Opinion
Index No. 2206/2016
11-21-2023
D.A., Plaintiff, v. N.A., Defendant.
Unpublished Opinion
Hon. James L. Hyer, J.S.C.
Basic Background & Procedural History
The parties to this matter were married on March 13, 2003, in Yorktown, New York. Together, they have one unemancipated child - R.A. (born XX/XX/2007) (hereinafter referred to as the "Child").
Plaintiff commenced this matrimonial action on June 16, 2016, with the filing of a Summons and Complaint.
The parties settled the ancillary issues by a written Stipulation of Settlement entered into between the parties on August 14, 2019, which was so-ordered by the Hon. Helen M. Blackwood, A.J.S.C. on August 15, 2019, and an Addendum to Stipulation of Settlement entered into between the parties on August 15, 2019, which was so-ordered by the Hon. Helen M. Blackwood, A.J.S.C. on August 15, 2019 (hereinafter referred to as "Stipulation #1").
A Judgment of Divorce was entered by the Hon. Helen M. Blackwood, A.J.S.C. on September 11, 2020, which dissolved the parties' marriage pursuant to New York State Domestic Relations Law § 170(7), being that the parties' marriage had irretrievably broken down for a period in excess of six months and incorporated by reference the terms of Stipulation #1 (hereinafter referred to as the "Judgment of Divorce"). The Judgment of Divorce further noted that it was, "Ordered and Adjudged that the issues of custody and child support have not yet been determined by the Court and shall be determined by the Court at a later time..." (Judgment of Divorce at 3).
On August 26, 2021, the parties entered a Custody and Visitation Stipulation (hereinafter referred to as "Stipulation #2"), which set forth terms by which the custody and access of the Child were agreed upon, including, but not limited to, the following:
WHEREAS, the Parties desire that this Stipulation, which is entered into after due and considered deliberation, shall be and constitute an agreement and stipulation between them with respect to the custody and visitation of the Child. The Parties acknowledge and agree that this Stipulation constitutes their entire understanding between them and they agree that the following provisions will constitute a full and final resolution of all their respective claims pertaining to custody and visitation of the Child; and that this Stipulation shall be So-Ordered by the Supreme Court of the State of New York, County of Westchester; and
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WHEREAS, the Parties acknowledge that it is their intention through this Stipulation to provide a stable environment for the Child; and
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1. The Parties wish to make a provision for the custody and parenting time with the Child in a manner that takes cognizance of the paramount important of the Child's welfare and well-being. The Parties shall share joint legal custody of the unemancipated Child, to wit R.A., born XX/XX/2007 (the "Child"). The Mother shall have sole physical custody and the Child shall reside primarily with the Mother subject to the rights of the Father, including but not limited to, the holiday, recess and summer vacation schedule as set forth in this Stipulation.
2. The care and custody of the Child by the Mother shall be under the supervision of WCDSS upon certain terms and conditions through November 12, 2021. The Mother shall comply with the following terms and conditions of supervision:
a. The Mother shall immediately open a voluntary preventative services case with the Westchester County Department of Social Services;
b. The Mother shall provide the Child with all recommended services and timely transport her to all appointment from Westchester County Department of Social Services;
c. The Mother shall cooperate with supervision by WCDSS, such supervision shall include, but not be limited to, case planning, casework counseling, and announced and unannounced visits to the Mother's residence, and the Mother shall follow any and all recommendations from such casework counseling;
d. The Mother shall cooperate with the Child's treating professionals, including, but not limited to, family therapy, and the Mother shall follow any and all recommendations resulting therefore;
e. The Mother shall not disparage the Father in the presence of the Child and the Mother shall refrain from any and all negative comments about the Father in the presence of the Child;
f. The Mother shall sign releases necessary to allow WCDSS to monitor her compliance with services and this Agreement;
g. The Mother shall sign new HIPPA consent forms to allow WCDSS to verify that she is in therapy;
h. The Mother shall sign new consent forms for the Child's medical doctors, therapists, and school to allow WCDSS to obtain information and speak with them regarding the Child;
i. The Mother shall work with St. Christopher's Health Homeworker and Single Point of Access worker to ensure the Child's physical and emotional and mental health needs are being met; and
j. The Mother shall immediately notify WCDSS of any changes in her address and/or phone number.
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6. The Mother and Father agree that it is of paramount importance for each of them to remain involved in parental decisions and guidance for the Child. The Parties acknowledge that the welfare of their Child is their primary concern, and that neither party will take any action whatsoever to arbitrarily interfere with or impede the custodial rights provided in this Stipulation.
7. Each party agrees to make every reasonable effort to cooperate with the other in all matters affecting the Child's well-being, including her physical, mental, emotional, educational, and spiritual well-being. The parties further agree to advance the Child's emotional and physical well-being and to secure for the Child the affection of both Parties. Each party shall use his or her best efforts to keep all conversations, notes, and documents concerning any parental disagreements away from the Child.
8. The Parties shall make every reasonable effort to foster a feeling of love and affection between each parent and the Child. Neither party shall do anything which may estrange the Child from the other party, or which may hamper the free and natural development of the Child's love and respect for the other party. Each party shall refrain from any act or statement that might tend to reduce the Child's respect and affection for the other party, and shall use his or her best efforts to prevent such actions by any family member or other third-party. Neither party shall denigrate the other in the presence of the Child nor shall they permit, to the extent of their capacity, others to do so. Neither the Mother nor Father shall utilize the Child as a go-between or messenger between the parties. The Parties shall endeavor to not discuss or involve the Child in the Parties' litigation. Neither party shall, directly or indirectly, influence the Child so as to prejudice them against the other party. Neither party shall disparage the other parent in the presence of the Child and both parties shall refrain from any and all negative comments about the other party in the presence of the Child.
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19. The Parties agree that they shall not unreasonably interfere with the other party's parenting time or the Child's normal and usual activities, including but not limited to the Child's normal religious observances, school schedules, extracurricular and social activities, counseling or health and educational needs or requirements...
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21.... Neither party shall interfere with or prohibit the Child from contacting the other party, either by telephone, e-mail, text, or other form of communication.
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23. The Parties have read the following Children's Bill of Rights and agree to respect and comply with same:
a. The right not to be asked to "choose sides" between their parents;
b. The right not to be told the details of bitter or nasty legal proceedings going on between their parents;
c. The right not to be told "bad things" about the other parent's personality or character;
d. The right to privacy when talking to either parent on the telephone;
e. The right not to be cross-examined by one parent after spending time with the other parent;
f. The right not to be asked to be a messenger from one parent to the other;
g. The right not to be asked by one parent to tell the other parent untruths;
h. The right to not be used as a confidant regarding the legal proceedings between the parties;
i. The right to express feelings, whatever those feelings may be;
j. The right to choose not to express certain feelings;
k. The right to be protected from parental warfare; and
l. The right not to be made to feel guilty for loving both parents.
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27. The Mother and Father shall each write a letter to the Child (in English) stating the importance of having the other party in the Child's life and giving permission to the Child to have and maintain a good relationship with the other party. The letter shall also state what the specific ways the Mother and Father support having the other party in the Child's life and why. The Child, Mother and Father shall be provided with both letters, which shall occur before the Father's first regularly access schedule weekend visitation.
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1. Regular Access Schedule:
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b. The Parties shall take into consideration the Child's wishes as to the visitation/access time that is to take place between the Parties and the Child.
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2. Holiday and Recess Schedule:.... Except as otherwise set forth herein, in the event that a holiday, recess, or vacation coincides or occurs on the same day and both parties have the child pursuant to the schedule herein below, then the parties shall discuss in writing and attempt to come to a resolution, taking into consideration the parties' schedules, planned activities, and the Child's wishes...
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3. The above access schedule shall control, but there shall be flexibility if the Parties mutually agree otherwise in writing, consent shall not be unreasonably withheld. The Parties shall take into consideration the totality of the Parties' and the Child's schedules and needs....The Parties shall take into consideration the child's wishes as to the visitation/access time that is to talk place between the Parties and the Child.
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13. Should the Child experience any issues as a result of the foregoing access schedule, which requires therapeutic intervention and/or treatment, the Parties shall actively work and participate with the therapist threating the Child to resolve said issues.
14. The Parties further agree that either or both Parties may periodically waive his/her custodial access time and/or may seek different or additional custodial access time, subject to the term of this Stipulation, consistent with the health, education, and general needs and wishes of the Child. Such requests for different or additional time shall be make in writing directly to the other party (and not through the Child), and consent to such requests shall be in writing and not unreasonably withheld.
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16. The Parties acknowledge that the Child's current position is that she would like to reside with the Mother and does not want to visit with the Father.
Stipulation #2 notes that manner that the terms set forth within the document may be modified (NYSCEF Doc. No. 77 at 23, 27):
1. No modification or waiver of any provision of this Agreement shall be binding unless made in writing and executed and acknowledged with the same degree of formality as this Agreement or unless stipulated by the Parties upon the record of a court of competent jurisdiction.
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3 Any permanent changes to the access schedule shall be made in a writing duly subscribed and acknowledged with the same formality as this Stipulation.
Stipulation #2 set forth the manner within which either of the parties would be required to proceed in the event of an alleged default by the other (NYSCEF Doc. No. 77 at 24-25):
1. In the event that either party defaults with respect to any obligation set forth in this Agreement, the injured party shall send written notice, by e-mail or certified mail, return receipt requested, to the defaulting party, which notice shall specify the nature of the default. If the default is not cured or the Parties have no[t] resolved the default by a mutually agreed upon resolution in writing within seven (7) days of receipt of said notice, and the injured party incurs attorney's fees and related expenses or costs in commencing and maintaining an action or proceeding to enforce this agreement, the defaulting party shall pay all such fees and costs.
2. In the event that either party defaults with respect to any obligation set forth in this Agreement, the defaulting party shall pay the reasonable attorney's fees and related expenses and costs incurred by the injured party in the enforcement of this Agreement, irrespective of whether such enforcement is ultimately attained by judgment or settlement.
3. If, after a suit or proceeding has been instituted based upon an alleged default, the alleged defaulting party shall comply with the term or condition of this Agreement alleged to have been breached, then, and in that event, the enforcing party shall be deemed to have prevailed in said legal proceedings and the defaulting party shall pay the enforcing party the costs and expenses incurred by the enforcing party, including reasonable attorney's fees.
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5. The provisions of this Article shall be in addition to and without prejudice to any other rights and remedies to which the aggrieved party may be entitled to under this Agreement in law and equity.
On September 8, 2021, the Hon. Lewis J. Lubell, J.S.C., entered an Order on Consent (NYSCEF Doc. No. 80).
On October 18, 2021, the Westchester Department of Social Services submitted a letter to the Court. The letter was executed by Senior Social Caseworker Karen Reynolds, Supervisor of Casework Elizabeth Akinleye and Manager II Linda Ariento, and noted (NYSCEF Doc. No. 81):
This is to provide the Court with an update regarding the court ordered supervision of the A. family, D., N., and R.A. by the Westchester County Department of Social Services (WCDSS) which will end on November 12, 2021.
R.A. was discharged from foster care into the care of her father on November 19, 2019. Court ordered supervision goals were to assist Mr. A. and R.A. with their reunification and maintaining the child in his home.
In September 2021, care and custody of R.A. was transferred to N.A. with a supervision order set to terminate on November 12, 2021. Both Mr. and Mrs. A. agreed with this revised plan and custody change occurred on September 6, 2021.
During this transition period, Case Manager continued to provide supervision to all parties to ensure a successful reunification. Case Manager received reports from R.A.'s therapists, doctors, and school personnel. Providers report that R.A. appears to be thriving living with Ms. A. R.A. reports to Case Manager that she is very happy with her living situation. R.A. has been to visits with her father for alternate weekends as part of the stipulation agreement between the parties.
As of this writing, Case Manager has only been allowed by Mrs. A. to observe R.A. once in her new home environment. This is due to Mrs. A.['s] not making herself available which contributed to case planning difficulties. CM has seen R.A. in the district office where she is accompanied by her sister DAN. A. At this point in time, it appears that R.A. is safe and doing well.
It is the Department's recommendation that therapeutic services that were put in place to support R.A. mentally, physically, and academically remain intact to ensure the success of this change in custody.
Based on the foregoing, supervision of the family by WCDSS will end on November 12, 2021.
On July 15, 2022, Plaintiff filed an Order to Show Cause (NYSCEF Doc. No. 82) (hereinafter referred to as Motion Sequence #12"), requesting the entry of an Order:
a. Holding Defendant, N.A. in Contempt of Court for her willful failure to comply with numerous terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021;
b. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021;
c. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021, including but not limited to, having the parties and the parties' Child, R.A. partake in virtual weekly family therapy sessions with Samantha DiLecce, LMFT or Dr. Alberto Navarro, Psychotherapist, PhD, LMHC or another family therapist selected by Plaintiff, D.A.;
d. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021, including but not limited to, immediately providing Plaintiff, D.A. with all information pertaining to the trip that the parties' child, R.A. is planning to take, including but not limited to, a detailed itinerary of the travel plans; the destination; the date of departure and the date of return; name, address and telephone number of the hotel/lodging; mode of transportation and means of tracking (i.e., flight number, train number, cruise number, etc.);
e. Ordering that the Defendant, N.A. shall provide Plaintiff, D.A. with the current phone number for the parties' child, R.A. and Defendant, N.A. shall promptly inform Plaintiff, D.A. within twenty-four (24) hours of a change in the phone number for the parties' child, R.A.;
f. Ordering that the action and the hearing presently scheduled to commence on August 11, 2021, at 9:00 a.m. in the action entitled N.A. v. D.A., File No.: 148214, Docket No.: F-07030-21, currently pending in the Family Court of the State of New York, County of Westchester is stayed;
g. Ordering that the Amended Temporary Order of Support dated June 1, 2022, issued in the action entitled N.A. v. D.A., File No.: 148214, Docket No.: F-07030-21, currently pending in the Family Court of the State of New York, County of Westchester is stayed;
h. Ordering that the action entitled N.A. v. D.A., File No.: 148214, Docket No.: V-09274-2121A, currently pending in the Family Court of the State of New York, County of Westchester, is stayed;
i. Fining Defendant, N.A. for such contempt;
j. Sanctioning Defendant, N.A. for such contempt;
k. Awarding Plaintiff, D.A. his reasonable attorneys' fees and costs associated with this Order to Show Cause; and
l. Granting such other and further relief as this Court deems just and proper.
