Opinion
Index No.: 120183707
04-01-2020
Irene TAMOUTSELIS, Plaintiff v. Alexandros TAMOUTSELIS, Defendant
Marilee G. Sercu, Esq., SERCU & SERCU, LLP, Attorney for the Plaintiff, Irene Tamoutselis, Pittsford, New York Francis C. Affronti, Esq., AFFRONTI LLC, Attorney for the Defendant, Alexandros Tamoutselis, Rochester, New York
Marilee G. Sercu, Esq., SERCU & SERCU, LLP, Attorney for the Plaintiff, Irene Tamoutselis, Pittsford, New York
Francis C. Affronti, Esq., AFFRONTI LLC, Attorney for the Defendant, Alexandros Tamoutselis, Rochester, New York
Richard A. Dollinger, J.
The "spaghetti test" — throw everything against the wall and see what sticks -- is an urban legend. Cooked spaghetti does not stick to a wall, as the legend describes.
The Urban Dictionary defines the spaghetti test as: "to test a questionable concept by taking it forward to see if it passes or fails." The origin, according to the Dictionary is the practice of throwing cooked spaghetti against a wall to see if it sticks and thus fully cooked and ready to eat. https://www.urbandictionary.com/define.php?term=spaghetti%20test. However, the legend is not true: throwing spaghetti at the wall is not any kind of indication whether it is done. https://culinarylore.com/food-myths:is-spaghetti-done-when-it-sticks-to-wall/
The mere fact that the test is fictitious has not stopped courts from importing it when apropos. As the Ninth Circuit once noted:
When reading [plaintiff's] brief, one wonders if [plaintiff], in its own version of the "spaghetti approach," has heaved the entire contents of a pot against the wall in hopes that something would stick. We [*22] decline, however, to sort through the noodles in search of [plaintiff's] claim.
Indep. Towers of Washington v. Washington , 350 F.3d 925, 929 (9th Cir. 2003) (quoting United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) ). As another court intoned, "this Court will not countenance the so-called "spaghetti approach" to litigation whereby the parties "heave[ ] the entire contents of a pot against the wall in hopes that something [will] stick. United States ex rel. Morgan v. Champion Fitness, Inc. , 368 F. Supp. 3d 1198, p.30 (D.C. Cen. Ill. 2019).
Nonetheless, American courts have seized on the legend in describing litigation when one party splatters allegations in a scattered-barrel fashion into pleadings, hoping that "something will stick" and guide the Court's analysis. See Jane Doe K.G. v. Pasadena Hosp. Ass'n , 2020 U.S. Dist. LEXIS 45247 (C.D. Cal. 2020)(defendants move to dismiss Plaintiffs' pleading by throwing spaghetti at the wall and seeing what sticks); Laning v. Mattress Firm Inc. , 2019 Colo. Dist. LEXIS 387 (D.C. Colo. 2019)("throw the spaghetti at the wall and see if any pieces will stick").
In this matter, a mother asks the court to modify the parties' visitation schedule because of myriad difficulties that, she claims, her children have encountered in dealing with their father during his visitation time. The mother's application, in addition to seeking a modification for the visitation time for the father, also seeks a restriction that would bar the father's current girlfriend from being present when the children have visitation with their father and an award of attorneys fees. In opposition, the father moves to dismiss the application claiming that the mother's allegations, at best, fail to establish a significant change in circumstances to justify any modification. He also requests that counseling of the children and their father continue and asserts a claim for fees.
But, like the thrown spaghetti in the legend, the allegations by the mother here just don't stick.
Although somewhat unusual in the context of matrimonial litigation, the Court considers the father's application to be a motion to dismiss the mother's order to show cause because she fails to state a cause of action, a dismissal motion permitted under CPLR 3211(a)(7). The Fourth Department has embraced that same standard when considering an application to dismiss an application for modification of a custody order before a hearing. Matter of Gworek v. Gworek , 158 AD3d 1304 (4th Dept 2018). The rubric of that provision requires this Court to accept the facts as alleged by the wife as true and give her every favorable inference as she seeks to establish a prima face case that a change in circumstances exists sufficient to allow the Court to proceed to appoint an attorney for the children and convene a hearing to establish facts upon which a final determination can be made. The Court notes that the father presented a lengthy affidavit responding to the factual allegations by the wife but the Court, at this stage, is not concerned with whether the wife's allegations are true — which the father's strongly opposes — but only whether those allegations, accepted as true, are sufficient to establish the basis for a hearing.
On a CPLR § 3211(a)(7) motion to dismiss, the complaint should be liberally construed, the facts presumed to be true, and the pleading accorded the benefit of every possible favorable inference. 140 W. 57th St. Bldg., LLC v. Falconer, 2019 NY Misc. LEXIS 5085 (Sup.Ct New York Cty 2019); citing Leon v. Martinez, 84 NY2d 83, 87-88 (1994).
As a starting point, a parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since entry of a prior order to warrant a modification in the children's best interests. Morales v. Goiocha , 175 AD3d 1294, 1295 (2d Dept 2019). A major ingredient in that analysis can be a breakdown in parental communication to a point "where they simply cannot work together." Sonley v. Sonley , 115 AD3d 1071, 1072 (3d Dept 2014) (breakdown occurs if relationship is antagonist or uncivil). In that vein, the Court must consider whether there is evidence here that establishes a breakdown in the relationship between the parents that warrants an inquiry into the whether a modification of the prior custody/visitation plan "was necessary to ensure the best interests of the children." Gonzales v. Hunter , 137 AD3d 1339, 1341 (3d Dept 2016) (when therapist testifies that child fears abuse by a parent and consequent anxiety, modification is justified). But, in a contrary view, court have held that hearings and modification requests have been denied where the allegations were conclusory and unsubstantiated. Newton v. McFarlane , 174 AD3d 67, 77 (2d Dept 2019). In addition, numerous courts have opined that in "order for the custodial parent to develop a meaningful, nurturing relationship with the child, physical access must be frequent and regular." Pena v. Tiburcio , 162 AD3d 670, 671 (2d Dept 2018). A parent's unjustified restrictions on that access right can be a basis for modification as well. Coon v. Sanabria , 158 AD3d 756, 757 (2d Dept 2018).
The New York courts have also struggle in differentiating between events that constitute a change in circumstances and "common parenting issues or isolated events that do not warrant a change in custody." Lao v. Gonzales , 130 AD3d 624 (2d Dept 2015). This Court has previously attempted to quantify the exact nature of any change of circumstances before advancing to the best interests analysis. See Schoenl v. Schoenl , 62 Misc 3d 567 (Sup.Ct. Monroe Cty 2018) (Dollinger, J.). But, as a bottom line, any alleged change must significantly improve the lives of the children or, as the Second Department intoned, implicate "the fitness of the custodial parent, or affect[s] the nature and quality of the relationship between the children and the noncustodial parent." Matter of Miedema v. Miedema , 125 AD3d 971, 971-972 (2d Dept 2015).
In applying that thinking to this dispute, some facts in this matter are not disputed at all. The couple have twins, age eight. The couple executed a custody agreement in March 2019, which was incorporated into a court order. A separation agreement, resolving equitable distribution issues, was signed in June, 2019 and the divorce was entered in early October, 2019. The custody/visitation agreement contains several pertinent provisions:
One of the questions raised in this application involves the children's preference in spending time with their father and whether the Court, at this early stage, should appoint an attorney for the children. The Court is well aware that a child's preference may play some role in evaluating whether a change in circumstances has occurred. See Szalapski v. Schwartz , 46 Misc 3d 12102(A)(Sup.Ct. Monroe Cty 2014)(Dollinger, J.); see also Miller v. Shaw , 160 AD3d 743,744 (23d Dept 2018) (a child's changing needs as he grew older constituted a change in circumstances). At least one court has held, however, that an eight-year-old's preference may be entitled to little weight in a court's determination. Lao v. Gonzales , 130 AD3d 624, 625 (2d Dept 2015).
In that regard, the Court has carefully read the mother's affidavit in which she details statements made by her children. The mother describes a December 19, 2019 episode involving the father's threat to take away extracurriculars. The mother relates that the children were crying and sobbing and said they "want to live with me." There is nothing in the mother's affidavit that suggests that children ever repeated that comment.
While the mother alleges that the children are anxious about having visitation with their father when his girlfriend is present, there is no other statement, attributable to the children, which indicates that they oppose visitation with their father. There is no evidence from the mother that the children have ever refused to go to visitation with their father. This Court acknowledges that the children's preference on visitation, if conveyed through an attorney, might have some relevance in resolving these issues. But, in the absence of evidence that the children have refused to go to visitation, this Court concludes these eight-year-old children understand the importance of time with their father and they have faithfully attended visitations. While they may complain, at times, to their mother, about their father's discipline and his girlfriend, there is no evidence that they are unwilling to abide by the visitation plan that the parents formulated in an agreement that set out their collective version of the children's best interests less than a year ago. For these reasons, the Court declines to appoint an attorney for the children.
In addition, the mother did not request that the Court hold a Lincoln hearing with the children. See Lincoln v. Lincoln , 24 NY2d 270 (1969). While this Court my have the discretion to hold such a hearing even in the absence of a request, the Court, in this matter, declines to do so. See DeRuzzio v. Ruggles , 88 AD3d 1091 (3d Dept 2011).
(A) Paragraph K(22) give each parent a right to communicate with the children at reasonable times and the child can initiate those communications by telephone at any time.
(B) Paragraph K(2) provides that the couple shall not expose their children to anyone who places the children's "psychological, emotional or physical well-being ‘at risk.’ "
(C) Paragraph K(3) provides that neither parent will expose the children to anyone with a criminal record but contains no other provisions restricting a parent's right to expose the children to other adults or children.
(D) Paragraph K(6) bans the use of corporal punishment but requires that each party "respect the other's disciplinary protocol."
At the time this order to show cause was filed, the parties had been bound by their custody agreement for less than a year. Even before the divorce was entered, the wife brought an order to show cause to hold the father in contempt for violation of the visitation order, primarily because the father sought to take his children to New York City without the mother's approval. Significantly, in the order to show cause filed September, 2019, the mother sought a temporary order to prohibit the father from having his girlfriend in the children's presence during his visitation time. The September, 2019 order to show cause included an affidavit dated August 15, 2019, which described the children's reactions to their father's girlfriend. The mother's August 15, 2019 affidavit alleged that the father required his children in August, 2019 to sleep in a bed at his home with an unrelated "boy," who was the son of the father's girlfriend. The mother then described the children as "needy and clingy with me" since the sleep over and added the children told her that the girlfriend was taking their father away and characterized the girlfriend as "mean" and added that the girlfriend "ignores them."
However, this Court struck that portion of the temporary relief in the September, 2019 order to show cause because, based on the Court's review of the mother's affidavit at that time, there was insufficient evidence to justify restricting the father's relationship with another person or evidence that the children's exposure to the father's friend had adversely impacted the children's well-being. The Court then issued a modified order to show cause, the father responded and eventually the couple worked out a modification agreement. The modification agreement was signed by the father in November, 2019 but not signed by the mother until January 8, 2020. Even though the mother had sought a restriction on the father's girlfriend's involvement with the twins in the order to show cause, the final modification agreement makes no reference to any restrictions on the father's interaction with anyone, much less the girlfriend, during the time that he has with the children.
