Opinion
14/3545
05-06-2019
S.D., Plaintiff, v. R.D., Defendant.
Debra Crowder, Esq., Attorney for Plaintiff, Rochester, New York, William King, Esq., Attorney for Defendant. Rochester, New York, Michael Guarino, Esq., Attorney for Children, Rochester, New York.
Debra Crowder, Esq., Attorney for Plaintiff, Rochester, New York, William King, Esq., Attorney for Defendant.
Rochester, New York, Michael Guarino, Esq., Attorney for Children, Rochester, New York.
Richard A. Dollinger, J.
In this matter, a father seeks to modify custody and primary residence of his children. After the father testified and the court handled a series of discovery and other pending applications, the mother moved to dismiss the father's application under CPLR 4401. This court, after concluding a second day of testimony, reserved decision and adjourned the remaining portion of this matter.
The father filed the original modification petition in Family Court. The mother moved to hold the father in contempt in Supreme Court and the Family Court petition was transferred to Supreme Court. Almost a year before the hearing, the mother filed a notice to produce and disclose witnesses which was then served on the father's then counsel. The father produced no response until the day before the first day of hearing in March 2019. On that date or thereabouts, the father's counsel produced a series of subpoenas to compel the attendance of 19 witnesses to testify in the father's behalf. The father's counsel asked this court to issue the subpoena for those witnesses. This court declined to do so at that time because the mother's counsel argued that she was substantially prejudiced by the "eve-of-trial" disclosure of the intended witnesses.
The father was represented by a different attorney at that time. In July 2018, the attorney withdrew as counsel, this court appointed a successor who also withdrew, and the court appointed the current counsel in October 2018. The current attorney is not the same counsel upon whom the demand for disclosure was served. There is no dispute that the mother's disclosure request was properly served.
In response, the father's counsel argued that the proceeding before the court was a proceeding under Article 4 of the CPLR, and as a result, the mother has no disclosure rights and the father was not obligated to respond to the notice to produce or provide a witness list. During the first day of the hearing, this court reserved decision on the question of whether Article 4 (with its "only by court order" limitation on disclosure under CPLR 408 ) or Article 31 (with its broad disclosure and penalties for non-disclosure requirements) governed. The case was adjourned, and during the time between the trial dates, father's counsel sought to file the motions for subpoenas in the clerk's office and learned that the father had to pay fees for the filings. The father did not have "poor persons" status that would allow him to file the motions for subpoenas without paying fees. The father applied for "poor persons" status, and this court, in a published opinion, granted that request several days before the second hearing date.
On the second hearing date, the father's counsel again asked the court to sign the subpoenas for witnesses who were disclosed on the day before the first hearing date and, the father's counsel said that he had delivered a series of additional documents, including videos and photographs to the wife's counsel, the day before. He reiterated the claim that because the proceeding was heard under Article 4 of the CPLR, the wife was not entitled to disclosure and further that because he had disclosed his witnesses the day before the first trial day - six weeks earlier - the wife could no longer claim prejudice because she had sufficient time to evaluate the witness list and documents which had been delivered the day before the first hearing date.
This court ruled that the father, at the time his then-counsel was served with the notice to produce and request for other discovery, was obligated to object to the disclosure by asserting his claim that there was no obligation to participate in pre-hearing disclosure because the proceeding was properly heard under Article 4. CPLR 3122 (a) (1). That section of the CPLR states that if a party objects to any requested disclosure, then the objecting party "shall serve a response which shall state with reasonable particularity the reasons for each objection." CPLR 3122(a)(1). The father's counsel at the time did not respond at all. If the father had objected at that time to the mother's disclosure demand, the issue would have been postured before this court well in advance of the hearing, the issue of whether the matter was to be heard under Article 4 as a special proceeding would have been determined and disclosed to the mother, and if an appropriate application were filed, the court could have then considered whether to grant leave for the requested disclosure, as permitted by CPLR 408. Thus, if the father had followed the procedure in CPLR 3122 (a) (1), the legal issue of which Article in the CPLR governed disclosure would have been ripe months before the hearing. Based on this rationale, this court ruled that by failing to object at the time of the original disclosure request, the father waived his claim that the disclosure in the pending action was governed by Article 4. Having concluded that the father failed to make the requested disclosure as required by Article 31, this court held that the father was precluded from offering documents or witnesses which were the subject of the disclosure request. There was no dispute at the hearing that the witnesses offered by the father should have been disclosed in response to the mother's request and no dispute that the documents, tendered by the father either just before the first day of the hearing or just before the second day of the hearing, were subject to preclusion under the mother's disclosure demand. As a result, this court held that none of the witnesses, documents or other materials offered by the father could be used at trial. CPLR 3126.
