Opinion
*****/13
07-30-2015
B. K., Plaintiff, v. J. N., Defendant.
The parties to this action for divorce were married on October 27, 2012 and only lived together as spouses for a period of months. There is one child of this union, M. N. (d.o.b. June **, 2012). By Summons with Verified Complaint dated April 10, 2013, Plaintiff Wife, B. K. (hereinafter "Wife" or "Mother") commenced this action for divorce against Defendant Husband, J. N. (hereinafter "Husband" or "Father"). Issue was joined by the service of a Verified Answer with Counterclaims by Husband on or about July 30, 2013. On the parties' first day of trial, an inquest was conducted on the issue of the grounds for divorce pursuant to a prior Order dated January 28, 2015 which resolved that issue. Wife testified that the parties marriage had broken down irretrievably for a period of six months, sufficient to satisfy Domestic Relations Law '170(7). (Tr. 1/28/15, p.15).
In addition to this resolution of the issue of grounds, the parties agreed, by Short Form Order dated April 16, 2014, to settle the issues of equitable distribution and maintenance by mutual waiver. By Consolidation Order dated June 21, 2013, the parties agreed to consolidate cross family offense and custody petitions that were filed in Family Court. On the first day of trial, both parties withdrew their cross family offense petitions. The temporary orders of protection that were entered on those dockets were vacated (Tr. 1/28/15, p. 93-94). At this trial, both parties argued that they presented as the more suitable custodial parent for the subject child, and requested an award of child support in the event that they were awarded custody. Wife's attorney also made a request for attorney's fees incurred as a result of this action.
By consent Order dated October 3, 2013, Dr. Stephen Herman was appointed as a neutral forensic evaluator to examine the issues of custody and visitation as it pertained to the parties and the subject child. His report, dated March 22, 2014, was admitted into evidence at trial without objection (AFC Ex. No.1). Dr. Herman testified at trial on February 26, 2015. No party objected to his qualification as an expert in the field of forensic psychology (Tr. 2/26/15, p. 26).
The Trial
This matter was tried on January 18, 2015, February 10, 2015, February 11, 2015, February 26, 2015, and February 27, 2015. Plaintiff Wife testified on her own behalf and called (1) Margaret K. (maternal grandmother); (2) Sherry N. (paternal aunt); and (3) S. Florich (subject child's service provider) as witnesses. During trial Wife did not offer any documentary evidence in support of her claims other than a Statement Of Net Worth. Defendant Husband testified on his own behalf and called (1) Dr. Stephen Herman M.D. (forensic evaluator) and (2) Dr. S. Clemente M.D. (subject child's developmental evaluator) as witnesses. Husband offered various documents into evidence (Def. Exs. A-E). Judicial notice was taken of various documents (Jud No. 1-12). Based on the young age of the child and her special needs, all counsel agreed that an in camera examination would not be practicable or particularly useful to the Court in this case. (Tr. 1/28/15, p.13). Post trial written summations were received from all counsel.
For the purposes of this Decision, the Statement of Net Worth has been considered as Plaintiff's Exhibit 1, entered into evidence on consent, rather than the subject of Judicial Notice as it was initially identified.
Factual Findings
At trial, both parties attempted to show that they present as the better custodial parent for the subject child M.N. In support of their claims, both parties testified as to a litany of events that occurred during the course of their brief relationship and throughout this litigation. Many of these incidents were not critical to this Court's determination of custody. Rather than dignify each and every incident between the parties, this Court discusses herein only those significant findings of fact that weighed most heavily in this decision.
a. Plaintiff Wife
Plaintiff Wife was born in February of 1981. She is currently 34 years old. Wife attended college and earned a Bachelor's Degree in Business Administration in 2005 from Maywood University located in Scranton, Pennsylvania. She filed for chapter 7 bankruptcy protection in 2007 and discharged about $35,000 of consumer debt at that time.
In March of 2009, Wife began dating an individual named J. Sanchez who was serving a seventeen years to life sentence in Woodbourne State Correctional facility after being convicted of murder in the second degree. She testified that Sanchez "was a nice guy who was incarcerated as a minor for a mistake". (Tr. 1/28/15, p. 27). She explained that Sanchez had dropped out of high school and was making money as a street drug dealer. Wife testified that Mr. Sanchez sold cocaine, heroin and other "regular" street drugs (Tr. 1/28/15, p. 34). Sanchez had previously been shot five times by another drug dealer. One night, Sanchez opened fire in a public area in Brooklyn and killed an innocent bystander. Wife testified that Mr. Sanchez was attempting to shoot the rival drug dealer who had shot him in the past. (Tr., 1/28/15, pp.32-33).
After two months of "romantic" letter writing and weekly prison visits, Wife married Mr. Sanchez in a ceremony held at the prison in May of 2009. Wife later filed for an uncontested divorce from Mr. Sanchez in or around December of 2011. The divorce was finalized in January of 2012. When asked why she filed for divorce from Mr. Sanchez, Wife testified that she made a "really terrible mistake" and realized that she "should not be married to a murderer". (Tr. 1/28/15, p. 32; 36-37).
On November 21, 2009, while she was living in Pennsylvania with her parents, Wife was arrested and charged with making terroristic threats, weapon possession, and aggravated assault among other charges. Specifically, Wife claims that she was the victim of a road rage incident in the parking lot of a department store. She claims that she was confronted by the driver and passenger of the other vehicle involved for not stopping at a stop sign. During this confrontation a physical altercation ensued. Wife claims that during the altercation she pulled out a knife in self defense after being punched in the face. When the other driver and passenger saw the knife, they backed away. Following this incident, Wife was arrested, bail was set, and she was released two days later (Tr. 1/28/15, p. 54-55; Def. Ex. A). Almost a year later, on October 25, 2010, Wife pled guilty to the making of terroristic threats and simple assault as defined by Pennsylvania Law. Based on that plea, Wife was sentenced to three months of house arrest and nine months probation (1/28/15, pp. 55-57). At the time she pled guilty, Wife understood that the aggravated assault charge carried a potential sentence of seven years incarceration. She further understood that if she violated the terms of her probation, she would face one year in prison. (Tr.1/28/15, p. 58; 2/10/15 p. 72).
Following her period of house arrest, Wife relocated to New York and resided in Riverdale from January to September 2011. While her divorce from Mr. Sanchez was pending, Wife met Defendant Husband. Wife claims that she told Husband that she had filed for bankruptcy, had a criminal history for which she was on probation, and was married to a convicted murderer and was in the process of divorcing him when they met (Tr. 1/28/15, p. 50, 58-59). While Husband admits that he was aware of much of Wife's history, he testified that he was willing to give Wife a chance as "everyone makes mistakes."
In or around October of 2011, when Wife's Riverdale lease ended, she moved into Husband's home in Staten Island, New York. Shortly thereafter, Wife became pregnant with the subject child. Husband was shocked, but happy at the news of a pregnancy. The subject child was born on June 15, 2012. In or around August of 2012, the parties moved into a private residence on Wardwell Avenue in Staten Island, New York. Wife testified that their relationship immediately began to deteriorate as Husband allegedly reminded her "where she came from" and how he "bettered her life" (Tr., 1/28/15 p. 80). Husband credibly denied making these statements to Wife though he admits that their relationship was not a happy one.
Wife claims that even though she was "extremely unhappy", she married Husband on October 27, 2012 when M.N. was about four months old (Tr. 1/28/15 pp. 66-68). Despite going through an elaborate ceremony with Husband, Wife believed that since the parties did not sign a marriage certificate, the "marriage" would be invalid. Wife claims that she participated in the wedding ceremony not to "embarrass" Husband's family who were paying for an elaborate reception which was held on the Dyker Beach Golf Course in the presence of a clergyman and somewhere between 100 and 200 invited guests (Tr. 1/28/15 pp. 81-86).
Husband admits that he knew Wife's intentions regarding the marriage license on the day of their wedding, but that he proceeded with the ceremony and reception anyway as he wanted to marry Wife. At their reception the parties' jointly received over $32, 000 in wedding cash gifts, which they divided equally. Wife admits that Husband and his mother repeatedly asked her to sign a marriage license but that she flatly refused. (Tr. 1/28/15 p. 87). Husband credibly testified that he wanted to be married to Wife, and that he hoped she would change her mind and would obtain the license after the fact. It is well settled law that the failure to obtain a marriage certificate does not invalidate a marriage ceremony held between parties as that marriage has been solemnized. See DRL '25; See also, Matter of Farraj , 72 AD3d 1082 (2d Dept. 2010); Persad v. Balram, 187 Misc 2d 711 (Sup. Ct. Queens. Cty. 2001).
