Opinion
No. 2023-50346
03-30-2023
Faina P., Plaintiff, v. Alexander S., Defendant.
Brian D. Perskin, Esq., Gabrielle H. Hagege, Esq., Attorney for Plaintiff Alexander S., Esq., Defendant, pro se
Unpublished Opinion
Brian D. Perskin, Esq., Gabrielle H. Hagege, Esq., Attorney for Plaintiff
Alexander S., Esq., Defendant, pro se
Jeffrey S. Sunshine, J.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed #196; #194; #154; #199; #250; #296; #298; #365; #394
Opposing Affidavits (Affirmations) #297; #376; #393; #411
Reply Affidavits (Affirmations) #412; #438; #439
PROCEDURAL HISTORY
The parties entered into two stipulations on November 12, 2019 - one resolving custody and parenting time [NYSCEF #6] and the other resolving finances and all ancillary issues between them [NYSCEF #7] - these stipulations were duly executed and subsequently incorporated but not merged into a Judgment of Divorce signed on February 28, 2020 [NYSCEF #5] and entered in the Office of the Clerk of the County of Kings on March 3, 2020. There is one child of the marriage: a son, Z, who is (7) years old (DOB December 2015).
Plaintiff is employed as a sale administrator earning approximately $48,000 annually. She is represented by private counsel.
Defendant is employed as an attorney at a New York City law firm earning approximately $89,000 annually. He appeared self-represented throughout most of this post-judgment litigation but was represented for a brief period of time by Yuri Yaroslavskiy, Esq. The Court has made extensive records on each court appearance where both parties were present as to the right to counsel and the risks of proceeding self-represented. The Court has found that the defendant is not eligible for the assignment of counsel.
Defendant was found in contempt for failure to pay basic child support for over a year which resulted in a written decision, dated April 18, 2022 [NYSCEF #101; motion sequence #3 and #4]. That written decision must be read together with this decision. After the finding of contempt, plaintiff retained counsel in May 2022. That counsel filed a notice of appeal [NYSCEF #116].
The formal order of contempt was signed August 1, 2022 [NYSCEF #174]. The matter was scheduled for purge or sentencing for September 13, 2022.
The defendant did not purge his contempt prior to September 13, 2022. At sentencing on September 13, 2022, defendant sought an adjournment: the Court granted defendant's counsel's request, on consent of plaintiff after defendant made partial payment towards the child support arrears and adjourned the purge/sentence - and the other outstanding motions, including plaintiff's application for counsel fees - to October 24, 2022.
After receiving an adjournment from September 13, 2022 and October 3, 2022 to purge, defendant discharged his attorney on September 20, 2022 [NYSCEF #251] and on September 29, 2022 defendant filed - pro se - another order to show cause for contempt against plaintiff for alleged violation of the "foster good will" provision of the parties' stipulation of settlement because she filed an enforcement action to collect child support arrears from him which ultimately resulted in the contempt finding against him. The Court will fully address this novel "theory" herein below. Inasmuch as the matter was scheduled for purge or sentencing, this order to show cause filed by defendant was held in abeyance.
On the morning of October 3, 2022, defendant appeared pro se for the purge and sentencing of his contempt but sought yet another adjournment to seek counsel. Plaintiff's counsel notified the Court the defendant had not purged his contempt. Given that defendant's purge or sentencing had already been adjourned once before the Court granted defendant's request for an adjournment and recalled the case on the afternoon calendar. When this matter was recalled in the afternoon, defendant appeared with an attorney from the law firm where he is employed. That attorney sought an adjournment to become familiar with the matter. The Court granted that attorney's application and adjourned the matter from October 3, 2022 to October 24, 2022; however, thereafter, defendant did not formally retain that attorney or any other attorney in the interim.
On October 24, 2022, defendant appeared without counsel. The Court allocuted the defendant thoroughly again, recited the risks of representing oneself on the record even though defendant is an attorney licensed to practice law in the State of New York; however, the defendant represented that he had not retained counsel and was choosing to represent himself [NYSCEF #294, 10/24 22 transcript].
The parties notified the Court that the defendant had purged his contempt [NYSCEF #294: transcript of 10/24/22 record] pursuant to the terms of the contempt order. As such, there was no sentencing.
Both parties represented that they were ready to proceed to oral argument on the motions that had been held in abeyance pending defendant's purge or sentencing. The Court then heard argument on defendant's order to show cause seeking to renew and reargue the finding of contempt against him [mot. seq. #7] and plaintiff's request for counsel fees for enforcement [mot. seq. #9].
The Court had held these applications in abeyance upon plaintiff's application that it was, in effect, unfair for them to continue to respond to orders to show cause being brought by defendant as well as separate plenary actions filed by defendant, pending purge or sentencing or while defendant was seeking counsel.
Subsequent to oral argument on motion sequences #7, #9 and #10, on December 16, 2022, plaintiff filed a motion seeking a money judgment [mot. seq. #11]. In response, on January 13, 2023, defendant filed an order to show cause seeking to disqualify plaintiff's counsel [mot. seq. #12]. The Court heard oral argument on motion sequences #11 and #12 on January 26, 2023.
Delayed January 26, 2023 Transcript
The Court heard oral argument on motions #11 and #12 on January 26, 2023 and ordered the parties to share the cost of the transcript and to provide it to the Court. Chambers staff sought a status update on the transcript by e-mail dated February 15, 2023 and via e-mails between plaintiff's counsel and defendant on notice to all parties chambers learned that defendant had not paid his share of the transcript allegedly because he believed plaintiff should pay for it, in effect, to reimburse him for prior transcript costs which the court has not made direction about payment. Chambers staff responded that the Court's direction as to the parties obtaining and sharing the cost of the January 26, 2023 transcript stood independent of any prior transcript costs. Thereafter, defendant paid his share of the cost and the transcript was provided to the Court [NYSCEF #440] and the decision on motion sequences #7, #9, #10, #11 and #12 were marked sub judice for decision on February 17, 2023.
Motion Sequence #7
On August 12, 2022, defendant through counsel filed an order to show cause [NYSCEF #196] seeking a finding, inter alia, of contempt against plaintiff as well as the following relief:
Defendant retained counsel who represented him from May 2022 into September 2022.
A. Pursuant to CPLR 2221 (d) and (e), granting leave to renew and reargue the Decision and Order of this Court dated April 18, 2022;
B. Pursuant to CPLR 2221 (d) and (e), granting leave to renew and reargue the Order of Contempt of This [ sic ] Court dated August 1, 2022;
C. Staying the Decision and Order of This [ sic ] Court dated April 18, 2022;
D. Staying the Order of Contempt of This Court dated August 1, 2022;
E. Pursuant to DRL 236(B)(9)(b), modifying the Judgment of Divorce dated February 2, 2020 and granting Defendant, [REDACTED], downward modification of child support;
F. Awarding Defendant [REDACTED] said downward modification of child support nunc pro tunc effective January 25, 2021, and recalculating child support arrears accordingly;
G. Granting Defendant [REDACTED] such other relief as this Court may deem just and proper.
Motion Sequence #9
On September 13, 2022, plaintiff filed an order to show cause [Mot. Seq. #9; NYSCEF #250] seeking an order for the following:
This application was initially filed on September 9, 2022 by notice of cross-motion but was returned for correction for submission as an order to show cause [NYSCEF #199].
A. Ordering that Defendant pay counsel fees to Plaintiff's attorneys in the amount of $55,616, representing the costs in connection with the post judgment action; and
B. Awarding such other and further relief as this Court deems just and proper.
Motion Sequence #10
On September 28, 2022, defendant pro se filed another order to show cause [motion seq. #10] seeking an order for the following:
A. adjudging and punishing Plaintiff, FAINA [P.], for contempt of Court for her violation of the following provisions in the November 12, 2019 Custody and Parenting Agreement involving the parties' child against the best interests of the child:
i." 'a spirit of cooperation' between the parties is 'essential,' and they acknowledge that it is in the best interests of the child that they 'work cordially and collaboratively with each other.'
ii. the Mother and Father shall 'foster a feeling of love and respect between them and the other party.' ''
iii. Jeopardizing the child's school grades against the best interests of the child; iv. Jeopardizing the child's enrollment in school against the best interests of the child;
B. adjudging and punishing Plaintiff, FAINA [P.], for contempt of Court for her violation of the Jewish faith provisions in the November 12, 2019 Custody and Parenting Agreement involving the parties' child:
C. enjoining and prohibiting Plaintiff from any further violations of the above mentioned provisions in the November 12, 2019 Custody and Parenting Agreement against the best interests of the child; and
D. for such other and further relief as this Court may deem just and proper under the circumstances.
Oral Argument #1 [October 24, 2022]
Application to Renew
CPLR 2221(e) allows for leave to renew based on new facts which were unavailable at the time of the prior motion. The issue that defendant seeks leave to renew and/or reargue is whether he was in contempt for failing to pay his basic child support obligation pursuant to the parties' stipulation of settlement which was incorporated but not merged into the judgment of divorce.
Defendant proffered as "new" evidence an affidavit from a non-party (he claims is a "friend" of the plaintiff) [NYSCEF #185] in which the non-party avers that plaintiff sometimes pays for goods or services using cash and that she takes vacations with the child. He argues that if plaintiff uses cash and takes vacations that the Court must find that the plaintiff "has been concealing her true income and earning income in cash". Even if the allegation were true, it appears to have no legal relevance to defendant's application to renew on the finding of contempt against him and whether he was in compliance with his court ordered support payments. In effect, the defendant proposes another novel theory that if the plaintiff spends cash it is ipso facto proof that she is earning "cash income" that she has not disclosed and that if this is true that it would retroactively void his obligation to pay the child support as he stipulated to do in the parties' stipulation of settlement and would "excuse" his non-payment of any basic child support without any court order for more than a year.
Plaintiff's counsel argues that plaintiff disclosed that she takes vacations, attends Broadway shows and occasionally eats out on her affidavit of net worth and this spending is consistent with her reported income and that there is no undisclosed income. Furthermore, plaintiff's counsel contends that defendant had full knowledge of these activities and spending by plaintiff prior to his initial application because, she represents, the parties are "Facebook friends".
Here, defendant failed to offered any newly discovered evidence that was not available to him at the time of the original motion so there is no basis to renew and, in fact, provided no evidence that is germane to this action: defendant's application for leave to renew is denied.
Reargue
CPLR 2221(d) allows for leave to reargue where the Court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (see generally Hoey-Kennedy v Kennedy, 294 A.D.2d 573 [2 Dept.,2002]). Defendant contends that the Court overlooked, in effect, an alleged absolute requirement to hold an evidentiary hearing in every case prior to holding someone in contempt. It is well-established that "[a] hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Wood v Wood, 134 A.D.3d 1028, 1029 [2 Dept.,2015]; see also Lopez v Ajose, 33 A.D.3d 976 [2 Dept.,2006]). Contrary to defendant's contention, his theory that the Court was required to hold an evidentiary hearing prior to any finding of contempt was addressed in the April 18, 2022 decision and these cases were cited therein. Defendant again arguing this previously raised and adjudicated issue is not appropriate in an application to reargue.
