Opinion
No. 114786.
2012-10-22
In the Matters of FAMILY OFFENSE AND CUSTODY PETITIONS PURSUANT TO ARTICLES 6 AND 8 OF THE FAMILY COURT ACT O.K., Petitioner, v. M.K., Respondent.
Gretchen Mullins Kim, Esq., Yonkers, Attorney for Petitioner/Respondent. Kenneth L. Bunting, Esq., White Plains, Attorney for Respondent/Petitioner.
Gretchen Mullins Kim, Esq., Yonkers, Attorney for Petitioner/Respondent. Kenneth L. Bunting, Esq., White Plains, Attorney for Respondent/Petitioner.
JANET A. GANDOLFO, ESQ. Sleepy Hollow, Attorney for the Children.
JANET C. MALONE, J.
In the best interest of the Children, the Court, on her own initiative, makes new findings of fact and conclusions of law on the limited issues set forth herein, without taking additional testimony and without regard for the 15 days rule. See,CPLR R 4404(b), R 4405; see also, Stinton v. Robin's Wood, Inc., 45 AD3d 203 (2nd Dept.2007); Carney v. Carney, 236 A.D.2d 574 (2nd Dept.1997); DaSilva v. Savo, 97 AD3d 525 (2nd Dept.2012); Torrefroza v. Gomez, 85 AD3d 932 (2nd Dept.2011); Stinton v. Robin's Wood, Inc ., 45 AD3d 203 (2nd Dept.2007); Green, et al v. City of New York, et al, 115 Misc.2d 853 (Queens County City Court 1982); Micallef v. Miehle Co., Division of Miehle–Goss Dexter, Inc., et al, 39 N.Y.2d 376 (1976).
PROCEDURAL HISTORY
The Decision and Order (After Fact–Finding Hearing and Dispositional Hearing) (hereinafter “the Decision and Order”) dated and entered April 6, 2012 (Malone, J.) awarded the Mother sole, legal and physical custody of the two (2) children of the marriage
on consent of the Father and awarded the Father unsupervised parenting time with the Children within New York State on alternate Saturdays and alternate Sundays from 12:00 p.m. to 4:00 p.m.
The Decision and Order entered March 31, 2010 (Tolbert, JSC) awarded the Mother an absolute divorce on cruel and inhuman treatment grounds, but did not address legal custody and/or parental access.
As part of the disposition on the family offense petition, the Mother received $1333.33 in counsel fees after a $1000.00 sanction was levied against her for her admitted violation of two (2) Interim Orders issued by this Court.
For more than one (1) year, the Father's parental access to the Children on Wednesdays from 4:30 p.m. to 7:00 p.m., and Sundays from 4:30 p.m. to 7:00 p.m. was supervised.
On May 4, 2012, the Mother filed the Order to Show Cause
arguing, “This Court overlooked and misapprehended certain salient legal and factual points,” and sought the following modifications to the Decision and Order:
Contemporaneous to the filing of the Order to Show Cause, the Mother filed an appeal with the Appellate Division for the Second Judicial Department.
1) Parenting Time: Change the Father's parenting schedule to every other Saturday from 4:30 p.m. to 8:00 p.m. and every Wednesday from 6:00 p.m. to 8:00 p.m. and award the Mother one week of summer vacation with the Children. See, Attorney Affirmation in Support of Order to Show Cause at page 6 paragraph 16.
2) Travel: Vacate the decretal paragraph that prohibits either Parent from removing either Child from the State of New York without the prior written consent of the other Parent or a valid Court Order. See, Attorney Affirmation in Support of Order to Show Cause at page 6 paragraph 23.
3) Counsel Fees and Sanctions on the Mother: Reverse the Court's finding that the Mother violated the Interim Orders of this Court; vacate the $1000.00 sanction imposed against the Mother for her violation of the Orders and award the Mother $3,333.00 for counsel fees. See, Attorney Affirmation in Support of Order to Show Cause at pages7–12 paragraphs 24–43.
