Opinion
Docket Nos.: V-0000-00/00X
01-10-2022
In the Matter of a Proceeding Under Article 6 of the Family Court Act D.D., Petitioner, v. R.M., Respondent.
Sari Friedman, Esq., and Jennifer Moran, Esq., Attorneys for Petitioner, D.D. Karen Charrington, Esq., Attorney for Respondent, R.M. Patricia Sokolich, Esq., Attorney for Child.
Sari Friedman, Esq., and Jennifer Moran, Esq., Attorneys for Petitioner, D.D.
Karen Charrington, Esq., Attorney for Respondent, R.M.
Patricia Sokolich, Esq., Attorney for Child.
Conrad D. Singer, J.
The following papers were read on this Motion:
Respondent's Notice of Motion (Motion #6) and Supporting Papers 1
Petitioner's Notice of Cross Motion (Motion #7) and Supporting Papers 2
Respondent's Affirmation in Opposition (Motion #7) and Reply (Motion #6) 3
Petitioner's Affirmation in Reply (Motion #7) 4
The father in these custody modification proceedings, R.M. ("respondent" or "father"), moved for an Order which dismisses the petition filed by the mother, D.D. ("petitioner" or "mother") under Docket Numbers V-00000-00/00X and V-00000-00/00X as moot and pursuant to res judicata. The mother filed a Cross-Motion for an Order which: 1) denies all the relief requested in the father's Motion to Dismiss; and 2) imposes sanctions and costs on the respondent pursuant to 22 NYCRR § 130-1.1. The father filed an affirmation in opposition to the mother's Cross-Motion and in further support of his Motion to Dismiss, and the mother filed an Affirmation in Reply on her Cross-Motion. The Attorney for the Children has not filed any papers in response to the Motion to Dismiss or the Cross-Motion. The father's Motion to Dismiss and the mother's Cross-Motion are determined as follows:
The parties were divorced pursuant to a Judgment of Divorce that was entered on September 5, 2018, and which incorporated but did not merge with their So-Ordered Stipulation entered into in open Court on June 12, 2018. Their prevailing custody/parenting time arrangement is set forth therein and provides as follows: that the mother has sole legal and sole residential custody of the parties’ two minor children, D. [D.O.B. XX/XX/XXXX], and E. [D.O.B. XX/XX/XXXX], and the father has court-ordered parenting time on alternate weekends from Friday evening to Sunday evening, every Tuesday and Thursday after school, as well as pursuant to a holiday schedule.
This Court first became acquainted with the parties in May of 2018, when the mother filed a Family Offense petition against the father, which she subsequently withdrew. On July 3, 2019, she filed a modification petition for an Order that would permit her to relocate with the children to Florida and would modify the father's parenting time schedule to accommodate such relocation. ("Relocation Petition"). The mother's Relocation Petition was the first in a flurry of filings brought by both parties, consisting of family offense petitions and custody/parenting time modification petitions.
In December of 2020, the Court conducted a fact finding on the mother's Family Offense petition against the father filed under Docket Number O-00000-00, during which both the mother and father testified, and the Court found, after having closely observed the parties’ demeanors, facial gestures and appearances, that the mother lacked credibility while testifying, and that she had failed to prove that the father had committed a family offense. The mother's Family Offense petition was dismissed.
The extensive Family Court litigation involving the mother and father also included related family offense proceedings brought by mother against the father's live-in paramour, E.J. [File Number 000000, Docket Numbers O-00000-20; O-00000-20/20A, O-00000-20/20B and O-00000-20/21C]. As discussed by the parties’ respective attorneys in their motion papers, the Court conducted a full fact-finding on the mother's Family Offense and Violation petitions against Ms. J., consisting of multiple days of testimony from witnesses including the mother and the father. On August 9, 2021, the Court issued a decision as stated on the record in open court, in which the Court dismissed both the mother's Family Offense Petition under Docket Number O-000000-20 and Violation Petition under Docket O-00000-20/21C with prejudice after Fact Finding. The mother withdrew her Violation Petition filed under Docket O-00000-20/20B. After finding that the mother had established a violation of the Temporary Order of Protection in the violation proceeding filed under Docket Number O-00000-20/20A, the Court ordered the matter to proceed to a dispositional hearing on that petition. On October 29, 2021, after conducting the dispositional hearing, the Court determined that the appropriate disposition would be to take no action and dismissed the mother's violation petition under Docket Number O-00000-20/20A.