The decision of the Court, dated April 18, 2022, speaks for itself where the Court found that:
"[u]nder the unique facts and circumstances presented herein - including that Defendant does not dispute any of the facts and accountings presented by Plaintiff related to the issue of child support arrears - and based on the financial documentation provided by Defendant there is no need for the Court to extend additional judicial resources or for plaintiff to pay additional counsel fees to hold an evidentiary hearing inasmuch as there does not appear to be any factual dispute" (decision dated April 18, 2022, NYSCEF #101, p. 43).
The defendant further contends that the "Court further completely disregarded Defendant's application to hold the Plaintiff in contempt of court for unilaterally deciding to vaccinate the subject child" against COVID-19. Defendant's allegation in his written submission and during oral argument that the Court did not address his relief requested as to COVID-19 vaccination of the child is wholly inaccurate: the vaccination issue was rendered moot after both parties consulted with the child's pediatrician and stipulated to the vaccination. Furthermore, defendant's affidavit that the issue was never addressed by the Court is also not accurate: the issue of the COVID-19 vaccination was addressed by the Court in the written decision (NYSCEF #101; page 27, footnote 10). The parties entered into a stipulation regarding the vaccination which was so-ordered by the Court on January 14, 2022 [NYSCEF #272].
Throughout this litigation the defendant has not raised or argued that under the parties' stipulation of settlement he has no obligation to pay basic child support or add-on expenses: rather, he consistently argued that the Court should find retroactively that he should not be required to pay those expenses for a host of reasons (none of which are supported by the facts of law as detailed herein below).
The parties' stipulation of settlement clearly and specifically delineates that the parties shall share (50/50%) add-on expenses, including medical insurance, dental expenses, etc. In additional, the judgment of divorce contains an ORDERED AND ADJUDGED paragraph providing for this shared (50/50%) sharing of add-on expenses.
Notwithstanding these clearly delineated obligations, defendant now argues for the first time in his application to reargue that he should not be found in contempt for failing to pay any child support and his share of add-ons for more than a year because, he alleges, there is inconsistent language between two ORDERED AND ADJUDGED paragraphs in the judgment of divorce. There is no such conflict in the stipulation which is clear as to the specific add-ons provided therein that defendant is responsible for.
In his affidavit, dated January 17, 2023 [NYSCEF #376], defendant argues that he "was never obligated to pay add-on expenses, per the Judgment of Divorce" [p. 12] pointing to one ORDERED AND ADJUDGED paragraph in the judgment of divorce which provides:
"ORDERED AND ADJUDGED Pursuant to paragraph A.1 of Article VIII of the Settlement Agreement dated November 12, 2019, the Defendant shall pay the Plaintiff $1,500 per month for basic child support which is inclusive of all add-ons [emphasis added];"
Defendant does not argue that this paragraph is consistent with the terms of the parties' stipulation of settlement nor does he dispute that the immediately following ORDERED AND ADJUDGED paragraph in the judgment of divorce specifically provides for payment of add-ons pursuant to the parties' stipulation of settlement:
ORDERED AND ADJUDGED Add-on expenses of the Child, including unreimbursed medical expenses, child care, educational expenses, private school tuition, summer camp and college education expenses shall be paid by the parties pursuant to the Settlement Agreement Custody and Parenting Agreement dated November 12, 2019;
It is clear from the judgment of divorce - read in full - and from the parties' stipulation of settlement that the addition of the term that basic child support is "inclusive of all add-ons" was a scrivener's error in the originally settled judgment of divorce inasmuch as the parties' stipulation of settlement specifically provides:
All add-on expenses due to be reimbursed to the Wife, including without limitation, medical expenses, medical insurance, uncovered medical, extra-curricular expenses, school expenses, and the like, shall be repaid to her by the Husband within twenty (20) days of the Wife's payment for the expense and upon notice to the Husband [NYSCEF #7, p. 26].
The case law related to scrivener's errors are well-established: a scrivener's error in a judgment of divorce may be corrected (see generally Verdrager v Verdrager, 230 A.D.2d 786 [2 Dept.,1996][modification of judgment of divorce to correct mistakes inconsistent with memorandum decision was appropriate as the mistakes appeared to be "merely scrivener's errors"]. While this alleged inconsistency does not absolve defendant of his obligations to pay as detailed under the stipulation of settlement, the Court will consider defendant's recent, late raised argument that there is an inconsistency and therefore he should not be held in contempt under the existing judgment of divorce. Defendant's opposition to the original contempt focused on a host of arguments related to changes in his obligations he believed were appropriate. In fact, in his original opposition to paying his share of dental care and other add-ons sought by plaintiff he argued simply that he did not consent to inter alia the child receiving the dental care his pediatric dentist recommended, etc. Despite a full and fair opportunity to enunciate and argue his contention that, in effect, this scrivener's error in the judgment of divorce "vacated" his obligation to pay add-on expenses as delineated in the parties' stipulation of settlement he never raised such claim. Certainly, defendant should have raised his attempt to avoid his child support obligation based upon this scrivener's error when the original application was filed instead of forcing plaintiff to incur counsel fees to answer all of his other arguments and then answer this late filed argument now. Defendant did not specifically articulate at that time his proposition that he had no obligation to pay any add-on expenses based upon the scrivener's error in the judgment of divorce.
Defendant, a licensed attorney, contends now that he believes, in effect, that what is clearly a scrivener's error in the judgment of divorce somehow "vacated" the child support add-ons provisions in the parties' stipulation of settlement, which was specifically incorporated but not merged into that judgment of divorce. The Court notes that defendant does not dispute that he had a continuing basic child support obligation for $1,500 to be paid to plaintiff and he never disputes that he unilaterally stopped paying that, in effect, because he decided to make other financial commitments that he believed superseded paying child support.
While defendant is raising this contention late, the Court notes that contempt is a drastic remedy and a quasi-criminal proceeding and - in the interest of justice - the Court finds that under the totality of the facts and circumstances, especially since the defendant did purge, that defendant appears pro se in this action despite being a practicing attorney himself that it is appropriate to grant defendant's application to reargue related to his belated argument as to the scrivener's error in the judgment of divorce which he now alleges is an "inconsistency" that defeated the terms of the parties' stipulation of settlement especially when the very next ORDERED AND ADJUDGED paragraph in the judgment of divorce memorializes the add-ons as agreed to by the parties in their stipulation of settlement. The extent of defendant's attempts to avoid his child support obligation is especially audacious given that he is an attorney. Contempt requires a clear and unequivocal mandate. The conflicting paragraphs in the judgment of divorce require the Court, in the interest of justice where an issue is basically moot as to contempt to take this action (see generally El-Dehdan v El-Dehdan, 26 N.Y.3d 19 [2015]).
The Court absolutely rejects the defendant's theory that he has no obligation to pay add-on expenses based upon the inconsistency in the provisions of the judgment of divorce; however, the Court will given the extreme remedy of contempt and the potential impact of the contempt finding on defendant who is an attorney and in the interest of justice vacate the contempt finding against defendant in the April 18, 2022 decision.
Reargument is granted to the extent that plaintiff must resettle the judgment to correct the scrivener's error and to be consistent with the stipulation of settlement. The Court notes that no where in the stipulation does the language provide that the $1,500 in basic child support is "inclusive" of add-on expenses and instead the stipulation specifically provides for payment 50/50% of delineated add-on expenses.
Downward Modification of Child Support
The defendant requests - once again - that the Court downwardly modify the child support consented to by the parties in their stipulation of settlement dated November 12, 2019 which was incorporated but not merged into the judgment of divorce by "terminating" his basic child support because of the alleged "extraordinary" costs he pays on behalf of the child and because, allegedly, his income has decreased due to the pandemic.
The parties' stipulation of settlement [NYSCEF #179] related to child support provides that the defendant was the monied spouse and the payor of child support to the plaintiff based upon their representations that the plaintiff's income was $44,511 and the defendant's income was $85,754. The parties' stipulation recites that the presumptively correct basic child support payment would have been $25,160 annually. In the parties' stipulation of settlement, the parties agreed that defendant would pay $1,500 monthly in basic child support. Despite the fact that plaintiff earned nearly half of what defendant earned, the plaintiff still agreed to share (50/50) statutory add-ons and other add-ons such as summer camp and college expenses.
The parties stipulation of settlement provides as follow related to add-on expenses: "[a]ll add-on expenses due to be reimbursed to the Wife, including without limitation, medical expenses, medical insurance, uncovered medical, extra-curricular expenses, school expenses, and the like, shall be repaid to her by the Husband within twenty (20) days of the Wife's payment for the expense and upon notice to the Husband" [Article VIII, C (ii)] and "[a]ll add-on expenses due to be reimbursed to the Husband, including without limitation, medical expenses, medical insurance, uncovered medical, extra-curricular expenses, school expenses, and the like, shall be repaid to him by the Wife within twenty (20) days of the Husband's payment for the expense and upon notice to the Wife" [Article VIII, C (iii)].
The parties also agreed that they would each be solely (100%) financially responsible for child care for the child while in their care [Article VIII, D]; share summer camp (50/50%) [Article VIII, F]; share college to a cap defined in the stipulation [Article VIII, G]; and share the cost of medical and dental coverage (50/50%) [Article VIII, B].
The judgment of divorce, which incorporated but did not merge the stipulation of settlement, has two provisions related to child support as follows (NYSCEF #179, p. 5-6]:
"ORDERED AND ADJUDGED pursuant to paragraph A1 of Article VIII of the Settlement Agreement dated November 12, 2019, the Defendant shall pay the Plaintiff $1,500 per month for basic child support which is inclusive of all add-ons; and it is further
ORDERED AND ADJUDGED add-on expenses of the Child, including unreimbursed medical expenses, child care, educational expenses, private school tuition, summer camp and college education expenses shall be paid by the parties pursuant to the Settlement Agreement Custody and Parenting Agreement dated November 12, 2019; "
Defendant contends that his obligation to pay basic child support to the plaintiff should be "terminated" because the parties share "50/50 split of residential custody" of the child and "based on unanticipated and substantial change in circumstances in that there has been a change in Defendant's income since the Judgment was entered, last modified or adjusted" (NYSCEF #177, p. 9). Defendant contends that as a result of the COVID-19 pandemic his income has decreased because he has been unable to work full-time as an attorney because "[m]y salary is derived from billing hours which are significantly limited given that courts remain closed for appearances are [ sic ] continue to operate virtually." In support, the defendant avers in his affidavit in support that his "2021 income as reported on his most recent tax return is $85,398.40".
A review of the defendant's affidavit of net worth [NYSCEF #180] attached to his application reveals that he has not been forthcoming with the Court about his income: defendant's submissions reveal that he earns $93,823.27 - not the $85,398.40 he avers in his affidavit. Defendant erroneously deducted from his gross income when calculating his child support obligation the $8,424.86 he contributed to his tax deferred accounts in 2021 (see generally DRL 240; see also Holterman v Holterman, 781 N.Y.S.2d 458, 463 [2004]). Consequentially, the Court notes that defendant made this voluntary contribution of more than $8,400.00 in 2021 when he unilaterally stopped paying any basic child support allegedly because he could not afford to pay "any" child support.