Having cleared that hurdle, this court reprises familiar refrains about the proof required to sustain the father's claim, and how this court must view it at this stage. A change in custody or primary residence is only permitted when there is a substantial change in circumstances. Alago v. Roman , 165 AD3d 1102 (2d Dept 2018) ; Matter of Shonyo v. Shonyo , 151 AD3d 1595 (4th Dept 2017) ; Schoenl v. Schoenl , 62 Misc 3d 567 (Sup. Ct. Monroe Cty. 2018). The father bears the burden of proof by a preponderance of the evidence. Because the mother moved to dismiss the father's application after the close of the father's proof, the motion to dismiss is tested by a familiar rubric: the evidence presented must be viewed most favorably to the father, he is entitled to every reasonable inference from his proof and the Court must conclude there is no rational basis to find in his favor. Simon v. Granite Bldg. 2, LLC , 2019 NY App. Div. LEXIS 2378 (2d Dept 2019); P.R. v. D.R. , 2018 NYLJ LEXIS 4383 (Sup.Ct. Nassau Cty 2019)(considering application of CPLR 4401 to a non-jury trial in matrimonial matter). The court now examines the proof presented by the father using these well-honed standards.
The mother asked the Court to dismiss under CPLR 3211 but, instead this Court treats the application as a motion for judgment at trial pursuant to CPLR 4401. The standard for granting the motion is, in this Court's view, the same. See Corle v. Allstate Ins. Co. , 162 AD3d 1489 (4th Dept 2018) ; Times Sq. Souvenirs Inc. v. Big Apple Entertain.Partners , 2018 NY MISC LEXIS 3881 (Sup. Ct. New York Cty 2018).
In his testimony, the father recounted a series of episodes that he argued are evidence of neglect and inattention by the mother, and which, when added together, are evidence of her unfitness as the primary custodial parent, and constitute a significant change in circumstances. This court reviewed the following episodes proffered by the father:
1. The ladder episode . During his direct testimony, the father testified that he came to the mother's house and observed one of his sons climbing a ladder in an attempt to reach the roof of the house. The father testified that his son told him he was attempting to climb to the roof. The father introduced a picture that shows his young son on the third or fourth wrung of a ladder and his left foot on a windowsill. The window is located on the first floor of the house. There is nothing in the picture that suggests that the child is climbing to the roof. In addition, based on this court's assessment of the picture, the young man could not have reached the roof even if he stood on the windowsill. What is stark about this episode, as narrated by the father, is that while the father testified that he saw his child climbing the ladder and took a picture of the child, the father never testified that he told the child not to climb the ladder, nor did he discipline the child. The fact that the father watched his son engage in this activity, but never said he stopped it, or disciplined the son for doing it, is some evidence that he did not consider it threatening or dangerous. In addition, there is no evidence that mother was home or even knew that the son was climbing the ladder. Because of all of these facts, and most significantly the father's lack of an appropriate reaction to his son's conduct, the court declines to conclude that this episode, even viewed most favorably to the father, is evidence of the mother's inattention to her children.