According to Wife, she has not worked since she found out in October 2011 that she was pregnant with M.N. (Tr. 1/28/15 p. 65-66). Prior to her marriage she had briefly worked for a temporary job placement agency. Wife testified that since she was not working, Husband expected her to clean the house, take out the garbage, and basically be "a slave". Wife does not claim that Husband prevented her from working at any time. Wife has recently taken classes to become a professional beautician. She has formed a company known as "Aesthetics and Ink, LLC" but is still in the process of securing the necessary licenses for waxing and other beauty services (Tr. 2/10/15, p. 153-57). Wife speculates that she could easily make about $50,000 a year from this business. Wife claims that she currently receives monthly support from her parents and has no personal responsibility for her expenses.
In or around October of 2012, Wife attended a settlement mediation conference for a personal injury action she filed after being involved in a car accident in March of 2009. This accident resulted in her being prescribed pain killers and receiving spinal surgery. According to Wife the case settled for approximately $450,000, with Wife receiving $162,900 in October or November of 2012. (Tr. 1/28/15, pp. 60-62; 2/10/15, p. 36).
From December 17, 2012 to January 06, 2013, Wife admits she communicated with her former Husband, Mr. Sanchez, approximately 59 times by telephone, culminating in over thirty hours of conversation. (Tr. 1/28/15, p. 43). At his request, She also assisted in getting various letters and other information he needed, helped him prepare a resume, and assisted him in a job search. (Tr. 1/28/15, p. 42). When asked at trial why she made these extensive efforts to secure Sanchez's release, Wife testified that she "was not a vindictive person" and that Sanchez had "never did anything to her." (Tr. 1/28/15 p. 43). Wife admits she did not tell Husband that she was in contact with Mr. Sanchez nor did she inform Husband about the substantial efforts she was making to secure Mr. Sanchez's release from prison. Wife initially claimed that she had no contact with Sanchez to both the Administration of Children's Services and to the Family Court, but then later admitted to her ongoing association with Mr. Sanchez when presented with evidence of the numerous phone calls she had made to him.
b. Defendant Husband
Defendant Husband was born in October of 1979 and is presently 35 years old. Since the summer of 2012, Husband has resided at the former marital home located at ** Wardwell Avenue in Staten Island, New York. That property is a detached private home with four bedrooms and several bathrooms. Husband lives there with the subject child during his parenting time. He co-owns this home with his mother.
Since 2003, Husband has been employed full time as manager of a window factory business owned by his parents located in Brooklyn, New York. He works on Mondays after he drops off the subject child, full days on Tuesdays and Wednesdays and half a day on Thursday until he leaves to pick up M.N. (Tr. 2/10/15, pp. 10-12). He earns approximately $84,000 per year. His schedule is flexible based on the needs of the subject child. Husband also enjoys an extensive family support system including, his parents, his two sisters, multiple cousins, aunts and uncles, all of who reside close to his home. (Tr. 2/26/15, pp. 99-100).
While Husband admits that Wife informed him about her criminal history and the fact that she was previously married to a convicted felon, he credibly testified that Wife told him she had moved on from that "dark period" of her life. Moreover, Wife assured Husband she had nothing to do with Mr. Sanchez since she was divorced from him. Husband testified that in his interactions with Wife he saw a "different person" than the person she was describing when she informed him of her past.
Despite Wife's assurances that her relationship with Mr. Sanchez was concluded, Husband discovered Wife's ongoing communication with Mr. Sanchez when he reviewed their joint cell phone bill and caught her having secret conversations in her car. (Tr. 2/26/15, p. 130). In or around the Fall of 2013, Wife claims the marital relationship deteriorated when she advised Husband she intended to move to the Bronx with the subject child. (Tr. 1/28/15, pp. 89-92). Husband testified that, in fact, Wife threatened to take the subject child not to the Bronx but to Florida. On December 28, 2013, Husband went to Family Court in an effort to prevent Wife from relocating the subject child from her home in Staten Island. Wife was served with a Family Court Petition for Custody and an Order prohibiting her from relocating the subject child without Court approval.
On January 18, 2013, Wife filed a Family Offense Petition and a Custody Petition in Family Court against Husband. She received a limited Temporary Order of Protection in her favor. Husband was not excluded from the home. Notwithstanding Husband's objection, in March of 2013, Wife moved her mother, father and their dog into the marital home. Husband credibly testified that although he owned this home, Wife and her mother treated him badly. "Every night it was a bombardment of words" (Tr. 2/10/15, p 23). He went to his bedroom each night fearful he would be arrested" (Tr. 2/10/15, p 23). For example, Wife told him that the next time he called the child by a nickname he had created for her, he would "spend the night at Rikers" (Tr. 2/10/15, p. 23). Wife "let" Husband see M.N. at set times after he returned from work but would remove the child to her bedroom and lock the door behind them at night. Husband testified that he could often hear M.N. crying but he had no access to her since Wife locked him out. (Tr. 2/10/15, pp. 153-54, 199-200).
On April 10, 2013, Husband filed a Family Offense Petition in Family Court against Wife on his behalf and on behalf of M.N. alleging, among other things, that Wife was abusive to him in front of the child and that Wife was using the limited Order of Protection against him to threaten him (See Family Court Petition O-00283/13). Husband received a limited Temporary Order of Protection on his behalf only.
On April 14, 2013, Wife had Husband arrested. Husband testified as to the circumstances surrounding his arrest. Husband had emailed Wife to tell her he wanted to pick up M.N., and Wife agreed. When Husband arrived, Wife instructed him to wait in the house while she got M.N. ready. Unbeknownst to Husband, Wife was upstairs and had called the police claiming Husband was in the home abusing her. As Husband waited, two police officers entered the home and arrested him. Wife tried to mislead the police claiming a warrant was out for Husband's arrest, but in fact, the paper she was waving was an old police report. Husband was arrested and held in a cell at the precinct for approximately 26 hours. Husband was released before arraignment without being charged. This unfortunate encounter was Husband's first contact with the criminal justice system.
After his release from confinement, Husband went straight to his parent's home. He did not return to the former marital residence until Wife moved out pursuant to Court Order on November 1, 2013 (Tr. 1/28/15 p. 106). When he returned home, he found that Wife had changed the locks, took his laptop, wiped out the hard drive on his desktop computer, removed every file from the locked filing cabinet, removed every piece of clothing belonging to him and the subject child and most of the personal property in the home, including the light bulbs (Tr. 2/10/15, pp. 203-04).
From the time he was arrested on April 14 until April 24, Wife restricted Husband's access to M.N.. On or about April 24, 2013, after much negotiation, Husband was permitted to have his parents pick up M.N. so they could spend time with her at their house. Upon obtaining the subject child, Husband refused to return her. Wife makes much of the fact that she did not see M.N. again until May 24, 2013 when Wife secured a Court Order of parental access (Tr. 1/28/15 pp. 103; Jud. No. 9). However, Wife failed to testify that an intervening Family Court appearance took place on May 15th wherein Wife's application for visitation was denied. Husband testified that at the time he withheld the child there was no parenting order in place and he was afraid that if M.N. went back to Mother, she would not be returned to him (Tr., 2/26/15, p. 149-50).
During the course of the Family Court proceedings, Husband alerted that court to Wife's ongoing contact with Mr. Sanchez, and the danger Husband thought this contact posed to the subject child. Family Court ordered an ACS investigation. The parties stipulated to certain ACS reports being admitted into evidence at this trial (Def. Exs. 2, 3). Wife admits lying to ACS when she was asked by the child protective investigator whether she was in contact with Mr. Sanchez (Tr. 1/28/15 p. 44). She also lied to this Court on the record when she was asked whether she was in subsequent contact with Mr. Sanchez (Tr. 2/10/15, p. 53.) Mother admitted her involvement with Sanchez only after Husband subpoenaed the phone records evidencing the same. Mother claims she lied because her decision to be in contact with Sanchez "had nothing to do" with M.N. notwithstanding the Court's and ACS' concerns regarding this relationship (Tr. 1/28/15 p. 44).
