Opinion
259703
10-29-2020
W.D., Petitioner, v. L.P., Respondent.
Petitioner — Adam Edelstein, Esq. Respondent — Andrea K. Scampoli, Esq. Attorney for the Child — Rhonda Weir, Esq.
Petitioner — Adam Edelstein, Esq.
Respondent — Andrea K. Scampoli, Esq.
Attorney for the Child — Rhonda Weir, Esq.
Judith D. Waksberg, J.
On or about September 20, 2019, Petitioner, W.D. (hereinafter "the Father"), filed an Order to Show Cause seeking enforcement of the Stipulation of Settlement of the parties' divorce dated November 3, 2016 in order to prohibit a specific babysitter from caring for the child after school. Counsel for the Respondent Mother, L.P. (hereinafter "the Mother"), filed a cross-motion on or about October 24, 2019, seeking an order denying the Father's motion in its entirety; and, pursuant to CPLR § 3211, dismissal of the Father's underlying Petition for Modification of the Order of Visitation Made by Supreme Court dated August 12, 2019; and in addition, an award of counsel fees in the amount of $7500. Counsel for the Father filed an Affidavit in Opposition to the cross-motion on February 10, 2020, and counsel for the Mother filed an Affidavit in Reply on February 20, 2020. The Attorney for the Child filed papers on September 28, 2020 supporting the Mother's Motion to Dismiss.
The onset of the COVID-19 epidemic resulted in the declaration of a public health emergency on or about March 7, 2020 when the Governor signed the "New York State on PAUSE" Executive Order, which prohibited non-essential businesses from operating and in-person schooling. It was only in early July that New York City entered Phase Two of the State's reopening plan and offices were allowed to welcome back employees for the first time in months. New York City schools began some in-person learning this September, however, almost no students will attend school five days a week. Instead, children taking in-person classes will report to classrooms one to three days per week and learn from home the rest of the time. It goes without saying that the landscape of the city and world have changed since the filing of these motions.
As a result of all these changes, the Father's initial motion to prohibit the babysitter from taking care of the child after school has been rendered moot, as the babysitter in question is no longer caring for the child after school. This leaves the Court to address the Mother's cross-motion seeking dismissal of the Father's petition for failure to state a change in circumstances and her request for attorneys' fees.
Motion to Dismiss
It is well established that when an order of custody and visitation is entered on stipulation, that order may not be modified absent the showing of a sufficient change in circumstances since the time the stipulation was entered into and that modification is necessary to further the best interests of the child. Berg v. Stoufer-Quinn , 179 AD3d 1544, 1544 (2d Dept. 2020). Further, marital settlement agreements are judicially favored and are not to be easily set aside. Bohner v. Bohner, 186 AD3d 1481 (2d Dept. 2020). It is the petitioner's burden to make an evidentiary showing that there has been a change in circumstances which would support a finding that it is in the child's best interest to modify the current custody arrangement. Merch. v. Caldwell, 149 AD3d 941 (2d Dept. 2017).
In deciding a motion to dismiss a petition, the court must accept the petitioner's evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom. Bacchus v. McGregor , 147 AD3d 1049, 1050 (2d Dept. 2017). Therefore, the court is construing the allegations in the light most favorable to the Father. In his petition, the Father lists the following as changes in circumstances requiring modification of the order: the Father's job and work schedule have changed such that he is now required to be in his office in Manhattan "during business hours" and must commute "45 minutes away by train"; the child's school and school schedule have changed; and the birth of a new child to the Father. In his petition, the Father states that the change in his job has rendered him unable to be "present" for the vast majority of the weekday daytime visitation with the child thereby depriving him of meaningful parenting time with the child and his new son together. Nothing in the Father's petition alleges that modification is necessary to further the best interest of the child.
The Father has failed to meet his burden of showing that circumstances have changed so as to require a modification in the best interest of the child. A party seeking a modification of a parenting agreement is not automatically entitled to a hearing, but first must make an evidentiary showing sufficient to warrant a hearing. Aronowich-Culhane v. Fournier , 94 AD3d 1114, 1115 (2d Dept. 2012). It is undisputed that the parties engaged in extensive divorce litigation which resulted in a ten-page parenting agreement. Where the parties have entered into an agreement, the agreement is entitled to considerable weight. Eschbach v. Eschbach, 56 NY2d 167, 171 (1982). It is then the burden of the party seeking the change to show that in light of changed circumstances continued adherence to the agreement would not be in the child's best interests. Hugee v. Gadsden , 172 AD3d 863, 864 (2d Dept 2019).
The Father's change in job and work schedule do not constitute a change in circumstances which require modification to further the best interest of the child. The cases cited in support of the Father's position that a change in work schedule should be considered a change of circumstances are both distinguishable. In Ryan v. Lewis , 135 AD3d 1135 (3d Dept. 2016), the parties resided over 90 minutes apart and in two different states. There, the previous visitation order was entered into prior to the mother gaining full time employment or the child attending school. Once the mother obtained full time employment, the previous order exchanging the child on a weekday morning was impracticable. In the instant case, there are no allegations that the exchanges are impractical or impossible. The exchanges are simply inconvenient for the Father. According to the Father's petition, his previous work schedule was "completely flexible" allowing him to work remotely from home. He claims that his new job, "does not provide this same level of flexibility and I am now in my office during business hours (whereas I used to personally pick [the child] up for the beginning of my parenting time at 3 PM, or 2:50 on school days, Tuesdays and Thursdays), which office is in Manhattan 45 minutes away by train." Unlike in Ryan, the Father has not shown that adhering to the previous arrangement is impossible or even impractical for him, only that it would somewhat impinge on his parenting time.