2. The snow incident . The father described an incident that occurred during a snowy month in the winter of 2018 -19. The father testified that his daughter, age five, was attempting to walk from the mother's house to the father's car in the snow. He described that his daughter had difficulty walking in the snow and that eventually, after videotaping her for two minutes, he got out of his car, picked her up and helped her get into his car. He testified that he was reluctant to leave his car because prior court orders had forbidden him from leaving the car when he picked up his children. He testified that he considered this episode as evidence of inattention and neglect on the part of the mother. However, this court, viewing this evidence in a light most favorably to the father, cannot reach that conclusion. First, this court finds it odd that the father videotaped his daughter struggling in the snow instead of immediately taking action to assist her. Second, there is no evidence that the father brought this to the mother's attention either at the time or immediately thereafter. Third, there is no evidence that the daughter was distraught or disturbed by her difficulty in walking in the snow. Fourth, there is no evidence that there was anything that the mother could have done to assist her daughter or that she even saw her daughter struggling in the snow. There is no evidence that any of the other children attempted to assist their sister in reaching the father's car. This court is unwilling to consider the daughter's difficulty in treading through the snow as evidence of an inattention or neglect by the mother.
3. The pictures of the daughter's leg . As part of his testimony, the father described an incident which occurred in Buffalo. He testified that the mother called or texted him and told him that their daughter had been struck by the mother's car. The father testified that he traveled to Buffalo to observe his daughter. His daughter was in the hospital. He identified pictures of his daughter's injuries which were admitted in to evidence. The pictures show a scrape on the daughter's knee. There is no evidence of any additional harm. There are no medical reports in evidence and no evidence from any third-party regarding the extent of the daughter's injuries. There is no evidence of exactly how the daughter came into contact with the mother's car or that the mother's inattention or neglect caused the injuries. Because there is insufficient evidence to draw any conclusion regarding the depicted injuries, this court, even viewing the evidence most favorably to the father, cannot draw any adverse inference against the mother from the pictures or the father's testimony. There is no evidence that these injuries adversely impacted the daughter's relationship with her mother or impacted her relationship with the father. There is no evidence these injuries caused any disturbance to the young daughter's activities or daily life. There is no evidence that she was delayed in recovering from these injuries. For these reasons, this event does not provide any evidence of the mother's inattention or neglect.
4. Scooters and helmets . In his testimony, the father described at least one incident in which he observed one of his sons riding a motorized scooter without protective headgear. The father testified that he observed this conduct in the driveway of the mother's residence and further testified that he saw his son riding in the street with a motorized scooter without protective headgear. The father emphasized that he considered it inappropriate and dangerous for his children to be riding motorized scooters without headgear or other protective gear. He testified that the children routinely used protective gear when they were in cycling events with him. However, the father never testified that he took any actions when he observed them riding without protective gear. While he described what he saw, he never testified that he disciplined, warned or instructed his children. An appropriate parent would have immediately warned his children of the dangers of such activity. The father suggests that this activity was dangerous and evidence of the mother's inattention, but his failure to make any comment at the time he observed it, undercuts his contention. There is no evidence that the mother knew about this activity or, upon finding out about it, failed to take prompt and appropriate remedial action. The father's testimony regarding the scooters cannot be construed, in any fashion, as an indication of neglect or inattention by the mother.
5. The golf cart and the nanny's son . During his testimony, the father also testified that he saw one of his children riding in a golf cart with the children's nanny. He testified that he considered this activity dangerous and added that the mother was not present when it occurred. There is no evidence that anything occurred during the child's riding in the golf cart. There is no evidence that the father took any action to discipline them for riding in the golf cart. As noted before, the fathers lack of a corrective reaction, undercuts his claim that he consider this episode a serious danger to his children. There is also no evidence that he brought it to his wife's attention or that she was aware of their activity. This episode cannot be construed as evidence of the mother's inattention or neglect.