On July 20, 2022, the Hon. Thomas Quinones, J.S.C, entered an Order with respect to Motion Sequence #12, indicating "Decline to sign. There are two Family court proceedings which affect the relief Plaintiff seeks in this OSC [Order to Show Cause] and which have been pending in F. Ct. [Family Court] since last year" (NYSCEF Doc. No. 111).
On July 28, 2022, Plaintiff filed an Order to Show Cause (hereinafter referred to as "Motion Sequence #13"), requesting the entry of an Order:
a. Declaring, nunc pro tunc, the parties' child, R.A. constructively emancipated as of December 19, 2021;
b. Holding Defendant, N.A. in Contempt of Court for her willful failure to comply with numerous terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021;
c. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021;
d. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021, including but not limited to, having the parties and the parties' Child, R.A. partake in virtual weekly family therapy sessions with Samantha DiLecce, LMFT or Dr. Alberto Navarro, Psychotherapist, PhD, LMHC or another family therapist selected by Plaintiff, D.A.;
e. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021, including but not limited to, immediately providing Plaintiff, D.A. with all information pertaining to the trip that the parties' child, R.A. is planning to take, including but not limited to, a detailed itinerary of the travel plans; the destination; the date of departure and the date of return; name, address and telephone number of the hotel/lodging; mode of transportation and means of tracking (i.e., flight number, train number, cruise number, etc.);
f. Ordering that the Defendant, N.A. shall provide Plaintiff, D.A. with the current phone number for the parties' child, R.A. and further that Defendant, N.A. shall promptly inform Plaintiff, D.A. within twenty-four (24) hours of a change in the phone number for the parties' child, R.A.;
g. Fining Defendant, N.A. for such contempt;
h. Sanctioning Defendant, N.A. for such contempt;
i. Awarding Plaintiff, D.A. his reasonable attorneys' fees and costs associated with this Order to Show Cause; and
j. Granting such other and further relief as this Court deems just and proper.
The Order to Show Cause for Motion Sequence #13 noted, "A previous application has been made for some of the relief requested herein, specifically requests "b" through and including "j" above. That application was in the form of an Order to Show Cause, which the Court declined to sign, and also included four (4) requests for equitable relief in the form of a Temporary Restraining Order as well as similar requests for relief for the Court to make after the application was to be fully submitted. Those items have been removed from this application. This application includes a prayer for relief requesting that the Court declare, nunc pro tunc, the parties' child, R.A. constructively emancipated as of December 19, 2021, which was not part of the prior application."
On July 28, 2022, the Hon. Thomas Quinones, J.S.C, entered a Decision and Order with respect to Motion Sequence #13 (NYSCEF Doc. No. 139):
This is Plaintiff's second Order to Show Cause seeking an order (1) declaring the parties' child, R.A., constructively emancipated; (2) holding Defendant in contempt for her willful failure to comply with numerous terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021; (3) directing Defendant to comply with the aforementioned Stipulation; (4) directing Defendant to have the parties' child, R.A., to partake in virtual weekly family therapy per the Stipulation; (5) directing Defendant to provide information pertaining to the trip that the parties' child, R.A., is planning to take; (6) directing Defendant to provide the child's current phone number; (7) fining Defendant for her contempt; (8) awarding him counsel lees and costs. The Court notes that it declined to sign the previous Order to Show Cause (Motion Seq. # 12) on the basis that there are "two Family Court proceeding which affect the relief Plaintiff seeks in this OSC, and which have been pending in F. Ct. since last year." The Court further notes that Plaintiffs application seeking to declare their child constructively emancipated is a new application which was not included in Motion Seq. #12.
The Court declines to sign the instant application as well. Defendant has filed two family court petitions: support proceeding under Docket No. F-07030-21 filed on September 21, 2021, and petition for modification of order of visitation under Docket No. V-09274-21/21A filed on December 9, 2021. The support proceeding is scheduled for a hearing before the Support Magistrate on August 11, 2022. The relief sought in the instant application is appropriate lor the applications currently pending before Westchester Family Court. "Public policy in New York... frowns upon forum shopping" (see for example O'Connell v O'Connell, 1 N.Y.3d 179 [2003]).
This shall constitute the decision and order of the Court.
On July 29, 2022, Plaintiff filed an Order to Show Cause (hereinafter referred to as Motion Sequence #14"), requesting the entry of an Order:
a. Declaring, nunc pro tunc, the parties' child, R.A. constructively emancipated as of December 19, 2021;
b. Holding Defendant, N.A. in Contempt of Court for her willful failure to comply with numerous terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021;
c. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021;
d. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021, including but not limited to, having the parties and the parties' Child, R.A. partake in virtual weekly family therapy sessions with Samantha DiLecce, LMFT or Dr. Alberto Navarro, Psychotherapist, PhD, LMHC or another family therapist selected by Plaintiff, D.A.;
e. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021, including but not limited to, immediately providing Plaintiff, D.A. with all information pertaining to the trip that the parties' child, R.A. is planning to take, including but not limited to, a detailed itinerary of the travel plans; the destination; the date of departure and the date of return; name, address and telephone number of the hotel/lodging; mode of transportation and means of tracking (i.e., flight number, train number, cruise number, etc.);
f. Ordering that the Defendant, N.A. shall provide Plaintiff, D.A. with the current phone number for the parties' child, R.A. and further that Defendant, N.A. shall promptly inform Plaintiff, D.A. within twenty-four (24) hours of a change in the phone number for the parties' child, R.A.;
g. Ordering that the action and the hearing presently scheduled to commence on August 11, 2021, at 9:00 a.m. in the action entitled N.A. v. D.A., File No.: 148214, Docket No.: F-07030-21 (the "Support Proceeding"), currently pending in the Family Court of the State of New York, County of Westchester are stayed;
h. Ordering that the Amended Temporary Order of Support dated June 1, 2022 (the "Order of Support"), issued in the Support Proceeding entitled N.A. v. D.A., File No.: 148214, Docket No.: F-07030-21, currently pending in the Family Court of the State of New York, County of Westchester is stayed;
i. Fining Defendant, N.A. for such contempt;
j. Sanctioning Defendant, N.A. for such contempt;
k. Awarding Plaintiff, D.A. his reasonable attorneys' fees and costs associated with this Order to Show Cause; and
l. Granting such other and further relief as this Court deems just and proper.
The Order to Show Cause for Motion Sequence #14 noted, "Two (2) previous applications have been made for the relief requested herein. The first application was in the form of an Order to Show Cause, which included requests for equitable relief in the form of a Temporary Restraining Order, and was filed on July 15, 2022. The first application included requests "b" through and including "l" above as well as the four (4) requests for equitable relief in the form of a Temporary Restraining Order requested above. Other prayers for relief from the first application are not included in this application. The Court declined to sign the proposed Order to Show Cause submitted with the first application. The second application was also in the form of an Order to Show Cause, which did not include any requests for equitable relief in the form of a Temporary Restraining Order, and was filed on July 28, 2022. Requests "f", "g" and "h" above also were not included in the second application. The second application included a prayer for relief requesting that the Court declare, nunc pro tunc, the parties' child, R.A. constructively emancipated as of December 19, 2021, which was not part of the first application. The Court declined to sign the proposed Order to Show Cause submitted with the second application.
On July 29, 2022, the Court conformed Motion Sequence #14, directing (NYSCEF Doc. No. 172):
1. Motion Sequence #14 be served upon Defendant and Giovanna Fernandez Harswick, Esq., by e-mail service and personal in-hand service by completed by August 8, 2022;
2. Answering papers be served upon Plaintiff's counsel by August 31, 2022;
3. Reply papers be served upon Defendant by September 9, 2022;
4. Return date for Motion Sequence #14 be September 12, 2022, at 9:30 a.m.;
5. Pending a Trial and determination of Motion Sequence #14 that:
a. The action and the hearing presently scheduled to conference on August 11, 2021, at 9:00 a.m. in the action entitled N.A. v. D.A., File No.: 148214, Docket No.: F-07030-21 (the "Support Proceeding"), currently pending in the Family Court of the State of New York, County of Westchester, are hereby stayed; and
b. The Defendant, N.A. shall provide Plaintiff, D.A. with the current phone number for the parties' child, R.A. and Defendant, N.A. shall promptly inform Plaintiff D.A. within twenty-four (24) hours of a change in the phone number for the parties' child, R.A.; and
c. The Defendant, N.A. shall comply with all the terms and provisions of the so-ordered custody and visitation Stipulation dated September 2, 2021, including but not limited to, immediately providing Plaintiff, D.A. with all information pertaining to the trip that the parties' child, R.A. is planning to take, including but not limited to, a detailed itinerary of the travel plans; the destination; the date of departure and the date of return; name, address and telephone number of the hotel/lodging; mode of transportation and means of tracking (i.e., flight number, train number, cruise number, etc.
On August 3, 2022, Plaintiff's counsel filed an Affidavit of Service of Matthew Mannis, indicating Motion Sequence #14 was served upon Defendant and Giovanna Fernandez Harswick, Esq. via e-mail (NYSCEF Doc. No. 174).
On September 22, 2022, the Hon. Thomas Quinones, J.S.C., entered an Order Appointing 18-B Attorney for Contempt Proceeding appointing Carol Most, Esq., as counsel for Defendant and scheduling a Court Conference to be held on October 27, 2022, at 4:00 p.m.
On September 22, 2022, the Hon. Thomas Quinones, J.S.C., entered an Order Appointing Privately Paid Attorney for the Child(ren) appointing Karen Jensen, Esq., for the Child, requiring that the parties each pay fifty percent of her fee subject to reallocation.
On September 26, 2022, the Hon. Victor G. Grossman, J.S.C., Supervising Matrimonial Part Judge of the 9th Judicial District declined to sign an Order to Show Cause submitted by Defendant requesting the appointment of pro bono counsel.
On October 5, 2022, the Hon. Thomas Quinones, J.S.C., entered a Second Order Appointing 18-B Attorney for Contempt Proceeding appointing Arlene Wexler, Esq., as counsel for Defendant, and vacating the Order of September 22, 2022, appointing Carol Most, Esq, which further directed a Court Conference to be held on October 27, 2022, at 4:00 p.m.
On February 7, 2023, the Hon. Thomas Quinones, J.S.C., entered an Order Scheduling Hearing, directing hearing dates for the 12th, 13th, 16th, 17th, and 18th of October 2023, commencing at 10:00 a.m. each day. This Order further directed that by August 7, 2023, the parties were to serve upon each other and e-file with the Court: (1) Witness List; (2) A fully executed stipulation of relevant facts that are not in dispute; and (3) Updated statements of net worth (NYSCEF Doc. No. 180).
On February 17, 2023, the Hon. Thomas Quinones, J.S.C., entered an Order Appointing Neutral Forensic Evaluator Contested Matrimonial, appointing Dr. Robert Verno to conduct a neutral forensic evaluation in determining the issue of custody and visitation wherein an evaluation of the parties and Child would occur. The Order directed that Dr. Verno submit a report to the Court by June 30, 2023 on the following issues: (1) Custody/Access; (2) Domestic Violence; (3) Mental Illness; (4) Decision Making; (5) Visitation; and (6) Interference With Parental Rights. The Order directed that the evaluation would be paid equally by the parties subject to reallocation at trial or further Order of the Court (NYSCEF Doc. No. 181).
On March 22, 2023, a Court Notice was issued advising that this case was reassigned to the Hon. James L. Hyer, J.S.C., and scheduling a Settlement Conference for July 24, 2023, at 9:30 a.m. (NYSCEF Doc. No. 184).
On April 21, 2023, after the completion of a Compliance Conference, the Court entered an Order, directing that (NYSCEF Doc. No. 192):
1. Defendant shall remit her $7500.00 payment to Dr. Verno by the close of business on Monday, April 24, 2023.
2. If Defendant fails to pay Dr. Verno, Plaintiff has permission to file an Order to Show Cause for contempt against Defendant. Defendant has permission to file a cross motion by Order to Show Cause at that time as well. The parties shall mark the return date of both applications for May 15, 2023.
3. On May 15, 2023 at 2:00 p.m., the parties and counsel, including the AFC, shall appear in person in Courtroom 1003 for the Court to consider the cross motions and set a briefing schedule if needed.
On July 11, 2023, at the request of Plaintiff's counsel, due to the delay in receipt of the Report of Dr. Verno, the Settlement Conference was adjourned to September 22, 2023, at 9:30 a.m.
On September 19, 2023, at the request of Defendant's counsel, the Settlement Conference was again adjourned to September 28, 2023, at 3:00 p.m.
On September 21, 2023, Plaintiff's counsel and Defendant's counsel submitted Affirmation of Counsel Regarding Reports/Evaluations, and the Attorney for the Child submitted same on September 22, 2023 (NYSCEF Doc. Nos. 198-200).