In her current application, the mother describes a series of incidents that, in her view, indicate the need for a modification of the custody/visitation order and agreement:
(A) On December, 19, 2019, the mother was called by her children, who were crying because their father had threatened to take away hockey and dance, which were the children's favorite activities. The mother contacted a therapist, with whom the family had been consulting and exchanged emails with their father in which the therapist and the mother expressed different views about the children's conduct and their activities. There is no evidence that the custody/visitation agreement, which had not even been signed by the mother at that point, was not followed thereafter or that either parent lost parenting time after December 19, 2019.
(B) On January 11, 2020, three days after the mother executed the custody/visitation agreement, the mother got an email from the father, which she alleges was a threat. She said that the father stated that if the mother did not help him with the children's relationship with the girlfriend, he would tell them the real reason for the divorce. The mother attached the text message to her affidavit. The only pertinent portion of the text message from the father is a sentence that reads: "Also can u stop alienating the kids from myself and my girlfriend and her son with lies ... a lot of time has passed and u should be encouraging them that everythings ok and sometimes things change and that's ok ... I really don't want to explain to them exactly what happened to cause this whole thing."
The mother did not respond to that text. There is no evidence that the either the mother or the father altered the parenting time schedule after January 11, 2020.
(C) On January 15, 2020, the couple's son got into argument with his father, according to the mother, over a video game. The father and son exchanged words and the father declined to take his son to hockey practice. Later that week, the children, while in residence with their father, again called their mother to complain that their father's girlfriend was scheduled to visit. The visit never occurred. The children stayed with their father.
(D) The mother also relates an incident when the children went with their father to a farm at an unspecified date in the Fall of 2019. The mother said the children told her that they were upset because the girlfriend was there. The father then imposed a discipline on his son for failing to follow the father's instructions and removed his access to his Ipad for two months. The mother, in her affidavit, said that the therapist had told them that this was "extremely excessive punishment."
(E) The mother also describes an incident in the summer of 2019 before the divorce judgment was entered and before she filed the September order to show cause. The incident, according to the mother, was a dispute over going swimming. The mother claims the father argued with his children, upsetting them, but eventually took them swimming and there is no evidence that the children did not enjoy swimming with their father.
(F) The mother complains about recent lack of telephone access to the children. The mother said she purchased cell phones for the children but the father does not permit them to be used at his home. But there is no evidence that the mother has not had regular telephone contact with her children when in the father's home. The mother's affidavit contains numerous entries in which she describes conversations with her children when they were in their father's home.
(G) The mother suggests that the father has had objections to a therapist's involvement in the family.
(H) The mother alleges that the father has been delayed in contacting coaches for the children's activities, but the mother offers no evidence that the children have missed practices or that the father's conduct, as alleged, has ever impacted the children's success in those activities.
(I) In her reply affidavit, the mother describes the children's attendance at a professional soccer game and describes the father's insistence that his children say "hi" to his girlfriend and she claims the father just ignore the children.
(J) In the same reply affidavit, she claims that the father punishes the children "for expressing their feelings to him" and in another portion, alleges that the father "shows no form of encouragement or excitement for the children" and claims the children have told her that they think their father does not love them.
Under the rules of CPLR 3211(a)(7), these allegations must be conceded as true. However, even when aggregated together, they do not establish the basis for a change in circumstances sufficient to justify modification of the couple's year-old custody agreement.
First, there is no evidence that the father has not abided by the custody/visitation agreement. There is no evidence that the children have failed to visit their father or that the father has denied the mother her allotted time with the children. The mother alleges that the children have expressed concerns about visiting their father. The Court, in its discretion, accepts these allegations as true even though they constitute hearsay. Still, the children's articulated "concerns" fail to rise to the level of change in circumstances. In this Court's perspective, many children experience anxiety and distress when a new visitation plan emerges from a divorce, especially when conflicts persist between the parents and children must transition from one home to another. The mere fact that the children may out of sorts in the early stages of the transition and complain about it, is not evidence of a change in circumstance.
Second, each incident detailed by the mother, fails to support a finding a change in circumstances. The father, upset with his children, threatened to take away their activities. This form of discipline — either you follow my rules or you lose your privileges — is the 21st century version of the "my way or the highway" cannon intoned by fathers of Baby Boomers in the 20th Century. It is a time-honored parental prerogative and while the mother may not condone that approach, she agreed to leave "discipline" in each parent's hands and respect the father's "disciplinary protocol." The mother's claim that the father's email, in which he asked the mother to stop alienating the children, also falls far short of justifying a change in visitation. The father's frustration with what he perceived as the mother's "alienating" of the children obviously upset him. But the mother never responded when she got what she claims is a "threat." The mother claims that this text is evidence that the father "wants to intentionally hurt the children by telling them bad things about their mother." There is no evidence that the father told the children about the events that led to the divorce and no evidence, in the mother's affidavit, that the father ever intended to "hurt the children." There is no evidence that the children knew about the text or its contents. There is also no evidence that the children's visitation, with either parent, was altered after this text was sent. Finally, there is also no evidence that the father followed through his alleged threat: there is no allegation that either child failed to participate in hockey or dance, a fact that suggests this father — like many others — used a threat to discontinue favored activities as a tool to attain his children's attention but chickened out.
The phrase is a popular synonym for "cowardly," a usage arising in the 1600s and 1700s but then apparently abandoned until the 20th century. [Slang; c. 1930]. It means "back out from fear, lose one's nerve." https://idioms.thefreedictionary.com/chickened+out (visited 3/28/20). In this Court's personal and professional experience, many parents, threatening to restrict a child's activities as a form of discipline, often "chicken out" when the time comes.
In addition to threatening to discontinue activities, the mother claims that the father's refusing to take his son to hockey practice as a form of discipline was a change in circumstances. As noted earlier, the parents agreed that each parent could enforce discipline on their children as they deemed fit. A parent refusing to allow a child to engage in activities is a form of discipline is as old as Methuselah. The justification for such discipline rests exclusively with the parent who administers it and the wife agreed to respect the father's "disciplinary protocol." Her complaint on this issue is without merit.
The same analysis undercuts the mother's claims about the father removing the son's access to an Ipad because he refused to follow his father's instructions to write an apology letter. This Court will not delve into a father's justifications to impose minor discipline — writing an apology letter — on the son. The Court will not infer any improper motive in this instance. Parents can choose to discipline their children in their own way: the mother here has a style and the father does, too. The Court will not pick sides, especially when the parents agreed to respect each other's protocol.
The same analysis applies to the alleged argument between the father and the children over going swimming. This episode predates the September order to show cause but the mother never mentioned it in her affidavits filed with the Court at that time. The rendition of this episode at this point reinforces the notion that the mother has used the discredited "spaghetti test" in this application: this episode, best characterized as an argument between father and the children six months ago, has no probative impact on the question before the Court.
The mother's claims regarding the father's relation to a therapist also sounds of overreaching. The mother claims that father has declined to visit with the therapist, and she produces a text message that the father apparently wrote to the therapist and the mother. His message, while perhaps upsetting to the mother, contains a pointed message that the father wanted the therapy sessions to "discuss with them (the children) that both mommy and daddy agree on the current schedule and that both parents in the kids life are important. We were also going to talk about that things change and new people come into our lives." The wife claims this note is some evidence that the father "flipped out" during or after a meeting with the therapist. The message attached is not evidence that the father had "flipped out." This Court declines to draw any adverse conclusion on the father's disposition or fitness from this message, even against the backdrop of the other allegations made by the mother. The message is straightforward and, in any rationale reading, indicates the father's interest in seeking his ex-wife's assistance in the children's adjustment to the new realities of their lives after the divorce.