6. The Spanish tutor . The father testified that he reviewed one of his sons grades through a computer portal available from the school. He discovered in the Fall of 2018 that one of his sons needed help with Spanish. He testified that he attempted to discuss the matter with the mother, but she did not respond. He testified that he set up a Spanish tutor to help his son and the son's grades in Spanish improved. He was unsure whether the child was still engaged in Spanish tutoring at the time of trial. He later admitted that the same son was now on the honor roll. The court cannot draw any adverse inference from this testimony against the mother. The court commends the father for taking an active role in his children's education, but the court cannot draw the conclusion that the mother was inattentive or neglectful.
7. The school pick-up . The father described, at some length, one episode that occurred when he attempted to pick up his children from school. He testified that he arrived at the school and there was a delay in picking up the children. Eventually, police were called to the scene and the father suggested that he was physically assaulted by the police and/or school officials. Eventually, the father was able to have the children attend a practice scheduled the same day although they arrived several minutes late. The father asks this court to conclude that his interaction with school officials is traceable to an unwarranted interference by the wife with his visitation rights. The father acknowledged that the school officials had a copy of a prior court order and he alleged that they mistakenly interpreted the order to interfere with his access rights. Importantly, during this entire episode, the father admitted that he never talked to the mother. There is no evidence that the father can attribute his difficulty in picking up his children to the mother. The school officials were, according to the father's testimony, simply following the prior court order. If the school officials were mistaken in their reliance on that order, then the father may have some relief against them, but there is no evidence that the mother interfered with her husband's access rights or that this single episode, during the last three years, is evidence of the mothers inattention, neglect or interference with the father's visitation rights.
8. Slights to the father . The father also described three other episodes that he contends shows the mother's antipathy to his visitation rights and interference with his relationship with his children. In one instance, the father described an episode in September 2018 in which his children did not approach him at an event they were all attending at Webster Park. In the same month, the father described an episode in which his daughter tried to come to him, but his mother spoke to the child and the child did not interact with the father. The final episode deals with a sporting uniform in which every every member of a youth sports team listed their last name on the back of the uniform, but the parties' son simply listed his first name, not including his last name. There is simply no evidence to conclude that any of these three events represent a significant interference with the father's visitation rights. There is no evidence that the mother said anything to the children in the first two events to discourage them from contacting their father. There is also no evidence as to why the son listed only his first name and not his family name on the sports team uniform. The court understands how the father might have felt slighted in each of these episodes, but there is no evidence that the mother had any role in any of the incidents and no evidence that they caused any damage to the father's relationship with his children. This evidence, viewed most favorably to the father, does not suggest any improper action by the mother and does not suggest any substantial change in circumstances.
9. Inappropriate video viewing . The father testified that he brought to the attention of his wife that one of his children was viewing pornography on his electronic devices. There is no evidence that the father ever discussed it with the child or that he confiscated the child's electronic device in response to this allegedly inappropriate behavior. There is no evidence of any widespread inappropriate viewing by any of the children. The father's testimony, viewed most favorably to the father, suggests that this matter was brought to the attention of the parents and appropriately resolved. The court cannot draw any adverse inference against the mother based on the father's testimony in that regard.
10. Vaccinations. The father testified that he participated in an annual check up for one of his children in which the pediatrician recommended that the child be vaccinated with the HPV vaccine. The father testified that this recommendation was made in the presence of the mother. The father testified that he discussed it with the mother and the mother expressed the opinion that she thought the vaccination was risky. The father testified that he spoke with the mother about it on several occasions. The father admitted that the child was eventually vaccinated consistent with the pediatrician's recommendation. There is no evidence that the child suffered any harm as a consequence of the mother's delay in procuring the vaccination. Furthermore, the governing custody order vested the final decision making with the mother on all matters involving medication.
11. The asthma medication . The father also testified about a difficulty in procuring asthma medications. He testified that he attempted to fill a prescription at the pharmacy in Pittsford when the children were on vacation. He learned that his wife had change the location of the prescription from Pittsford to Webster. He testified that he was unable to fill the prescription in Pittsford, but he acknowledged that he did not need it filled because he had sufficient asthma medication to provide for the child during the remainder of the vacation. The mother's decision to change the location of the pharmacy from Pittsford to Webster can hardly be labeled inappropriate or evidence of her neglect of the children and there is no reasonable inference from this incident to support a finding of a substantial change in circumstances.