Husband testified that Wife is chronically late for the "drop off" aspect of the visitation exchange currently being performed at the 1st precinct in lower Manhattan, but that she is always on time to "pick up" the subject child. He further testified that Wife and the maternal grandmother, Margaret K., have been abusive to him during the course of this litigation. For example, on December 26, 2013, Wife did not show up for the exchange of M.N. Eventually she notified Husband that M.N. was in the emergency room. When Husband arrived at the hospital he found that Wife had misled security personnel as to the parameters of her Order of Protection. As a result, Husband was not permitted to see M.N., or speak to any of the professionals treating her until after Wife had left. Rather, he was told to remain in the waiting room.
Husband credibly testified that Wife engaged in a pattern of abusive, degrading and harassing conduct toward him designed to intimidate him from seeking custody and to otherwise portray him as an unfit parent. She was nasty and condescending when he would email her regarding M.N. She would make degrading remarks about his ethnicity including mockingly referring to him only by his Chinese birth name although she knew he preferred to be called by his anglicized name.
In addition to the harassing conduct indicated above, Wife also made various allegations against Husband, and his family, to a variety of regulatory and municipal agencies for alleged offenses ranging from a claim that the curb outside the home was not up to grade, to allegations of tax fraud. Indeed, in one such instance, Wife admits she reported Husband and his family to the Department of Health claiming that they were harboring illegal piranhas in their office when, in fact, the fish in question were kissing fish (Tr. 2/10/15, p. 63). When asked why she would make such claims, Wife retorted " If you don't do illegal things, you can't be reported". (Tr. 2/10/15, p. 63). In addition, Husband testified that Wife and her parents are currently Plaintiffs in a civil lawsuit against Husband in which damages are being sought as reimbursement for monies allegedly invested in kitchen appliances, blinds and wainscoting in the former marital residence (Tr. 2/10/15, p. 140).
Beginning when M.N. was around 16 months old, Husband noticed she was exhibiting developmental delays. Husband admits that he had her evaluated without informing Wife. M.N. was diagnosed with autism spectrum disorder. Husband immediately took steps to engage services for this child. After the child was diagnosed, he invited Wife to participate in the child's treatment and services. Wife objected to the fact that he had her evaluated, without her consent, and stated she did not believe there was anything wrong with her child (2/10/15, p. 14). c. The Subject Child M.N.
The subject child M.N. was born June 15, 2012. By Order dated May 24, 2013, Wife has visitation with the subject child from Mondays at 9:00 a.m. until Thursday at 12:00 p.m. with pickup and drop off at the 122 Precinct. Husband has the child from Thursday at 12:00 p.m through Monday at 9:00 a.m. (Jud No. 9). Wife currently lives in the Bronx, Husband lives in Staten Island. The child is currently exchanged at the 1st Police Precinct located in lower Manhattan as the parties agreed this was a mid-point between their residences. Under the current visitation schedule, Wife does not have time with M.N. on the weekends. (Tr. 1/28/15, p. 118-19).
When the parties resided together, Wife took care of M.N. while Husband was at work, but he took over these responsibilities when he returned home or was off from work. The result was that the parental responsibilities were shared between these parents (2/10/15, pp. 194-96).
The subject child is developmentally delayed and has sensory issues. M.N. is currently non verbal though she is progressing with sounds. She receives special instruction for one hour once a week and has speech therapy 30 minutes twice a week at Wife's home in the Bronx. M.N. receives duplicate services at her father's home in Staten Island. Wife did not inform the Bronx service providers that M.N. was receiving services in another borough although the services arranged by Husband preceded the services arranged by Wife. Accordingly, there has been no coordination of services or treatment goals for the subject child. As M.N. is over three years old, she has aged out of Early Intervention Services will soon receive services through the New York City Department of Education. Sadly, the parties currently do not communicate on any issues regarding M.N., her special needs, or the services she needs or receives. (Tr. 1/28/15, pp. 116-17).
d. The Forensic Evaluator
By Order dated October 3, 2013, Dr. Stephen P. Herman was appointed to conduct a forensic evaluation in his matter. Dr. Herman's forensic report dated March 22, 2014 was admitted into evidence on consent of all parties. (AFC Ex. 1). Dr. Herman testified as to his evaluation of the parties and the contents of his report on February 26, 2015. Dr. Herman concluded that Husband should have primary physical custody of M.N. with Wife being granted significant visitation. (AFC Ex. 1, p. 15). However, Dr. Herman clearly indicated that his recommendations regarding visitation could not be reasonably effectuated with the parties residing as distant as they currently are from one another. Dr. Herman indicated that the child needs a base for services, and that a long journey from Staten Island to the Bronx would be very detrimental to a child with autism and sensory issues.
Issues of Credibility
Before addressing the substantive issues relevant to this divorce proceeding, the issue of both parties' credibility need be addressed. As stated by Wife's counsel "we [have] made credibility a huge issue in this case." (Tr. 2/26/15 p.120). In their summations, and extensively during trial, both parties have indicated that the other has been less than credible to this Court.
Throughout the course of her testimony, Wife's credibility before this Court was called into question. In many instances Wife's testimony was simply not believable, while in other situations her testimony was clearly contradicted by the testimony of her other witnesses, including her own mother. Moreover, Wife actually admitted lying to the Administration for Children's Services, and to Family Court Referee Jennifer Mitek, regarding her relationship with a convicted felon, Mr. J. Sanchez. Wife admitted that she told both the ACS worker and Referee Mitek that she had no relationship with Mr. Sanchez, when in fact, she did. (Tr. 2/10/15, p.52); (Tr. 1/28/15, p.44). In addition, during cross examination before this Court, Wife admitted that she had an encounter with Mr. Sanchez in front of a nail salon in Brooklyn. (Tr. 2/10/15 p.56). This testimony is in clear contradiction to prior testimony offered to this Court, that Wife has not had any contact with Mr. Sanchez since his release from prison in January of 2013. (Tr. 1/28/15, p.46).
As argued by Husband, it has been shown that Wife has been less than truthful when testifying in more than one official forum. Accordingly, while this Court has carefully considered the testimony offered by Wife, her demonstrated willingness to lie to governmental officials, and to the Court, to further her own interests, has resulted in this Court affording little weight to that testimony. See Matter of Weber v. Weber, 100 AD3d 1244 (3rd Dept. 2012); See also, Matter of Rodriquez v. Kelly, 102 AD3d 594 (1st Dept. 2013); Matter of Ronnie P., 85 AD3d 1246 (3rd dept. 2011). As artfully articulated by the forensic evaluator in response to a hypothetical question regarding Wife's truthfulness, her admitted dishonesty "suggests that she has a propensity to lie, to be dishonest, even in Court." (Tr. 2/26/15, p.49).
In contrast, while Wife has attempted, at length, to show that Husband has also been dishonest in relation to his Statement of Net Worth, Husband was able to explain that the approximated amounts indicated therein were accurate when the document was drafted, though they may have changed at the time of trial. Moreover, while the alleged inaccuracies in Husband's Statement of Net Worth may be relevant to the issue of child support, they do not compare to Wife's admission that she lied to ACS and Family Court, and her inconsistent testimony to this Court, regarding her ongoing interactions with a convicted murderer.
Applicable Law
1. Custody of M.N..
When determining custody cases the primary concern for the Court is the best interests of the child. See Matter of Islam v. Lee, 2014 NY Slip Op 2045 (2d Dept. 2014). There is "no prima facie right to custody of the child in either parent." DRL §70[a]; DRL §240 [1][a]. When determining custody, the Court must consider the "totality of the circumstances" including the relative fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher, 11 AD3d 458 (2d Dept. 2004). Factors to be considered include "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent." See Salvatore v. Salvatore, 68 AD3d 966 (2d Dept. 2009); see also, McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009). The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all of the parties involved. See Bourne v. Bristow, 66 AD3d 621 (2d Dept. 2009). While the child's preference must be considered, it is not determinative, particularly where the child is of young age or cannot articulate a position. See Granata v. Granata, 289 AD2d 527 (2d Dept. 2001). Here, due to the age and the special needs of the child, the child's position has been put forth by the attorney for the subject child. See Matter of Tejada v. Tejada, 126 AD3d 985 (2d Dept. 2015).