The Attorney for the Children filed her response to the Mother's Order to Show Cause on May 24, 2012 in support of the Father modifying his parenting schedule, the Mother having uninterrupted weekend time with the Children and the Mother's ability to travel outside New York State. The Attorney for the Children, however, did not support any change to the Father's parental access on Saturdays and took no position on the Mother's other arguments. See, Affirmation of Attorney for Children at page 1 paragraph 3 and at page 2 paragraphs 4 and 5. The Father did not file response papers to the Order to Show Cause; however, he filed a modification petition and a violation petition on May 31, 2012, pro se.
As to the modification petition, the Father seeks to change his parenting time to 4:30 p.m. through 8:30 p.m. on alternate Saturdays and alternate Sundays due to his employment. On the violation petition the Father sought to find the Mother in willful violation of the Decision and Order. On July 18, 2012, the Mother filed the Motion to Dismiss and/or for Summary Judgment for relief on the Father's petitions. Neither the Father nor the Attorney for the Children submitted response papers to the Mother's Motion to Dismiss and/or for Summary Judgment.
On August 9, 2012, the Mother appeared personally without counsel at the preliminary proceeding on the Father's petitions and the Father appeared personally with counsel. The Attorney for the Children also appeared and supported the Father s petition to modify the Decision and Order based on his work schedule. Although the Mother sought relief similar to the Father's on her Order to Show Cause, she objected to the Father's relief on the modification petition and instead opted to wait for this Court's decision on the Order to Show Cause and Motion(s). The Father withdrew the violation petition against the Mother on the record and the modification petition was set down for fact-finding hearing on Thursday, December 20, 2012 at 9:30 a.m.
DISCUSSION
The Order to Show Cause
The Mother's Order to Show Cause for leave to reargue pursuant to CPLR § 2221(d) is misplaced and is hereby denied and dismissed. It is well settled in post-trial practice that a motion to set aside the Court's decision should be made pursuant to CPLR R 4404(b) and not CPLR § 2221 as proffered by the Mother. Even if the Mother had filed the proper motion before the Court, it would still be denied and dismissed as untimely in that relief pursuant to CPLR R 4404(b) shall be made before the trial judge within fifteen(15) days after the decision. Here, the Mother filed the Order to Show Cause on May 4, 2012, twenty-eight (28) days after the April 6, 2012 entry date of the Decision and Order. See,CPLR R 4404(b), R 4405.
Motion for Summary Judgment
For the Father to prevail on his modification petition, he must show that there has been a change of circumstances since the entry of the underlying order and that, based on the totality of the circumstances, a modification of the underlying order would be in the best interest of the children and would promote their welfare and happiness. See, Aaron W. v. Shannon W., 96 AD3d 960 (2nd Dept.2012); Lovitch v. Lovitch, 64 AD3d 710 (2nd Dept.2009); see also, Lacarrubba v. Lacarrubba, 198 A.D.2d 354, 355 (2nd Dept.1993); Eschbach v. Eschbach, 56 N.Y.2d 167, 171 (1982); Rolon v. Medina, 56 AD3d 676 (2nd Dept.2008).
Summary judgment is a drastic remedy that should be sparingly granted, in favor of either party, only when there are no triable issues of fact or law for the Court to decide. See,Fam. Ct. Act § 165, CPLR R3212(a),(b),(e)(2); see also, IMO Suffolk County Department of Social Services, ex rel. Michael V. v. James M., 83 N.Y.2d 178(1994); Dunham v. Hilco Construction Company, Inc., 89 N.Y.2d 425 (1996); Amore Partners, Inc., v. Mephisto, Inc., 222 A.D.2d 473 (2nd Dept.1995).