From the time the mother filed her Relocation Petition in July of 2019 to the present, the parties have regularly appeared before the Court and have consistently remained under the Court's supervision. During the months in which the Court operated under the statewide-mandated "Virtual Chambers" model , court staff conducted numerous off-the-record attorney conferences and the parties continued to file Orders to Show Cause which were addressed by the Court on an exigent basis. As soon as the Family Court was authorized to return to on-the-record proceedings, the parties resumed appearing before the Court for on-the-record conferences and hearings.
Due to the COVID-19 public health emergency.
As is evident from the preceding recitation of the procedural history of this case and the related Family Offense proceedings between Ms. D. and Ms. J., the Court has become considerably familiar with the parties to this litigation. Nearly all of the parties’ outstanding custody/parenting time modification petitions have been resolved due to the withdrawal of such petitions or by the Court granting an application to dismiss. Only the mother's parenting time modification petition under Docket Numbers V-0000-19/20E and V-0000-19/20E, and which is the subject of the parties’ current motion practice, remains pending before the Court.
On June 1, 2020, the mother filed a petition by Order to Show Cause under Docket Numbers V-0000-19/20E and V-0000-19/20E, for an Order which: modifies the terms of the parties’ prevailing custody and parenting time Order, to suspend or limit the father's parenting time to supervised parenting time. The mother also sought interim relief, i.e., for the Court to issue an Order, pending the hearing and determination of the matter, to suspend or limit the father's parenting time to supervised parenting time. The Court denied the mother's request for interim relief.
In her Modification Petition filed in support of her Order to Show Cause, the mother alleged that the father continued to allow Ms. J. to be present during his parenting time with the children, in spite of the Temporary Order of Protection ["TOP"] issued against Ms. J., which required her to stay away from the children and from the home, structures or buildings in which they were present. The mother alleged that on May 28, 2020, the father permitted Ms. J. to be present during his parenting time and then asked the children to lie to the mother about it to cover up his violation of the TOP.
In her Modification Petition, the mother cited to the Family Offense petition she filed against Ms. J. under File Number 000000, Docket Number O-00000-20, and called attention to the following allegations set forth therein: the allegation that Ms. J. repeatedly threatened to "poison" the children; the allegation that Ms. J. called her from a blocked number and told her to "watch her back and her kids too"; the allegations that Ms. J. has poured ammonia on the children's clothes, improperly disposed of her son's medication, sent the children back to the mother's house in soiled underwear, and that she allegedly drove recklessly with the children in the car which resulted in a car accident. She alleged that on November 30, 2018, Ms. J. was indicated on inadequate guardianship and excessive corporal punishment due to her conduct toward her own thirteen-year-old son, J.
She also cited to a previous Emergency Order to Show Cause filed April 6, 2020, that she had filed which was based on allegations that the father had, on over twenty occasions, allowed Ms. J. access to the parties’ children, and that the father had also allowed Ms. J. to mistreat the parties’ children, including by placing urine in their daughter's boot and putting "white stuff" in their daughter's hair. The mother's petition states that a copy of the April 6, 2020 Order to Show Cause was attached thereto as Exhibit E, but the Court has reviewed the petition in its entirety and has not located an "Exhibit E" attached thereto.
The mother also cited to an incident alleged to have occurred on April 7, 2020, in which she learned that Ms. J. had cut a section of the daughter's hair at the roots. The mother also cited to the fact that on April 16, 2020, she filed a Violation Petition against Ms. J., due to Ms. J.’s alleged repeated failure to comply with the TOP issued against her. She cited to the fact that on April 30, 2020, this Court issued an updated TOP against Ms. J., which required Ms. J. to stay away from the children and stay away from any home, structure, and building in which the children are located while the children are in that home, structure, or building.
The mother alleged that on May 28, 2020, in spite of the clear and unequivocal language in the updated TOP issued on April 30, 2020, Ms. J. was present in the home that she shares with the father during the father's parenting time with the children. Ms. D. further alleged that when the parties’ daughter returned home at 6:45 PM, the daughter told Ms. D. that Ms. J. was in the house during the father's parenting time, that she was "downstairs near the kitchen" in "sleep clothes that were pink with hearts". She further alleged that the parties’ son also confirmed that Ms. J. had been there and further told the mother that, on the drive back to the mother's home, the father told their son not to say that Ms. J. had been there.