While the parties currently share parenting time with M.N., a final award of joint custody is not a viable option for this child because, as conceded by the parties, the relationship between them is too volatile and acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach, 56 NY2d 995 (1982). Joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child. See Matter of Lawrence v. Davidson , 109 AD3d 826 (2d Dept. 2013.) Accordingly, the Court is faced with the difficult determination of which parent would be the more suitable custodial resource for M.N.. In making this determination, the Court has considered, amongst other factors indicated below, whether each parent would foster the relationship between M.N. and the other parent. See Matter of Feliccia v. Spahn , 108 AD3d 702 (2d Dept. 2013). The Court has also considered which parent is better equipped to provide for the child's educational, emotional and social development. See Matter of Ganzenmuller v. Rivera , 40 AD3d 756 (2d Dept. 2007).
Factors Considered
Ability to Meet M.N.'s Special Needs.
After considering the evidence at this trial, this Court finds that Husband presents as the parent better suited to meet the subject child's special needs. The forensic evaluator found that despite clear signs of developmental delays, Wife "did not appreciate any of M.N.'s problems" (Tr. 2/26/15, p.16). While Husband made a poor choice in not including Wife in M.N.'s initial evaluation, he was the first parent to recognize the subject child's developmental delays and he took immediate steps to secure professional treatment. Moreover, after securing a diagnosis of autism spectrum disorder, Husband immediately invited Wife to participate in a substantive discussion as to how best to meet her needs. Wife makes much of the fact that Husband did not advise her before he took M.N. for her initial evaluation. While consultation may be ideal in a typical case, and Husband arguably should have at least made an attempt to include Wife, he credibly testified that he felt it was not practical in his situation given Wife's denial of M.N.'s symptoms, her hostility towards Husband, and his honest belief that Wife would do something to interfere with the evaluation. Husband's testimony at trial indicates that he has since learned from this mistake and is willing to involve Wife in decisions, so long as it can be done in a safe and appropriate way. (Tr. 2/26/15, p.89).
Husband credibly testified that when Wife became involved with M.N.'s evaluation she indicated that she didn't believe anything was wrong with her child. (Tr. 2/10/15, p.14). Indeed, even as of the time she met with Dr. Herman, Wife was still of the belief that M.N. "had done well with her developmental milestones." Dr. Herman noted, however, that Wife's position was clearly contradicted by the child's behavioral and developmental assessment. When Dr. Herman revisited this subject with Wife and asked her why she thought M.N. was non verbal, Wife blamed it on Husband claiming that he had somehow traumatized the child, a charge Dr. Herman viewed as "specious" and "erroneous" (AFC Ex 1, Tr. 2/10/15, pp. 6;14).
By the time of trial, Wife finally seemed to accept that her child presents with special needs, but when asked directly if her child presented with autism, Wife responded "when you first meet her she does, yes", indicating a lingering reluctance to fully accept the diagnosis. (Tr. 1/28/15, p.115). Wife also testified that she believes that M.N. will likely "grow out" of her sensory issues. (Tr. 1/18/15, p.113).
While Wife now appears to accept that M.N. has some degree of special needs, her response to those needs has been impulsive and to a degree reckless. Despite the fact that M.N. was already actively engaged in services in Staten Island, Wife secured duplicate services in the Bronx without advising Husband or the various Staten Island service providers. In fact, Wife still does not discuss the child's needs or treatment with Husband. (Tr. 1/28/15, p.116). When one of the child's Bronx service providers, S. Florich, was called to testify she indicated that she was unaware that M.N. was receiving duplicate services, and that it's something she would want to know, to coordinate services. (Tr. 2/27/15, pp. 37-38). Moreover, Ms. Florich indicated that her information sheet did not including any contact information for Husband, and that she should be having discussions with him. Husband credibly testified that the first time he found out about the duplicate service providers was the second day of this trial and that he immediately contacted the Staten Island providers to let them know. (Tr. 2/27/15, pp.64-66).
Wife's decision to duplicate the subject child's services after Husband had already secured treatment, together with her failure to ensure coordination between the two, is concerning to this Court. Aside from endangering M.N.'s entitlement to services as a whole based on Wife's failure to disclose the existence of a duplicate case file and provider, Wife's failure to coordinate also makes no therapeutic sense. Since the service providers were unaware of each other, there has been no sharing of information regarding M.N., her status, her treatment goals or strategies being used to reach them. (Tr. 2/17/15, p.39). Regardless of what Wife's feelings are towards Husband or what she believes he is or is not entitled to in terms of parental rights, it was reckless to subject this child to such a scheme.
After considering the history of M.N.'s treatment, together with both parent's response to her special needs, and after considering the testimony of the forensic evaluator on the subject, the Court finds that Husband presents as the parent better suited to provide for the medical needs and educational development of this special needs child. See Matter of Smalls v. Payne, 64 AD3d 783 (2d Dept. 2009); See also, Matter of Ganzenmuller v. Rivera, 40 AD3d 756 (2d Dept. 2007). Moral & Emotional Guidance.
When evaluating cross claims for custody, the Court is charged with determining which parent presents as better suited to provide for the subject child's moral and emotional development. See Matter of Felty v. Felty, 108 AD3d 705 (2d Dept. 2013); See also, Matter of Moreno v. Cruz, 24 AD3d 780 (2d Dept. 2005); Acevedo v. Acevedo, 200 AD2d 567 (2d Dept. 1994).
At trial, a considerable amount of time was spent addressing the issue of Wife's relationship with an individual known as J. Sanchez, a convicted felon. Wife testified that she first met Mr. Sanchez in the summer of 2008 through a friend in Pennsylvania. At the time she was introduced to him, Mr. Sanchez was incarcerated for murder in Woodbourne Correctional Facility. (Tr. 1/28/15, pp. 27-29). Mr. Sanchez was sentenced to 17 years to life in or around 1996 for murdering an innocent bystander in furtherance of a retaliatory hit on a fellow drug dealer. (Tr.1/28/15, p.34). Shortly after meeting, Mr. Sanchez and Wife began a romantic relationship, despite the obvious difficulties created by one party being incarcerated. (Tr. 1/28/15, p. 30).
Wife admits that after a short period of "dating", she married Mr. Sanchez in May of 2009, while he was still in prison. Wife testified that after a brief marriage she divorced Mr. Sanchez in December of 2011 after realizing that being married to a convicted murderer was likely a mistake. However, after Wife married Defendant Husband, and had a child with him, she devoted months of her life, and approximately 59 hours on the phone, secretly working to secure Mr. Sanchez's release. (Tr. 2/11/15, pp.165-166). During the course of these proceedings Wife has been less than credible to this Court, and the Family Court, as to the extent of her involvement with Mr. Sanchez. Indeed, her story about how she just happened to run into Mr. Sanchez, during the parties' marriage, in front of a nail salon in East New York Brooklyn when she lived in Staten Island is patently not credible. Moreover, Wife's description of this encounter, admitted for the first time on cross examination, was in direct contradiction of her prior testimony that she has had no contact with Mr. Sanchez since his release from prison in January of 2013. (Tr. 1/28/15, p.46).
Beyond her questionable relationship with Mr. Sanchez, Wife has continuously exhibited behavior that is troubling to this Court. In more than one instance, when angered, Wife would be quick to call various authorities to make complaints against Husband and his family. In one notable instance, Wife reported Husband, and his family, to the Department of Health claiming that they were harboring illegal piranhas in their office when, in fact, the fish in question were kissing fish. (Tr. 2/10/15, p. 63). Wife has also reported Husband's family to city authorities because of the condition of the curb outside their house. Finally, Wife reported Husband and his parents to the Internal Revenue Service. (Tr. 2/10/15, pp.63-64). Wife's choices throughout the parties' short marriage, and this litigation, often made with a spirit of vindictiveness, exhibit poor judgment and a lack of moral insight. These traits, as exhibited by Wife, are not suitable for a custodial parent bearing the primary responsibility for raising a child and fostering that child's relationship with her other parent. See Matter of Meyers v. Sheehan, 62 AD2d 802 (2d Dept. 2009); See also, Linton A. V. Mena C., 301 AD2d 416 (1st Dept. 2003). c. Stability.
When determining the custody of a child, especially a young child with special needs, the Court must consider which parent "will best promote stability". Matter of Psaros v. Mitchell-Ortega, 128 AD3d 703 (2d Dept. 2015); See also, Matter of Ivory B. v. Shameccka D.B., 121 AD3d 674 (2d Dept. 2014). Stability relates, among other things, to an ability to provide financial support, and a stable household. See Matter of Conforti v. Conforti, 46 AD3d 877 (2d Dept. 2007); See also, Matter of Mullins v. Riener, 100 AD3d 760 (2d Dept. 2012).
When considering the factor of stability, despite listening to extended testimony on the subject of finances, this Court remains unsure as to how Wife supports herself and by extension, how she would support the subject child if custody to be granted to her. Despite having obtained a Bachelors Degree in Business Administration, Wife has not worked since she became pregnant in 2011. While this Court does not credit Wife's claim that she stopped working because Husband wanted her to, even if that testimony were credible, it would not explain why Wife has not secured employment since the parties separated. Wife testified that she has simply chosen to stay home, despite the fact that she currently shares parenting time with Husband. (Tr. 2/10/15, p.30).
Despite not having a source of income, Wife inexplicitly claims monthly expenses of approximately $4,700. (Tr., 2/10/15, p. 34). Wife attempted to justify these expenses by testifying that she is financially supported by her parents on a monthly basis. Wife testified that her parents pay her rent, her monthly credit card bill, and all of her housing expenses. However, when she called her own mother as her witness, her mother contradicted her testimony regarding support. Maternal Grandmother testified that she and her husband do not give Wife any money, no less approximately $60,000 per year, but that they allow her to live in "their" apartment, as the lease is in paternal grandfather's name. After listing to Wife testify it is unclear to this Court why she is unemployed. What is clear is that both Wife and her mother were less than credible to this Court in regard to Wife's financial situation.
In addition to not having a secure source of income with which to support M.N., Wife has also shown that she is financially irresponsible when she does have access to funds. In one such example, when Wife received a personal injury settlement in the amount of approximately $162,000, she testified that she spent the majority of those funds on counsel fees, together with the rental of an expensive four bedroom apartment, and on the cash purchase of a Mercedes for $28,000. (Tr. 2/10/15, p 118). It is further worth nothing that Wife has established a pattern of financial instability as she previously filed for Bankruptcy protection in 2007 to extinguish over $35,000 in credit card debt. (Tr. 1/28/15, pp 23-24).
In contrast, Father has been gainfully employed for his family business for approximately 12 years making approximately $84,000 per year. Husband co-owns a home with his mother and has no consumer debt worth noting.
In addition to being financially unstable, Wife has also exhibited a pattern of frequent relocation. While Wife's choice of personal residence is not of paramount concern to this Court, when it comes to the residence of M.N., the Court must consider which parent presents with a more stable household, including access to extended family. See Hennelly v. Viger, 198 AD2d 224 (2d Dept. 1993); See also, Severo E. v. Lizzette C., 157 AD2d 726 (2d Dept. 1990); Matter of Blakeney v. Blakeney, 99 AD3d 898 (2d Dept. 2012).
In regards to a stable household, Wife testified that she was born in New Jersey and stayed there until she went to college in Pennsylvania. After graduating College in 2005 she relocated to Brooklyn to live with a boyfriend. Six months after arriving in Brooklyn Wife relocated to Dutchess County, New York. After living in upstate New York for a period of approximately two years Wife relocated once again, back to Pennsylvania to live with her parents. In 2011 Wife relocated back to New York and took up residence in the Bronx until September of 2011 at which time she moved to Staten Island to live with Defendant Husband. When the parties' relationship soured, Husband voluntarily moved out of the marital residence on March 20, 2013. Despite being given occupancy of the marital home, Wife chose to relocate once again to the Bronx in November of 2013. Wife's current residence is approximately two hours travel time from Husband's residence in Staten Island. (Tr. 2/10/15, p.92). Because of Wife's long history of relocation, Husband has expressed concerns that if granted custody, Wife might suddenly relocate with the child once again. Indeed, Husband credibly testified that Wife and her mother threatened to abscond with the child to Florida. (Tr. 2/10/15 p.17).
After considering the facts relating to stability the Court finds that Husband, who has strong roots in Staten Island, including access to the support of extended family, and has been steadily employed for at last 12 years, presents as the parent who can provide more stability for M.N.. See Matter of Moran v. Cortez , 85 AD3d 795 (2d Dept. 2011); See also, White v. Mazzella-White , 84 AD3d 1068 (2d Dept. 2011).
d. Criminal History
In deciding the issue of custody the Court has considered the criminal history of the parties as a factor. See Matter of Jones v. Pagan, 96 AD3d 1058 (2d Dept. 2012). During the course of these proceedings Husband was arrested in relation to Wife's Order of Protection, but was not charged. In explaining this event, Husband credibly testified that Wife used the temporary Order of Protection issued in her favor by Family Court as a sword to intimidate and manipulate him. She routinely threatened him that she would call the police and he would "spend the night in Rikers" for the smallest of perceived infractions. Her manipulation of this Order to exert control over Husband culminated in his arrest. Husband was ultimately released, before arraignment, without even the issuance of a desk appearance ticket. Husband credibly testified that this first encounter with the criminal justice system was traumatic. Husband does not have any prior criminal history.
In contrast to Husband's single non-eventful interaction with the criminal justice system, Wife was arrested, prosecuted and ultimately plead guilty to one count of "simple assault" and one count of "making terroristic threats with the intent to terrorize" both violations of the Pennsylvania Penal Code. At trial Wife described the incident which resulted in this conviction, which occurred in November of 2009. As would be expected, she did so in a light most favorable to her position. In sum and substance Wife admits that she got into a verbal altercation over an alleged driving infraction which turned physical, and that during that physical altercation she pulled out a knife and threatened her victim. (Tr. 1/28/15, p.54). As a result of these charges Wife ultimately was sentenced to a three month period of house arrest, which she served in her parent's house, followed by nine months of probation. When asked during cross examination why she was carrying a knife, she indicated that she carried it "for protection". (Tr. 2/10/15, p.70). Wife's violent criminal history is troubling to this Court as it indicates both poor judgment and a lack of impulse control. Wife's criminal history, while not extensive, is a factor which militates against an award of custody. See Matter of Nunn v. Bagley, 63 AD3d 1068 (2d Dept. 2009). e. Alleged Substance Abuse
Following a motor vehicle accident which occurred in March of 2009, and a resulting surgery, Wife was prescribed Percocet and Darvocet for pain. Wife claims that that during the course of their short marriage Husband abused her prescription drug medication, taking approximately one pill a day. Husband vehemently denies ever using Wife's medication. After considering the testimony of both parties, the Court credits the testimony of Husband on the issue of prescription drug abuse. In making this credibility finding, the Court notes that Husband has taken a drug test during the course of these proceedings, and Wife admits that the test results were negative for all substances. (Tr. 2/10/15, p.78).
In addition to her claims of prescription drug abuse, during the course of the forensic evaluation Wife presented Dr. Herman with a shipping label from a company that sells a substance known as Kratom. Despite her concerns regarding this substance, Wife failed to call an expert witness, or submit any evidence regarding Kratom use, or the substances' effects. During his expert testimony, Dr. Herman indicated that he has concerns about this substance, which he identified as a naturally occurring leaf that stimulates the same sections of the brain as an opiate. When questioned as to his use of Kratom, Husband admitted that he purchased a sample and tried it a few times to self treat what he described as "stress headaches". (Tr. 2/27/15 pp. 56-57). Husband further indicated that the use of herbal medicines is not culturally unusual to him as his family sometimes practices "traditional Chinese medicine". (Tr. 2/27/15 p.74). Husband credibility testified that the leaf had no effect on his headaches, so he threw the rest of the Kratom away. While the record is devoid of information regarding this substance, the Court notes that it is not illegal. "Although Kratom is listed by the Drug Enforcement Agency as a drug of concern, [it] presently is not scheduled under the Controlled Substances Act." See People v. Moss, 2013 NY Slip Op. 33028 (U) (Sup. Ct. Suff. Cty. 2013).
While the Court does not condone self medication through the use of Kratom, or other unregulated mind altering substances, there has been no credible evidence that Husband is a danger to his child due to substance abuse. Husband has denied the use of any illicit or illegal substances and Wife offered no evidence at trial to suggest otherwise. In any event, it is hereby Ordered that both parties are to refrain from taking any non prescribed illegal or controlled substances when in the presence of the subject child. f.Ability to Foster a Relationship with Non Custodial Parent.
The Court has also considered which parent is in a better position to facilitate and foster a relationship between the subject child and the non custodial parent. See Matter of Lawler v. Eder, 106 AD3d 739 (2d Dept. 2013). Husband testified at trial that he is not opposed to Wife having a relationship with M.N. and that he felt that a good relationship with Wife would be beneficial. Husband further testified that he thinks Wife is a good mother, but that her poor choices make her the less fit custodial parent. (Tr. 2/26/15, pp. 131-32). Husband testified at length as to how he wishes the parties could get along and make decisions together, but that it has become impossible under the constant threat of being sued or going to jail. (Tr. 2/26/15, p.89). In contrast, Wife has tried to denigrate Husband and his parenting abilities throughout this litigation.
