the unpaid amount; and it is further
ORDERED that Plaintiff is awarded $275.61 arising out of Plaintiff's Verizon Bill totaling said amount which shall be payable by Defendant to Plaintiff by October 15, 2023. In the event this amount is not paid in full by October 15, 2023, Plaintiff shall be permitted to submit a money judgment against Defendant, noticed for settlement, in the unpaid amount; and it is further
ORDERED that Plaintiff is awarded $805.71 being one-half of the total plumbing bills accumulated pertaining to the Domicile of $1,611.43, which shall be payable by Defendant to Plaintiff by October 15, 2023. In the event this amount is not paid in full by October 15, 2023, Plaintiff shall be permitted to a money judgment against Defendant, noticed for settlement, in the unpaid amount; and it is further
ORDERED that both parties may resume the use of any pre-marriage sur-names; and it is further
ORDERED that Plaintiff is awarded from Defendant the sum of $22,267.90, as and for counsel fees, which shall be paid by Defendant to Plaintiff by October 31, 2023. In the event this amount is not paid in full by October 31, 2023, Plaintiff shall be permitted to submit a money judgment against Defendant, noticed for settlement, in the unpaid amount; and it is further
ORDERED that Defendant shall be solely responsible for all legal fees and litigation costs of this action incurred by Defendant; and it is further
ORDERED that within 30 days of this Decision and Order, Plaintiff's counsel shall submit a proposed Findings of Fact and Conclusions of Law, Judgment of Divorce, and all other ancillary documents needed for the Court to enter a Judgment of Divorce; and it is further
ORDERED that to the extent any relief sought has not been granted it is expressly denied.
The foregoing constitutes the Decision and Order of the Court.