She alleged that she immediately called the police and was instructed to go to the F. Police Station to file a complaint. She further alleged that when she arrived at the Police Station, she was asked to give a statement and the police officer asked her to call her daughter to ask if she was sure that Ms. J. had been present. She alleged that she had been advised that the police could take no further action unless the daughter came to the station to give a statement. The mother alleged that she did not feel it was best to bring the parties’ daughter to the police station, particularly at night during a pandemic, and as such the police officer could not press charges. She argued that the father's parenting time needed to be suspended or, alternatively, supervised, to ensure Ms. J.’s compliance with the TOP against her and to ensure that the children would be protected.
On November 4, 2021, the respondent father, through counsel, filed the Motion to Dismiss that is the subject of the within Decision and Order. The Motion to Dismiss includes an affirmation from his counsel, in which counsel argues that the mother's Modification Petition should be dismissed as moot and pursuant to res judicata. (Affirmation in Support by Karen H. Charrington, Esq. , dated November 3, 2021 ["Charrington Aff. in Support of Motion to Dismiss"], ¶ 17). The father's counsel argues that the basis for the mother's Modification Petition is that the father allowed Ms. J. to be present with the children during his parenting time on May 28, 2020, in violation of a TOP then in effect against Ms. J., and that therefore his parenting time should be modified. (Charrington Aff. in Support of Motion to Dismiss , ¶ 6).
The father's counsel further argues that because the Court found, on August 9, 2021, that Ms. J. did not commit any wrongdoing by violating the TOP on May 28, 2020, it would be impossible for the Court to find that the father committed any wrongdoing related to May 28, 2020 and Ms. J. Counsel argues that therefore the mother's modification petition must be dismissed as a matter of law. (Charrington Aff. in Support of Motion to Dismiss , ¶¶ 6 to 10). Counsel further argues that the mother's Modification Petition should not proceed with respect to allegations relating to Ms. J.’s April 5, 2020 violation of the TOP, because there is no custody/parenting time modification petition pending which relates to April 5, 2020. (Charrington Aff. in Support of Motion to Dismiss , ¶ 12). Counsel contends that the mother had previously filed a petition to modify the father's parenting time relating to the April 5, 2020 date, under Docket Numbers V-0000-19/20D and V-0000-19/20D, but that petition was dismissed as moot and resolved on June 28, 2020 . (Charrington Aff. in Support of Motion to Dismiss , ¶ 15).
The Court notes that the mother's Modification Petition filed under Docket Numbers V-0000-19/20D and V-0000-19/20D was dismissed pursuant to Decision and Order dated June 8, 2020, which granted the father's Motion to Dismiss that Modification Petition and dismissed the petition.
The mother, through counsel, filed a Cross-Motion (#7), opposing the father's application for dismissal, and seeking the imposition of sanctions and costs on the father. The mother's Cross Motion includes a supporting affirmation from her counsel, in which counsel argues that the Court's dismissal of the mother's Modification Petition filed under docket numbers V-0000-19/20D and V-0000-19/20D was not based on the merits and did not follow a finding that the misconduct alleged in that petition was unfounded. (Affirmation in Opposition to Notice of Motion and in Support of Notice of Cross-Motion by Jennifer Moran, Esq. , dated November 12, 2021 ["Moran Aff. in Opposition and in Support of Cross Motion"], ¶¶ 2 to 4). Counsel for the mother further contends that the mother's May 17, 2021 withdrawal of her Violation Petition against Ms. J. in the parties’ related Family Offense matter was primarily due to evidentiary issues, in that the Violation Petition was based primarily on statements made by the parties’ children and the mother did not want to subject the children to testifying in open court in front of Ms. J. (Moran Aff. in Opposition and in Support of Cross Motion , ¶ 5).
The mother's counsel contends that the father's Motion to Dismiss must be denied because the res judicata doctrine requires a "valid final judgment" which "bars future actions between the same parties on the same cause of action". (Moran Aff. in Opposition and in Support of Cross Motion , ¶ 7). Counsel further argues that res judicata does not apply based on the Court's dismissal of the second Violation Petition in the related matter of D. v. J., as there are different parties involved and the dismissal was due to the mother's withdrawal of said petition, not a determination that Ms. J. did not violate the TOP on May 28, 2020. (Moran Aff. in Opposition and in Support of Cross Motion , ¶ 8).
Counsel further argues that the dismissal of the mother's Modification Petition under docket numbers V-0000-19/20D and V-0000-19/20D was not made on the merits, but was instead made because the Court believed the petition was rendered moot by the issuance of a stricter TOP. (Moran Aff. in Opposition and in Support of Cross Motion , ¶ 9). Counsel for the mother also argues that the matters of D. v. J. and D. v. M. involve different causes of action and, whereas the family offense matter with Ms. J. would require the children to testify in open court, the children could be spared the anxiety of testifying in open court in the modification proceedings and instead just be interviewed by the Court in camera. (Moran Aff. in Opposition and in Support of Cross Motion , ¶ 10).
Counsel for the mother further argues that the Court could consider allegations concerning Ms. J.’s April 5, 2020 violation of the TOP as determined by the Court in the related Family Offense proceedings. The mother's counsel argues that her current Modification Petition is not limited to the incident on May 28, 2020, but instead includes allegations that the father directed the children to lie about Ms. J.’s violation on May 28, 2020 and the Modification Petition references the father and Ms. J.’s repeated violations of the TOP, including but not limited to the hair cutting incident which took place the weekend of April 3 through April 5, which would be during the same period that the Court found that Ms. J. had violated the TOP. (Moran Aff. in Opposition and in Support of Cross Motion , ¶¶ 12 and 13).
The mother's counsel argues that the father should be required to pay costs to the mother in the form of legal fees, as the mother's counsel was required to file her Cross-Motion due to the father's filing his Motion to Dismiss, and the father's counsel refused to withdraw his Motion to Dismiss after the mother's counsel requested that they do so, and due to the father's counsel supporting his Motion to Dismiss with false statements. (Moran Aff. in Opposition and in Support of Cross Motion , ¶¶ 17 to 19).
The father submitted an Affirmation in Opposition to the mother's Cross-Motion and in further support (Reply) of his Motion to Dismiss. Therein, the father's attorney argues that res judicata applies because on June 28, 2020, the Court dismissed an action involving the same parties, the father and mother, as to allegations regarding the April 5, 2020 date. (Charrington Affirmation in Opposition , dated November 22, 2021 ["Charrington Opp./Reply Aff."], ¶ 3). The father's counsel also argues that the mootness doctrine applies to this case because the basis of the mother's Modification Petition is that the father allowed or was complicit in Ms. J.’s violation of a TOP in effect against her on May 28, 2020. The father's counsel argues that the Modification Petition was rendered moot because the Court did not find Ms. J. to be in violation of the TOP on May 28, 2020, and therefore the issue of whether the father was and/or could have been complicit in Ms. J. violating the TOP on May 28, 2020 was rendered moot. (Charrington Opp./Reply Aff. , ¶ 4). "Without a finding that E.J. violated the order in the first place, respondent could not be found to have been complicit in a violation thereof". (Charrington Opp./Reply Aff. , ¶ 4).
The father's counsel further argues that the mother's claim of any alleged complicit conduct by the father is an insufficient basis to support a modification of his parenting time but, more importantly, if the Court did not find Ms. J. to have violated the Court's orders, then the Court cannot find that the father engaged in violative conduct. (Charrington Opp./Reply Aff. , ¶ 7).
The father's counsel opposes the mother's request for the imposition of attorney's fees, sanctions or any other fees and characterizes the mother's application for fees as meritless, baseless, and meant to harass. (Charrington Opp./Reply Aff. , ¶ 8). The father's counsel further argues that under 22 NYCRR § 130-1.1, this Court has the discretion to award sanctions against the mother for her causing judicial waste and unnecessary costs and fees to the respondent due to his having to respond to her application for sanctions. (Charrington Opp./Reply Aff. , ¶ 11).
The mother submitted an Affirmation in Reply in further support of her Cross-Motion, which consists of an Affirmation in Reply by her counsel. The mother's counsel argues that "it is still unequivocally clear that res judicata is unmeritorious and inapplicable" in this case. (Affirmation in Reply by Jennifer Moran, Esq. , dated November 30, 2021 ["Moran Reply Aff. in Further Support of Cross Motion"], ¶ 3). The mother's counsel contends that there was no final determination on the merits in any action between the mother and father regarding the April 5, 2020 incident or any of the accusations raised in the mother's currently pending Modification Petition. (Moran Reply Aff. in Further Support of Cross Motion , ¶3).
The mother's counsel further argues that the mootness doctrine does not apply to her pending Modification Petition, as there was no affirmative finding by the Court that Ms. J. did not violate the TOP on May 28, 2020, and the mother's Modification Petition is not limited to the father's complicity in Ms. J.’s violation of a TOP. (Moran Reply Aff. in Further Support of Cross Motion , ¶ 4). The mother's counsel asserts that not only did the mother allege that the father allowed Ms. J. to be present on the subject date, but he further instructed the children to lie about the same, which demonstrates poor parental judgment. (Moran Reply Aff. in Further Support of Cross Motion , ¶ 4). The mother's counsel also cites to the fact that the Court determined that Ms. J. violated the TOP the weekend of April 5, 2020, and the father's complicity with that violation of the TOP demonstrates poor parental judgment. (Moran Reply Aff. in Further Support of Cross Motion , ¶ 4). The mother's counsel contends the father's Notice of Motion was not only unnecessary but frivolous and unmeritorious, and that sanctions against the father are appropriate.
LEGAL CONCLUSIONS
The mother's Modification Petition seeks an Order which modifies the parties’ prevailing custody arrangement to suspend the father's parenting time or, alternatively, to limit his parenting time to be supervised. "A party seeking the modification of an existing court-sanctioned visitation arrangement has the burden of demonstrating that circumstances have changed such that modification is required to ensure the continued best interests of the children". (Matter of Naclerio v. Naclerio , 132 AD3d 679, 679 [2d Dept 2015] ; Poppe v. Poppek , 183 AD3d 503, 503 [1st Dept 2020], lv to appeal dismissed , 36 NY3d 943 [2020] ). "Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child". (Matter of Blazek v. Zavelo , 127 AD3d 854, 854-55 [2d Dept 2015] ).
The father, through counsel, has moved for an Order which dismisses the mother's Modification Petition prior to fact-finding, based on the res judicata and/or mootness doctrines. "While hearings are generally required in cases in which there is no existing permanent order of custody hearings are not automatically required whenever a party seeks a change in custody or parental access". (Matter of Newton v. McFarlane , 174 AD3d 67, 76 [2d Dept 2019] [internal citations omitted]). To that end, "a hearing is not necessary when the court already possesses adequate relevant information to make an informed and provident determination as to the children's best interests". ( Matter of Naclerio , 132 AD3d at 679 ; see also Matter of Sepulveda v. Perez , 90 AD3d 1057, 1058-59 [2d Dept 2011] ).
Based on a careful and thorough review of the mother's Modification Petition, including all of the attachments appended thereto, the Court finds that almost all of the proposed "changed circumstances" set forth in the mother's Modification Petition are inextricably tied to the related Family Offense proceedings that she brought against Ms. J., the resolution of which has rendered those allegations moot. (D.D.’s Modification Petition in Support of Order to Show Cause , dated May 29, 2020 ["Mother's Modification Petition"], ¶¶ 8, 10, 11, and 14 through 18).
The connection between the mother's Modification Petition and the related Family Offense proceedings is perhaps most apparent from her request for relief set forth therein, in that she requests that the father's parenting time be suspended or be limited to supervised access time, and she asserts as follows:
"I am extremely concerned that the Respondent will continue to allow his girlfriend to be present, in violation of the Temporary Order of Protection, putting [the children] in imminent danger Accordingly I am requesting that Respondent's parenting time with our children be suspended, or in the alternative, supervised, by an agreed upon supervisor or if the parties cannot agree, at a court approved facility, so that the Temporary Order of Protection is complied with and our children are protected ". (Mother's Modification Petition , ¶¶18 and 19) (emphasis supplied).
While the mother's counsel cites to a few allegations contained in the Modification Petition that were not necessarily rendered moot by the completion of the D. v. J. Family Offense hearings [Moran Aff. Reply Aff. in Further Support of Cross Motion , ¶ 4], a plain reading of the mother's Modification Petition reveals that the alleged changes in circumstance which she asserts warrant a modification of the father's parenting time, and, critically, the relief that she requests, i.e., to ensure that the Temporary Order of Protection is complied with, are directly connected with the related Family Offense proceedings against Ms. J., such that this Court's resolution of those proceedings, resulting in the vacatur of the Temporary Order of Protection against Ms. J., have largely rendered the mother's Modification Petition moot. (See , Matter of Abbygail G. ( Christine Y.-Karen M. ), 177 AD3d 878, 880 [2d Dept 2019] ["[T]he mootness doctrine precludes courts from considering questions which, although once active, have become academic by the passage of time or by a change in circumstance"]).