The Court credit's Husband's testimony that maternal grandmother, Margaret K., was present for many of the parties' most serious altercations and instigated a number of them. She also interfered with the subject child's "second opinion" evaluation by Dr. Clemente (2/27/15 Tr., p. 105-107). The clear manifestation of hostility and anger the maternal grandmother has for Husband does not suggest that she would be supportive of M.N. s relationship with her father. Maternal grandmother's displeasure with the father of her grandchild was apparent in her demeanor while testifying. While this Court is aware that Maternal Grandmother is not seeking custody of M.N., it became apparent at trial that Maternal Grandmother and Wife are united in interest when it comes to claims against Husband.
After considering the evidence before the Court, it is obvious that Wife allows her deep seeded animosity towards Husband to color her decision making with respect to M.N.'s relationship with her father. Wife callously testified that if Husband was late to a child exchange, she would vindictively withhold the child the equivalent amount of time on the next exchange (Tr. 2/10/17, p. 47). Husband further described Wife's conduct at exchanges when he indicated that she would physically hold M.N. back until the exact moment the exchange was supposed to happen. Husband described one incident wherein Wife, at maternal grandmother's direction, held M.N. away from Husband as they both stood in a police precinct for five minutes from 11:55 to the exact scheduled exchange time of 12:00. (Tr. 2/10/15, p.24). This type of petty inflexibility exhibited by Wife is a clear indication that she is not interested in fostering a relationship between M.N. and her father, but instead is only willing to give him exactly what he is entitled to under this Court's Orders.
When determining which parent presents as more supportive of the other, the Court has considered the incident of April 2013 wherein Husband obtained possession of the subject child and refused to give the child back to Wife for a period of time. Husband attempted to explain this choice by indicating that he was afraid that if he gave M.N. back to Wife, he wouldn't see her again without a Court Ordered schedule. (Tr. 2/26/15, p.149). Husband further explained that Wife had previously restricted his access to M.N. and that he was afraid that she would do so again. While not condoning Husband's choice to resort to "self help" the Court notes that there was no Order at the time granting a superior right to parental access to either party. Moreover the Court notes that there was a Family Court appearance on May 15, 2013, during the time period in question, wherein Wife's application for visitation was denied by the Family Court. (Tr. 2/27/15, pp.77-81). Accordingly, Husband cannot be held responsible for withholding the child once the matter was sub judice before the Family Court.
After consideration of the record, the Court finds that while neither party has made perfect choices in regard to interacting with the other, Husband is the parent more capable of fostering a positive relationship between the subject child and the non-custodial parent. See Matter of Cobourne v. James, 35 AD3d 734 (2d Dept. 2006); See also, Matter of O'Loughlin v. Sweetland, 98 AD3d 983 (2d Dept. 2012).
g.Court Appointed Forensic Evaluator
The Court has given considered the thoughtful analysis provided by the Court appointed forensic evaluator, Dr. Herman. "While the recommendation of a court-appointed evaluator is not determinative, it is a factor to be considered and is entitled to some weight." Matter of Doyle v. Debi, 120 AD3d 676 (2d Dept. 2014). After meeting with the parties and the children, Dr. Herman submitted a written report to the Court and credibly testified in support of that report.
Dr. Herman credibly testified that during the forensic process he did not detect any evidence of abuse or neglect. However, Dr. Herman did indicate he was concerned by Wife's lack of insight as to the developmental delays of her daughter. Despite Wife's claims that M.N. was meeting all of her developmental milestones, Dr. Herman testified that the subject child interacted in a very detached way from both of her parents, treating them as objects more than people. However, on comparison, Dr. Herman indicated that Husband presented as more engaged with M.N. Dr Herman further indicated that Husband was more in touch with the special needs of the subject child, as Wife indicated that she did not believe the child was autistic, but instead was the victim of trauma on the part of Husband. Dr. Herman found no evidence of trauma but instead indicated that the child was clearly on the autistic spectrum and presented with Severe developmental and cognitive problems". (Tr. 2/26/15, pp. 4-6).
In both his report, and his testimony at trial, Dr. Herman recommends that custody remain with Husband in Staten Island, subject to Mother's parenting time. (Tr. 2/26/15, p.22;68 & AFC Ex 1). While Dr. Herman indicates that a close to equal split of parenting time is preferential, he further indicated that due to the distance between the parties, the child should have a "base" for services and schooling, as autistic children have major issues with "change". (Tr. 2/26/16, pp. 42;67). Dr. Herman was further concerned with the proposition of a midweek exchange which would require M.N. to sit in a car for upwards of two hours.
h. Attorney For the Subject Child's Position
While only one factor to be considered, the position taken by the subject child's attorney was also considered by the Court. See Matter of Guiracocha v. Amaro, 122 AD3d 632 (2d Dept. 2014). After a thoughtful consideration of the factors, as indicated in his post trial summation, the attorney for the subject child advocates for an award of sole legal and physical custody to Defendant Husband.
i.Ability to Provide Care
Lastly, the Court has considered which parent has played the role of primary caretaker for the subject child. While both parties claim to have filled that role, and during their short marriage they may have, their testimony on the subject is illustrative. Wife spent the majority of her direct testimony addressing her past mistakes, and her complaints about Husband rather than addressing the positive interactions she has had with the subject child. On the other hand, while Husband's testimony does include negative information about Wife, it focused considerably more on the various exercises, routines, and positive activities enjoyed between father and daughter. (Tr. 2/26/15, pp. 77-87). Based only upon the record available before the Court, it appears that Husband has played the role of primary caretaker since he was awarded considerable parenting time with M.N. Accordingly, an award of custody to Husband would preserve his role as primary caretaker. See Matter of Ocampo v. Jimenez, 27 AD3d 753 (2d Dept. 2006).
In addition to Husband's role as primary caretaker the Court has considered each parties access to extended family to assist in child care and support the subject child. Father testified that he has a large extended family that live nearby and provide a loving environment for M.N. In contrast, Mother is an only child whose parents split their time between residences in Pennsylvania and Florida (Tr., 2/27/15, pp. 96-97). The availability of child care and support from members of the parties' extended family including the presence of aunts, uncles and cousins is a factor that was considered by this Court, though not afforded a great amount of weight. See Blakeney v. Blakeney, 99 AD3d 898 (2d Dept. 2012); See also, Matter of Bush v. Lopez, 2015 NY Slip Op 01502 (3rd Dept. 2015).,
Custody
For the reasons set forth above, and after considering all the relevant factors presented by both parties at trial, including the relative fitness of each parent as compared to the other, the recommendations of the forensic evaluator, and the position of the attorney for the child, Father is hereby granted an Order of sole physical and legal custody of the subject child M.N., subject to Mother's parenting time schedule as detailed herein. See Matter of Edwards v. Rothschild , 60 AD3d 675 (2d Dept. 2009); see also, Matter of Lovitch v. Lovitch , 64 AD3d 710 (2d Dept. 2009); Matter Osbourne S. v. Regina S. , 55 AD3d 465 (1st Dept. 2008). The Court find that Wife presents as the parent "less fit" to have custody of M.N. See Eschbach v. Eschback, 56 NY2d 167 (1982). Accordingly, Husband shall have sole decision making authority with respect to all issues respecting the health, education and general welfare of M.N. including but not limited to the identification and delivery of services necessary to meet her special needs. Wife shall cease and desist from securing any services for M.N. unless Husband expressly consents to the same in writing after full consultation with M.N.'s Staten Island service providers and any other relevant professionals.
In furtherance of his responsibility as the custodial parent to foster the child's relationship with the non-custodial parent, Husband is hereby directed to confer with Wife on all issues relating to the child's services, education, religion and medical matters. Husband shall, however, have final decision making authority with respect to these and all other major issues. Each party shall retain authority to make day to day decisions while they are with the child. Both parents shall have access to M.N.'s medical and educational records. Each parent shall be responsible for securing said information on their own. Both parties shall be entitled to attend all school, extracurricular and significant events in M.N.'s life at their own expense. As Husband indicated that he does not feel comfortable with Wife being in his house, the service provider team meetings described by Husband shall be moved to a neutral location for Wife to be afforded the opportunity to attend, if she so chooses. (Tr. 2/27/15, p.68).