Defendant's representation that his income for child support purposes is $85,398 is not consistent with the Child Support Standards Act definition of income. Income for purposes of calculating child support obligations is gross income prior to elective, voluntary contributions to retirement and deferred compensation plans (DRL 240(1-b)(b)(5)(iii) which provides as relevant here:
to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred [emphasis added]
Furthermore, defendant's contention that his income decreased since the time the parties consented to basic child support is not supported by the record: a review of the parties' stipulation of settlement from November 2019 reveals that defendant reported his income as $85,754 which is actually less than the $93,823.27 he concedes he earns now. Clearly, defendant's claim that he is entitled to a downward modification because his income has decreased is not supported by his own submissions: defendant's income has increased since the parties' consented to the basic child support obligation.
Defendant apparently attempted to use the COVID-19 pandemic as an opportunity to attempt to end his child support obligation without consent of plaintiff or court order. In support, plaintiff annexed an e-mail from defendant to her dated July 2, 2020 [NYSCEF #224] which reads in full:
"I am not wasting my time with you any more back and forth about what I already stated at least 10 times. Be advised that effective July 1, 2020, given covid-19, I have started working part-time with a 50% reduction in salary. Thus, I will NOT be in a position to pay any child support, given my child-related expenses and living costs. If you disagree and wish to spend more money and time on attorneys' fees, I will file papers for child support modification next week."
Based on the records before the Court, it appears that defendant's income increased since the parties entered into the stipulation of settlement not decreased as he represented to plaintiff in an attempt to gain her waiver of child support.
Defendant's argument that the basic child support obligation the parties consented to in their stipulation of settlement should be "terminated" because he "provides food, shelter, clothing and entertainment for the child" when the child is in his care and custody is not supported by the Child Support Standards Act or case law. Defendant's contention that he is paying "extraordinary expenses on behalf of the child" that he avers warrant a downward deviation is not supported by the facts alleged in his supporting affidavit [NYSCEF #177]. Defendant's contentions that certain basic living expenses qualify as "extraordinary" costs paid allegedly on behalf of the child, including defendant's rent; telephone; food; and a 2019 Audi car lease, insurance, gas and parking should be deducted from his basis child support obligation to the plaintiff because these expenses "benefit" the child when the child is with him is not supported by existing statute or caselaw.
It is disingenuous for defendant to now allege that any contributions he makes for health insurance contributions are "extraordinary" and absolve him of paying basic child support when they were considered and specifically agreed to in the same document wherein the parties consented to the basic child support award. This is especially true where, as detailed herein below, defendant refused to add the child to his health insurance available through his employer when the plaintiff lost her job and asked him to add the child.
Defendant's contention that he should not pay any child support because the parties share equal time with the child is misplaced. He is the more monied parent and the parties specifically agreed to their child support agreement with the agreement of shared (50/50) parenting time in place: both agreements were signed the same day in November 2019. To allege now that the shared parenting time should void the child support they agreed to is not supported in fact or law (see generally Bast v Rossoff, 91 N.Y.2d 723 [1998]).
Defendant's contention that the Court can downwardly modify the basic child support obligation nunc pro tunc to when he unilaterally stopped paying child support because the child is with him half of the time is also not supported by the law. Any downward modification may only be made to the date of application. Even if defendant had presented a legal basis for this Court to modify his child support obligation there would have been no jurisdiction for this Court to do so prior to the date of his application. There is no legal basis as defendant seeks to modify his child support obligation nunc pro tunc, in effect, to a date when defendant first decided to stop paying his child support.
The caselaw is clear: "a stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principals of contract interpretation" Toscano v Toscano, 153 A.D.3d 1440, 1442 [2 Dept.,2017]). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Matthews v Roe, 193 A.D.3d 919, 147 N.Y.S.3d 597, 599 [2 Dept.,2021]). The Court cannot rewrite the terms of the clear and unambiguous terms of the parties' agreement (see Abramson v Hasson, 184 A.D.3d 768 [2 Dept.,2020]).
Here, the child support terms in the parties' stipulation of settlement are clear and unambiguous. The defendant's basic child support obligation is $1,500 monthly. The defendant's choice to incur elective expenses such as a car lease and expenses exceeding $780.00 monthly for a 2019 Audi automobile and a $4.00 Nintendo subscription - which he has noted in nearly every submission to this Court - do not obviate his agreement to pay $1,500 in basic child support obligation to the plaintiff for food, shelter, clothing and other general costs for the child while in her care and custody. To find such would, effectively, give the defendant unilateral authority to nullify the stipulation of settlement - which remains a contract - the parties entered into on consent. If the Court were to adopt the proposition posed by defendant, it would open the door to any litigant having the ability to, in effect, "void" any stipulation of settlement by increasing his or her own voluntary spending to avoid any basic child support obligation: such an outcome is contrary to statute and case law.
Even if there was a basis to downwardly modify his basic child support the Court notes that any such modification would only be retroactive to the date of the application. Here, defendant contends - without any legal basis - that the Court can and should in effect "excuse" his failure to pay any child support for more than a year and try to circumvent the Court's prior finding of contempt now by arguing that a retroactive downward modification nunc pro tunc to a date prior to the contempt finding against him would be appropriate. There is no legal authority for the Court to retroactively modify child support prior to the date of application.
The Court of Appeals of the State of New York has ruled that arrears accrued prior to an application for modification of child support is not retroactive and noted that "[u]nder the present enforcement scheme, then, '[n]o excuses at all are tolerated with respect to child support'" (Dox v Tynon, 90 N.Y.2d 166, 173-174 [1997]). Where a party seeks to avoid making payment, that party is required to make an affirmative request for relief (id. at 174). As such, even if the defendant's application herein to downwardly modify his child support obligation was granted it would not apply retroactively to the many months he unilaterally stopped paying child support without consent of the plaintiff or court order. An application to downwardly modify is about determining, in effect, a "new" child support obligation that applied only to child support from the date of application forward. Even if there was a basis to grant defendant's downward modification application, it would not change the prior contempt decision.
Defendant consented and agreed in the parties' stipulation of settlement to pay $1,500 monthly in basic child support to the plaintiff for the support of the parties' minor child. The defendant had the means to pay this basic child support: he simply elected to use that money for other - voluntarily - expenses, such as a 2019 Audi car lease and "fun" things for the child while in his care without any consideration of the impact on the child while the child is in the plaintiff's care.
244 Statement: Child Support Arrears
During oral argument on October 24, 2022, plaintiff contends that $7,500 in additional child support arrears that was due as of May 2022 is outstanding and asks that pursuant to her DRL 244 notice she be granted a judgment in that sum. Defendant does not dispute this calculation or that he owes $7,500 in child support arrears as of May 2022. Plaintiff's application for a judgment in the sum of $7,500 representing these child support arrears is granted.
If Defendant fails to pay this $7,500 as detailed herein, plaintiff may enter judgment with the Office of the County Clerk against defendant, together with costs and statutory interest from the date of service with notice of entry of this decision and order, together with an affirmation of non-payment without need for further Court order on fourteen (14) days notice by regular and certified mail of service of this order with notice of entry.
Inheritance
The defendant contends that the Court should impute income to the plaintiff for the purposes of calculating his child support obligation because the plaintiff allegedly received an inheritance from her mother.
When the Court is called upon to calculate and set child support, inheritance is treated as a factor in deviating from the basic child support obligation and may be used to award additional child support. In effect, it is not treated as income for the purposes of calculating the award but as an available resource which the Court may factor into a support determination (DRL 240(1-b)[e][4]). Here, the Court did not calculate the parties' basic child support obligation: the parties - on consent - downwardly deviated from the presumptively correct award. Additionally, any modification would only be retroactive to the date of application and the Court has no jurisdiction to modify child support obligations nunc pro tunc to a date prior to an application as requested by defendant. Defendant's application is denied for failure of proof. He offered merely conclusory allegations.
Modification of Child Support
The parties did not opt out of the statutory right to seek modification in DRL 236. Modification of child support is permitted pursuant to Domestic Relations Law 236(B)(9)(b)(2)(i) upon a "showing of substantial change in circumstances" or, where the parties have not specifically opted out in a validly executed agreement or stipulation entered into by the parties, the court may modify an order of child support pursuant to Domestic Relations Law 236(B)(9)(b)(2)(ii) where:
(A) that three years have passed since the order was entered, last modified or adjusted; or
(B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted;
Here, three (3) years has not passed since the judgment of divorce was signed [February 2, 2020] when defendant filed his application seeking downward modification [August 12, 2022] nor did defendant raise a basis to modify based upon section B.
Conclusory statements without evidence that the children's needs are not being met (see Shachnow v Shafer, 82 A.D.3d 423 [1 Dept.,2011]) or where the submission does not disclose the existence of genuine issues of fact is insufficient to warrant a hearing (see generally Bishop v Bishop, 170 A.D.3d 642 [2 Dept.,2019]). Here, the defendant has not raised the existence of genuine issues of facts to warrant a hearing on a modification of the basic child support in their stipulation of settlement.
Lastly, defendant argues that he was unable to make an application for downward modification prior to January 2021 because, he contends - incorrectly, the Courts were unavailable for such applications throughout 2020 due to pandemic protocols: this is not accurate. Except for a brief period of time commencing in March 2020, the Court remained available to hear and adjudicate applications - albeit at time virtually - during 2020. Throughout the pandemic the Courts of the State of New York remained open and there was no impediment to the defendant filing an application for downward modification prior to January 25, 2021 when he initially filed his application for a downward modification in Kings County Family Court [NYSCEF #15] if he believed there was a legally sufficient basis to do so. The defendant's choice to wait to file an application in Family Court for downward modification was not predicated upon an inability to do so. Defendant's application for downward modification - or "termination" as he requests - of his child support obligation is denied.
Plaintiff's Request for Enforcement Counsel Fees [Motion Sequence #9; NYSCEF #250]
Plaintiff's order to show cause dated September 13, 2022 seeks an award of counsel fees pursuant to DRL §§237 (c) and 238, which provide in pertinent part:
In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce,... or in any proceeding pursuant to section... two hundred forty-four,... the court may in its discretion require either party to pay the expenses of the other in bringing, carrying on, or defending such action or proceeding.
Additionally, Plaintiff seeks counsel fees in connection with the instant motion pursuant to the parties' stipulation of settlement [NYSCEF #179] which specifically provides that [Article XII]:
In the event that either party defaults in discharging any of his or her obligations undertaken in this Agreement, then and in such event, after written notice by certified mail to the defaulting party providing him or her with fifteen (15) days to cure same, the aggrieved party shall have the right to sue for the amounts in default or for any other appropriate relief, and the successful party in any such suit or proceeding shall be entitled to receive from the other party and be reimbursed by said party for reasonable counsel fees, expenses and costs to be set by the Court in the same lawsuit.
In her affidavit in support [NYSCEF #238], plaintiff contends that the many post-judgment enforcement applications are solely due to the defendant's refusal to comply with the basic child support obligation he consented to in the stipulation of settlement and that his non-compliance resulted in her incurring large sums of unnecessary counsel fees seeking enforcement. She contends that there was no question of law or fact that needed judicial intervention and that defendant should be solely (100%) financially responsible for all of her counsel fees related to the enforcement applications.