The same conclusion applies to the alleged lack of telephone access and the father's relation to the children's coaches. There is nothing in the custody agreement that suggests that father must allow his children to have cell phones when in his home. The mother cannot point to any portion of the custody agreement that requires the father to allow the children to have unlimited cell phone access to their mother. There is no evidence that the mother has ever been unable to have the required access to her children. She recounts several instances of telephone conversations in which she heard complaints from the children while in their father's home. There is no specific incident in which the mother claims her children wanted to get in touch with her and could not do so.
Additionally, the fact that father has been "slow on the draw" in communicating with the children's coaches — as the mother alleges — is similarly no evidence that justifies a finding of a change in circumstances. The mother's claim that the father has failed to participate in certain computer applications to facilitate the children's activities is likewise unpersuasive. There is no evidence that the father's conduct in that regard has adversely impacted his children's participation or development in either hockey or dance. The allegations recited in the reply affidavit also fall short of establishing a change in circumstances. The father's insistence that the children say "hi" to his girlfriend or his lack of encouragement to his children — which the Court accepts as true even though the husband bitterly disputes those allegations in his affidavit — hardly establishes a change in circumstance.
What is also lacking is any independent and material evidence that the children have encountered difficulties in their lives as a result of what the mother characterizes as the father's alleged missteps. There is no evidence of any fall off in the children's academic performance or performance in extracurriculars, any required physical or mental health interventions or ailments or limitations. There is no evidence of any change in their eating or sleeping habits or daily routines. There is no evidence of any changes in their young social life or interactions with relatives or friends. There is no evidence of common instances of unwarranted behavior by the children — refusing to go to visitation, refusing to leave the car, parental friction on pickups and drop-offs, children demanding to leave one parent's residence, "acting out," children objecting when a parent attends activities or sports, children refusing to embrace a parent. The absence of these allegations or independent proof thereof, which might provide some corroboration for the allegations before the Court, substantially dilutes the mother's claim that there has been a change in circumstances that requires a re-evaluation of the best interests of these children. The parents defined the best interests of their children in a custody agreement struck eight months ago. The agreement is 25 pages long: it encompasses virtually every aspect of the parent's interactions with their children. The mother, in her affidavit here, does not point to any specific provision violated by the father.
In reading this opinion, both parents may think the Court is downplaying the mother's concerns about her children. To the contrary, this Court understands the maternal instinct that drives this mother's efforts to insulate her children from the consequences of the divorce and the entry of new people in their lives. The Court acknowledges that the father's introduction of a girlfriend can cause distress to children at any age. If he mishandles that introduction, he may someday face a child who justifiably concludes that his or her father, at a critical time in their young lives, lavished greater attention on a newcomer rather than his children. If that occurs, he may face loss of the child's affection. But, that decision rests with the father and his choices in a post-divorce world. This Court will not interfere with his personal choices, other than to suggest that a child's love, once lost, may be difficult to recoup.
The Court also recognizes the dislocation and disquieting nature of the new reality that these children face: life with their mother, and her style of parenting, without their father in residence and then time with their father, and his own style of parenting, and discipline and interactions with new friends and associates. In this case, as in many others, the conflict between mother and father, that ended the marriage and persists to this date, clouds the world of their children, often adding stress and anxiety to the lives of these eight-year-old twins.
But this Court is wisely instructed by New York's longstanding faith in parents not to overturn a parental judgment of the best interests of their children incorporated into a custody/visitation agreement made less than a year ago unless there is a substantial change in circumstances. When totaled, the allegations in this instance, even when accepted as true, do not meet that test.
The mother's order to show cause is denied in its entirety. Her request for an appointment of an attorney for the children is denied, as is her request for attorney fees. The fathers' motion to dismiss is granted. His request for fees is also denied. His request for an order to continue counseling is denied, as there is no basis in his affidavit to support such an order. If a prior order requires it, the Court is not changing that order, nor any prior order unless inconsistent with the conclusion of this decision.