Even to the extent that a few of the allegations contained in the Modification Petition were not addressed or not otherwise rendered moot in the D. v. J. proceedings, the Court agrees with the father's counsel that such remaining allegations are insufficient to modify the parties’ prevailing custody and/or parenting time arrangement. (See Charrington Opp./Reply Aff. , ¶ 7). Specifically, the Court finds the allegation in the Modification Petition regarding Ms. J. being indicated in 2018 for alleged maltreatment of her own son wholly irrelevant to the determination of whether the father's parenting time should be modified, particularly considering that there has never been any determination, judicial or otherwise, that she has mistreated the parties’ children.
Additionally, the mother also alleged that Ms. J. was present for the father's parenting time on May 28, 2020, and that the father allegedly instructed their then-four-year-old son to lie to the mother about Ms. J. being present in violation of the TOP. While the allegation still relates directly to Ms. J.’s alleged violation of the then-active TOP, the mother withdrew her related violation petition against Ms. J. for that incident, and same was not determined at the fact-finding. However, under the totality of the circumstances, the Court finds such allegation insufficient to modify the father's parenting time.
The Court also notes that the mother's counsel argues that allegations concerning Ms. J.’s violation of the TOP on April 5 were not rendered moot, as the Court made an affirmative finding that Ms. J. had violated the TOP that weekend. However, taking judicial notice of the Court's record from those related family offense proceedings , the Court notes that it found that the mother failed to establish any of the allegations of violations or misconduct that she asserted against Ms. J. in her Violation Petition under Docket Number O-00000-20/20A, that the Court found that the mother was not credible while testifying about any of the allegedly egregious actions she attributed to Ms. J., including cutting the parties’ daughter's hair, that the only violation that the Court found was based off of the testimony of a DSS caseworker, and that such violation, i.e. baking cupcakes with the child in violation of the TOP, is less egregious than the mother's unsubstantiated allegations that Ms. J. cut the daughter's hair and poured urine in her boot.
This Court may, and does, take judicial notice of its orders and the respective court records in the prior proceedings involving the mother and the father, and the related proceedings involving the mother and Ms. J. (Matter of Newton v. McFarlane , 174 AD3d 67, 77 [2d Dept 2019] ["Courts may take judicial notice of a record in the same court of either the pending matter or of some other action"]; see Matter of Andracchi v. Reetz , 106 A3d 734, 734-35 [2d Dept 2013]).
Under the totality of the circumstances, the Court finds that those allegations not rendered moot by the resolution of the related Family Offense proceedings are insufficient to conduct a full evidentiary hearing on whether the father's parenting time should be suspended or limited to supervised parenting time. The Court makes this determination with the best interests of the children as its "paramount concern" , and based on the extensive relevant information in its possession due to this Court having closely presided over the parties’ extensive Family Court litigation for the last several years, even before the finality of their matrimonial action. (See , Matter of Naclerio v. Naclerio , 132 AD3d 679, 680 [2d Dept 2015] ).
See , e.g. , Matter of Renee P.-F. v. Frank G. , 161 AD3d 1163, 1166 [2d Dept 2018].
Additionally, in the two-plus years since the mother filed her Relocation Petition in July of 2019, the Court has maintained close supervision over all matters involving these parties, including the related Family Offense proceedings with Ms. J. The Court has presided over a Family Offense fact-finding between the mother and father, has presided over an extensive, multi-day fact-finding hearing to resolve the related Family Offense proceedings between the mother and Ms. J., has conducted numerous on-the-record court appearances with the parties, has issued decisions on the parties’ numerous written applications, has observed the demeanors, and relative credibility of the parties, particularly while they testified in the various fact-finding proceedings. The Court finds that it possesses extensive relevant information to render an informed determination consistent with the children's best interests. (Matter of Sepulveda v. Perez , 90 AD3d 1057, 1059 [2d 2011] ).