Plaintiff's counsel's affirmation in support [NYSCEF #239] includes a post-judgment retainer between his firm and plaintiff dated September 13, 2021 [NYSCEF #245] which provides for an hourly billing rate of $375-475 for attorneys in the firm and copies of billing records through December 31, 2022 showing outstanding counsel fees due and owing in the sum of $95,629.85 [NYSCEF #437]. Plaintiff's counsel argues that given the "vast disparity in the parties' income and resources, whereby Defendant is unquestionably trying to run up the Plaintiff's counsel fees unreasonably" an award of counsel fees is appropriate [NYSCEF #412, p. 6].
Defendant's Opposition to Counsel Fee Alleging "Malpractice"
Defendant filed opposition dated September 23, 2022 [NYSCEF #253] requesting that "all of Plaintiff's motions for attorneys' fees be stayed and held in abeyance, upon the complete resolution of the pending legal malpractice and fraudulent billing practices lawsuit against Plaintiff's attorneys." In support of his opposition to any award of counsel fees, defendant contends that on September 12, 2022, three (3) days after plaintiff's counsel filed a proposed notice of motion seeking counsel fees herein , he filed a lawsuit against plaintiff's attorney seeking $250,000 in damages for alleged "legal malpractice and fraudulent billing" [NYSCEF #256]. Defendant argues that plaintiff's counsel engaged in "legal malpractice" when they agreed to represent plaintiff in her enforcement action "knowing full well that both Plaintiff and Defendant have limited financial means and no additional money to spend on this case." Plaintiff's counsel contends that defendant has no standing to seek malpractice against him because there is no privity between them related to plaintiff's counsel fees and maintains the defendant filed what he characterizes as a "frivolous" action to intimidate and pressure the plaintiff [NYSCEF #270].
That notice of motion was subsequently withdrawn and refiled as an order to show cause.
Defendant contends [in bold typeface in his affidavit] that" it is Plaintiff's continued post-matrimonial motion practice and litigation against Defendant, which has lasted since September 2021, that is undertaken to harass and maliciously injure Defendant [emphasis in original]"
In effect, defendant contends that he should have no financial responsibility for counsel fees plaintiff incurred to enforce the unpaid child support which he concedes he never paid and that it is plaintiff's "fault" that she incurred counsel fees for enforcement when she could have settled according to the settlement he proposed [NYSCEF #255, p. 8, #24]. Defendant contends that plaintiff should have agreed to terminate his child support obligation so that she would not have incurred counsel fees. Furthermore, defendant argues that plaintiff's assertion that he may incur counsel fees related to enforcement if he did not cure his basic child support arrears was a form of "harassment" and amounts to frivolous litigation.
MOTION SEQUENCE #11
Plaintiff filed a notice of cross motion dated December 16, 2022 seeking an order of the Court for the following:
"A) For a Money Judgment in the amount of $4,345.30, representing the Defendant's share of unpaid add-on expenses in accordance with our stipulation of settlement;
B. For an order that our son [Z], shall remain in his current school [redacted] unless both parties agree to another educational option;
C. Modifying our 2019 Custody Agreement to provide me with sole decision-making Major Decisions including on issues of education, health, religion, and extracurricular due to the Defendant's conduct over the course of the last three years;
D. Awarding the Plaintiff counsel fees in the amount of $15,000.00 for the cost of having to respond to the Defendant's frivolous motion;
E. for such other and further relief as this Court may deem just and proper under the circumstances."
Plaintiff provided an affidavit, dated December 16, 2022, in support of her application [mot. Seq. #11] and in opposition to defendant's order to show cause [mot. Seq. #10] seeking to hold plaintiff in contempt for alleged violations of the parties' custody agreement including an alleged "violation of the Jewish faith provision".
Money Judgment for Additional Add-Ons
Plaintiff contends that defendant "doesn't care what our child does, as long as he doesn't have to pay" [NYSCEF #297, p. 19]. She avers that defendant owes $4,345.30 as and for unpaid add-on expenses from June 2022 through December 2022 including 50% of the following: private school tuition; contribution to dental insurance; contribution to medical insurance; and extracurricular activities (basketball, swimming, etc.).
Defendant does not address the obligations for add-on in the parties' stipulation of settlement. The Court hereinabove addressed the issue of the inconsistency in the judgment of divorce related to the add-on expense issue and the right of either party to resettle the judgment of divorce to correct the inconsistency with the clear terms of the stipulation of settlement.
The request for a money judgment for alleged extracurricular expenses is denied without prejudice. Plaintiff may renew the application after resettlement of a corrected judgment of divorce.
Medical Insurance
The plaintiff had maintained the child on her health insurance through her employment. This coverage was specifically detailed in the parties' stipulation of settlement. Plaintiff avers that she lost her job in August 2022 and that she notified defendant that the child's health insurance would end and requesting that he add the child to his health insurance through his employment because the child needed his annual pediatrician appointment in September to start school. She avers that defendant responded by e-mail telling her to apply for Medicaid [NYSCEF #354]. In the e-mail, defendant states "Perhaps it's finally time to stop wasting money on attorneys and move on with your life. I will also lose my job if I get arrested. I do not have any extra money to pay, other than $1,5000 per month. You should apply for Medicaid now for yourself and the child." [NYSCEF #212; defendant's e-mail to plaintiff dated August 30, 2022].
Plaintiff avers that her COBRA health insurance continued through October 2022 and, because defendant would not add the child to his health insurance, she had to enroll the child in another insurance; however, that coverage only became effective in December 2022. Plaintiff avers that she notified defendant that unless he added the child to his health insurance the child would not have health insurance in November 2022.
She avers that the defendant refused to add the child to his health insurance for November 2022 the child had no health insurance for a month. The child was diagnosed with a tonsil infection on November 19, 2022. She contends that "because he did not have medical insurance during that time, I was only able to fill the prescription in my cousin's pharmacy in Long Island" [NYSCEF #297, p. 19-20]. She contends that "while the defendant was informed of the illness and the need for medicine and lack of insurance, he made no effort to assist in [ sic ] the well-being of our son "
Defendant contends that plaintiff should have been able to pay for any health insurance for the child from basic child support despite the clear provision in the stipulation of settlement that the parties must share (50/50%) the cost of comparable health insurance.
The parties' stipulation of settlement dated November 12, 2019 [NYSCEF #provides as follows:
The cost of the coverage for the parties' Child shall be subject to a 50% contribution from the Husband, and the parties agree to maintain comparable insurance until the occurrence of an Emancipation Event with respect to the Child, unless the Husband obtains such employment that provides equivalent coverage at a lower cost, in which event, the Husband shall provide such insurance for their Child. The parties agree to consult with each other every three years or upon a job change to determine who has available to them more cost efficient medical insurance for the Child. Any out of pocket expenses to cover the Child's medical expenses shall be paid 50% by the Wife and 50% by the Husband. To the extent that the Mother or Father is able to obtain dental insurance coverage for the Child, the parties shall contribute to the cost of such coverage on a 50-50 basis [ emphasis added ].
It appears that plaintiff complied with the provision in that she notified defendant of the job change [when she lost her employment]. The provision requires "comparable insurance". There is nothing in the record to support whether defendant's response to plaintiff that she should obtain Medicaid for the child would be "comparable" to the health insurance the child enjoyed from the plaintiff's employment as detailed in the stipulation. Defendant's contention that plaintiff should pay any medical and dental insurance from the basic child support is not consistent with the terms of the parties' stipulation of settlement regarding availability and payment of those expenses.
Defendant contends - and actually states - that "plaintiff/mother should understand that Defendant/father now has a two-month old son. Does she expect Defendant/father to send all his money to her, failing to provide formula and diapers for his newborn son?" [NYSCEF #376, p. 18]. He contends, furthermore, that plaintiff's counsel showed "audacity to file a new motion" on the issue of arrears when they are also seeking thousands of dollars in counsel fees. Defendant contends both that he can stop paying child support and also that plaintiff should be barred from seeking enforcement because she incurs counsel fees to seek enforcement.
The issue of calculation arrears for medical and/or dental insurance shall be referred to the evidentiary hearing after the judgment is resettled. Plaintiff shall provide on notice to defendant an accounting prior to the evidentiary hearing of any alleged arrears related to the cost of health insurance for the parties' son together with receipts of payment and demands for reimbursement
Jewish Faith and Education
In his order to show cause [mot. seq. #10], defendant requests that the Court hold plaintiff in contempt for "violation of the Jewish faith provisions in the November 12, 2019 Custody and Parenting Agreement involving the parties' child" [NYSCEF #257, p. 2]. In his initial affidavit in support of his contempt application the defendant makes no specific allegation as to how he alleges plaintiff did not comply with the parties' agreement to raise the child in the Jewish faith. Defendant merely requests that various third parties, whom are not parties to this action, "intervene and protect the Jewish interests of the child" [NYSCEF #258, p. 17]. However, in a subsequent affidavit [NYSCEF #439, p. 7], defendant avers that:
a basic tenet of Jewish law, including the Ten Commandments, as well as all of the various biblical texts, that a mother of one child must respect and act cordially and collaboratively with the father of that child [NYSCEF #439, p. 7].
Defendant contends, in effect, that plaintiff seeking enforcement of child support is a violation of this allege religious "tenet" that mother's must respect fathers which - he contends - includes not seeking to enforce child support orders. He further argues that the Supreme Court of the State of New York should hold plaintiff in contempt for seeking enforcement of the child's right to basic child support because she has "failed to respect or act cordially and collaboratively with Defendant" [NYSCEF #439, p. 7]. Defendant, an attorney, in effect, argues that according to his interpretation of religious principals there could never be any enforcement proceedings of binding legal agreements - such as a stipulation of settlement - based on religious observance because it would ipso facto be contempt where the parties agreed to raise any children of the marriage Jewish: the Court wholly rejects this argument as it would nullify the strong public policy in favor of child support (see generally Fortgang v Fortgang, 170 A.D.3d 963 [2 Dept.,2019]).
Plaintiff contends that it is "extremely hurtful and embarrassing to know that the Defendant is running around religious circles to tarnish my name" [NYSCEF #297, p. 14]. She avers that she has "never sought to raise our son in any other manner" than Jewish. She contends that she regularly attends religious holidays at the synagogue but that the defendant does not always take the child to High Holiday services during his parenting time. She contends that she sought and obtained Jewish education opportunities and paid for them without any contribution from defendant but that the defendant declined to take the child to these programs during his parenting time and has not enrolled the child in any other Jewish education programs yet now claims it is plaintiff who is not abiding by the parties' stipulation to raise the child in the Jewish faith. She contends that she "cannot continue to jump through the unreasonable hurdles that Defendant places in the way on the most minute decisions. There cannot be any coparenting when Defendant simply imposes his will without regard for our agreement, and then without cause tries to have this court find me in contempt for imaginary breaches" [NYSCEF #297, p. 15].
Under New York jurisprudence, it is not the role of a secular Court to become embroiled in issues of how much religious education or observance is "enough" (see generally Weisberger v Weisberger, 154 A.D.3d 41, 60 N.Y.S.3d 265 [2 Dept.,2017][the Court of Appeals noting that" clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children"]; see also generally Garvar v Faltings, 54 A.D.2d 971 [2 Dept.,1976]; Storfer v Storfer, 131 A.D.3d 881 [1 Dept.,2015][the Appellate Division, First Department held that the motion court properly found that it could not determine the meaning and intention of the parties' agreement to raise their child in "accordance with the tenets of the Modern Orthodox Jewish faith" where the motion court held that there was a nonjusticiable issue which could not be decided by neutral principles of law or without reference to religious doctrine and it was prohibited from entertaining the defendant father's enforcement application). Defendant's application to hold plaintiff in contempt for, in effect, not raising the child "Jewish enough" is denied. It is well-established that there parties share joint custody but cannot agree on what amount of religious education is appropriate the appropriate remedy may be a change in custody (see generally Friederwitzer v Friederwitzer, 55 N.Y.2d 89 [1982]).