On September 26, 2023, Defendant's counsel submitted a letter, requesting conversion of one scheduled trial date to be a Pre-Trial Conference. This relief was granted by the Hon. James L. Hyer, J.S.C. The Court entered a Pre-Trial Conference Order which directed that a Pre-Trial Conference be held on October 12, 2023, at 9:00 a.m., and that the trial will commence on October 12, 2023, immediately following conclusion of the Pre-Trial Conference and continuing October 13, 2023; October 16, 2023; October 17, 2023; and October 18, 2023. Among the directives set forth within the Pre-Trial Conference Order were that "Motions in limine must be in writing and made retumable 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" (NYSCEF Doc. No. 202).
On September 28, 2023, the Hon. James L. Hyer, J.S.C., entered an Order Vacating Appointment Privately Paid Attorney for the Child(ren) and entered an Order Appointing Attorney for the Child (by voucher) (NYSCEF Doc. Nos. 206-207).
On October 2, 2023, Defendant's counsel filed an Order to Show Cause (hereinafter referred to as "Motion Sequence #17"), requesting that an Order be entered:
1. Pursuant to NYCRR 202.70 and the rules of this Court, limiting the Plaintiff from using irrelevant and/or prejudicial evidence at trial, including, without limitation the testimony of prior forensic evaluators;
2. Granting the undersigned such other, further and different relief as the Court may deem just and proper.
On October 2, 2023, the Court conformed Motion Sequence #17 and directed (NYSCEF Doc. No. 216):
1. Motion Sequence #17 be served upon Plaintiff's Counsel and the Attorney for the Child by October 2, 2023, by 6:00 p.m., by NYSCEF filing and e-mail;
2. Answering papers be served and filed by October 5, 2023, by 12:00 p.m.;
3. Reply papers be served and filed by October 6, 2023, by 12:00 p.m.; and
4. The Return date was scheduled for October 12, 2023, at 9:00 a.m.
On October 2, 2023, Defendant's counsel filed an Affidavit of Service that Motion Sequence #17 was served pursuant to the Court's directives.
On October 5, 2023, Plaintiff's counsel filed Answering papers in opposition to the requested relief.
On October 5, 2023, the Attorney for the Child filed an Affirmation in Support of the relief sought in Motion Sequence #17.
On October 6, 2023, Defendant's attorney filed a Reply Affirmation in Further Support of Order to Show Cause with respect to Motion Sequence #17.
On October 11, 2023, Defendant's counsel filed a Witness List including the following possible witnesses to be called at the Trial: (1) Plaintiff; (2) Defendant; and (3) Dan. A. Defendant's counsel also filed an Exhibit List including Exhibits A-U.
On October 11, 2023, Plaintiff's counsel filed a Witness List including the following possible witnesses to be called at the Trial: (1) Plaintiff. Plaintiff's counsel also filed an Exhibit List including Exhibits 1-29.
On October 12, 2023, a Pre-Trial Conference was held, wherein the following occurred:
1. The Court decided orally, on the record, Motion Sequence #17, which was further filed as a written Decision, whereby Defendant's motion was granted.
2. Plaintiff's Witness List was marked for identification as Court Exhibit #1 and no objections were made with respect to the witnesses set forth therein being called to testify at the Trial.
3. Defendant's Witness List was marked for identification as Court Exhibit #2 and no objections were made with respect to the witnesses set forth therein being called to testify at the Trial.
4. Defendant's Exhibit List was marked for identification as Court Exhibit #3, including a hand-written Stipulation, signed by all counsel at the bottom of the last page of the document, noting that, "The parties stipulate that all of the above-listed exhibits shall be admitted into evidence with the exception of N, O, P, Q, and R."
5. Plaintiff's Exhibit List was marked for identification as Court Exhibit #4, including a hard-written Stipulation, signed by all counsel at the bottom of the last page of the document, noting that, "The parties stipulate that the following exhibits listed above shall be admitted into evidence on consent, with the exception of 2, 3, 10, 12, 13, 15, 16, 17, 21, 28, and 29."
6. A Stipulation of Facts Not In Dispute was marked for identification as Court Exhibit #5.
Following the Trial's conclusion, the Court provided counsel the opportunity to submit post-Trial submissions.
Trial Testimony and Documents in Evidence
The Court commenced the Trial on October 12, 2023. Appearances were made by Plaintiff, Plaintiff's counsel, Defendant, Defendant's counsel and the attorney for the Child. Defendant was afforded the assistance of a Spanish Language Court Interpreter.
During trial, the following exhibits were admitted into evidence:
Plaintiff's Exhibits:
- Plaintiff's Exhibit 1 - Forensic Evaluation Report of Robert J. Verno, Ph.D., 9/20/2023
- Plaintiff's Exhibit 4 - Judgment of Divorce, 9/11/2020
- Plaintiff's Exhibit 5 - So-Ordered Custody and Visitation Stipulation, 8/26/2021
- Plaintiff's Exhibit 6 - Defendant's Support Petition, 9/21/2021
- Plaintiff's Exhibit 7 - Temporary Order of Support, 1/20/2022
- Plaintiff's Exhibit 8 - Temporary Order of Support Amended, 7/1/2022
- Plaintiff's Exhibit 9 - Petition for Modification of Order of Visitation, 12/9/2021
- Plaintiff's Exhibit 11 - E-Mails, 1/14/2022
- Plaintiff's Exhibit 13 - List of Activities
- Plaintiff's Exhibit 14 - E-Mails, 3/9/2022 to 7/4/2022
- Plaintiff's Exhibit 18 - E-Mails, 2/7/2022-2/11/2022
- Plaintiff's Exhibit 19 - E-Mails, 3/16/2022
- Plaintiff's Exhibit 20 - E-Mails, 6/7/2022-7/6/2022\
- Plaintiff's Exhibit 22 - Letter, 8/25/2023
- Plaintiff's Exhibit 23 - Letter, 9/9/2021
- Plaintiff's Exhibit 24 - Retainer Agreement, 9/17/2018
- Plaintiff's Exhibit 25 - Invoices, 4/6/2022-7/28/2022
- Plaintiff's Exhibit 26 - E-Mail, 1/19/2022
- Plaintiff's Exhibit 27 - E-Courts Search Results from 7/28/2022
Defendant's Exhibits:
- Defendant's Exhibit A - Judgment of Divorce, 9/11/2020
- Defendant's Exhibit B - Order, 9/8/2021
- Defendant's Exhibit C - Custody and Visitation Stipulation, 9/26/2021
- Defendant's Exhibit D - Order to Show Cause, 7/29/2022
- Defendant's Exhibit E - Order Appointing Assigned Counsel, 10/6/2022
- Defendant's Exhibit F - Order Appointing Forensic Evaluator, 2/17/2023
- Defendant's Exhibit G - Forensic Evaluation of Dr. Verno, 9/20/2023
- Defendant's Exhibit H - Defendant's Financial Disclosure Affidavit, 8/11/2021
- Defendant's Exhibit I - Plaintiff's Financial Disclosure Affidavit, 4/14/2022
- Defendant's Exhibit J - Petition for Support, 9/21/2021
- Defendant's Exhibit K - Defendant's 2022 Tax Return
- Defendant's Exhibit L - Support Order, 4/1/2022
- Defendant's Exhibit M - Order to Show Cause, 6/1/2022
- Defendant's Exhibit S - Pre-Trial Conference Order, 9/27/2023
- Defendant's Exhibit T - Order to Show Cause, 10/2/2023
- Defendant's Exhibit U - Judicial Subpoena, 10/2/2023
Plaintiff and Defendant were the only witnesses who testified at the trial.
a. Withdrawal of Requested Relief
As a preliminary matter, the Court notes that during Trial, both Plaintiff and Plaintiff's counsel advised the Court that the only requested relief being sought by Plaintiff was a determination of constructive emancipation of the Child, and that due to a "change in circumstances" since the date of Plaintiff's filing Motion Sequence #14, none of the other relief sought by Plaintiff at that time was being sought at the time of Trial.
During his testimony during inquiry by Defendant's counsel, Plaintiff testified as follows:
Q: [Arlene Wexler, Esq.] Thank you. Other than asking that you not have to pay child support anymore for R.A., is there anything else that you are asking this court to do today?
A. No.(October 12, 2023 tr at 84, lines 16-19).
Plaintiff later testified during the AFC's inquiry as follows:
Q.... So I just want to make it clear, the only relief that you are seeking at this point is constructive emancipation of R.A.; is that correct?
A. Yes.(October 12, 2023 tr at 101, lines 13-16).
After Plaintiff rested his case, Plaintiff's counsel made the following statements:
THE COURT: We are re-calling the A. matter. Appearances remain the same. Before we broke for a short recess, Plaintiff had rested his case. Counsel, based upon the testimony of your client, do you have any applications to make to the Court?
MR. PISCIONERE: Based on the testimony of my client?
THE COURT: Correct. As to the relief that you are requesting of this Court.
MR. PISCIONERE: Yes, Judge. Sorry. I will stipulate for the record that the only relief we are seeking is the constructive emancipation of the daughter R.A..(October 12, 2023 tr at 122, lines 21-25 through 123, lines 1-9).
According to the Appellate Division, Second Department, "[a] motion which is withdrawn in the presence of the court is no longer pending even in the absence of the entry of an order (Matter of Kesten [Cooper], 25 Misc.2d 760, 206 N.Y.S.2d 424; 60 C.J.S., Motions & Orders, § 41). The effect of a withdrawal of a motion is to leave the record as it stood prior to its filing as though it had not been made (Altsman v. Kelly, 336 Pa. 481, 9 A.2d 423; Farne v. Pennsylvania Lighting Co., 275 Pa. 444, 119 A. 537; People v. Steinhoff, 38 Mich.App. 135, 195 N.W.2d 780)" (Stoute v City of New York, 91 A.D.2d 1043, 1044 [2d Dept 1983]).
Accordingly, the Court accepts Plaintiff's and Plaintiff's counsel's statements at the Trial that the only affirmative relief sought by Plaintiff is the first prong of Motion Sequence #14, being the request for an Order, "a. Declaring nunc pro tunc, the parties' child R.A. emancipated as of December 19, 2021," and that the remaining requested relief initially sought by Plaintiff in Motion Sequence #14 as having been affirmatively withdrawn at the Trial; specifically,
b. Holding Defendant, N.A. in Contempt of Court for her willful failure to comply with numerous terms and provisions of the so-ordered Custody and Visitation Stipulation dated September 2, 2021;
c. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 2021;
d. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-Ordered Custody and Visitation Stipulation dated September 2, 202l, including but not limited to having the parties and the parties' Child R.A. partake in virtual weekly family therapy sessions with Samantha DiLecce, LMFT or Dr. Alberto Navano, Psychotherapist, PhD, LMHC or another family therapist selected by Plaintiff, D.A.;
e. Ordering the Defendant, N.A. to comply with all the terms and provisions of the So-ordered custody and visitation Stipulation dated September 2, 2021, including but not limited to, immediately providing Plaintiff, D.A. with all information pertaining to the trip that the parties' child, R'A. is planning to take, including but not limited to, a detailed itinerary of the travel plans; the destination; the date of departure and the date of return; name, address and telephone number of the hotel/lodging; mode of transportation and means of tracking (i.e., flight number, train number, cruise number, etc.);
f. Ordering that the Defendant, N.A. shall provide Plaintiff, D.A. with the current phone number for the parties' child, R.A. and further that Defendant, N.A. shall promptly inform Plaintiff, D.A. within twenty-four (24) hours of a change in the phone number for the parties' child, R.A.;
g. Ordering that the action and the Trial presently scheduled to commence on August 11, 202l, at 9:00 a.m. in the action entitled N.A. v. D.A., File No: 148214, Docket No.: F-07030-21 (the "support Proceeding"), currently pending in the Family Court of the State of New York, County of Westchester are stayed;
h. Ordering that the Amended Temporary Order of Support dated June 1, 2022 (the order of Support"), issued in the Support Proceeding entitled N.A. v. D.A., File No.: 148214, Docket No.: F-07030-21, currently pending in the Family Court of the State of New York, County of Westchester is stayed;
i. Fining Defendant, N.A. for such contempt;
j. Sanctioning Defendant, N.A. for such contempt;
k. Awarding Plaintiff D.A. his reasonable attorneys' fees and costs associated with this Order to Show Cause; and
l. Granting such other and further relief as this Court deems just and proper.
Trial Testimony
a. Plaintiff's Examination (Direct)
Plaintiff took the stand and testified to the following:
Plaintiff and Defendant were married for 20 years. They divorced in 2020 and he has one child with Defendant being the Child, who is sixteen years of age. Plaintiff testified that Samantha DiLecce was a therapist for him and the Child prior to August 26, 2021, for approximately three years, during which they engaged in weekly therapy sessions. Plaintiff testified that after August 26, 2021, Samantha DiLecce's therapy sessions continued with Defendant also participating approximately five or six sessions. Plaintiff testified that during the sessions with Defendant, she would denigrate him in front of the Child. Plaintiff testified that the therapy sessions ceased in October 2021, and that he did not want the sessions to end. Plaintiff testified that he believes that Dawn Perez was the Child's therapist and that he never had any interactions with her.
Plaintiff testified that pursuant to Stipulation #2, being Plaintiff's Exhibit #5, he was entitled to visitation with the Child. After the signing of that agreement, he tried to visit with the Child every other weekend as set forth in the agreement. Plaintiff did not see the Child every other weekend as it became more difficult over time. Defendant started changing pick-up and drop-off times, started to shorten Plaintiff's visits, and other problems developed. December 19, 2021 was Plaintiff's last weekend visit with the Child. From December 19, 2021 until the first day of trial, Plaintiff physically saw the Child once for 30 minutes at Dr. Verno's office, despite his attempts to see her.