12. Nebulizer Incident . The father also testified about a nebulizer which his son required. The father testified that it was old and needed to be replaced because his son was having some difficulty breathing. The father testified that he mentioned this to the mother, but that she took no action to purchase him a new one. The father then secured a nebulizer on his own for the child which he used when the child lived with him. There is no evidence of any harm to the son in the delayed procurement of the nebulizer, and no suggestion that the mother did anything inappropriate.
13. The younger children's hygiene . On the second day of his testimony, the father raised two other issues regarding the mother's involvement with her children. He testified that his younger children visited him without being fully dressed and he testified that almost every time they came to his house they were not wearing underwear. He testified that he gave them underwear and then when they left his house, they gave the underwear back to him. There is no evidence that he ever discussed the lack of underwear with the mother. The father also complained about the bathroom habits of his two youngest children. He claims that his six and seven-year-old children are not fully potty trained and that they wet the bed at night. There is no evidence that the nighttime bathroom habits of the six and seven-year-old children are inappropriate, and the occasional mishaps are not evidence of the mother's inattention or neglect.
14. The cumulative Impact of these events . The father's counsel, in advocating to deny the motion to grant judgment dismissing the father's petition, argued that all the incidents, when added together, raise an inference that a substantial change in circumstances exists to justify a change in the custody, primary residence or visitation provisions set forth in the prior court orders. When all of these events are added together and viewed in the light most favorable to the father, they do not equate with a preponderance of evidence that demonstrate the mother's disregard of the father's visitation rights, or a substantial change in circumstances, that justify a change in custody, primary residence, or visitation as enshrined in the prior court orders and the judgment of divorce. The events described here, as alleged by the father, relate to a series of events which he casts as indicative of the mother's indifference to dangers facing their children. However, in several of the incidents, he stopped to take pictures instead of immediately intervening to lessen the alleged risks that he now suggests are attributable to the mother's neglect. In other instances, he suggests the mother is responsible for interfering with visitation rights, but he cannot pinpoint the exact conduct by the mother that caused the alleged interference. In other examples, he claims that he should have had a bigger role in decisions made on behalf of the children, but the mother's sole custody rights vested final decision-making in the mother. The father's complaints are a series of episodes in which he felt slighted by the mother, but they are not, even when viewed in light most favorably to him, as evidence of neglect or indifference by the mother.
Finally, there is simply no evidence that the allegations by the father, taken in total and presumed to be true, have impacted the father's relationship with his children. He never testified that his children are alienated from him or feel estranged from him. There is no evidence that there has been an erosion of the bonds between the father and the children. There is no evidence that any aspect of bond between the father and his children has been altered in any way. The children regularly visit with the father and are engaged in cycling activities with him. There is no evidence that any of his children have any difficulties in school (one child had difficulty with Spanish, but the father intervened - appropriately - and the student now sits on the honor roll). One child needs an individual educational program (IEP), but there no evidence that anything inappropriate occurred in the procurement of the IEP.
In this court's view, the father wants more time with his children. He has the time because, as indicated by prior court filings, he is not currently employed and has not worked since the time of his divorce. It is undisputed that he owes the mother more than $ 50,000 in unpaid child support and other obligations. This court does not deride the father's obvious desire to spend time with his children and have a greater role in their lives. But as a result of the trial for the divorce, a prior court circumscribed his access rights and gave sole custody to the mother. The New York court have set a high bar for changing that result - there must be a "substantial change in circumstances" and, the evidence in this matter, even viewed most favorably to the father, does not meet that test.
The father's application to modify custody, visitation or primary residence is denied and his application dismissed. This court will reconvene to consider the mother's application still pending before this court.