For example, one of the Family Offense matters that the mother filed against the father was in December of 2019 [Docket Number O-00000-19] . It was grounded in allegations of, inter alia , multiple altercations between the father and the mother, and while that fact-finding did not concern the parents’ relative ability to parent or their relative fitness to parent, the Court believes that it is relevant that, as it indicated while placing its decision on the record in open court, that after having the ability to closely observe the demeanors and facial gestures and appearances of both parties, as they testified live in a virtual fact-finding, the Court determined that the mother lacked credibility when testifying, and that parts of her testimony were wholly irrational, leading the Court to determine that she failed to prove that the father committed a family offense against her.
Matter of Newton v. McFarlane , 174 AD3d 67, 77 [2d Dept 2019] ; see Matter of Andracchi , 106 A3d 734, 734-35 [2d Dept 2013].
The Court also finds it relevant that the father and mother both testified in the related Family Offense proceedings against Ms. J. [Docket Numbers, O-0000-20; O-00000-20/20A; O-00000-20/21C], and this Court found that the mother also lacked credibility while testifying in those fact-finding hearings, and further found that she did not exhibit a forthright demeanor and that her testimony about the allegations often lacked plausibility. The Court also finds it relevant that in numerous instances in those fact-finding proceedings where the mother testified about an alleged occurrence and the father testified in rebuttal thereto, the Court generally found that the mother lacked credibility and that the father testified in a more forthright manner, that he appeared credible and that his testimony about a particular incident was plausible while her testimony lacked plausibility.
While the Court's determination that the mother failed to prove that Ms. J. committed a Family Offense or violation under Docket Numbers O-00000-20 and O-00000-20/21C may not constitute res judicata for purposes of her Modification Petition, the Court finds that the resolution of these Family Offense petitions is relevant to the question of whether the mother's Modification Petition, to the extent not wholly rendered moot, has set forth a sufficient predicate for "plunging full-bore into a contested custody hearing". (Matter of Newton v. McFarlane , 174 AD3d at 77 ).
The Court further finds it relevant that in the several years that it has presided over the parties’ various Family Court proceedings, it has received numerous Court-Ordered Investigation reports from the Department of Social Services concerning allegations of misconduct asserted by the mother against the father and/or Ms. J., all of which have ultimately been concluded as "unfounded". Moreover, while conducting the numerous court conferences and fact-finding hearing appearances with these parties, and after reviewing and deciding the numerous written applications filed by the parties, this Court has never found cause to believe that continuing the father's unsupervised parenting time would be harmful or detrimental to the children. (Matter of Blazek v. Zavelo , 127 AD3d 854, 854-55 [2d Dept 2015] ).
Additionally, while the Court has not conducted an in-camera with the children, the Court finds it relevant that they have been represented from the time of the parents’ divorce by an Attorney for the Child who has fully participated in the fact-finding proceedings involving these parties and who has maintained that there is no basis to suspend, limit or otherwise modify the father's parenting time. (See, Matter of Bailey v. Carr , 125 AD3d 853 [2d Dept 2015] ; Matter of Andracchi v. Reetz , 106 A3d 734, 735 [2d Dept 2013]); Matter of Giannoulakis v. Kounalis , 97 AD3d 748, 750 [2d Dept 2012], for the proposition that the Court possesses sufficient information to enable it to render its determination without an in-camera interview).
The Court notes, however, that in the present instance, the Attorney for the Child has inexplicably failed to submit any papers in support of or opposing the parties’ respective motions and/or cross-motions.
Indeed, what has been utterly apparent to this Court throughout the time that it has presided over the parties’ extensive Family Court litigation is that these children, who are still very young at the respective ages of 5-and 10-years-old, have already been thrust into an incredibly stressful situation due to the parties’ high-conflict relationship, including having observed contentious interactions between their parents and/or significant other(s), being present for police interventions, and having the experience of being represented by an attorney and having to be interviewed by forensic evaluators.
Indeed, as the Second Department has astutely observed:
"The existence of custody litigation, by itself, can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents Litigation over established court-approved child custody and access arrangements can be unsettling and traumatic for children, particularly for children of sufficient age or maturity to comprehend, and worry, about potentially significant changes in their daily lives The prospect of having to be interviewed by a judge, consult with counsel, be examined by a forensic clinician, and deal with parents who are embroiled with each other in litigation, can create significant anxiety and stress, which, by itself, may be harmful to a child's development". (Matter of Newton v. McFarlane , 174 AD3d 67, 76 [2d Dept 2019] ).