Plaintiff testified that on November 19, 2021, he arrived to visit with the Child, but neither the Child nor Defendant were present at the pick-up location after he waited for 40 minutes. Plaintiff e-mailed Defendant, but she did not respond. Plaintiff testified that from September 2021 to December 2021, he had seven visits with the Child. During the October 8, 2021 visit, Plaintiff picked up the Child and they went to Plaintiff's home. The Child became very upset, refusing to use the bathroom. Plaintiff testified that he called Defendant, and within fifteen minutes, he returned the Child to the same location where he picked her up where Defendant was waiting.
On November 5, 2021, Plaintiff and the Child visited together. The visit was supposed to start at 5:00 p.m., but it started four hours later at the unilateral direction of Defendant. Plaintiff testified that he and the Child also had a visit on December 17, 2021, which was the first day of their last visit. Plaintiff testified that the next day, he took the Child to Connecticut for a party, returning the Child to Defendant the next day. Plaintiff believed that this was a successful visit. Plaintiff testified that Defendant unilaterally advanced the drop-off time from 7:00 p.m. to 4:00 p.m.
Plaintiff attempted to arrange a visit with the Child for Christmas Eve 2021, but Defendant sent a message that the Child had COVID having contracted it at school. Plaintiff contacted the Child's school nurse, discovered that Dr. Strickland conducted the Child's COVID test, and learned that the Child had tested negative for COVID. Following the execution of Stipulation #2, Defendant did not notify Plaintiff of any of the Child's medical or dental appointments.
Following his last visit with the Child, Plaintiff did not try to visit with her because Defendant failed to provide him with the Child's new telephone number, despite his requests for it. It took six months and court intervention for Plaintiff to get the information. In Fall 2022, Plaintiff texted the Child, wishing her a happy school year. The Child responded very nicely. Plaintiff testified that following that day, he did not attempt to communicate with the Child via that telephone number because when the Child discovered he was the one texting her, it was obvious to him that the Child's attitude was so bad it would not have been fruitful. Plaintiff testified that after he made a motion to obtain the Child's telephone number, he did not make any efforts to see the Child in person because it was obvious to him that the Child would not welcome another visit.
Plaintiff sent several e-mails to Defendant seeking visits with his daughter. In one e-mail, Defendant responded that it was up to the Child who did not want to go. When asked why he continued his efforts to visit with the Child, Plaintiff explained that he did so because, "I love my daughter." Plaintiff created a list of activities that he planned to attend with the Child during their visits. Following Stipulation #2, he and the Child completed some of the activities on his list, as they visited the Bear Mountain Zoo, had bubble tea, and went to Florrie Kaye's Tea House.
Plaintiff completed Dr. Verno's forensic evaluation. Plaintiff testified that since 2020, things have worsened between him and the Child. On December 9, 2021, Defendant filed a petition, seeking to stop all overnight visits. Plaintiff explained that prior to this petition, there had been only one overnight visit.
When asked why he made an application to emancipate the Child, Plaintiff responded that, he was aware of his right to seek custody but was concerned that additional false CPS charges would continue if the Child lived with him. According to Plaintiff, eight CPS cases were previously asserted against him, all of which were deemed false. Plaintiff testified that he is also seeking emancipation because he does not want to reward Defendant with child support.
b. Plaintiff's Cross Examination by Defendant's Counsel
Plaintiff confirmed that he speaks a lot of the Spanish language and can write in Spanish. With respect to Plaintiff's e-mails to Defendant, Plaintiff confirmed that they were written in English. Plaintiff may have communicated with Defendant via text message and following review of his cellular telephone, he provided two numbers listed as "N." in his cellular phone contact list noting that there would be no other "N." other than Defendant.
Plaintiff testified that xx/xx/2007 is the Child's birthday, that she turned 16 years of age a few months ago, and that he did not communicate with her on her birthday, noting that he "had stopped trying by then." With respect to the Child's 15th birthday in 2022, Plaintiff testified that his sole attempt to communicate with the Child on that birthday was via a text message to which the Child did not respond.
Plaintiff was paying for the Child's cell phone, the number for which he did not recall. After January 2022, Plaintiff eventually stopped paying for the Child's cellular telephone. Plaintiff did not tell Defendant that he was terminating the Child's cellular phone service, but he stated that told the Child. Plaintiff testified that he felt that terminating the Child's cellular telephone service was a good idea because he was paying that service for a child who refused to communicate with him. Plaintiff explained that if he had to do it over again, he still would have terminated the cellular service, but he would have notified Defendant. In March 2022, Plaintiff e-mailed Defendant, seeking the Child's new cellular telephone number. He had tried to text the Child but there was no response - "[i]t was like the phone number was gone."
Pursuant to a child support order, Plaintiff provides $800.00 in monthly support for the Child. Plaintiff testified that one of his current requests is termination of that support obligation. Plaintiff retained legal counsel who has appeared for him, and to whom Plaintiff has paid counsel fees under $50,000.00.
Plaintiff is not requesting that this Court direct family therapy or that he be awarded custody of the Child. Plaintiff testified that he consented to Defendant being awarded custody of the Child. Plaintiff acknowledged that he read portions of the Dr. Verno's report, and he agreed with the statement set forth in that report indicating that both he and the Child felt that never having a relationship with each other was a "fait accompli". When asked if he should close the door completely on the Child, Plaintiff testified:
A. I need to close the door.
Q. for you?
A. Yes.(October 10, 2023 tr at p 88, lines 14-16).
When asked if, notwithstanding what the Child is articulating now, he should not communicate with the Child through letters, unconditional gifts, et cetera, Plaintiff responded:
A. I believe there needs to be a closure. I don't want to do things for her and have her throw away the gifts, throw away the cards, and at this moment I am sure she would.
Q. And you are sure she would because you've actually spent more than a half hour with her in the last year and a half?
A. She made it - oh, an hour and a half. I spent -
Q. I said an hour. I'm sorry.
A. She made it very clear where she stands.
Q. Have you ever been 16 years old?
A. Yes.
Q. Have you ever changed your mind on anything since you were sixteen years old?
A. No. When I was 16 years old, I wasn't drifting into a relationship with hatred with one of my parents. This is very different from when I was 16.
Q. My question is different. Do you ever recall yourself as a 16-year-old having a fixed opinion on something that somehow changed later in life?
A. No.
Q. Okay. So your system of beliefs tight now is identical to what it was when you were 16? Is that what you are saying?
A. In many ways I have not changed.(October 12, 2023 tr at 89, lines 16-25 through 90, lines 1-25).
Plaintiff believes that Defendant working with a therapist who will guide her on how to encourage a relationship between the Child and Plaintiff in the future is a waste of time. Plaintiff testified that the Child working with a therapist who can assist her in working through her feelings toward Plaintiff and to encourage her to at least consider the possibility that she can have some type of contact with Plaintiff in the future also is a waste of time. Plaintiff stated that although he attends therapy, he does not believe that it would be helpful to include as one of his goals of therapy for him to sort out his feelings towards Defendant and the Child and develop empathy for the Child with the possibility of Plaintiff to coming to the realization that he has been transferring many of his negative feelings towards Defendant to the Child. When asked if is it best for a father to make the decision to erase his child from his life even though the child is currently rejecting him, and to not consider the possibility that her perspective may change as she matures emotionally as she enters womanhood, especially if she, for example goes to college away from her mother, Plaintiff responded, "I believe she will not change" (October 12, 2023 tr at 92, line 12).
Plaintiff and the Child worked with family therapist Samantha DiLecce for three years prior to September 2022, and during that period, Defendant had communicated with Ms. DeLecce outside the presence of Plaintiff or the Child.
Plaintiff testified that he signed Stipulation #2. Plaintiff had seven visits with the Child between September 2021 and December 2021, roughly every other week. With respect to the October 8th visit, Plaintiff brought the Child back within fifteen minutes of the pick-up. He did not return the Child at Defendant's direction, but rather he returned the Child because she was out of control, and he needed to bring her back to Defendant. Plaintiff testified that the Child was having "some sort of panic attack," and he could not manage her (October 12, 2023 tr at 95, line 12).
When asked if he was concerned about allegations the Child had made that she was sexually abused by his neighbor, Plaintiff testified that he was not because it did not happen. Plaintiff testified that he was concerned that the Child had asserted that she was sexually abused and that if the Child was returned to his home, the same thing may happen. Plaintiff testified that he was concerned that if he sought full custody that the "false CPS cases would continue, and that concerns me" (October 12, 2023 tr at 96, lines 17-18).
Plaintiff testified that Plaintiff's Exhibit 23 was a letter, and he testified as follows:
Q. As you sit here today, do you believe everything in that letter to still be true today?
A. No.
Q. What's not true today?
A. What's not true today, okay.
Q. I'm sorry?
A. May I take a moment to read it again?
Q. Of course.
A. Well, what's different today is, I was talking about having both parents love and respect her, but I believe we've moved past that. That's what's different today.
Q. Do you believe that you are incapable of loving and respecting her?
A. No. I believe she is incapable of loving her father, and that makes it very difficult.
Q. She meaning R.A.?
A. Yes, R.A..(October 12, 2023 tr at 97, lines 5-21).
Plaintiff was aware that at the time they executed Stipulation #2 that the Child's then-current position was that she wanted to live with Defendant and not visit with Plaintiff. Plaintiff testified that he did not want to reward Defendant with the payment of child support. Plaintiff understood that not paying child support would partially punish the Child. Plaintiff is aware of the parents' obligation to support their children, but he believed that there must be a relationship for there to be an obligation of support.
Plaintiff testified that the last time he communicated with the Child's school was in Spring 2022, and since December 2021, Plaintiff did not make efforts to communicate with the Child.
c. Plaintiff's Cross Examination by Counsel for the Child
Plaintiff stated again that the only relief he was seeking was the emancipation of the Child. He was not looking for therapy with her, and he was not looking to have access with her pursuant to Stipulation #2.
Following the cessation of the family therapy sessions with Samantha DiLecce, Plaintiff tried to recommence therapy with a different therapist, but it never happened. Following his seven visits with the Child, Plaintiff emailed Defendant to set up new weekend visits, but after about six months, he stopped trying. Since then, Plaintiff did not try to recommence the visits because he thought it was a waste of time.
Plaintiff testified that his position as to what he was seeking since the filing of Motion Sequence #14 was due to his belief that the Child was incapable of loving him. Plaintiff testified that he came to this belief after the last conversation with her with Dr. Verno being "so drastic, I was in shock" (October 12, 2023 tr at 105, line 2). In that 30-minute conversation in Dr. Verno's presence, Plaintiff concluded that the Child was incapable of loving him, and since that time, Plaintiff has not seen the Child in a year and eight months.
Plaintiff agreed that children need to be fed, clothed, and sheltered. When asked if as the Child's father he was responsible for providing for R.A.'s needs, Plaintiff stated that it would be hard for him to answer with a "yes" or "no" due to the complete cessation of his relationship with the Child. According to Plaintiff, it is Defendant's fault that he lacks a relationship with the Child because Defendant coerced the Child. When asked if it was the Child's fault that her relationship with Plaintiff has ended, Plaintiff responded:
Q. Is it R.A.'s fault that the relationship with you has ended?
A. It was her fault that she didn't maintain her feelings for her father, she could have maintained them.
Q. So we are going to blame a 16-year old for not being able to love you properly is that what your testimony is?
A. She was alienated and she succumbed to the pressure.
Q. Okay. So when we talk about alienation, are you suggesting that we punish R.A., even it it's true that Ms. A. alienated her, do you think that it's proper for you to punish her by withholding child support?
A. I wouldn't call it punishment.
Q. What would you call it, sir?
A. Emancipation. She cuts me out of her life, why should I be involved anymore?(October 12, 2023 tr at 106, lines 24-25 through 107, lines 1-13).
d. Plaintiff's Re-Direct Examination
During his meeting with Dr. Verno, Plaintiff determined that the Child was incapable of loving him. Plaintiff testified that during this meeting, the Child referred to the CPS case where she claimed his neighbor sexually abused her, Plaintiff had participated, and the Child would not back down from these allegations. Plaintiff testified that during this meeting, the Child's "general attitude was negative and totally without any affection, without any remorse." The Child "made it clear" that she never wanted to see Plaintiff again or communicate with him (October 12, 2023 tr at 109). Plaintiff testified that, "R.A. made it very clear to me that she would probably throw away the cards and letters and would refuse to text me or respond to me ever again" (October 12, 2023 tr at 111, lines 15-17).
Plaintiff did not believe that Defendant's participation in further therapy would be successful as she was sabotaging the sessions with Samantha DiLecce. Plaintiff believed that the Child engaging in therapy to work through her feelings toward him and to encourage the Child to consider the possibility of having contact with him in the future was not an option as he felt the Child was too far gone and it would be a waste of time. When asked to describe what he meant by "too far gone," Plaintiff stated, "Well, I don't think she can be reformed in any way. I think she is very set in her condition. She has a condition of hatred towards me" (October 12, 2023 tr at 113, lines 4-6). Plaintiff believed the Child would not change because she is enmeshed with her mother and sister. Plaintiff agreed with Dr. Verno's determination that Defendant has engaged in parental alienation.