Here, it is not disputed that the Father cannot comply with the parenting schedule as set forth in the Decision and Order. In the Mother's sworn affidavit she argued, “It is uncontroverted that [the Father] works each and every weekend [Saturday and Sunday] from 7:30 a.m. [to] 3:30 p.m” and that the Father admitted in his petition that he is “unable to exercise his court-ordered weekly visitation.” See, the Mother's Affidavit in Support of Order to Show Cause at page 1 paragraph 3; see also, the Father's Petition for Modification of an Order of Visitation dated May 31, 2012.
Moreover, it is also not disputed that the Parents changed the Father's parenting schedule without Court intervention, to accommodate his work schedule. The Mother admits that in April, May, and June 2012, the Father had parenting time with the Children on a Saturday or a Sunday from either 4:30 p.m. to 7:00 p.m. or 4:30 p.m. to 7:30 p.m. or 4:30 to 8:00 p.m. or 4:30 p.m. to 8:30 p.m. See, the Mother's Affidavit in Support at paragraph 11; see also, CPLR R3212 (b).
Based on the foregoing, the Court finds that there are no issues of fact or law for this Court to decide regarding whether the Father's current work schedule constitutes a change of circumstances sufficient to modify the underlying Decision and Order. Therefore, the Father is awarded summary judgment on his modification petition and the Decision and Order (After Fact–Finding Hearing and Dispositional Hearing) dated and entered April 6, 2012 (Malone, J.) shall be modified to reflect that the Father shall have parental access to the Children on alternate Saturdays and alternate Sundays from 4:30 p.m. through 8:30 p.m. The Court finds that after having their contact with the Father supervised for more than one (1) year, it is in the best interest of the Children for them to have consistent unsupervised time on a weekend day with the Father since it is what his schedule accommodates.
As such, the trial date of December 20, 2012 on the Father's modification petition is hereby vacated; the Parents and the attorneys are no longer required to appear on this date.
The Motion to Dismiss
The Mother's motion to dismiss the Father's violation petition is denied and dismissed as moot in that the Father withdrew the violation petition against the Mother on August 9, 2012.
The Court's Motion
In the overall best interest of the Children, the Court makes the following determination for a post-trial modified Order. See,CPLR R 4404(b), 4405; see also, DaSilva v. Savo, 97 AD3d 525 (2nd Dept.2012); Torrefroza v. Gomez, 85 AD3d 932 (2nd Dept.2011); Stinton v. Robin's Wood, Inc., 45 AD3d 203 (2nd Dept .2007); Carney v. Carney, 236 A.D.2d 574 (2nd Dept.1997); Green, et al v. City of New York, et al, 115 Misc.2d 853 (Queens County City Court 1982); Micallef v. Miehle Co., Division of Miehle–Goss Dexter, Inc., et al, 39 N.Y.2d 376 (1976).
The Mother's Summer and Weekend Parenting Time
Since the Decision and Order affords the Father one (1) week of daily parenting time in New York with the Children during the school summer recess, suffice it to say the Mother would have the remaining seven (7) weeks not optioned by the Father by May 1st of every year. Nonetheless, the Decision and Order shall be modified to reflect that the Mother shall have one (1) week of parenting time with the Children during the school summer recess regardless of the Father's alternate Saturday and alternate Sunday parenting schedule as set forth herein. The Mother shall provide the Father with notice of the week during the summer she chooses to exercise with the Children by May 15th of every year and the Father shall continue to exercise his one (1) week option with the Children by May 1st.
Further, the Mother is awarded parenting time with the Children on the last weekend of each month commencing Friday, November 23, 2012 so as to afford the Mother uninterrupted weekend parenting time with the Children. Thereafter, the Father shall resume his alternate weekend schedule.
Travel
With the Father having parenting time within the State of New York only, and no restrictions being placed on the Mother's ability to travel with the Children, the decretal paragraph regarding travel outside the State of New York is hereby vacated. Nonetheless, the Father has the right to know where the Children are if they are outside the State of New York. Therefore, the Decision and Order shall be modified to provide that if the Mother travels with the Children outside the State of New York for more than twenty-four (24) hours, the Mother shall provide the Father with an itinerary inclusive of the address and landline telephone number of where the Children will be located and can be reached by telephone.