Accordingly, based on its history with the parties and considering the traumatic effect that continued litigation can have on the children, this Court has "carefully evaluate[d] the relevant circumstances" and determined that it would not be in the children's best interests to commence "an extensive evidentiary hearing" on the mother's Modification Petition. (Matter of Newton , 174 AD3d at 78 ). Thus, under the totality of the circumstances, the Court finds that the mother's Modification Petition fails to set forth a basis for modifying the parties’ prevailing custody and parenting time arrangement. (See Matter of Newton , 174 AD3d at 78 ). Accordingly, the father's Motion to Dismiss is granted and the mother's Modification Petition filed under Docket Numbers V-0000-19/20E and V-0000-19/20E is dismissed.
PARTIES’ RESPECTIVE REQUESTS FOR IMPOSITION OF SANCTIONS AND COSTS
The mother has cross-moved for the imposition of costs and legal fees against the father, due to his counsel allegedly filing a frivolous and unmeritorious Motion to Dismiss and based on the father's counsel refusing to withdraw said motion at her counsel's request. (Moran Reply Aff. in Further Support of Cross Motion , ¶ 5). The father has requested sanctions and fees for the mother's alleged "frivolous conduct" in cross-moving for the imposition of sanctions and/or fees against him. (Charrington Opp./Reply Aff. , ¶ 9). The mother's counsel has opposed the father's application for counsel fees, as the father was precluded from requesting affirmative relief in reply papers. (Moran Reply Aff. in Further Support of Cross Motion , ¶ 7).
"Pursuant to 22 NYCRR § 130-1.1, sanctions may be imposed against a party or the party's attorney for frivolous conduct". (Matter of Brin v. Shady , 179 AD3d 760, 763 [2d Dept 2020] ). "Conduct is ‘frivolous if: [1] it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; [2] it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or [3] it asserts material factual statements that are false". (Matter of Brin , 179 AD3d at 763 [citing 22 NYCRR 130-1.1(c) ]). "A party seeking the imposition of a sanction or an award of an attorney's fee pursuant to 22 NYCRR 130-1.1 [c] has the burden of proof". (Matter of Brin , 179 AD3d at 763 ).
In this case, the mother has failed to meet her burden of establishing that the father and/or his counsel engaged in "frivolous" conduct warranting the imposition of sanctions. The Court is granting the father's Motion to Dismiss, demonstrating that the father's commencement of motion practice was not meritless, and the mother has not established that the father's conduct in commencing the subject motion practice was undertaken primarily to delay or prolong resolution of this matter as it actually has accelerated resolution of this matter. While the mother's counsel has cited to various alleged false "factual statements" by the father's counsel, the Court has reviewed the proposed false factual statements and finds that the mother has failed to establish that the father's counsel asserted material factual statements that are false. The Court finds that such statements by the father's counsel are perhaps awkwardly worded rather than "false", and/or that they are more properly characterized as argument and not as factual statements. Accordingly, the Court finds that the mother has failed to meet her burden of establishing that the father and/or his counsel engaged in "frivolous" conduct and therefore her application for counsel fees and/or sanctions is denied.
As to the father's request for sanctions, the Court is not convinced that the father was precluded from seeking sanctions in opposition to the mother's cross-motion for sanctions, as the father argued that the mother's cross-motion for sanctions constituted the frivolous conduct which warranted imposition of sanctions and the mother had a fair opportunity to respond to the father's request, and she did respond by arguing that the father's request for affirmative relief in his opposition to her cross-motion was improper. (Compare with Matter of Hergerton v. Hergerton , 235 AD2d 395, 396-97 [2d Dept 1997] ). However, the Court finds that the father nevertheless failed to establish that the mother and/or her counsel engaged in frivolous conduct as set forth under 22 NYCRR § 130-1.1. Specifically, the father provided no basis to support the argument that the mother's application for sanctions "had no legal or proper basis whatsoever to cross move to seek such relief". (Charrington Opp./Reply Aff. , ¶ 9; see also, 22 NYCRR 130-1.1 [c]).
Therefore, both parties’ requests for sanctions are denied.
Accordingly, it is hereby:
ORDERED, that the father's Motion to Dismiss is granted, and the mother's Modification Petition under Docket Numbers V-00000-19/20E and V-00000/19-20E is dismissed; and it is further,
ORDERED, that the mother's Cross-Motion is denied in its entirety; and it is further,
ORDERED, that all other requests for relief not specifically addressed herein are deemed denied.
This constitutes the Decision and Order of the Court.