With respect to the October 8, 2023 visit with the Child, Plaintiff testified that her behavior turned egregious and unreasonable. Plaintiff attempted to calm the Child down, but she would not calm down and it was impossible to talk to or reason with her. When Plaintiff executed Stipulation #2, he was not prepared to give up the Child and hoped that therapy would fix things. Plaintiff has not communicated with the Child's school since the Spring 2022, but he has seen her grades online as recently as two weeks before his trial.
e. Plaintiff's Re-Cross Examination by Defendant's Attorney
Plaintiff believed the Child was too far gone and it would be a waste of time for everyone to go to therapy. Plaintiff testified that the Child was happy, and he was not seeking custody.
f. Plaintiff's Re-Cross Examination by Attorney for the Child
Plaintiff had checked the Child's grades two weeks ago to make sure that her grades have not changed, but he acknowledged that he was no longer invested in the Child and her education.
Plaintiff maintained that the Child failed to be remorseful for lying about false CPS cases. Plaintiff testified that he did not know what the Child would do if he sent her a card or gift. Plaintiff also did not know if the Child would engage in therapy. When asked if he believed that he had any responsibility to make future attempts to foster some type of relationship with the Child, Plaintiff responded, "I think it would be a waste of time" (October 12, 2023 tr at 121, line 16).
g. Plaintiff's Re-Direct Examination
Plaintiff believe Defendant would engage in therapy because of her behavior with previous therapists.
h. Motions
Plaintiff advised the Court that no further witness would be called. Defendant's attorney and the AFC made applications for a directed verdict, for which the Court reserved decision.
i. Defendant's Direct Examination
Defendant testified as follows:
Plaintiff is Defendant's ex-husband; they divorced pursuant to a Judgment of Divorce entered in this Court. The Child was born of their marriage, and Defendant confirmed the Child's date of birth as xx/xx/2007. Defendant testified that she has another child, Dan. A., who is 27 years old. Dan. A.'s last name was Z., but she later changed it to A. when the parties decided to grow their family.
Defendant's first language is Spanish. She understands English with limitations. Specifically, there are many English expressions she does not understand, and she has difficulty understanding if a person speaks quickly. Defendant testified that while she resided with Plaintiff, the parties spoke Spanish while she learned English.
After the Pandemic, Defendant remained unemployed for about two to three years. During the quarantine, she could not work because she worked at a barbershop that was closed. The only employment Defendant could find was assisting elderly people which has done since September 2021, and she continues to do with part-time work at the barbershop.
Defendant executed Stipulation #2 after her then-attorney explained it to her in Spanish. When they executed Stipulation #2, Defendant understood that the Child wanted to reside with her. At the time, she had not seen, or spoken with, the Child in three years. Defendant testified that she saw her Child for the first time after they executed Stipulation #2. She explained that it was an emotional moment - the Child was skinny, Defendant could see her bones, and the Child looked traumatized. Defendant testified that the Child's hair was dry and untidy. At the time, the Child was 14 years old and starting high school.
Upon obtaining custody, Defendant, the Child, and her other daughter slept in the same room and there was a lot of happiness. The Child would have nightmares, waking up in the middle of the night. Defendant testified that it took the Child some time to adapt to having a normal life with her. Within three months of living with Defendant, the Child had gained weight and needed new clothing, and as time passed, the Child continued to improve.
With respect to Plaintiff's October 8, 2021 visit with the Child, Defendant received a text message from Plaintiff about 10 to 15 minutes after the Child went on the visit while she was still in Walmart. Upon receiving the text message, Defendant remained in the parking lot. When she returned to Defendant, the Child was crying. Defendant hugged her and attempted to calm her down.
Defendant testified that she filed a Family Court Petition, seeking a modification of custody of the Child based upon a change in circumstances to the extent that visitation with Plaintiff and the Child be limited to daytime visits because the overnight visits were torture for the Child. The Child would look for an excuse not to visit Plaintiff, and Defendant would have to force the Child to go. Defendant was assigned an attorney who told her that there was a contract in place and that the Child could cancel the visits whenever she wanted to.
Defendant testified that she, the Child, and Plaintiff attended the first therapy session with Samantha DeLecce after Stipulation #2 was signed. Defendant was aware the Child had known Samantha DiLecce for three years having engaged in family therapy with the Child and Plaintiff. Defendant thought their first session was to integrate Defendant into the therapy sessions. Defendant explained that the first session was strange - Defendant felt she needed to catch up with what was going on during the therapy. Defendant felt uncomfortable with the therapy sessions because it was more to help Plaintiff and Defendant, and not the Child. According to Defendant, it was torture for the Child.
On September 21, 2021, Defendant filed a petition for child support petition because the Child needed a lot of things that Defendant could not provide, and the Child deserved the best (October 13, 2023 tr at 162, lines 24-25, through 163, lines 1-4). Defendant testified that the parties' Judgment of Divorce did not address custody and child support (October 13, 2023 tr at 167, lines 7-16). Defendant testified that since a date she could not recall, Plaintiff had been paying her child support in the amount of $200.00 per week (October 13, 2023 tr at 169, lines 17-20).
Defendant testified that the Child is in 10th grade, doing very well, and, in addition to her regular classes, is enrolled in the film program at BOCES. The Child is currently in therapy with Sandra Serrano, focusing on learning about herself, overcoming problems she has had in the past, focusing on herself and how to be a better student and person, and not dwelling on the past. Defendant testified that Carolyn Flynn is a person who visited her once a month when she received custody of the Child, since September 2021. The Child spoke to Ms. Flynn alone in the living room. Defendant testified that it was her understanding that Ms. Flynn began meeting with the Child long before Defendant had custody of the Child.
When Defendant received custody of the Child, the Child had a cell phone procured by Plaintiff that Defendant was not responsible for paying for. There came a time when that cell phone number was cancelled, which she discovered when she tried to call the Child, but there was no signal. After this happened, Defendant and the Child went to Verizon so the Child could obtain a new phone. Defendant had had no contact with Plaintiff regarding the cellular telephone termination as it was impossible, "... because whatever type of communication I would have with D.A., he would use it as a knife against me, so I was terrified to have any type of communication with him" (October 13, 2023 tr at 176, lines 9-11). Once, Defendant emailed Plaintiff, advising him of her planned vacation time with the Child in compliance with Stipulation #2, and Plaintiff accused her of trying to take the Child out of the country.
With respect to the meeting between Plaintiff, the Child, and Dr. Verno, Defendant observed the Child prior to the meeting being very scared and nervous. Defendant testified that she believed the Child to be nervous because she cracks her knuckles, sweats a lot, and tightens around Defendant. Following the meeting, Defendant observed the Child, who needed to calm down because she was shaking and crying.
Defendant is sad that the Child does not have a relationship with Plaintiff. She has told the Child that she did not want to force her to have a relationship with Plaintiff, but to do so when she is ready.
Defendant agreed with Dr. Verno's recommendation that she be granted custody of the Child. Defendant also agreed with Dr. Verno's recommendation that Plaintiff continue to work with therapist Karen Padilla Moore "with one of the therapeutic goals being to sort out his feelings and develop empathy towards his daughter and considering the possibility of communicating his love for his daughter in an appropriate and legal manner" (October 13, 2023 tr at 184, lines 19-25 through 185, line 1).
Defendant did not agree with Dr. Verno's recommendation that she enroll in therapy "with a highly qualified mental health professional skilled in the area of treatment of individuals with cluster B personality disorders" and that one of the goals of Defendant's therapy be "encourage[ing] her daughter R.A. to have some form of contact with her father in the future, and that another goal of therapy being that [Defendant] develop autonomy from/be less dependent on her daughter Dan. A." Defendant responded, "I don't think it's necessary to have a specific treatment. I don't think it's necessary to have a treatment to develop a relationship, a healthy relationship with her father. I feel that R.A. needs to get healthy herself before she can enter into a healthy relationship with her father. And then for her to proceed forward to want to have that connection with her father, forgetting about the past, without regards to what happened in the past, and without my involvement in that" (October 13, 2023 tr at 185, lines 2-5 through 186, lines 2-17).
Defendant did not agree with Dr. Verno's recommendation that she enroll in DBT group therapy. With respect to Dr. Verno's recommendation that the Child continue to work with her therapist with one of the therapeutic coals being to treat emergent personality disorder, and another goal being to assist the Child in sorting out her feelings toward her father (which would include her developing a perspective of her father apart from her mother and sister Dan. A.'s influence) and considering the possibility of communicating with her father in the future, Defendant testified that she agrees as long as the Child is ready for that.
With respect to Dr. Verno's recommendation that Defendant, Dan. A., and R.A. work with a therapist in the area of family enmeshment with the stated goal of assisting them navigate life as per a single parent situation, with the unstated goal of the therapist breaking through the enmeshment by skillfully challenging the three family members to separate and individuate emotionally from each other (which includes dissolving their alignment against Mr. A.) and ultimately to give the Child space for her to form her own opinions against Plaintiff, Defendant did not directly respond, but instead insisted the Child "has always has the freedom to make her own choices. Even saying here, she has always had the freedom to choose" (October 13, 2023 tr at 187, lines 23-25, through 188, lines 1-11).
j. Defendant's Cross-Examination by Plaintiff's Counsel
Defendant did not agree with Dr. Verno's recommendation that she enroll in DBT group treatment because she did not believe she qualified for the treatment. With respect to Dr. Verno's recommendation that one of the goals of Defendant's therapy be that she encourage the Child to have some form of contact with Plaintiff in the future, Defendant responded she did not need therapy for that. When asked if she read the portion of Dr. Verno's report that said she was responsible for alienating the Child from Plaintiff, Defendant responded, I'm not responsible for that even if Dr. Verno says I am" (October 13, 2023 tr at 196, lines 14-15).
Defendant disagreed with Dr. Verno's assessment that she has been systematically turning the Child against Plaintiff. Defendant also disagreed with Dr. Verno's assessment that she was, and has been, preventing the Child from having a relationship with Plaintiff. Defendant testified that she has not interfered with the relationship between Plaintiff and the Child.
Defendant testified that after the execution of Stipulation #2, after September 2021, she was obligated to continue family therapy by Samantha DiLecce with Plaintiff and the Child. Defendant denied, during the therapy sessions, calling Samantha DiLecce unprofessional and a terrible therapist; accusing Ms. DiLecce of siding with Plaintiff; or threatening to sue Ms. DiLecce. During these sessions, Defendant did tell Ms. DiLecce to stop torturing the Child. Defendant testified that the Child was not obligated to watch television with Plaintiff, and she told Ms. DeLecce as much.
When asked about the time family therapy directed pursuant to Stipulation #2, Defendant testified as follows:
"Q. You also said to Samantha DiLecce, to stop-you also told Dr. Verno that you told Samantha DiLecce to stop forcing my daughter to do whatever D.A. wants, correct?
A. Yes, I remember saying that to her.
Q. And you believe that Samantha DiLecce was forcing R.A. to do whatever D.A. wanted?
A. I don't believe it, I heard it.
Q. What did you hear that led you to believe that Samantha DeLecce was forcing R.A. to do whatever D.A. wants?
* * *
A. I'm not sure if I'm making myself clear. D.A. - D.A. and Samantha DiLecce were literally together torturing my daughter trying to make her do something she didn't want to do.
Q. And that's why you stopped the sessions between Samantha DiLecce, D.A. and yourself in 2021, correct?
A. I didn't end the sessions with Samantha DiLecce.
Q. As the sessions progressed, you started limiting the sessions to less and less time, correct?
A. I didn't try to limit anything.
Q. Well, you showed up for the sessions later and later, correct?
A. Was the session for me or for my daughter?
Q. The sessions were supposed to be for all three of you, correct? Yourself, your daughter, and D.A., correct?
A. These sessions and the weekend visits were becoming torture for R.A.. She would find excuses to come late to those visits. * * * Like I said, these sessions and the weekend visits with her father were torture for R.A..
* * *
Q. And because you believe those sessions were torture for R.A., you were going to do everything you could to put an end to those sessions; isn't that correct, ma'am?
A. No.
Q. So you wanted these sessions to continue and your daughter to continue to be tortured in those sessions; is that your testimony?
A. I'm saying I had an obligation to follow through on the agreement. * * * It doesn't matter what I wanted. It had to be done until we reached some sort of a solution.(October 13, 2023 tr at 210 through 213, Lines 1-13)
The therapy sessions with Ms. DiLecce stopped after being cancelled by Ms. DiLecce for a reason unknown to Defendant. When asked if she thought that screaming to Ms. DiLecce to stop torturing her daughter was an appropriate way to treat the family therapist, Defendant responded, "Of course not. That's not the proper way to do things. But when somebody is doing that do my daughter, you have to react, you have to do something" (October 13, 2023 tr at 215, lines 13-15).
Defendant informed Ms. DiLecce that Plaintiff had abused the Child. When asked what specific abuse of the Child by Plaintiff was reported to Ms. DiLecce, Defendant responded, "R.A. told me many things. I don't remember exactly what it was at this moment" (October 13, 2023 at 221, lines 20-21). When questioned further, Defendant stated that she told Ms. DiLecce about how the Child was when she was given to her, and Ms. DiLecce gave Defendant the impression that she did not believe her. Defendant told Ms. DiLecce that the abuse of the Child by Plaintiff included manipulation of the Child and those around her, in addition to what occurred with a neighbor. Defendant testified that Plaintiff and the neighbor sexually abused or harassed the Child. Defendant testified that Plaintiff's manipulation of those around the Child included the therapist, social workers, the courts, the attorneys, and the police.
Defendant testified that from September 2021 to Dr. Verno's final meeting, she did not teach the Child to hate or fear Plaintiff. Defendant did not play any part in the breakdown of Plaintiff's relationship with the Child.