Parenting Time
While Husband has been granted sole legal custody with final decision making, this does not end the analysis. Wife shares a loving bond with M.N. which should not be minimized. The forensic evaluator, the attorney for the subject child, and Husband all agree that the current arrangement is not M.N.'s best interest as it involves too much travel between Husband's home on Staten Island, the police precinct located in lower Manhattan, and Wife's home in the Bronx.
In his report, Dr. Herman suggested that Wife have alternating weekends beginning Fridays with drop off on Monday morning. He also suggested that Wife have two consecutive overnight visits when it was not her weekend. At trial, Dr. Herman admitted that when he proffered this schedule, he was not aware that Wife was living in the Bronx. (Tr., 2/26/15, p. 42). When he was told that the parties no longer reside on Staten Island, Dr. Herman regarded his proffered schedule as "the exact wrong thing to do" given the difficulties this young autistic child with change of environment. (Tr. 2/16/15, p. 42-43). Dr. Herman also proffered that the travel time would be very unsettling to an autistic child.
While the Court agrees with an alternate weekend visitation schedule beginning on Fridays, Wife's move to the Bronx makes it very burdensome for the child to be brought back to Staten Island by the start of the school, or services, on Monday. Rather, it is in the child's best interest for Wife to drop the child back to Husband's home Sundays by 9:00 pm. As for weekday visits, Husband testified at trial that in order for M.N. to have a full range of services on Staten Island he would need to have physical custody from Monday to Friday. (Tr. 2/27/15 p.67). Following this logic, to allow Wife to have two consecutive overnights during the week on her non weekend weeks would cause a tremendous disruption in services being given to M.N. on Staten Island. Accordingly, when it is not Wife's weekend, she shall have visitation with M.N. on Tuesday and Thursday nights from after school, or upon the completion of her services, until 8:00 p.m. While Wife shall not be restricted to remaining on Staten Island during her visits, she must return the child by 8:00 p.m.
The parenting time schedule set forth herein shall commence on August 14, 2015. This visitation schedule can be revisited on proper application to any court of competent jurisdiction in the event that Wife moves back to Staten Island. The visitation schedule may also be modified or supplemented upon agreement of the parties in writing. The parties are encouraged to work out any differences or unforeseen circumstances before seeking court intervention. a. Holiday Time.
The parties shall alternate all of the major holidays and school vacations (once M.N. is enrolled in school) as set forth below. Parenting time shall commence at 10:00 a.m. on the first day of the holiday or vacation period and shall conclude 8:00 p.m. on the final day of the visit unless otherwise specified below. If a conflict occurs between the normal parenting schedule and the holiday visitation schedule, the holiday visitation schedule will supersede normal parenting time.
Holidays that fall on school days, once M.N. starts school, such as Halloween, and the child's birthday shall commence at school dismissal (or 3:00 p.m. if there is no school) and end at 8:00 p.m.
Mother's Day shall always be with Mother and Father's Day shall always be with Father. Each parent shall have a total of two non-consecutive weeks of vacation with the child during the months of July and August. One week shall be in July; the other week shall be in August. Each party shall designate by email their vacation weeks by May 1 of each calendar year or be subject to the other parent's choice of designated weeks. Wife shall be granted first choice in the event that both parties seek the same weeks provided she has timely designated her weeks in accordance herein.
The following holidays shall be alternated:
Child's Birthday:even years: Motherodd years: Father
Thanksgiving:even years: Motherodd years: Father
Christmas Eve:even years: Fatherodd years: Mother
Christmas Eve visit shall begin at 4 p.m. and end at 11 a.m. on Christmas Day.
Christmas Day:even years: Motherodd years: Father
New Years Eve:even years: Motherodd years: Father
New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m on New Year's Day.
New Years Day:even years: Fatherodd years: Mother
Martin Luther King Day:even years: Motherodd years: Father
President's Day:even years: Fatherodd years: Mother
Good Friday:even years: Fatherodd years: Mother
Easter:even years: Motherodd years: Father
Memorial Day:even years: Fatherodd years: Mother
Fourth of July:even years: Fatherodd years: Mother
Labor Day:even years: Motherodd years: Father
Halloween:even years: Motherodd years: Father
Columbus Day:even years: Fatherodd years: Mother
Veteran's Day:even years: Motherodd years: Father b. General Matters:
Each parent shall ensure that homework, if any, is completed and the child attends any school or after school activities. While each parent is entitled to travel with M.N., each parent is responsible for notifying the other parent in writing when they intend to take the child overnight outside of the New York. If the child is to be taken out of the New York, then a detailed itinerary of the travel plans must be provided with contact information.
While the Court has attempted to address all of the known issues regarding the parties' schedule of shared parenting time it is impossible for this Court to anticipate all issues that may arise in the future. Accordingly, the parties are hereby encouraged to confer with one another in the event that an issue arises, before seeking court intervention.
As a final matter, as stipulated to at trial, Wife is hereby directed to allow no contact between Mr. J. Sanchez and the subject child during any period of visitation. (Tr. 2/26/15, pp.132-133).
Child Support
Each party seeks an award of child support from the other. As Husband has been awarded physical and legal custody of M.N., child support shall be payable from Wife to Husband. Husband's first request for child support was contained in his Verified Answer with Counterclaims dated July 25, 2013. Both Husband and Wife's Statements of Net Worth were received as evidence at trial.
The Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. Applying the statutory percentage of 17% to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject child.
When determining child support under the guidelines the Court is directed to utilize the income as it was, or should have been, reported on the parties most recent tax return. See DRL '240(1-b)(b)(5)(i); See also, Matter of Lynn v. Kroenung, 97 AD3d 822 (2d Dept. 2012). Court is also not bound by the financial information supplied by the parties, and may impute income where appropriate. See Matter of Maharaj-Ellis v. Laroche, 54 AD3d 677 (2d Dept. 2008).
The most recent tax return provided by Husband is his 2013 tax return which indicates a gross income of $83,201. Husband's 2014 tax return, if filed, was not offered into evidence at trial nor was it annexed to the updated Statement of Net Worth submitted at trial. (Def. Ex. D).
When determining child support, the Court must deduct payments of Social Security, Medicare and New York City taxes that have been "actually paid". See Kaufman v. Kaufman, 102 AD3d 925 (2d Dept. 2013). Husband has not provided W2 documentation to show the taxes he paid in relation to his 2013 tax return. While Husband has included a copy of his 2013 state and federal tax returns, the only amount indicated on those returns is a deduction of $2,439 for local NYC resident tax. Husband has provided various pay-stubs to his Statement of Net Worth, however these paystubs relate to income from 2014, as do the approximated deductions included in the "gross income" section of his Net Worth Statement. Accordingly, Husband's adjusted income for the purpose of CSSA calculations shall be his gross income, minus local tax actually paid for an adjusted income of $80,762.
The calculation of Wife's current income for child support purposes is considerably more difficult. Wife admitted that the last time she filed taxes was in 2011 because she has not been employed since she found out she was pregnant with the subject child. Despite her longstanding unemployment, Wife's Statement of Net Worth indicates monthly expenses of $4,679, which calculates to an annual sum of $56,148. Wife testified at length during trial that this amount is routinely and consistently provided by her parents, who support her every need from the payment of rent, and insurance to the purchase of groceries. It is well settled law that routine support provided by friends or family members should be considered income. See Baumgardner v. Baumgardner , 98 AD3d 929 (2d Dept. 2012); See also, Matter of Recco v. Turbak , 124 AD3d 900 (2d Dept. 2015). Here, Wife went so far as to indicate that her father told her that "they could afford to pay for [Wife] and M.N. for the rest of [their] lives and a few extra people". (Tr. 2/10/15, p.173). Wife further testified that her parents have a limitless amount of money for her, and that she would never have to work again. (Tr. 2/10/15, p.174). In addition to this testimony, which supports the imputation of income, Wife further testified that she is in the process of starting a business where she expects to earn at least $50, 000 a year. (Tr. 2/10/15, p. 157). Accordingly, for the purposes of calculating child support Wife's income shall be calculated at the imputed sum of $56, 148 representing the ongoing and consistent support received from her family. See Matter of Funaro v. Kudrick , 128 AD3d 695 (2d Dept. 2015); See also, Matter of Kiernan v. Martin , 108 AD3d 767 (2d Dept. 2013). The Court notes that this amount is only a slight deviation from what Wife admits she is capable of earning using the skills that she currently possesses in her chosen field. See Kessler v. Kessler , 118 AD3d 946 (2d Dept. 2014).