Plaintiff's Request to Modify Custody Provision of Agreement
Plaintiff contends that she can "no longer make decisions with the Defendant on major decisions, as he threatens to sue all providers, and continues to bring frivolous actions before this court alleging that I have violated terms of our agreement" [NYSCEF #297, p. 3]. She avers that "in addition to threatening almost every professional in our child's life with suit, Defendant has attempted to intimidate my current and prior counsel through the filling [ sic ] grievances and now a malpractice suit which he hopes to leverage in this litigation." She avers that she "simply cannot continue to co-parent with the Defendant who is unwilling to abide by the terms of our custody agreement and instead seeks to intimidate the institutions which provide for our son's education, health care and now religious education" [NYSCEF #297, p. 4].
Plaintiff argues that defendant's contention that her attempts to have him uphold his financial obligations are a violation of the custody agreement to work "cordially and collaboratively with each other" are meritless. She avers that "[f]or the great crime of enforcing an agreement that Defendant fully consented to, I have suffered years of harassment at the Defendant's hands." She alleges that in or about January 2022 after she filed her application to enforce his child support arrears the defendant had his girlfriend serve her with a tort lawsuit alleging she gave him a venereal disease and that he had service accomplished at the child's soccer practice in front of the child, his friends and other parents [NYSCEF #248]. She contends that defendant has, in effect, "bad mouthed" her to numerous friends and family members attempting to besmirch her using derogatory statements. She contends that "[w]henever Defendant does not get his way with the court, he attempts to exert social pressure on me, to have me ostracized, and turn our son's friend's parents against me" [NYSCEF #297, p. 6] which, she contends, is in violation of the parties' custody agreement and also inconsistent with an ability to co-parent and share joint custody.
Plaintiff's counsel affirms that in December 2021, defendant filed a grievance against him alleging that he "created unnecessary and frivolous legal work to increase [plaintiff's] legal bill" so that he may be obligated to pay more counsel fees on her behalf in the pending enforcement action [NYSCEF #247].
Plaintiff avers that defendant involves the child's school in the post-judgment litigation and that she is concerned that the school will no longer want to work with the parties' son given the defendant's actions. She avers that defendant is threatening her to involve the "rabbinical community" while "[a]ll I have ever done is tried to collect the child support owed by the Defendant" [NYSCEF #297, p. 7]. She contends that "I do not believe that the court can make the Defendant respect me, but I do believe that the court has the authority to have the Defendant stop following me, stop disparaging me, and stop empowering the Defendant to make major decisions regarding our child nearly impossible" [NYSCEF #297, p. 7]. She asks that the Court modify the custody agreement and award her sole legal custody of the parties' child related to education, health, religion, and extracurricular activities because, she alleges, "defendant and I cannot continue to make major decision in education, or medical and dental care" [NYSCEF #411, p. 12].
The full details of the defendant's interference with the child's dental care is detailed in the written decision dated April 18, 2022.
Defendant in his affidavit dated January 17, 2023 [NYSCEF #376] contends that plaintiff raised no substantial change in circumstances warranting a change in custody and contends that the parties have shared "three years of amicable and agreeable communications" so a change in custody is not warranted. Yet this representation by defendant does not comport with the numerous cross-allegations raised herein - including those raised by defendant himself - in the numerous post-judgment motions pending before this Court. From the affidavits filed by these parties they are unable to even handle routine dental care needs for the child without conflict that has - repeatedly - included the defendant attempting to interfere with the child's providers.
The record is replete with allegations that defendant utilizing his law license sues - or threatens to sue - anyone he perceives as siding with the plaintiff including allegedly threatening to sue one of the child's dental providers when the plaintiff sought to have a cavity treated. It is unrefuted that defendant has filed lawsuits and grievances against attorneys representing plaintiff and her fear that defendant is attempting to make it so that no one will represent her does not appear unfounded given the record before the Court.
Where joint custody may no longer be in the best interest of a child, modification of the parties' custody agreement may be warranted [ see generally Pambianchi v Goldberg, 35 A.D.3d 688 [2 Dept.,2006][where the parties' relationship had become so acrimonious since they entered into the settlement agreement that joint custody was no longer a workable option a change to an award of sole custody was appropriate]. It is well-established that "[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest" (Friederwitzer v Friederwitzer, 55 N.Y.2d 89 [1982]) and, furthermore, "where the initial custody arrangement is based upon an agreement between the parties, it is entitled to less weight than the determination by a court" (McDowell v. Marshall, 210 A.D.3d 781, 782 [2 Dept.,2022]; see also Pettei v Pettei, 207 A.D.3d 670 [2 Dept.,2022]).
Defendant's representation that the parties have shared years of amicable communication is belied by the record. Here, defendant unilaterally declared a modification of child support and even routine dental care needs appear to result in scenarios where plaintiff asserts that defendant takes a unilateral approach and to shut down any efforts by plaintiff to find alternatives by terminating communication with pronouncements that he will not discuss an issue further. Defendant himself filed sworn affidavits seeking contempt against the plaintiff for allegedly failing to raise the child "Jewish enough" and, in effect, for making unilateral decisions about the child's education.
Plaintiff has alleged that the defendant is attempting to interfere in the child's school and has allegedly been unresponsive to urgent medical needs of the child including the issue of maintaining the child's health insurance pursuant to the terms of the parties' stipulation of settlement.
"A parent seeking a change of custody is not automatically entitled to a hearing; rather, he or she must make an evidentiary showing of a change in circumstances demonstrating a need for a change of custody in order to insure the child's best interest (Assad v Assad, 200 A.D.3d 831 [2 Dept.,2021]. Here, the Court finds that the plaintiff has made a threshold showing that an evidentiary hearing is warranted on her application for a change in custody. The record before the Court is replete with allegations that the defendant insists on, in effect, a "my way or no way" approach to any financial decision related to the child from refusing any summer camps - even those paid by plaintiff in full - to refusing extracurricular activities to opposing dental treatments for the child due to cost and, of great concern, refusing to add the child to his health insurance when plaintiff notified him that she had been laid off and the parties needed to obtain alternative health insurance for the child. The Court notes that the parties' stipulation of settlement specifically provides as to summer camp that:
This is of particular concern in this case inasmuch as it is undisputed that the child was involved in an accident involving a traumatic head injury and it would appear that ensuring his continued health insurance coverage would be of upmost importance to the parties, particularly where the defendant had access to health insurance through his employer already. The parties' stipulation of settlement requires "comparable" health insurance.
SUMMER CAMP: the parties shall equally contribute to the cost of any camp the child attends, with the parties' summer access not to interfere with the Child's attendance at a Summer program [emphasis added] (NYSCEF #7, p. 26).
Plaintiff alleges that defendant refused to contribute to summer camp costs for the child insisting that the child not attend summer camp when the child could spend time with defendant. The summer camp provision of the parties' stipulation of settlement is clear.
This Court finds that plaintiff has raised substantial and specific allegations more than sufficient regarding her basis to seek a modification of the parties' custody agreement. Joint custody may no longer be in the best interests of the parties' child.
The Court hereby refers plaintiff's request for modification of the parties' custody agreement to grant her final decision-making on education, medical and religious matters to an evidentiary hearing. A date for that evidentiary hearing will be set after the court holds a conference on the issue of whether it is appropriate for the court to appoint an attorney for the child and, if so, the appropriate apportionment of the cost of that attorney as detailed herein-below.
Sanctions
Inasmuch as this Court finds that plaintiff has raised allegations sufficient to warrant an evidentiary hearing on the issue of modification of custody the Court finds that defendant-father's application to sanction plaintiff-mother for filing what he deems a "frivolous" motion is denied.
Contempt/Maintaining Child's School
She contends that defendant is threatening to disenroll the child from "the only school he has ever attended" [NYSCEF #297, p. 14]. She requests the Court order that the child remain in the current school unless the parties mutually agree to another school. Defendant in his affidavit dated January 17, 2023 [NYSCEF #376] contends that "the Court has no authority to compel a child's attendance in a private school" [p. 3].
Defendant contends that he only "allowed his son to attend [the private school] for kindergarten in September 2020 because, he alleges, public schools were "closed" due to the COVID-19 pandemic [NYSCEF #376, p. 19]. The Court does not adopt defendant's proposition that New York City public schools were not "closed" during the pandemic: they continued to serve millions of New York City students virtually and hybrid at various times.
Defendant contends that after "Z" attended kindergarten at private school he objected to him remaining in private school because of the "grade system, discipline approach, and constant money collections in this school" [NYSCEF #376, p. 20]. He contends, in effect, that children transfer from private school to public school routinely so it would be easy to move the parties' child from private school to public school. Defendant does not represent that he ever made any specific suggestions about enrolling the child in any specific schools other than the private school the child continues to attend.
Defendant's affidavits both criticize the school - at one point defendant calls the private school a "Soviet style" educational curriculum [NYSCEF #258, p. 15] - but later in the same affidavit, defendant contends that plaintiff is "jeopardized the child's attendance in school" for not paying the defendant's share of tuition which indicates that defendant wants the child to remain in the private school. It is unclear from defendant's affidavits whether he wants the child to attend the school or not. The Court does not adopt or condone the defendant's characterization of the private school as "Soviet style".
Plaintiff contends that the "bad grades" defendant complains of were two isolated low marks and that she reached out to the teacher the same day of each low grade and with support the child was able to gain a full understanding of the material presented. She avers that the child is thriving academically.
Plaintiff contends that she is the parent who actively helps the child when he is struggling in school and that defendant often does not complete or return homework when the child is with him for parenting time. She contends that defendant is attempting to interfere with the child's standing at his current school because "he simply does not want to pay for the cost" [NYSCEF #297, p. 10]. She avers that defendant never disputed enrolling the child in the current school: he simply will not pay for the school as an add-on expense.
Plaintiff contends that the parties selected the private school the child attends in Fall 2020 because it was "reliably in person with the availability of an afterschool program" while "[n]one of the public school [ sic ] could provide that or reliable transportation to and from school" [NYSCEF #297, p. 11]. Plaintiff notes that child-care "costs for both of us would far exceed" the tuition of $650.00 monthly for the child's current school which provides child care coverage from 8 a.m. to 6 p.m. every weekday as well as many other enrichment activities.
Plaintiff annexed documents in support of her contention that defendant consented to enrolling the child in his current school in 2020. Defendant does not dispute his consent to the private school in 2020 and paid 50% of the tuition from September 2020 to June 2022. Plaintiff contends in her affidavit dated January 24, 2023, that "defendant does not realize that if we had to replace all the services provided by [the private school] it would actually cost each of us more" [NYSCEF #411, p. 10]. She contends that the school provides transportation, meals, homework help, tutoring and extra-curricular activities from outside vendors during after-school at market prices.
Plaintiff avers that after defendant stopped contributing towards the private school tuition in June 2022 he sent a text message to the child's homeroom teacher in November 2022 directing her to convey a message to the mother that "if she continues to play these games, he will go to public school starting January 3, 2023". A copy of the message was annexed to plaintiff's supporting papers. Plaintiff posits that the child's homeroom teacher is not the appropriate person to convey messages related to the litigation.
Defendant contends that plaintiff unilaterally enrolled the child in private school without his consent [NYSCEF #258] so he should have no obligation to pay for the private school tuition. He does not dispute that he paid 50% of the private school tuition from 2020-2022 as represented by plaintiff or that he unilaterally stopped paying his share of the tuition in June 2022 and that he has not made any payment to the school since June 2022. Defendant concedes that he has been "very involved with the school" [NYSCEF #376, p. 9] and in his contempt application he wants plaintiff held in contempt for "jeopardizing" the child's spot in the school allegedly due to a few poor grades that plaintiff avers were anomalies. Defendant's own statements and requests to hold plaintiff in "contempt" for allegedly "jeopardizing" the child's enrollment in the private school belie any attempt to claim he does not approve of the private school.
Plaintiff avers that she lost her job in August 2022 and that attempting to pay the full tuition on her own without defendant's financial support - especially when he was making no child support payments - is unsustainable.
Remarkably, defendant then - although alleging that he does not consent to the child remaining in the private school - contends that the Court should punish plaintiff for not paying his [defendant's] share of outstanding tuition from the child support arrears he eventually paid purging his contempt. This proposition belies defendant's misplaced notion that plaintiff is his "bank" and that he can unilaterally force his child support obligations onto the plaintiff. The Court declines to adopt defendant's theory.
If this Court finds after the evidentiary hearing that the parties share an obligation to pay the private school tuition, it remains defendant's obligation to pay that separate from his basic child support obligation. It is undisputed that the defendant initially paid his share of the child's private school tuition. Pending the evidentiary hearing, the defendant shall continue to pay his share (50%) of the child's private school to maintain the status quo which the Court finds is - in the interim - in the child's best interest.
Certainly, if the Court finds that there was no consent to the private school there is no obligation to pay going forward. Based on the facts and circumstances alleged including that plaintiff's request for final decision making is before the Court: the issue of private school is referred to the evidentiary hearing.
Defendant's application to hold plaintiff in contempt for allegedly "jeopardizing" the child's spot in the school seems to indicate that he wants the child to remain in the school while simultaneously refusing to pay for his share (50%) of the school and then to seek for plaintiff to be held in contempt for not making the full payment is denied.
Defendant does not dispute that he initially conceded to the child attending the private school during the height of the COVID-19 pandemic because it was conducting full-days "in-person" as a form of child-care while the parties were working and based on his continued payment and participation in the school thereafter it is unclear when or if he withdrew his consent to the private school.
The Court does not adopt plaintiff's proposition that private school is "better" than New York City public schools or that it is never possible for a child to transition from private school to public school because, in effect, all New York City public school students are "behind"; however, given the facts and circumstances presented, the Court must consider plaintiff's proposition that it is in the child's best interest to remain in the private school where he has been enrolled since kindergarten.
Based on defendant's own admissions that he consented to the child initially enrolling in private school and his clear desire that the child remain in private school (he having moved to hold plaintiff in contempt for allegedly "jeopardizing" the child's enrollment in the private school) it is clear that he conceded to the child remaining in private school for some time. The plaintiff's application to maintain the child in the private school in the future as well as any issue of arrears for private school tuition is referred to the evidentiary hearing retroactive to the date of defendant's application. The Court notes that plaintiff has now also moved for modification of custody to award her sole legal custody and decision-making on major medical, education and religion issues and that application is intertwined with the issue of maintaining the child in private school.
Contempt Against Plaintiff for Litigating "Against Defendant/Father"
Defendant contends that the Court should hold the plaintiff in contempt for seeking enforcement of the parties' stipulation because, he alleges, enforcement litigation is "against the best interests of the child" and because it, allegedly, ipso facto violates the provision of the parties' agreement in which the parties agreed to "foster a feeling of love and respect between them and the other party" [NYSCEF #258; NYSCEF #439, etc.]. He contends that "[i]nstead of resolving this contentious and protracted litigation, plaintiff/mother has shown a pattern of continued acts in contravention of the best interests of the child" by seeking enforcement against the defendant [NYSCEF #439, p. 5]. He contends that as a result of the contempt finding against him plaintiff attempted to "suspend[] defendant/father's driving privileges by so doing, plaintiff/mother aims to deprive defendant/father from driving his child to school as well as appreciating the daily activities and event, to which defendant/father takes his child on the weekdays and the weekends" [NYSCEF #439, p. 6].
Tellingly, defendant does not address how his purported novel "theory" - that a party may be held in contempt for violating the "do not disparage/foster good will" provision of the parties' stipulation of settlement by initiating any litigation against the other parent - applies to his own filing of a plenary law suit against plaintiff-herein alleging that he contracted a sexually transmitted disease ("herpes") from her and does so anonymously while revealing her full name [NYSCEF #248]. Plaintiff in her affidavit [NYSCEF #277] contends that the action was frivolous and she avers "I question if he even has herpes" and contends that "Defendant's civil action was a retaliation for me deigning to file my motion to recover the year of child support which Defendant refused to pay" [NYSCEF #277, p. 4]. Certainly, if this Court were to adopt defendant's absurd proposition, the Court would have to consider the "disparaging" effect of his filing, as well.
The Court rejects outright defendant's contention that the possible suspension of his driving privileges for being found in contempt amounts, in effect, to the plaintiff violating the parties' agreement to foster good will between them. Any suspension of a license under the facts and circumstances presented here would be a direct result of defendant's actions, not plaintiff's. Furthermore, this Court declines to find as defendant proposes that him not having a driver's license would, under the facts and circumstances presented, amount to interference with his parenting time with the child: many, if not most, parents in New York City raise children and exercise their parenting time without ever having access to an automobile. Defendant's long-standing contention in this post-judgment that he is, in effect, "entitled" to an automobile over and above any obligation he has to pay child support is misplaced. Defendant concedes that he paid more than $780.00 in car lease and related expenses monthly [NYSCEF #91; defendant's affidavit of net worth dated February 3, 2022].
Defendant further contends that the mother "humiliated" him when "plaintiff and her attorneys came very close to incarcerating Defendant/father in open court" [NYSCEF #376, p. 12]. The Court rejects defendant recollection of his near incarceration for failure to purge after he was found in contempt: the Court - not plaintiff nor her counsel - came very close to incarcerating the defendant for non-payment of child support [NYSCEF #390; transcript of October 3, 2022 proceeding]. Litigants and attorneys do not incarcerate: incarceration for contempt is the jurisdiction of the Court after due process is satisfied. Defendant's ire at plaintiff for his near incarceration and any "humiliation" he may have felt as a result of his failure to obey court orders is misplaced.
The Court rejects defendant's self-serving and selective reading of the terms of the parties' agreement. Many - probably most - custody agreements entered into by parties provide the parties shall attempt to co-parent and shall not disparage. For this Court to find, as defendant proposes, that any enforcement litigation was ipso facto a form of "disparagement" and actionable by a contempt finding against the party seeking to enforce under the agreement for - such as is the case here - non-payment of child support would, effectively, make any and all enforcement of any stipulation of settlement in a matrimonial action wholly unenforceable. Defendant's application to hold the plaintiff in contempt for seeking enforcement is denied: there is no basis in law for his application. The defendant is cautioned that this type of litigation tactic appears frivolous and without merit bordering on sanctionable conduct.
MOTION SEQUENCE #12
Apparently in response to plaintiff's request for counsel fees for enforcement, the defendant filed an order to show cause [NYSCEF #391] on January 13, 2023 seeking:
A) Pursuant to New York Rules of Professional Conduct, disqualifying Plaintiff's lawyers, BRIAN D. PERSKIN & ASSOCIATES, P.C., BRIAN D. PERSKIN and GABRIELLE HAGEGE, as counsel for Plaintiff, FAINA [P.], because of multiple ethical breaches and an ongoing conflict of interest in their continued representation of Plaintiff;
B) Pursuant to CPLR 3121, compelling Plaintiff, FAINA [P.], to undergo psychiatric and mental evaluation to determine if she is psychologically and mentally fit to make decisions on behalf of the child and continue with the child's custody;
C) Sanctioning Plaintiff, FAINA [P.], and her lawyers, BRIAN D. PERSKIN & ASSOCIATES, P.C., BRIAN D. PERSKIN and GABRIELLE HAGEGE, for their frivolous Cross-Motion, dated December 16, 2022 (Mot. Seq. No. 11);
D) Staying this case for 90 days for Plaintiff to obtain new counsel and undergo psychiatric and mental evaluation; and
E) For such other and further relief as this Court may deem just and proper under the circumstances;
Defendant contends that plaintiff's decision to enforce the parties' stipulation of settlement related to basic child support was "questionable conduct" and that she should "undergo a psychiatric and mental evaluation" because she, in effect, chose to enforce his basic child support obligation [NYSCEF #365]. He also contends that plaintiff's counsel's filing of enforcement applications on behalf of plaintiff were intended to "extort more money" from defendant [NYSCEF #365, p. 3, #13].
Defendant contends that plaintiff's counsel notified [NYSCEF #368] a managing partner at the law firm where defendant is employed that he filed a lawsuit against plaintiff's counsel using his law firm's NYSCEF account. Defendant contends that this notification to his employer was an "effort to sabotage Defendant/father."
Defendant contends that it is inappropriate for plaintiff's counsel to file applications seeking counsel fees related to filings he makes "in an effort to defend himself" including his application seeking renew and re-argument as detailed hereinabove. Defendant characterizes plaintiff's requests for counsel fees related to his applications as an attempt to "run up their legal tab". The Court is unaware of any statute or case law that would allow a monied spouse - who uses his or her own law license to defeat child support arrears and parental interference - to seek reimbursement for legal services provided to oneself as a lawyer as defendant has done herein previously. The Court wholly rejects defendant's theory that plaintiff must be, in effect, mentally unsound because she hired legal counsel in an attempt to enforce the child support obligation defendant acknowledges he did not comply with.
Request for Forensic Evaluation of Plaintiff
Defendant contends that plaintiff has "shown a pattern of questionable conduct through her correspondences with Defendant/father". In support, defendant annexes pages and pages of Whatsapp logs showing missed calls and requests by the plaintiff seeking to speak with the child and consistent responses by the defendant that the child is "busy playing" or claiming "bad connection in the park". Defendant contends that plaintiff attempting sometimes two or three times on an evening to reach him to speak with the child are "questionable conduct" because, he alleges, plaintiff attempts to call him "when Defendant and the child are unable to speak". The log submitted by defendant does not show any accepted calls from the plaintiff.
Defendant contends that the affidavits of plaintiff filed in support of the motions in this litigation are all "questionable" because, in effect, of the positions she asserts against defendant. He contends that plaintiff "has some type of obsession about returning to her the clothes that she had purchased for the child" [NYSCEF #365]. The Court rejects the position: a parent who purchases clothes for a child should - baring some exigent circumstance - have those clothes returned with consistency.
He contends that one day while driving he saw the plaintiff out shopping without the child and he avers that, upon information and belief, the child was home unsupervised and unattended. Despite this alleged believe, there is no indication that the defendant filed a report with any agency. The plaintiff avers that the child was supervised [NYSCEF #297]. Defendant contends that plaintiff is lying because she "did not disclose the friend's identity" [NYSCEF #365].
Defendant contends that the Court "must compel" plaintiff to "undergo a psychiatric and mental evaluation to protect the child's best interest" [NYSCEF #365]. He contends that plaintiff's choice to seek enforcement when he stopped paying any basic child support for many months demonstrates that she "cares about money and not the best interests of the child" and because she allegedly "insists that the child stay in school all day and attend activities as much as possible" which, he contends, is not in the best interests of the child [NYSCEF #438, p. 11]. In support of his position that plaintiff must have a psychiatric evaluation he avers that "[p]laintiff/mother continues to "drag the child" around on "multiple modes of public transportation (train, bus and tax[ sic ]" [NYSCEF #438, p. 11]. It is undisputed that, unlike defendant, plaintiff does not have a car.
The plaintiff contends she needs to work full-time to earn a living - especially given defendant's failure to pay child support - and does not dispute that the child attends after-care at his private school. She avers that after-care is conducted by the child's homeroom teacher who provides reinforcement lessons supporting what they are learning in school: plaintiff contends that these are in the child's best interest and, contrary to defendant's allegation, are in no way a basis for the Court to order a psychiatric evaluation of her.
Plaintiff avers that she does not have a car - which defendant does - and does not dispute that she uses public transportation: including to take the child to museums, theater and playdates which she contends will contribute to raising a "well-rounded person that has a variety of interests in the world" [NYSCEF #393, p. 14]. The Court notes that it is undisputed that defendant continues to claim that many expenses he elects to spend - including his luxury car lease and related expenses - are a central reason why the Court should "terminate" his basic child support obligation.
Plaintiff contends that there is no basis for defendant to seek a psychological evaluation of her and that his "basis" - her filing of enforcement proceedings - was all predicated by his "refusal to abide by our financial and custody agreements" [NYSCEF #393, p. 6]. She avers that "[t]he only reason I was forced to file an application before this court in December 2021 was because Defendant had refused to pay child support in accordance with our stipulation of settlement for over a year" and that his "failure to pay child support without cause, as was determined by this court [by contempt finding], has been the genesis of all motion practice in this case." She contends that in response to filing her enforcement action defendant filed a malicious tort against her in January 2022 claiming she gave him a venereal disease [NYSCEF #393, p. 6].
Plaintiff avers that the instances referenced by defendant in "support" of his application for the Court to order a psychological evaluation of her are, actually, examples of her complying with the parties' custody agreement. While defendant claims that it is inappropriate for plaintiff to attempt to call and attempt to speak with the child in the evenings because it is "too late" the parties' custody agreement specifically provides that parent who does not have parenting time with the child has the "right to initiate communication with each Child" each day and that "video communication shall take place between 7:30 p.m. and 9:30 p.m." which appears to be the same window of time the defendant complains about the plaintiff attempting to video call the child. The plaintiff contends that her attempts to contact the parties' son during defendant's parenting time often go unanswered and unreturned even though they are during the time frame specified in the parties' parenting agreement.
Plaintiff's counsel argues that defendant's request pursuant to CPLR 3121 for a psychiatric evaluation is not supported by law or fact and that "every example of the Plaintiff's wrongful conduct, are actually just examples of the Plaintiff seeking to enforce the current custody agreement" [NYSCEF #394, p. 8].
While parties to a contested custody dispute place their physical and mental condition at issue (see Rosenblitt v. Rosenblitt, 107 A.D.2d 292 [2 Dept.,1985], the Court has discretion to limit disclosure to avoid the potential for abuse (see Lohmiller v Lohmiller, 118 A.D.2d 760 [2 Dept., 1986]. Here, defendant has raised no fact or allegation sufficient to warrant such an evaluation of the plaintiff.
The Count finds that defendant's attempt to use the plaintiff's compliance with the very terms of the parties' custody agreement in an attempt to call her mental fitness into question is not - on the facts alleged - a basis for a psychiatric evaluation of the plaintiff. Frankly, defendant's contention that such an evaluation is necessary - on the facts he alleges - is concerning to the Court. Fundamental to joint custody is the ability of parents to nurture the child's relationship with the other parent. Here, in effect, defendant appears to question plaintiff's mental health merely because she had the "audacity" to enforce the child's right to child support in compliance with the terms the parties' consented to in the stipulation of settlement. In effect, defendant contends that anyone who does not abide by his preferences is "crazy." Here, the defendant's attempts to besmirch the plaintiff's mental health under the facts and circumstances as alleged raises questions about his ability to coparent with the plaintiff should joint custody continue. Defendant's application for a mental health evaluation of plaintiff under the facts and circumstances presented is denied. The Court though has increasing concerns as to the defendant's tactics and methods and the use of his license to practice law to impact on the plaintiff and questions his insight into how these may impact the child. Defendant's license to practice law does not give him license to wage a war of litigation based upon specious claims and assertions in what appears to be a blatant attempt to leave her without legal counsel while continuing to use his own legal license in this contentious post-judgment litigation.
Sanctions
Defendant contends that plaintiff's applications are without merit and that the Court should award sanctions pursuant to 22 NYSCRR 130-1.1 for frivolous conduct alleging that "plaintiff and her attorneys have no ground for the relief they seek and their motion lacks merit in law or any factual basis".
Plaintiff opposes any sanctions claiming that defendant is the only party who has violated the parties' stipulation of settlement, has been the source of numerous delays and frivolous application and raising that defendant has - in violation of the parties' custody agreement - disparaged her to the parents of the child's activity-mates [NYSCEF #393, p. 15]. Defendant does not dispute that he has been in contact with non-parties; however, he contends that his conversations with others about this litigation are because he is seeking "help to resolve this litigation" [NYSCEF #438, p. 12]. Plaintiff contends that he is trying to engage others to coerce her into settling according to defendant's demands. She claims that if anyone should be sanctioned it is defendant.
Inasmuch as this Court finds that plaintiff has raised allegations sufficient to warrant an evidentiary hearing the Court finds that defendant's application to sanction plaintiff for filing what he deems a "frivolous" motion is denied. The Court finds that sanctions against plaintiff are not warranted at this time. The Court refers the issue of sanctions against defendant to the evidentiary hearing.
The waves of motion practice by defendant - an attorney admitted to practice law in New York State - raises the concern that he may be attempting to utilizing his law license to "wear down" the plaintiff - who, before she lost her job, earned half of his income and who has been forced to incur substantial counsel fees seeking to enforce the parties' stipulation of settlement related - primarily - to defendant's total non-payment of basic child support for more than a year. Based on the record before this Court the question presented: is the defendant filing frivolous motion after frivolous motion in an attempt to force the plaintiff to "settle" under the weight of counsel fees and to accept his demands? The defendant's actions including his repeated filing of motions replete with requests for relief with no basis in fact or law warrant a hearing on sanctions pursuant to pursuant to 22 NYCRR 130.1 which will be part of the evidentiary hearing. Defendant is persistent in his tactic to utilize his law license to put forward specious novel "theories" all in an attempt to avoid the child support he stipulated to pay for the support of his child.
Disqualification
Defendant contends that the Court "must disqualify" plaintiff's counsel because they have allegedly violated New York Rules of Professional Conduct by representing plaintiff in her enforcement action. In effect, defendant contends that plaintiff's counsel "prejudiced and damaged Plaintiff herself" because they have engaged in motion practice to enforce the terms of the parties' stipulation of settlement knowing that she did not have the financial means to pay for the litigation and that doing so is ipso facto a basis to disqualify them. He also contends that plaintiff's counsel must be disqualified because they are representing plaintiff in her application seeking a change in custody, he contends, "without any basis" [NYSCEF #438, p. 4].
Furthermore, defendant contends that plaintiff's counsel violated Rule 1.6 of the NY Rules of Professional Conduct when they notified the law firm where he is employed that he used that firm's NYSCEF account to file a personal legal action against plaintiff's counsel. Plaintiff's counsel notes that Rule 1.6 relates to the obligation between an attorney and that attorney's own client and, as such, plaintiff's counsel has no corresponding obligation to defendant under Rule 1.6. Plaintiff's counsel contends that "[t]he only information revealed to the Defendant's employer is that [defendant] had utilized a NYSCEF account associated with their firm in order to file his malicious malpractice suit, and detailing for the Defendant's employer the sanctionable implications of the Defendant's conduct" [NYSCEF #394, p. 5]. Defendant contends that plaintiff's counsel had no basis to communicate with his employer regarding defendant's malpractice suit despite defendant using his employer's NYSCEF account to file the application [NYSCEF #438, p. 6]. Defendant contends that his "employer - has nothing to do with this case" however he does not reconcile that position with the fact that his employer's NYSCEF account was used to file the action. Plaintiff's counsel contends that he had to notify the law firm inasmuch as the action is frivolous and they had to give the filing firm an opportunity to withdraw the action prior to further legal intervention.
Additionally, defendant contends that the Court must disqualify plaintiff's counsel from representing plaintiff because he filed a malpractice lawsuit against them. He contends that there is a "significant risk that the lawyer's professional judgment on behalf of a client will be adversely affected by the lawyer's own financial, business, property or other personal interests."
Plaintiff contends that it is "patently clear" that defendant's application for the Court to order a mental evaluation of her and to disqualify her attorneys is to "retaliate and distract" from the Court's contempt finding against him, to harass her and to attempt to use his pending action "as leverage against me" She contends that the Court has been "extremely generous to the Defendant" by providing him, on consent, with adjournments to seek counsel, to file papers and to purge his arrears but that defendant has tactically used these opportunities to file additional "disingenuous" applications to wear out her ability to litigate her enforcement application. She contends that the defendant is "hell bent on not paying the child support and or add-ons he agreed to pay in November of 2019 and not abiding by our custody Agreement and will utilize any tactic to obtain his way."
Plaintiff points out that defendant's reference to alleged violation of various NY Rules of Professional Conduct "has seemingly intentionally only provided half the rule to the court in order to bolster his preposterous claim." Plaintiff's counsel notes that "[d]efendant knows that his malpractice action is frivolous, and there is currently a motion to dismiss the same which is pending before the court. Nevertheless, he has tried to leverage this action for a stay of the court order of contempt, and is now trying to utilize the same as a way to leave the Plaintiff without counsel" [NYSCEF #394, p. 6]. Plaintiff's counsel also affirms that Rule 3.7 is not applicable here because defendant's malpractice action against plaintiff's counsel "is not before this court and a separate trier of fact will decide whether the Defendant's claim have any merit." Plaintiff's counsel contends that "[d]efendant either does not know the rule, in which case he should not have signed the attached 130 statement, or he has purposefully misrepresented them to this court."
Plaintiff concedes that - due to defendant's borage of intertwined applications filed after her enforcement application - she has been forced to file more than one application for counsel fees in this post-judgment enforcement action; however, she disputes defendant's contention that it amounts to "malpractice" by her attorneys to agree to represent her in enforcement applications when they knew she had few financial means and resources.
Plaintiff contends that defendant is trying to force her to withdraw her legitimate claims for enforcement and related counsel fees in exchange for him withdrawing his frivolous claims. She contends that defendant "has wasted my time and money and made co-parenting nearly impossible by constantly filling meritless application [sic], which he knows or should know have no factual support or support in law." She avers that "Defendant's law license should not give him cart [sic] blanche to deprive me of the child support he agreed to or the custody agreement he agreed to follow, yet this is precisely what Defendant has done over the last two years." [NYSCEF #393, p. 3].
Plaintiff argues that if the Court removes her counsel - whom she avers have represented her "zealously" in the "face of [defendant']s endless filing" it will make her "untouchable to future counsel who will see the Defendant's prior conduct as more hassle then [ sic ] my case is worth."
Plaintiff avers that "Defendant's unwarranted malpractice suit is separate from these matter [ sic ] before the court" and that she "specifically and emphatically waive any potential conflict brough on by the Defendant's motions and suits."
She contends that defendant "brings on legal actions as a hobby" noting that he filed actions against her prior attorneys in the underlying divorce action and that as a result they declined to represent her. In her affidavit dated January 24, 2023 [NYSCEF #411], plaintiff contends that defendant's attempt to disqualify her counsel - merely for representing her enforcement of child support - "has wasted my time and money and made co-parenting nearly impossible for constantly filling [ sic ] meritless [ sic ] application, which he knows or should know have no factual support or support in law" and that defendant's "law license should not give him cart [ sic ] blanche to deprive me of the child support he agreed to or the custody agreement he agreed to follow" [NYSCEF #411, p. 3].
She contends that defendant's "threats" against her current attorneys are consistent with his threats to her prior counsel and his filing of "sanctions to the disciplinary board" against her prior counsel that resulted in her losing that representation despite the complaints being "fake" [NYSCEF #411, p. 4]. She contends that the only "amicable resolution" defendant proposes is that he have no child support obligation and that anything else will result in his continued legal harassment against her. She argues that defendant is engaged in a "scorched" earth litigation posture against her until he achieves the only outcome he wants: to have no child support obligation.
Plaintiff's counsel contends that plaintiff has a right to retain counsel - potentially to be paid by the defendant - when seeking post-judgment enforcement and that an attorney representing a client in an enforcement action is not a violation of any ethics rule. Plaintiff's counsel argues that any counsel fees incurred in this litigation rest at the feet of defendant inasmuch as the enforcement applications were a result of defendant's non-payment of child support for more than a year and that the subsequent legal fees incurred were "driven by the Defendant's litigious behavior through out this action" [NYSCEF #394, p. 3].
The Court declines to adopt defendant's proposition that the lawsuit he filed against plaintiff's counsel must result in their disqualification. For the Court to adopt this blanket proposition would give unilateral "veto" power to litigants seeking to "disqualify" the other party's chosen attorney simply by filing such a lawsuit. In effect, defendant's proposition would result in any future litigant in a matrimonial action attempting to conflict out the other parties' counsel to simply file a malpractice suit against the adversary counsel to get them "disqualified." The Court will not adopt such an interpretation: defendant's tactics under the facts and circumstances presented should not deprive plaintiff of her choice of legal representation. Nor will this Court permit defendant to control plaintiff's ability to seek enforcement in such a manner: had defendant not unilaterally stopped paying any child support for more than a year it appears that plaintiff would not have incurred counsel fees.
Defendant's application to "disqualify" plaintiff's counsel for, in effect, representing a party with limited financial means and resources in an enforcement action is denied.
Counsel Fees
Pursuant to DRL 238, the Court may award counsel fees in enforcement applications for support arrears (DRL 244). Here, there is no dispute that defendant unilaterally and without any legal justification refused to pay his basic child support obligation to the plaintiff which forced plaintiff to incur counsel fees to making and defending her enforcement application.
The Court also notes that Plaintiff would be entitled to an award of counsel fees pursuant to DRL 237 related to her application to revoke Defendant's driver's license (DRL244-b) and professional license (DRL244-c).
Pursuant to DRL 238, which provides in pertinent part:
In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce,... or in any proceeding pursuant to section... two hundred forty-four,... the court may in its discretion require either party to pay the expenses of the other in bringing, carrying on, or defending such action or proceeding.
The Court notes that under DRL 238, an award of counsel fees is discretionary; however, under DRL 237(c) mandates that the court award counsel fees where it finds that a default in paying support, maintenance or distributive award was willful (see also Uttamchandani v Uttamchandani, 175 A.D.3d 1460 [2 Dept.,2019][find that the Supreme Court erred in not awarding counsel fees where party established arrears were due and unpaid]).
Here, defendant willfully defaulted on his child support obligation: same default led to the Court finding him in contempt which he subsequently purged. Defendant does not dispute his refusal to pay and now contends that the Court should vacate his contempt nunc pro tunc by "terminating" his child support obligation. As detailed hereinabove, there is no basis in law for defendant's proposition and defendant's unilateral "self-help" forced plaintiff to seek enforcement and incur counsel fees.
This Court is mandated to award counsel fees to plaintiff under DRL 237. Furthermore, it is well-established that where parties' agreement provides for an award of counsel fees in event of default the Court must enforce the terms of the settlement agreement (see Rubio v Rubio, 70 A.D.3d 805 [2 Dept.,2010)]. Here, the parties' stipulation of settlement provides for an award of counsel fees where a party is in default:
In the event that either party defaults in discharging any of his or her obligations undertaken in this Agreement, then and in such event, after written notice by certified mail to the defaulting party providing him or her with fifteen (15) days to cure same, the aggrieved party shall have the right to sue for the amounts in default or for any other appropriate relief, and the successful party in any such suit or proceeding shall be entitled to receive from the other party and be reimbursed by said party for reasonable counsel fees, expenses and costs to be set by the Court in the same lawsuit.
The Court must award counsel fees related to the enforcement application. Plaintiff also seeks counsel fees related to other post-judgment applications filed after the contempt. Inasmuch as the Court must make findings related to the totality of the applications, the determination of a final award of counsel fees is referred to the evidentiary hearing where plaintiff shall provide, on notice, an accounting of the counsel fees related to enforcement and any counsel fees related to the balance of the applications. The Court notes that an award of counsel fees is not limited to the issue of enforcement.
Plaintiff's initial request for counsel fees was $55,616 [NYSCEF #250] but she incurred many more counsel fees thereafter in defending against defendant's filings against her. Based upon plaintiff's affirmation, plaintiff has more than $95,000 in counsel fees due and owing related to this post-judgment litigation that originated with her application for enforcement of child support [NYSCEF #437]. Clearly, the Court is required to award counsel fees resulting from the enforcement application resulting from defendant's unilateral decision to stop paying any child support for more than a year. Plaintiff will need to provide an accounting of all counsel fees incurred as they relate to the various applications and, thereafter, the Court will make any appropriate award of counsel fees. However, defendant's actions have resulted in plaintiff incurring a large sum of counsel fees and more counsel fees will be required for the evidentiary hearing and plaintiff is the less monied spouse earning - before she lost her job - approximately half of what defendant earns.
The Court finds that an interim award of counsel fees toward the final award of counsel fees is appropriate so that defendant's litigation tactics, in effect, do not "starve out" plaintiff's ability to participate in the evidentiary hearing where defendant - an attorney - is not incurring any counsel fees to continue in this litigation whereas plaintiff has incurred, according to her attorney's affirmation, nearly $100,000 from motion practice that started based on her application to enforce child support.
It is clear that an award of counsel fees will be required here related to enforcement and based on the clear disparity in income of the parties after a full accounting. The Court recognizes that plaintiff has been forced to incur large sums of counsel fees to address defendant's many specious claims that are intertwined with her enforcement application. In effect, defendant has created a tangled counsel fee web, which appears purposeful to, in effect, punish plaintiff for seeking to enforce valid basic child support arrears which he unilaterally stopped paying for more than a year.
Certainly, a full accounting of counsel fees incurred by plaintiff as they relate to each of the issues presented is necessary. The Court is also concerned that defendant has purposefully driven up plaintiff's counsel fees in an attempt eventually deprive her of counsel and make her financially unable to obtain legal representation in this post-judgment litigation while he continues to use his law license to oppose her applications, including those for enforcement.
The Court finds that it is appropriate under the facts and circumstances to order an interim award of $15,000 in counsel fees related to the extraordinary efforts plaintiff has had to go to for enforcement of basic child support arrears. The Court will consider a further award of counsel fees upon submission of a future motion together with a full accounting in which plaintiff shall provide a detailed accounting as to counsel fees and what portion thereof relate to enforcement or to respond to frivolous/specious claims or that she believes should be awarded based upon defendant being the monied spouse.
For the Court to decline to award some interim counsel fees under the unique facts and circumstances here would reward the defendant - an attorney - for his litigation tactics herein and would jeopardize plaintiff's ability to participate in the pending evidentiary hearing which includes her request for a change in custody. The Court notes that much of the challenge of differentiating the classification of counsel fees herein is a direct result of defendant's repeated attempts to defeat plaintiff's valid claims to basic child support arrears which has forced plaintiff to respond to his ever changing and evolving specious allegations. Here, the award of interim counsel fees is necessary to even the playing field between the parties where defendant has access to more resources and the use of his license to practice law that he is using to attempt to defeat plaintiff's inter alia enforcement applications for basic child support arrears (see generally Prichep v Prichep, 52 A.D.3d 61 [2 Dept.,2008]; see also Abramson v Gavares, 109 A.D.3d 849 [2 Dept.,2013]).
The Court will not reward defendant's recalcitrant non-payment of basic child support arrears and his attempts to use the power of his greater income and his license to practice law to deprive plaintiff of counsel.
This interim award of counsel fees shall be paid by defendant to plaintiff's counsel within thirty (30) days of service of this decision and order with notice of entry by regular and certified mail. If the defendant fails to pay this award of interim counsel fees within thirty (30) days as detailed herein, plaintiff's counsel may enter judgment with the Office of the County Clerk against the defendant, together with costs and statutory interest from the date of service with notice of entry of this decision and order, together with an affirmation of non-payment without need for further Court order on ten (10) days notice by regular and certified mail.
Evidentiary Hearing
An evidentiary hearing will be held on the issues - including plaintiff-mother's application for a change in custody - as detailed herein; however, inasmuch as a change of custody is requested, the Court will hear oral argument on whether appoint an attorney for the child is appropriate and, if so, the parties' positions as to apportionment of cost associated with that attorney. The Court will hear oral argument on those issues on Monday, April 17, 2023 at 11:00 a.m.
At the evidentiary hearing, defendant is barred from putting forth any proof as to the claims or theories denied here. The hearing is not a second opportunity to "test" the specious legal theories denied herein. Having a law license should not be a weapon to defeat a parent's right to collect and enforce a valid child support order or to attempt to manipulate or control the parent who does not have law license.
Conclusion
Defendant's motion sequence #7 is granted to the extent detailed herein.
Plaintiff's motion sequence #9 is granted to the extent detailed herein.
Defendant's motion sequence #10 is denied.
Plaintiff's motion sequence #11 is granted to the extent detailed herein.
Defendant's motion sequence #12 is denied.
Any and all relief not granted herein is denied.
This shall constitute the decision and order of the court.