Defendant testified that in Fall 2021, she filed a petition to terminate overnight visitation between the Child and Plaintiff. The Child did not see Plaintiff on Christmas Eve, Christmas Day, New Year's Eve 2021, or New Year's Day 2022, and Defendant did not recall if Plaintiff requested visitation. Defendant testified that since January 1, 2022, there were times when Plaintiff e-mailed her seeking visitation with the Child, and "..my answer was, ask R.A. to see if she agrees with that, to see if she wants that, and to see how R.A., if R.A. feels like that's good or not" (October 16, 2023 tr at 238, lines 3-6). Defendant was asked how many visits occurred between Plaintiff and the Child from the time Defendant filed the petition in Family Court until the Child saw Plaintiff at the office of Dr. Verno, and she responded, "None because after the documents were filed to cancel the overnight visits, the attorney that was handling that case said that this case wasn't necessary because R.A. could do whatever she wanted with the visits because that's what was included in that agreement" (October 16, 2023 tr at 244, Lines 15-19).
When asked about Father's Day 2022, Defendant testified that there was no visitation between Plaintiff and Child. Defendant was questioned regarding the number of e-mails sent by Plaintiff wherein he requested visitation. Defendant stated that the requested visitation did not take place, including one within which Plaintiff requests visitation on the Child's 15th birthday. Plaintiff also did not have a visit the Child on her 16th birthday. When asked about her use of e-mail, Defendant testified, "The thing is that I don't communicate with people through e-mail, so I don't check it that much" (October 16, 2023 tr at 257, lines 10-11). Defendant explained, "It's not that I didn't see the e-mails for a long period of time. Some I would be able to see sometimes, the other ones I would get to thereafter," but Defendant did not remember how long thereafter she would get to the e-mails (October 16, 2023 tr at 258, lines 19-21). Defendant then testified that, "Every time I would receive these e-mails, I would have a conversation with R.A. about them, but I do remember just getting several e-mails" (October 16, 2023 tr at 258, lines 7-9).
After not seeing the Child for three years, Defendant was in a lot of pain and blamed Plaintiff and the people surrounding the Child including everybody that had to do with the case asserting, "None of them heard from my daughter. Everybody just heard from him" (October 16, 2023 tr at 261, lines 12-13). Defendant testified that she told Dr. Verno that she did not want Ms. DiLecce involved in the family therapy because of how the process was going, and that she did not believe Ms. DiLecce did an accurate and professional report of the Child. Defendant asked Dr. Verno if she could put charges on Ms. DiLecce. When asked about an e-mail from Defendant reading that she wanted to "put charges on Samantha DiLecce because her negligence hurts my daughter very much emotionally and mentally, but it will be R.A.'s decision," Defendant confirmed that she sent it (October 16, 2023 tr at 272-273).
Defendant testified that there came a time when Plaintiff weaponized medicine against the Child, "Yes, because R.A. was prescribed some medication, and when she wouldn't take the medication, D.A. took her to a psychiatric hospital, and that was torture for her. It was a medicine that she really - it wasn't medically necessary" (October 16, 2023 tr at 274, lines 4-7). Defendant understood that when the custody of the Child was provided to her, this medicine was prescribed to the Child by Dr. Andrene Campbell.
After family therapy ended with Ms. DiLecce, Defendant located Sandra Serrano who began therapy with the Child. Defendant testified that the focus of the therapy is for the Child to recover and not for the Child to have a relationship with Plaintiff.
Defendant testified that during these therapy sessions with the Child, they would sometimes occur in the presence of others, including her sister, as they took place in the living room of Defendant's home. "Sometimes the sessions, we did them from the car, because we had appointments to keep" (October 16, 2023 tr at 279, lines 6-8).
Defendant denied making mistakes in connection with the Child's relationship with Plaintiff. Defendant testified that after September 2021, she did not teach the Child to dislike or fear Plaintiff. During this time, Defendant did not encourage the Child to have a relationship with Plaintiff, but she also did not advocate that the Child sever ties with Plaintiff. Defendant believed Dr. Verno got certain things wrong in his report. She does not believe that the Child learned how to manipulate others and situations, or how to fabricate, exaggerate, delete, and twist information.
k. Appearance of Plaintiff's Counsel
On the first day of trial, Plaintiff appeared with two attorneys, being Anthony Piscionere, Esq., and Matthew Mannis, Esq., who remained in attendance up to the completion of Defendant's cross examination by Plaintiff's counsel. At completion of Defendant's cross examination by Plaintiff's counsel, Mr. Piscionere advised the Court that he would not be returning, and that Mr. Mannis would be the sole counsel for Defendant for the remainder of the trial. The Court made the following record:
MR. PISCIONERE: Your Honor, I have no further questions for this witness at this time.
THE COURT: Ma'am, you can step down. It's now 12:57. We are going to re-call the case at 2:00 p.m. today. We are going to continue on with the trial as scheduled in my pre-trial conference order. Mr. Piscionere, you indicated that you have another trial in Putnam County. Are you appearing back here at 2:00?
MR. PISCIONERE: With the Court's permission, I was not planning on being here, Judge. The trial has already started, and I need to be up there.
THE COURT: I need to make sure that for appellate purposes, it's very clear, I have never had an attorney start a trial and then leave halfway through. The defendant has the ability to call further witnesses. She has noticed at least one other witness. So to the extent that you are going to rely upon Mr. Mannis to continue, I need to make sure for appellate purposes you are doing so with the knowledge that that's not going to be an appellate issue.
MR. PISCIONERE: Absolutely, Judge. Mr. Mannis is fully prepared to continue. We prepped the case together.
THE COURT: Very good. I will see everybody at 2:00.
* * *
THE COURT: We are back on the record with A. v. A., Index Number 2206 of 2016. Appearances remain the same with the exception of Mr. Piscionere, one of the attorneys for the plaintiff, who is no longer with us. Mr. Mannis, my understanding is you are proceeding to represent the plaintiff alone, correct?
MR. MANNIS: That is correct, Your Honor.
THE COURT: And you see no issues with that, correct?
MR. MANNIS: No issues.(October 16, 2023 tr at 289-291).
l. Defendant's Cross Examination by Counsel for the Child
Defendant testified that the Child is currently in therapy with Sandra Serrano, following the end of therapy with Dawn Perez. Defendant has been engaged in therapy with Ms. Serrano for almost a year and a half since 2021. The focus of the therapy was to make the Child a better person and better student and to help her not dwell on the past. Defendant testified that she is not in attendance at these therapy sessions and is not sure what is discussed. Defendant testified that if she was asked and if the therapist thought it was appropriate, she would support a specific goal for R.A. reconciling with Plaintiff. Defendant testified that she supports the continuation of the Child's therapy with Ms. Serrano. In addition, Carolyn Flynn visits the Child once a month with the idea of making the Child feel more comfortable around people. Defendant testified that there is a possibility for a relationship between the Child and Plaintiff if the Child is comfortable and happy.
When asked if the Child may need another therapist, Defendant testified, "Yes. It all depends on how comfortable she feels" (October 16, 2023 tr at 295, line 12). When asked what led her to use the word "torture" in describing the Child's reactions to the therapy with Ms. DiLecce, Defendant testified:
Well, they put lots of pressure on her. Samantha DiLecce acted like D.A. was like a poor kid who needs love, a person who needed more attention and more love from his daughter. While he at the same time, all he did was bring up complaints about R.A. For example, he once asked her to watch TV with him, watch a movie on TV with him. When she said, no, I don't want to watch that film or I don't want to watch TV, he made that whole thing into a different situation. He told Samantha that R.A. didn't want to watch television with him. Samantha literally started castigating or reprimanding R.A. for that.
In my opinion, I'm not a therapist, I thought it was wrong to reprimand her and make her feel bad for not wanting to watch TV, and I thought that was wrong, she didn't want to be with her father, and I could see that in her.
I took R.A.'s phone away, and I walked far away, and I told Samantha DiLecce to stop torturing my daughter, that D.A. wasn't a poor little kid, that R.A. was the victim here.(October 16, 2023 tr at 295, lines 20-25 through 296, lines 1-13).
When asked if future therapy with the Child was to take place if family therapy with Ms. Serrano might be beneficial to the Child, Defendant testified it would if the Child felt comfortable. Defendant would support the Child visiting Plaintiff if it is guided by her wishes and desires.
m. Defendant's Re-Direct Examination
When asked about Paragraph 14 of Stipulation #2, Defendant testified, "From my understanding, according to this paragraph, is that according to this, the parents can seek to modify or change or have additional aspects of that phrase. Did I understand that correctly?" (October 16, 2023 tr at 303, lines 10-13). When further asked about her understanding of the words "consistent with the wishes of the child," Defendant explained, "What this means to me is that it all depends on her wants and what she decides to do on her own" (October 16, 2023 at 303, lines 21-22).
When asked about what plans she had to effectuate the terms of Stipulation #2, Defendant testified as follows:
Q. Thank you. So, Ms. A., when you signed this stipulation in September 2021, knowing that R.A. did not want to see her father, can you tell the Court what your plan was to effectuate the terms of the stipulation?
A. Well, honestly, I didn't think much when I signed this. The only thing I really wanted at that point was to see my daughter.
Q. What discussions, if any, did you and Mr. A. have after signing this stipulation about implementing his visitation given this provision that I have just read to you that you both acknowledge that R.A. did not want to see her father at that time?
A. I feel like I talked about this similarly before, but it was very hard, technically impossible to have communication with D.A.. Literally, I was in panic mode for any type of move that I was about to make. I tried to follow the rules that were imposed, but I was afraid with every move.(October 16, 2023 tr at 305, lines 12-25 through 306, lines 1-3).
When asked about the therapy that was required pursuant to the terms of Stipulation #2, Defendant testified as follows:
Q. I am going to direct your attention to page 5 of the same 2021 stipulation that we have been discussing, paragraph four. So the second line in paragraph 4 reads as follows, "Those therapists are Samantha DiLecce, LMFT, the current LMFTT [sic] therapist, and Dawn Perez, the child's new therapist. The parties agree that the child shall continue in family therapy sessions and they shall be with the father present in a Zoom conference with the child's therapist, Samantha DiLecce, LMFT, weekly, until further written agreement of the parties executed with the same formality as this agreement or order of a court of competent jurisdiction." Ms. A., my question to you is, what was your understanding of the difference between the roles of the family therapist and R.A.'s therapist?
A. Well, the difference is that a therapist for R.A. would only address or look at her personal issues, whereas a family therapist is for us to work together as a family with R.A.
Q. So which of those roles did you understand Samantha DiLecce to be fulfilling?
A. On my personal opinion, when it comes to Samantha DiLecce, she had to focus on how to help R.A. feel better with D.A. instead of punishing her for whatever complaints D.A. made against her.
Q. My question is a little different though. Was Samantha DiLecce acting as R.A.'s therapist or as the family therapist or both?
A. Well, supposedly she was supposed to act as a family therapist, but instead she was acting only as D.A.'s therapist.(October 16, 2023 tr at 306, lines 8-25 through 307, lines 1-12).
According to Defendant, Carolyn Flynn attended one of the family therapy sessions with the parties and Child at her request, and that she did not request the consent of Plaintiff before making this request. Defendant testified that there was no notice provided to anyone that the family therapy sessions with Ms. DiLecce were being terminated.
When asked about Paragraph 3 of Stipulation #2 requiring that "any notice or consent required to be provided pursuant to the stipulation be in writing, which shall be defined to include e-mail, text, regular mail, or overnight mail," Defendant stated that she and Plaintiff agreed to utilize e-mail communication, and no other method of written communication was used (October 16, 2023 tr at 309-310). When asked about e-mails from Plaintiff requesting visitation with the Child, Defendant testified that, "I understood that in order for me to give him an answer, R.A. would have to be in agreement with it" (October 16, 2023 tr at 310, lines 18-19).
When asked if she had the goal of the Child having contact with Plaintiff, Defendant testified as follows:
The goal is simple. The goal is for R.A. to develop into these feelings, that we should wait until she is the one that wants to initiate this. This is basically providing her some type of freedom, and if they actually do connect between one another, then this is going to help her cleanse from other feelings and memories that disturb her. Right now she is very young, and this is quite recent.(October 16, 2023 tr at 312, lines 6-12).
n. Defendant's Re-Cross Examination by Plaintiff's Counsel
When asked about Paragraph 4 of Stipulation #2 and the reference to Ms. DiLecce and Dawn Perez, and who was the Child's personal therapist and who was her family therapist, Defendant testified that her attorney explained all that to her before she signed Stipulation #2 (October 16, 2023 tr at 313, lines 9-13). When further asked about what "LMFT" stands for, being the post-nominal letters following Samantha DiLecce's name as set forth within Stipulation #2, Defendant stated, "When they explained everything to me on that agreement, I understood it at the time that it was explained to me, but around five minutes later I no longer remember anything because the only thing I wanted to do was see my daughter" (October 16, 2023 tr at 313, lines 20-23).
Defendant felt that the Child's wishes determined whether she is to have visitation with Plaintiff. When asked if she supported the goal of the Child and Plaintiff reconciling, Defendant provided the following testimony:
Q. When Ms. Jansen was asking you questions before, she asked you in sum or substance if would you support the goal of R.A. reconciling with her father, and my understanding is that your response was that if R.A. can get better, and since it's her father, and she can heal and change, that would be something that you would support; is that correct?
A. Yes, correct.
* * *
Q. And you would support a goal of having this person that you love so much have a relationship with someone that you are afraid of your every move because of?
* * *
A. I said that I would accept this only based on the position if R.A. heals, is free, clean, and free of any scares. If she was to feel safe, happy. But if she was not to feel safe, happy, or satisfied, then, no, because this would mean that the relationship wouldn't be good for her.