When determining child support the Court must deduct payments of Social Security, Medicare and New York City taxes that have been "actually paid". See Kaufman v. Kaufman, 102 AD3d 925 (2d Dept. 2013). Here there is no indication that Wife has paid taxes since 2011, accordingly, the full amount of Wife's imputed income, or $56,148 will be utilized for purposes of determining child support.
After conducting the required calculations utilizing the income figures indicated above, the Court finds that the combined parental income for purposes of calculating child support is $136,910. Applying the statutory percentage of twenty five percent (17%) to the combined parental income results in a combined annual child support obligation of $23,275. Husband's pro rata share of this guidelines child support obligation is 59%, Wife's pro rata share is 41%. Accordingly, Wife's child support obligation equates to $9,543 a year, $795 a month or $367 bi-weekly. For the reasons set forth above, Wife is hereby Ordered to pay child support in the amount of $795 a month. This payment shall be made directly to Husband on or before the 24th of every month starting August 24, 2014.
This child support award may be revisited by a Court of competent jurisdiction upon a showing of "(i) a substantial change in circumstances; or (ii) that three years have passed since the order was entered, last modified or adjusted; or (iii) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified or adjusted." See Mejia v. Mejia, 106 AD3d 786 (2d Dept. 2013).
1. Retroactivity
The award of child support Ordered herein shall be retroactive to Husband's Verified Answer which was filed on July 25, 2013 and served a few days later. See Diaz v. Gonzalez, 115 AD3d 904 (2d Dept. 2014); See also, Augustin v. Bullen, 112 AD3d 658 (2d Dept. 2013). Wife has not claimed any credits at trial as she indicated that she has not voluntarily paid child support during the pendency of this action, and Husband did not make a motion for pendente lite support.
Accordingly, The retroactive award of child support under the amount awarded herein is $19,080 (24 months x $795 a month). This amount shall be paid in monthly installments of $300 to be paid in addition to Wife's child support obligation each month until all arrears are paid. In the event that Wife wishes to pay off the balance in a lump sum payment she may do so at any time.
2. Subject Child as a Tax Dependent
The record is silent as to applications regarding who can claim the subject child as a tax dependant. As Husband is currently the only parent employed, he shall be entitled to claim the subject child as a tax dependant until such time as Wife becomes gainfully employed. Upon a showing of employment Wife shall be able to claim the subject child on even years and Husband on odd years. See Kim v. Schiller, 112 AD3d 671 (2d Dept. 2013).
3. Additional Child Support Expenses
The record is equally silent in regard to the cost of additional child care expenses including unreimbursed medical expenses. The parties are hereby directed to split all reasonable and necessary unreimbursed medical and reasonable and necessary childcare expenses on a pro rata basis. See Cassano v. Cassano, 85 NY2d 649 (1995); See also, Leuker v. Leuker, 72 AD3d 655 (2d Dept. 2010). Husband's pro rata share shall be 59% and Wife's pro rata share shall be 41%. See Harris v. Harris, 97 AD3d 534 (2d Dept. 2012). As the custodial parent Husband shall have the obligation of sending Wife any bills to which he seeks financial contribution.
Counsel fees
Wife seeks an award of counsel fees for the litigation of this divorce action. Pursuant to DRL §237(a), a lawyer who represents a non-monied spouse may seek attorney's fees from the monied spouse in the divorce action. See O'Connor v. O'Connor, 89 AD3d 703, 704 (2d Dept 2011). Effective October 12, 2010, DRL §237(a)(5) creates a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.
An award of attorney's fees will generally be warranted where there is a significant disparity in the financial circumstances of the parties. See Chesner v. Chesner, 95 AD3d 1252, 1253 (2d Dept 2012). The purpose of DRL §237(a) is to redress the economic disparity between the monied spouse and the non-monied spouse. An award of interim counsel fees under DRL '237 is intended to allow the non-monied spouse to litigate the action on an equal footing with the monied spouse. See Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008). Here, Wife argues that Husband is the monied spouse and should be required to pay her attorney's fees.
Husband testified he paid his attorney approximately $30,000 as of the date he testified at trial February 26, 2015 (Tr. 2/26/15, p. 122). Wife's testimony in regard to her application for counsel fees is confusing and unclear. Wife testified that she is seeking $85,000 as an approximation of the total amount of fees incurred by her attorney in this action. However, Wife indicated that she actually owes her attorney considerably less than this amount, if anything at all, as they came to an agreement that her attorney would not seek to enforce any more than the $47, 000 she has already paid (Tr. 2/10/15, pp. 44-45). While Wife indicated in subsequent testimony that she understands that she owes her attorney more than $47, 000 the Court finds this subsequent testimony to be less than credible.
While Wife has indicated that she has access to "unlimited funds" through her parents, and therefore would likely not be entitled to an award of counsel fees in any event, the Court need not even address the issue of which party presents as "monied" in this action. As correctly argued by Husband, the Court cannot even consider Wife's counsel fee application as there has been a complete failure of proof in regard to that claim at trial. See Weinschneider v. Weinschneider, 50 AD3d 1128 (2d Dept. 2008); See also Mojdeh M. v. Jamshid A., 36 Misc 3d 1209[A], (Sup. Ct. Kings Cty. 2012). In support of her application Wife completely failed to offer her attorney's retainer agreement or any billing documentation during the course of the trial record. See Barson v. Barson, 32 AD3d 872 (2d Dept. 2006); See also, Mimran v. Mimran, 83 AD3d 550 (1st Dept. 2011). While this failure of proof would be relevant to any application for counsel fees under DRL '237, it becomes all the more relevant in relation to a trial application for counsel fees, as the party opposing that application has a right to contest the reasonableness of the billing in an adversarial proceeding. See Price v. Price, 113 AD2d 299 (2d Dept. 1985); See also, Sadofsky v. Sadofsky, 78 AD2d 520 (2d Dept. 1980).
While Wife attempted to cure this error in her post trial summations by including billing documentation, the Court may not consider issues, or evidence, raised for the first time in post trial summation papers. See Matter of Roberts v. Borg, 83 AD3d 947 (2d Dept. 2011); See also, Cole v. Mandell Food Stores, 93 NY2d 34 (1999). Moreover, even were the Court able to consider post trial evidence, Wife has still failed to submit a retainer agreement into evidence as required in support of a counsel fee application. See DeMato v. DeMato, 101 AD2d 847 (2d Dept. 1984); See also, Bentz v. Bentz, 71 AD3d 931 (2d Dept. 2010).
Accordingly Wife's application for counsel fees is hereby denied as there has been a complete failure of proof in relation to that claim. See Clarke v. Clarke, 8 AD3d 272 (2d Dept. 2004); See also, Fu Kuo Hsu v. Hsuan Huang, 149 AD2d 405 (2d Dept. 1989). In so deciding the Court notes that Wife's reliance on a turn of the century Erie County Surrogates Court case, In re Sewell, 67 N.Y.S. 456 (Sur. Ct. Erie Cty. 1900), to establish the standard for a counsel fee application is not persuasive, nor is it in any way controlling in this matrimonial action.
Conclusion
For the detailed reasons set forth above, Husband is hereby granted a Final Order of Sole Custody of the subject child M.N.. Wife is granted the parenting time set forth herein. Husband's application for child support is granted in the amount of $795 a month together with retroactive sums due and owing in the amount of $19,080 which shall be payable at the sum of $300 a month until all arrears are paid. Wife's application for counsel fees is hereby denied for the reasons set forth above. All other ancillary relief is resolved as directed herein. To the extent that an issue has not been specifically addressed by this Decision it is hereby denied.
During the course of this litigation Defendant's motion sequence number 002 was referred to trial, upon review of said motion, it is hereby denied to the extent that it has not been addressed by this Decision after trial.
The Court has specifically considered all claims for reallocation of fees throughout the course of this litigation, upon consideration, all requests for reallocation are hereby denied.
Defendant Husband is hereby directed to prepare, serve, and file a Judgment of Divorce together with Findings of Fact and all required supporting documentation, together with a copy of this Decision within 60 days of the issuance of this Decision after trial.
This constitutes the Decision of the Court after trial.
Dated:July 30, 2015
E N T E R:
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HON. CATHERINE M. DIDOMENICO
Acting Justice Supreme Court