Counsel Fees and Sanction
The Decision and Order awarded the Mother counsel fees in the amount of $1333.33 after she was sanctioned $1000.00 for her admitted violation of this Court's two (2) Interim Orders. See, Decision and Order dated and entered April 6, 2012 (Malone, J.) at page 11. After reconsideration of the record and the applicable law, the Court reverses herself and reduces the Mother's sanction to $500.00, $250.00 for each violation of this Court's Orders, which was willful. See, N.Y. CLS Jud. §§ 753(a)(1) and 773; State of New York v. Unique Ideas, Inc., et al., 44 N.Y.2d 345, 349 (1978); McCain v. Dinkins, 84 N.Y.2d 216, 227 (1994).
At the Court's discretion, the decretal paragraph awarding the Mother counsel fees in the amount of $1333.33 shall remain. This amount is deemed reasonable after having taking into consideration that: 1) although legal custody of the Children was consented to by the Parents legal preparation for trial was necessary; 2) the Mother's argument for continued supervised parental access by the Father was not supported by the weight of the evidence; 3) it was established at the fact-finding that the Mother was a 1099 wage earner as a bookkeeper and that the Father was a W–2 wage earner as a New York City doorman; and 4) the Mother established at the fact-finding that the Father relied on his sister to meet his financial needs including the retention of counsel before being assigned counsel by the Court ( See, Petitioner's Fact–Finding Exhibit 7a–7f and 11). See, Nicodemus v. Nicodemus, 2012 Slip Op. 5960 (2nd Dept.2012) quoting Morrissey v. Morrissey, 259 A.D.2d 472 (2nd Dept.1999); see also, Carr–Harris v. Carr–Harris, 2012 Slip Op. 5902 (2nd Dept.2012).
ACCORDINGLY, IT IS HEREBY
ORDERED and ADJUDGED, that the Mother's Order to Show Cause is denied and dismissed; and it is further
ORDERED and ADJUDGED, that the Mother's Motion to Dismiss the Father's violation petition is denied and dismissed as moot; and it is further
ORDERED and ADJUDGED, that the Mother's Motion for Summary Judgment is granted in favor of the Father on his Petition for Modification under docket numbers V–02328/29–08/12E; and it is further
ORDERED and ADJUDGED, that it is in the best interest of the Children that the Father shall continue to have parenting time with the Children in the State of New York on alternate Saturdays and alternate Sundays; and it is further
ORDERED and ADJUDGED, that it is in the best interest of the Children that the Father shall exercise his parenting time with the Children from 4:30 p.m. to 8:30 p.m.; and it is further
ORDERED, that the fact-finding date of December 20, 2012 on the Father's Petition for Modification shall be vacated and neither the Parents nor the attorneys shall appear before the Court on this date; and it is further
ORDERED, that the Mother shall have parenting time with the Children the last weekend of each month commencing Friday, November 23, 2012; and it is further
ORDERED, that the Mother shall have parenting time with the Children for one (1) week during the Children's school summer recess on notice to the Father by May 15th of every year; and it is further
ORDERED that the decretal paragraph directing that neither Parent remove either Child from the State of New York without the prior written consent of the other Parent or valid Court Order shall be vacated; and it is further
ORDERED, that if the Mother travels outside the State of New York with the Children for more than twenty-four (24) hours, the Mother shall provide the Father with an itinerary and a landline telephone number of where he may reach the Children; and it is further
ORDERED, that the Mother shall be sanctioned $500.00 for her violation of the Court's two (2) Interim Orders; and it is further
ORDERED, that the Father shall continue to pay the Mother counsel fees in the amount of $1333.33; and it is further
ORDERED, that except as modified herein the Decision and Order (After Fact–Finding Hearing and Dispositional Hearing) dated and entered April 6, 2012 (Malone, J.) shall continue with full force and effect.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST.