Opinion
01-27-2020
In the Matter of a Proceeding Under Article 4 of the Family Court Act Mark P, Peitioner, v. Kimberly P, Respondent.
Joseph M. Sullivan, Esq. for Mark P Gino M. Nitti, Esq. for Kimberley P Gary M. LaRusso, Esq., Attorney for the Children
XXXXX Joseph M. Sullivan, Esq. for Mark P Gino M. Nitti, Esq. for Kimberley P Gary M. LaRusso, Esq., Attorney for the Children Dandrea L. Ruhlmann, J.
Petitioner Mark P (Father) filed a modification petition seeking a decrease in the amount of child support he currently pays for the parties' three children: Gianna P (DOB: 03/2001), Michael P (DOB: 04/2002) and Angelo P (DOB: 05/2004) alleging, inter alia, that both Gianna and Michael abandoned him and Respondent Kimberly P (Mother) hinders and interferes with his ability to have any sort of meaningful relationship with Gianna and Michael; specifically by not encouraging the children to have a relationship with him and failing to inform him about their events. During the trial Father withdrew his petition as to Michael. This Court finds that Father has failed to sustain his petition as to Gianna.
Procedural History:
The parties' Separation and Property Settlement Agreement dated July 26, 2010, which was incorporated but not merged into a Judgment of Divorce entered November 15, 2010, required Father to pay Mother $12,000 annually for basic child support. Support Magistrate Linda Lohner Pilato on September 14, 2018 entered the current order wherein the parties stipulated Father would pay Mother $1,200 monthly.
Father filed the instant support petition on January 8, 2019 seeking to modify his child support and the case was transferred from a support magistrate to the Honorable Joseph G. Nesser (see Fam Ct Act § 439 [a]; see also Matter of Rubino v Morgan, 203 AD2d 698 [3d Dept 1994], appeal after remand, aff'd, 224 AD2d 903 [3d Dept 1996]; Matter of Mitchell v Remy, 24 AD3d 558 [2d Dept 2005]; Matter of Tornheim v Rube, 90 AD3d 1059 [2d Dept 2011] [jurisdiction of support magistrate]) to determine Mother's claim of alienation (see Matter of Coleman v Murphy, 89 AD3d 1500 [4th Dept 2001] [hearing required if prima facie case established for alienation]). This Court received the case after recusal.
Fact Finding
The Court heard the testimony of Mother, Father, the child Michael P and the child at issue: Gianna P, now 18 years old. The Court finds the witnesses credible (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985] [respect is to be accorded the trial judge's advantage in observing the demeanor of the witnesses]; see also Hendrickson v Hendrickson, 147 AD3d 1522 [4th Dept 2017]; and see Matter of Cross v Casewell 113 AD3d 1107 [4th Dept 2014]). The Court received the following exhibits into evidence: Petitioner's Exhibit 1 (Settlement Agreement dated July 26, 2010, entered with the Monroe County Clerk's Office on July 28, 2010), Petitioner's Exhibit 2 (Judgment of Divorce entered November 15, 2010), and Petitioner's Exhibit 3 (a portion of a text message between the parties).
Parental Alienation
A parent has a duty to support a child until the age of twenty-one (Fam Ct Act § 413 [1] [a]). Child support payments may be suspended where the "custodial parent, 'has unjustifiably frustrated the noncustodial parent's right of reasonable access'" (Matter of Colicci v Ruhm, 20 AD3d 891 [4th Dept 2005], quoting Matter of Smith v Bombard, 294 AD2d 673, 675 [3d Dept 2002], lv denied 98 NY2d 609 [2002]; see also Matter of Orange County Dept. of Social Servs. v Meehan, 252 AD2d 588 [2d Dept 1998]; and see DRL §241). To suspend payments Father must prove Mother is "either 'overtly or covertly undermining visitation'" (Matter of Smith v Smith, 283 AD2d 1000 [4th Dept 2001], quoting Matter of Catherine W. v Robert F., 116 Misc 2d 377, 378 [Fam Ct, Suffolk County 1982]) ( but cf. Matter of Carmen C v Tracy F., 52 Misc 3d 1213(A) [Fam Ct, Monroe County 2016]). Active interference or deliberate frustration by Mother of Father's court-ordered visitation schedule "can, under appropriate circumstances, warrant the suspension of future child support payments" (see Coleman, 89 AD3d 1500, 1501, quoting Matter of Hiross v Hiross, 224 AD2d 662, 663 [2d Dept 1996]). Child support payments should be suspended if Mother "intentionally 'orchestrated and encouraged the estrangement of [Father] from the child' or [if] she actively interfered with or deliberately frustrated his visitation rights" (see Matter of Curley v Klausen, 110 AD3d 1156, 1157 [3d Dept 2013], quoting Matter of Crouse v Crouse, 53 AD3d 750, 752 [3d Dept 2008]).
The testimony clearly exonerates Mother of alienation. Father alleged that Mother failed to alert him about the child's various extracurricular activities but upon cross examination he admitted that certain events were on the high school's website. Father also enjoyed independent access to all of Gianna's educational records under the Judgment of Divorce. Mother too kept him informed of Gianna's school grades and the specifics of her high school graduation ceremony.
Gianna and Michael both testified that Mother always encouraged them to have a relationship with Father and never interfered with visitation. In particular, Gianna testified that when they attended any public event Mother would insist that she talk with Father, "I wouldn't stop hearing about it until I went and did it." Mother was "insistent" and "persistent." Further, Mother encouraged Gianna to text Father, and never made derogatory comments about him. Father once came over to Mother's house for Thanksgiving at her invitation.
Constructive Emancipation
The Court's finding that Father did not sustain his petition as to constructive emancipation is a much closer call. Father testified he frequently asked Gianna to go to dinner, for a walk or to a movie but she consistently "was busy" and refused. She did not invite him to attend before prom parent gatherings. Father further testified he was hurt because she did not ask him to walk on the field with her during senior sports day.
"[A] child of employable age, who actively abandons the noncustodial parent by refusing all contact and visitation, without cause, may be deemed to have forfeited his right to support" (Matter of Jones v Jones, 160 AD3d 1428, 1429 [4th Dept 2018]), quoting Matter of Saunders v Aiello, 59 AD3d 1090, 1091 [4th Dept 2009]). However, a "child's mere reluctance to see a parent is not abandonment" (Matter of Barlow v Barlow, 112 AD3d 817, 818 [2d Dept 2013]). Additionally, "where it is the parent who causes a breakdown in communication with the child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent" (Melgar v Melgar, 132 AD3d 1293, 1294 [4h Dept 2015], quoting Barlow, 112 AD3d 818). "The burden of proof as to emancipation is on the party asserting it" (Melgar 132 AD3d at 1294).
A court's inquiry into whether a petitioning parent has made serious efforts to maintain a relationship with his child depends upon whether such parent regularly calls the child; his willingness to participate in counseling; and if he gives the child gifts and cards on special occasions; and correspondingly, whether the child acknowledges such efforts. Further the Court must consider whether a parent's behavior is a primary cause of the deterioration in his relationship with a child (see Jurgielewicz v Johnston, 114 AD3d 945 [2d Dept 2014]).
Gianna is resolute in her opposition to a relationship with her Father. Both Father's and Gianna's testimony reveal that their last in-person visit was over lunch at Panera's restaurant in October 2018 when Gianna told Father about her invitation to cheer in the Macy's Thanksgiving Day Parade in New York City. She was one of only two girls from the county to be chosen. She last spoke to Father over the telephone in February 2019 after her senior basketball game. She said she stopped speaking to him because of a cumulation of events, and testified that in the past when she asked him to please stop screaming at her, Father's response was "I'm not changing for anyone. You are the child. You need to change." Gianna felt defeated because she knew nothing would improve.
Obviously a visitation schedule drawn when Gianna was nine years old is no longer practicable as she is now eighteen and attending an out of state university. Gianna is an accomplished young woman and Father is rightly proud of her. He posted a picture of Gianna on Facebook saying how proud he was when she was inducted into the National Honor Society. She admits he has sent her flowers after an argument and when she was ill. She is an undisputed achiever with excellent grades who during high school worked part time at Wegmans and participated in many activities including high school "cheer," served as the Class President, President of the Future Educators Club, and Vice President of the Leadership Club. Father clearly loves and wants to reestablish a relationship with Gianna; however, to date his missteps have exacerbated a rift between them.
Both Gianna and Michael testified of their disdain for Father's screaming as a form of discipline. Gianna testified that when she was twelve years old, while on vacation, both Father and his then girlfriend, Nancy, burst into the bathroom when they returned from dinner furious because she had called Mother to complain. They screamed at her for ten to fifteen minutes while Gianna, having just showered, was naked. When she was sixteen years old and still having day visits, Father screamed, "you are a liar, you are a liar," six inches from her face, in front of his then girlfriend Marie Terese.
From Gianna's perspective she has had a strained relationship with her Father for years. Since shortly after her parents divorced Gianna became confused and discouraged with her Father when he would not invite her Mother to join them for her eleventh birthday celebration at a restaurant, stating "that was not how divorced families work." Just this past May, Father further damaged their relationship by failing to invite Gianna to her little brother, Angelo's birthday brunch because they were not speaking. Thereafter Gianna was hurt when Father did not attend her high school graduation. She double checked with her high school to make sure he was sent the notice for tickets. She sent him an invitation to her graduation party. She mailed it herself. Father did not RSVP. He did not show.
Joint counseling was tried in the past. Gianna enjoyed sessions with the first counselor but Father switched to his then girlfriend Nancy's counselor. Thereafter, Gianna felt her problems were continuously compared with Nancy's problems. During her college recess in Rochester Gianna attended one court ordered counseling session but then refused to continue.
The Attorney for the Child strongly advocated against a finding of either alienation or constructive emancipation (see Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012], quoting Family Ct Act § 241 [the purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court"]).
The Court does not condone Gianna's wholesale decision to abandon any efforts to have a relationship with her Father. Some of her grievances may be without merit. For example, when Father took away her cell phone after she refused to respond to his texts and/or calls. And the Court is mindful that Father has made some efforts to repair his relationship with his daughter. Still when a parent and a child have contributed, even equally, to a breakdown in their relationship, the scale must tip in favor of providing financial support to a child (see generally Fam Ct § 413 [1] [a]).
This Court hopes that both Father and daughter listened to each other's testimony and understand how they have knowingly and unknowingly hurt each other over the years. The Court continues to encourage counseling in the sincere hope that both Father and daughter enjoy a fully restored relationship.
NOW, THEREFORE, it is
ORDERED that Petitioner, Mark P has failed to prove alienation or constructive abandonment and his modification petition filed January 8, 2019 to decrease support is denied. Dated this 27 day of January, 2020 at Rochester, New York. __________ HON. DANDREA L. RUHLMANN FAMILY COURT JUDGE PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.