Q. How would she know if the relationship isn't good for her if she doesn't have visitation with Mr. A. and if she doesn't participate in the family therapy that is required in the custody stipulation?
* * *
A. She knows. She knows how she would feel happy with both her mom and her dad before. Now she knows with this situation with her dad that the therapist cannot do the job of a parent. She has felt a lot of abuse. She does not need a therapist to discover if she is going to feel happy or sad with her dad.
* * *
Q. Before you were asked what is your understanding between a therapist solely for R.A. and a family therapist, and in sum or substance you said that the therapist for R.A. only addresses her personal issues, and the family therapist is for you to work together as a family.
A. Yes, I remember saying that.
Q. Isn't it possible that some of R.A.'s personal issues are also family issues and there is overlap?
A. R.A.'s personal issues for the last four years have been having to do with her relationship with her dad. So I don't really understand the question. Am I supposed to say what she has thought or what she has mentioned?
Q. So in your mind you have not played any role whatsoever in the way that R.A. currently feels about Mr. A.?
A. No.(October 16, 2023 tr at 319, lines 17-25; at 320, lines 1-25; at 321, lines 1-25; at 322, lines 1-9).
When questioned about Dr. Verno's report that found that she had alienated the Child from Plaintiff, Defendant testified as follows:
Q. So Dr. Verno is wrong in his report in the fact that he states that you had alienated R.A. from her father?
A. Again, I'm going to say this once again. Some of the paragraphs that he drafted on that report were his personal opinions. Other parts of that was what I was saying in text form. And other parts was what he wrote that D.A. and R.A. said to him. So I don't know if he lied or not, or if he is wrong or not, but I do know that him, as a forensic person, did not have the magic ball or he was not there to see it.
Q. Do you think Dr. Verno lied in his report?
A. I already said that I don't know if he lied or he just made a mistake.(October 16, 2023 tr at 322, lines 10-21).
When questioned about the requirements that the parties communicate pursuant to the terms of Stipulation #2, Defendant testified as follows:
Q. At the time you entered into and signed the custody stipulation, did you feel that it was very hard, technically impossible to communicate with D.A.?
A. Yes. It was impossible ever since he filed for the divorce, the whole time.
Q. There are numerous provisions in the custody stipulation that required you to have communication with Mr. A. pertaining to your child R.A., including such important decisions that are defined in this custody stipulation as major decisions. How did you plan on having communications with Mr. A. if you thought it was so impossible to communicate with him?
* * *
A. How do I know that they can be accomplished? I think it would be very hard.
Q. But you were scared to communicate with Mr. A., correct?
A. Yes, always.
Q. So you had no - when you signed the custody stipulation, you had no intention in complying with all of its terms and provisions then?
A. Yes, I had every, I had all the intentions and I tried very hard. The important thing with me was to get my daughter back, so we spent a lot of time changing and altering the terms of the agreement.
Q. You would have done anything to get your daughter back, right?
A. Yes, of course, anything within normal.
Q. Including signing a custody stipulation in which you didn't plan on or didn't think you should comply with all the terms and provisions?
A. In what other fashion would I be able to see my daughter?(October 16, 2023 tr at 321, lines 22-25; at 322, lines 1-25; at 323, lines 1-25; at 324, lines 1-15).
o. Motions
Defendant advised the Court that no further witness would be called. Plaintiff's attorney made an application that the Court grant Plaintiff's request that the Child be constructively emancipated. Defendant's attorney made an application for the Court to confirm that the only relief Plaintiff is seeking, as the only ground in this post-judgment application, is for constructive emancipation and that the balance of the relief Plaintiff requested in Motion Sequence #14 be deemed denied or withdrawn. Defendant's attorney made a second application for the Court to hold an in-camera Lincoln Hearing with the Child. Defendant's attorney made a third application for leave of the Court for the parties to submit post-trial submissions. The AFC joined in Defendant's application for the Court to hold a Lincoln Hearing with the Child.
The Court granted Defendant's second application for a Lincoln Hearing with the Child and scheduled same to be held on October 18, 2023, at 3:00 p.m., permitting the parties to submit proposed questions for the Court to ask the Child. The Court instructed that the proposed questions were to be submitted by October 17, 2023 at 5:00 p.m. The Court also granted Defendant's third application for the parties to submit post-trial submissions limited to fifteen pages each by November 17, 2023.
With respect to the other applications made by counsel, the Court reserved its decision.
Following the Court's inquiry as to the parties' respective incomes, the Court directed the parties to order the trial transcript and submit it to the Court with an allocation of payment being 80% by Plaintiff and 20% by Defendant.
p. Lincoln Hearing
In Matter of Lincoln v. Lincoln, the Court of Appeals held that a trial court in a custody case has discretion, without the parties' consent, 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 Trials" 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]). Typically, a court holds a Lincoln Trial 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 a Lincoln Trial was required for the parties' minor child, R.A. The Court held a Lincoln Trial wherein the Child individually met with the Court and the Child's counsel.
Findings of Fact & Conclusions of Law
a. Failure to Comply with Article XIV of Stipulation #2
The Appellate Division of the Supreme Court in the Second Judicial Department has provided instruction on the way matrimonial agreements are to be interpreted:
A stipulation of settlement in a matrimonial action is a contract subject to the principles of contract interpretation (see Rainbow v. Swisher, 72 N.Y.2d 106, 531 N.Y.S.2d 775, 527 N.E.2d 258; Douglas v. Douglas, 7 A.D.3d 481, 776 N.Y.S.2d 90 [2d Dept.2004]; De Luca v. De Luca, 300 A.D.2d 342, 751 N.Y.S.2d 766). Thus, where the stipulation is "clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (Rainbow v. Swisher, supra at 109, 531 N.Y.S.2d 775, 527 N.E.2d 258).(Sieratzki v Sieratzki, 8 A.D.3d 552, 553-554 [2d Dept 2004]).
The Appellate Division of the Supreme Court in the First Judicial Department has provided further guidance confirming that the application of a notice of cure provision in a matrimonial agreement should be strictly adhered to as drafted by the parties:
It is not the function of the court to remake an agreement agreed to by the parties, but to enforce it as it exists (Rowe v. Great Atl. & Pac. Tea Co., 46 N.Y.2d 62, 69, 412 N.Y.S.2d 827, 385 N.E.2d 566 [1978]). The proper aim of the court is to arrive at a construction that gives meaning to all the language employed by the parties (see Tantleff v. Truscelli, 110 A.D.2d 240, 244, 493 N.Y.S.2d 979 [2d Dept.1985], affd. 69 N.Y.2d 769, 513 N.Y.S.2d 113, 505 N.E.2d 623 [1987]). The parties agreed in the settlement agreement that defendant's failure to cure a default or to give notice that the default had been cured within five business days of plaintiff's demand would trigger plaintiff's right to certain remedies. We cannot ignore the parties' written agreement.(Andron v Libby, 120 A.D.3d 1056, 1058 [1st Dept 2014]).
It is well settled that a condition precedent is an "'act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises'" (Oppenheimer & Co., Inc. v Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690 [1995]). Thus, a condition precedent is an act or an event that must occur before the obligations of the parties become operative. If such condition is not fulfilled, then the parties are excused from performing under the contract. For example, where a broker maintains a contract for the commission of a fee upon closing of title a condition precedent to the contract requires that title close (see Levy v Lacey, 22 N.Y.2d 271 [1968]). Generally, it is for the court to decide whether a term of a contract is in fact a condition precedent (see Rooney v Slomowitz, 11 A.D.3d 864, 865 [3d Dept 2004]). "It must be clear from the contract itself the parties intended a provision to operate as a condition precedent (Kass v. Kass, 235 A.D.2d 150, 663 N.Y.S.2d 581 [2d Dept., 1997]). Therefore, if there [is] ambiguity in the language such language will not be treated as a condition precedent (id)" (Tauber v Freund, 2022 WL 7613349, *1 [Sup Ct, Kings County 2022]).
CPLR § 3015(a) notes that with respect to conditions precedent, "[t]he performance or occurrence of a condition precedent in a contract need not be pleaded. A denial of performance or occurrence shall be made specifically and with particularity. In case of such denial, the party relying upon the performance or occurrence shall be required to prove on the trial only such performance or occurrence as shall have been so specified."
Upon review of Stipulation #2 there is a clear and unambiguous requirement which the parties required that each other follow upon the other being in default whereby, "1. In the event that either party defaults with respect to any obligation set forth in this Agreement, the injured party shall send written notice, by e-mail or certified mail, return receipt requested, to the defaulting party, which notice shall specify the nature of the default.," and continues, "If the default is not cured or the Parties have no[t] resolved the default by a mutually agreed upon resolution in writing within seven (7) days of receipt of said notice, and the injured party incurs attorney's fees and related expenses or costs in commencing and maintaining an action or proceeding to enforce this agreement, the defaulting party shall pay all such fees and costs" (NYSCEF Doc. No. 77 at 24-25).
This provision clearly provides a condition precedent to either party commencing litigation by requiring that the party seeking enforcement arising out of an alleged default to serve the other with a written notice specifying the nature of the alleged default and providing a seven-day period to cure. There is no evidence that Plaintiff, as movant, served Defendant with a Notice of Default and/or provided Defendant with seven days to cure. However, as no denial of performance of occurrence has been made, the failure to do so transforms the defense into an admission of the satisfaction of the condition by movant and results in a waiver of the defense by the answering party (see U.S. Bank Natl. Ass'n v Weinman, 2013 WL 1625138, *14 [Sup Ct, Suffolk County 2013], appeal dismissed 123 A.D.3d 1108 [2d Dept 2014]; Onewest Bank FSB v Berry, 25 Misc.3d 1218 [A], *3 [Sup Ct, Suffolk County 2009]). Therefore, the Court will proceed as if the condition precedent set forth Article XIV of Stipulation #2 was satisfied.
b. Request for Constructive Emancipation
The Appellate Division of the Supreme Court in the Second Judicial Department has provided guidance as to the way a child may be economically or constructively emancipated:
"It is fundamental public policy in New York that parents of minor children are responsible for their children's support until age 21" (Matter of Guevara v. Ubillus, 47 A.D.3d 715, 716, 850 N.Y.S.2d 503, citing Matter of Roe v. Doe, 29 N.Y.2d 188, 192-193, 324 N.Y.S.2d 71, 272 N.E.2d 567; see Family Ct. Act § 413; Matter of Natoli v. Mueller, 71 A.D.3d 899, 899, 895 N.Y.S.2d 843; Matter of Cricenti v. Cricenti, 64 A.D.3d 776, 777, 883 N.Y.S.2d 302). Emancipation of the child suspends a parent's support obligations (see Matter of Roe v. Doe, 29 N.Y.2d at 192-193, 324 N.Y.S.2d 71, 272 N.E.2d 567; Matter of Natoli v. Mueller, 71 A.D.3d at 899, 895 N.Y.S.2d 843). Under the doctrine of economic emancipation, "[c]hildren of employable age are emancipated if they become economically independent of their parents through employment, and are self-supporting" (Matter of Fortunato v. Fortunato, 242 A.D.2d 720, 721, 662 N.Y.S.2d 579, citing Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 105, 602 N.Y.S.2d 623). Under the doctrine of constructive emancipation, where "a minor of employable age and in full possession of [his or] her faculties, voluntarily and without cause, abandons the parent's home, against the will of the parent and for the purpose of avoiding parental control [he or] she forfeits [his or] her right to demand support" (Matter of Roe v. Doe, 29 N.Y.2d at 192, 324 N.Y.S.2d 71, 272 N.E.2d 567; see Matter of Barlow v. Barlow, 112 A.D.3d 817, 818, 976 N.Y.S.2d 573). "[A] child's unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status" (Matter of Bogin v. Goodrich, 265 A.D.2d 779, 781, 696 N.Y.S.2d 317; see Matter of Hamdy v. Hamdy, 203 A.D.2d 958, 958, 612 N.Y.S.2d 718). The burden of proof is on the party asserting emancipation (see Matter of French v. Gordon, 103 A.D.3d 722, 960 N.Y.S.2d 143; Matter of Gold v. Fisher, 59 A.D.3d 443, 444, 873 N.Y.S.2d 139). In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses (see Matter of Casey v. Kelleran, 148 A.D.3d 800, 801, 48 N.Y.S.3d 752; Matter of VanBeers v. VanBeers, 129 A.D.3d 1095, 1095, 12 N.Y.S.3d 238)."(Monti v DiBedendetto, 151 A.D.3d 864, 865 [2d Dept 2017]).
The Second Department has further noted the high threshold a movant must meet for a child to be constructively emancipated:
"A child's mere reluctance to see a parent is not abandonment" (Matter of Barlow v. Barlow, 112 A.D.3d 817, 818, 976 N.Y.S.2d 573). "[Furthermore], where it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent" (Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d 856, 857, 932 N.Y.S.2d 177 [internal quotation marks omitted]). Here, only the older child was of employable age during the relevant time period (see Matter of McCarthy v. McCarthy, 129 A.D.3d 970, 972, 11 N.Y.S.3d 638). Further, the evidence at the hearing failed to demonstrate that the father made sufficient attempts to maintain a relationship with the children, or that the children actively abandoned their relationship with him (see Matter of Gansky v. Gansky, 103 A.D.3d 894, 896, 962 N.Y.S.2d 255; Schulman v. Schulman, 101 A.D.3d 1098, 1099, 956 N.Y.S.2d 577; Matter of Gold v. Fisher, 59 A.D.3d at 444, 873 N.Y.S.2d 139).(Addimando v Huerta, 147 A.D.3d 750, 752-753 [2d Dept 2017]).
Where a parent causes a breakdown in communication with his or her child the child will not be deemed to have abandoned the child (see McCarthy v McCarthy, 129 A.D.3d 970, 972 [2d Dept 2015]). Furthermore, "[w]here a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 A.D.3d 817, 976 N.Y.S.2d 573; Labanowski v. Labanowski, 49 A.D.3d 1051, 857 N.Y.S.2d 737)" (Jurgielweicz v Johnson, 114 A.D.3d 945 [2d Dept 2014]).
The appellate courts have held that in the context of an application for constructive emancipation the term "of employable age" of a child does not include a child who is sixteen years old:
However, under established precedent delineating when a child's abandonment of a noncustodial parent can be deemed to constitute constructive emancipation, we must hold, as a matter of law, that the sons, ages 16 and 14 at the time of plaintiff's motion, were not constructively emancipated as they were not "of employable age," a necessary prerequisite to such a finding (see Matter of Ogborn v. Hilts, supra at 680, 701 N.Y.S.2d 759; Matter of Kershaw v. Kershaw, 268 A.D.2d 829, 830, 701 N.Y.S.2d 739 [2000]; Matter of Chamberlin v. Chamberlin, 240 A.D.2d 908, 909, 658 N.Y.S.2d 751 [1997]; Hiross v. Hiross, 224 A.D.2d 662, 663, 639 N.Y.S.2d 70 [1996]; compare Matter of Joseph M.M. v. Mary Ellen C.M., 227 A.D.2d 561, 562, 642 N.Y.S.2d 713 [1996], appeal dismissed, lv. denied 88 N.Y.2d 1014, 649 N.Y.S.2d 376, 672 N.E.2d 601 [1996]).(Foster v Daigle, 25 A.D.3d 1002, 1003-1004 [3d Dept 2006]; see also Jurgielweicz v Johnson, 114 A.D.3d at 946).
In evaluating the movant's request for his child to be constructively emancipated, as a threshold matter, the Court must first determine if the subject child is "of employable age." As the date of birth of the Child is not in dispute, the Court calculates that the Child was 14 years old on December 19, 2021, being the date when Plaintiff requested that the Court declare her constructively emancipated; the Child was 15 years old on July 29, 2022, the date when Plaintiff filed Motion Sequence #14; and the Child is 16 years old as of the date of this Decision and Order. Accordingly, the Court finds that the Child has never been "of employable age" - whether utilizing any of these three dates. For that reason alone, the Court cannot grant Plaintiff's request that the Child be constructively emancipated as of December 19, 2021. Moreover, even if Plaintiff had amended his requested relief seeking that the Court declare the Child emancipated as of the date Motion #14 was filed or as of the date of the trial, which Plaintiff failed to do, the Court's determination does not change as the Child still is not "of an employable age."
However, even if the Court were to conclude that the Child was "of employable age," the Court does not find that constructive emancipation has been established based upon the evidence received at Trial. Plaintiff failed to meet his burden of proof that the Child, in full possession of her faculties, voluntarily and without cause, abandoned Plaintiff's home, against Plaintiff's will and for the purpose of avoiding Plaintiff's control thereby forfeiting her right to demand support from Plaintiff.
The procedural history of this protracted matrimonial action and post-judgment proceedings reflects that the Child has experienced significant difficulties which the parties recognized as reflected in the terms set forth in Stipulation #2. The family sought to reunify the family through compliance with those terms, which were set forth in a clear and thoughtful manner. Despite Stipulation #2 including recitals that the parties sought to utilize the terms set forth within the document to provide a stable environment for the Child, acknowledging that the welfare of the Child as their primary concern, and agreeing to advance the Child's emotional and physical well-being, the Court finds that both parties have failed to fully comply with Stipulation #2 to the Child's detriment, resulting in the failure to reunify the family.
Turning to Plaintiff's relationship with the Child, including his assertion that his rights to access with the Child as set forth in Stipulation #2 were not honored, the Court notes that Stipulation #2 clearly states that at the time they entered into the agreement, the parties acknowledged that the Child's current position was that she wanted to reside with Defendant and not visit Plaintiff. Accordingly, with that understanding, the terms within Stipulation #2 were set forth in such a manner to honor the Child's fragile state regarding the parents' access schedule. Consequently, the parties agreed to flexibility in the access schedule, and they should not unreasonably withhold taking into consideration the Child's schedules, needs and wishes. The parties also agreed to permit either to waive or otherwise adjust the parenting access time consistent with the health, education and general needs and wishes of the Child upon request the approval of which should not unreasonably be withheld.
Despite the unmistakable need for a unified effort by the family to engage in therapy and constant evaluation of the Child's wishes when determining what the parents' access schedule would be with the Child, the Court finds that Plaintiff's testimony reflects that he did not engage in the actions needed for this process to be successful. As previously noted above, the Child was 14 years old when Plaintiff moved this Court to have her constructively emancipated. She is now 16 years old. Plaintiff's testimony reflects a lack of perspective and understanding of the Child as an adolescent who has experienced significant trauma in her short life. On the contrary, Plaintiff apparently expects the Child to have the same emotional development as an adult of his age. His testimony reflects a belief that his relationship with the Child will never improve, in part because the Child will always be who she is as her 16-year-old self is today. Plaintiff's troubling lack of perspective and understanding of the Child calls his credibility into question and is one of the root causes of the deterioration of his relationship with the Child.
Plaintiff testified that he gave up on any chance of repairing his relationship with the Child long ago, possibly prior to the filing of the instant motion when the Child was just 15 years old. Tellingly, just three months after the filing of Motion #14, during the trial, Plaintiff withdrew all requested relief related to repairing his relationship with the Child, limiting his requested relief to the sought after constructive emancipation of the Child. While Plaintiff has not engaged in access time with the Child for a significant period, it is also evident that Plaintiff's efforts have merely focused on obtaining strict compliance with the schedule set forth in Stipulation #2 and disregarding the Child's schedules, needs, and wishes. While the Court acknowledges multiple e-mail communications wherein Plaintiff seeks Defendant's assistance in adhering to the access schedule, these e-mails appear to be templates employed by Plaintiff to go through a process, rather than truly seeking access time with the Child which appropriately (and as contemplated in the terms set forth in Stipulation #2) take into consideration the Child's schedules, needs, and wishes. These e-mail communications are largely devoid of any inquiry into these issues leading to a discussion of how, if at all, the defined parenting schedule should be altered to protect the Child and address her evolving needs at that time.
While Plaintiff asserts that he was unable to communicate effectively with the Child and complains that Defendant failed to provide him with the Child's cellular telephone number, Plaintiff's own testimony confirms that he maintained a cellular telephone for the Child which he disconnected when he became dissatisfied with the Child's responses to his texts. Plaintiff unilaterally did this without notice to Defendant with no apparent concern of how this impacted the Child's ability to not only contact Plaintiff, but to be able to contact others, including Defendant. Plaintiff's conduct violated Stipulation #2 which requires that neither party shall interfere with or prohibit the Child from contacting the other party, either by telephone, e-mail, text, or other form of communication. More importantly, Plaintiff's conduct jeopardized the Child's safety, as Plaintiff removed the Child's cellular service without any regard as to how that could impact her ability to communicate daily with others.
Plaintiff further confirmed that he stopped sending holiday cards, presents, or correspondence to the Child because he felt doing so would be unproductive, as they would likely be discarded. Much like the termination of the Child's cellular service, the Court finds that Plaintiff's conduct reflects Plaintiff's focus on his own feelings, needs, and perspective, rather than those of the Child. While it is true that the Child may not have read any of Plaintiff's correspondence immediately or may have even discarded them, the mere act of Plaintiff's attempting to contact the Child could have resulted in an improved relationship between the Child and Plaintiff as the Child would have been aware of his attempts to improve their relationship. Instead of making these attempts, Plaintiff cut off all communication with the Child. Even Plaintiff's own testimony indicated his belief that the Child probably would throw away the cards and letters, and would refuse to communicate with him ever again, leaving open the possibility that the Child would keep the lines of communication open.
Plaintiff's testimony reflects his motivation for this Court to deem the Child constructively emancipated the Child, thereby depriving the Child of child support based on his desire to "punish" both Defendant and the Child. While Plaintiff testified that he loves the Child, his stated intentions of punishing the Child by removing her means of support for food, shelter, and clothing, represents yet another aspect of what this Court finds to be both Plaintiff's lack of perspective and lack of credibility.
Furthermore, the Court is compelled to address Defendant's conduct, which the Court has determined to be equally as misguided and determinantal to the Child as that of Plaintiff. Defendant's testimony reflects she never had any intention to comply with Stipulation #2. Rather, she viewed the execution of Stipulation #2 as a means to an end, being her regaining custody of her daughter. Her testimony further reflects her acknowledgement of both the Stipulation's requirement that the parties communicate to effectuate its terms and that she did not believe it was possible for her to communicate with Plaintiff as she was in fear of doing so. Defendant's testimony confirmed that while she understood that the parties' sole method of communication to effectuate the terms of Stipulation #2 would be e-mail, she did not routinely check her e-mail, leading to the conclusion that she lacked a sincere desire to comply with the Stipulation.
Defendant's testimony confirms the parties' unmistakable acknowledgement of the Child's past trauma, the Child's need for significant therapy, and the requirement that the Child undergo both personal and family therapy pursuant to Stipulation #2. Nonetheless, Defendant failed to comply with the Stipulation's terms pertaining to the Child's therapy and undermined the process. Defendant's own testimony confirms that she felt that the Child's family therapy sessions with Samantha DiLecce were "torture" - a word she also used to describe other things that she disagreed with, including the Child's interactions with Dr. Adams, Dr. Verno, and Plaintiff. Unfortunately, Defendant's testimony reflects her failure to acknowledge the importance of family therapy beyond the Child's personal therapy. Her testimony is replete with references that the Child's therapy should be solely guided by the Child's feelings as to what the Child wants versus the timetable set forth by the therapeutic professionals working with both the Child and family.
The Court is troubled by this as the time within which the subject therapy took place, the Child's age has ranged from 14 to 16 years of age. Much like Plaintiff, Defendant is equally wrong in placing the Child in the position of an adult where she is to unilaterally make serious decisions impacting her health, well-being, and relationships with her parents. This reflects both parties lack of reasonable expectations of their Child and inability to engage in sound decision-making.
Defendant further testified about her concerns that there has been manipulation of all who have been involved in this process including therapists, social workers, courts, attorneys, and the police. Defendant believed that Samantha DiLecce was unprofessional, leading Defendant to inquire if she could bring charges against her. Defendant also testified that there was a possibility of Dr. Verno having lied in his report, and she casts doubt on his recommendations, at one point asking if he has a magic ball. Defendant stated that the Child "knows the situation with her date that the therapist cannot do the job of a parent."
Defendant noted that despite the long history of this matter, she does not believe she has made any mistakes and would do nothing differently if provided the opportunity. The Court concludes from Defendant's testimony that Defendant's own desire to guide this process has led her to lash out against all who have disagreed with her positions, made recommendations she has not agreed with, all to the Child's detriment. The Child has thus been prevented from benefiting from the sound advice of these professionals. Moreover, Defendant lacks the self-awareness to realize the mistakes she has made, and the Court is concerned that improvement may not be possible in the future.
Therefore, the Court finds that Plaintiff has failed to meet the required burden of proof for the entry of an Order finding that the Child is constructively emancipated. As noted above, the threshold issue of the movant proving that the Child is "of employable age" has not been met, as of the date Plaintiff requested the Court emancipate the Child, or at the time of the filing of Plaintiff's application, or at the time of the entry of this Decision. The Court further finds that even in the event the Child was determined by this Court to be "of employable age," Plaintiff's own conduct is a root cause of the deterioration of his relationship with the Child, which reflects a lack of perspective as to what expectations may be reasonably made of a child of the age of fourteen through sixteen, especially one who is fragile due to the trauma she experienced.
The Court implores the parties to consider that, "Research has shown that another one of the 'most important factor[s]' to promote healthy development and adjustment for the child is the quality of the child's relationship with her parents" ("Equal Isn't Always Equitable: Reforming the Use of Joint Custody Presumptions in Judicial Child Custody Determinations," 27 BUPILJ 403, citing, Michael E. Lamb, Mothers, Fathers, Families, and Circumstances: Factors Affecting Children's Development, 16 APPLIED DEVELOPMENTAL SCI. 98, 99 [2012] [noting that one of "the most important factors that promote healthy development and adjustment" in children and adolescents is "[t]he quality of the relationships between the parents and other significant adults"]). As the Child is only 16 years old, if both parties want to put the Child's interests before their own and reinvest themselves into a process by which family therapy can be re-engaged in, the process to heal this family may begin.
Based upon the submissions made to the Court, the testimony and evidence received at Trial, and post-Trial submissions, the Court denies Plaintiff's request for constructive emancipation of the Child.
Other Relief
As noted above, all other requests for relief initially made by Plaintiff in Motion #14 have been withdrawn and accordingly, no such review of same will be engaged in by this Court.
Any relief specifically not granted or otherwise addressed herein is denied.
* * *
Based upon the foregoing, it is hereby
ORDERED that Plaintiff's Motion #14 is denied, including, but not limited to, Plaintiff's request for constructive emancipation of the Child; and it is further
ORDERED that within 10 days of this Decision and Order, Defendant's counsel shall serve by NYSCEF filing a Notice of Entry of this Decision and Order on Plaintiff's counsel and the Attorney for the Child and file a copy of the Notice of Entry with an Affidavit of Service with the Court; 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.