The second case cited by the Father in support of his argument that his change of work schedule constitutes a change of circumstances is also distinguishable. In Lundgren v. Jaeger , 162 AD3d 1427 (3d Dept. 2018), the previous visitation order specified that the parties agreed to a specific schedule "until such time as the mother obtained employment or a new schedule could be agreed upon by the parties." Lundgren v. Jaeger , 162 AD3d at 1428. In that case, the parties had agreed that the mother's obtaining of employment would engender a new schedule. In this case, the parties' extremely detailed divorce agreement contained no such provision for a change of schedule due to a change in employment.
The Father alleges that due to his change in work schedule, he is no longer able to begin his parenting time at 3:00 p.m. This allegation assumes that the prior settlement requires the father's parenting time to begin at 3:00 p.m. However, the actual stipulation of settlement provides only that the Father shall have parenting time "commencing after school, OR 3pm in the event there is no school ... [emphasis added]." The language of the stipulation, which provides for the father's parenting time to commence after school or at 3:00 p.m. if there is no school clearly reflects the fact that the parties anticipated variations in schedules, including the ending time of school -- otherwise a time certain for pickup would have been established. In any event, the original stipulation of agreement does not indicate that a change in the father's work schedule to one of "regular business hours" would give rise to a change of circumstances. The Court is hard pressed to believe that such an extensive parenting agreement never considered the possibility that the Father would gain employment that was "less flexible" and would require him to keep "regular business hours" which might affect his parenting access.
The Court is constrained to note that many people are working remotely since New York State went on PAUSE in March 2020 and that it is possible that the Father is again working at home remotely, despite his change of employment.
The court also rejects the Father's claim that a change to the child's school and school schedule are a change in circumstance. The father asserts that the child's change of school is a change of circumstances without providing any allegation as to how the change of school changes circumstances or affects his relationship with the child. In any event, the potential for a change in the child's school is clearly anticipated in the parties' Stipulation of Settlement. The stipulation states, "The child shall attend a New York City public school or a charter school so long as the Mother resides in one of the boroughs." The stipulation does not specify which school the child will attend; only that he attend a public or charter school in New York City if the mother resides there. Since the child continues to attend a school located in the borough of Brooklyn, where the mother lives, this cannot be considered a change of circumstances as it is a scenario addressed by the stipulation of settlement.
Finally, the Court rejects the contention that the Father's new wife having given birth to another child constitutes a significant change of circumstances. Yaddow v. Bianco , 67 AD3d 1430, 1431 (4th Dept. 2009) ("The separation of the parties' child from a half-sibling who was born following the joint custody order and who "never shared a household" with the half-sibling is not a factor to consider in determining whether there was a significant change of circumstances."). The potential that either party may remarry is addressed in the stipulation of settlement in the support and maintenance provisions and the provision addressing the terms which the child may use to refer to the parents. Remarriages and the birth of additional children are foreseeable changes in a family's life and cannot automatically constitute a change of circumstances. See Dintruff v. McGreevy , 34 NY2d 887, 888 (1974). ("The subjective changes in the children or the objective changes in the family relationships should not be followed automatically by changes in custody.")
Even assuming arguendo that a change in the Father's job schedule to regular business hours, a change in the child's school, or the birth of a new child to the Father's family constituted a change in circumstances, the Father still has not alleged how the change to the parenting schedule he is requesting is necessary to further the best interests of the child. The Father's request for a change is completely self-serving and focused on his own needs, not those of the child. He states in his petition, "Each of the proposed modifications directly relates to my unavoidable change in job and work schedule; and/or the birth and existence of [the child's] only sibling . . . [and] create no undue burden on the Respondent, maximize each party's ability to have meaningful parenting time with our child on a consistent basis; and would provide for more fair and equal application of special holiday parenting time for which only Respondent has previously received the benefit." Clearly, the father's concern is not the best interests of the child, but rather his own desire for more parenting time and his concern that the mother has somehow unfairly benefited from their stipulated agreement. He does not assert how any of the changes he proposes will enhance the child's life. Thus, there is no indication that a change in schedule would enhance the child's welfare and therefore there is no basis for modification of the prior agreement and no need that the child's current schedule be disturbed. Conway v. Gartmond , 108 AD3d 667, 669 (2d Dept. 2013). Moreover, especially during these difficult times of the pandemic, the Court must consider the "stability and continuity afforded by maintaining the present arrangement." Dokmeci v. Herbert, 167 AD3d 877, 878 (2d Dept. 2018). The motion to dismiss the Father's petition for modification is therefore granted and the petition is dismissed.
Counsel Fees
The Respondent's motion for counsel fees is denied. The court may award to any party or attorney costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct. 22 NYCRR 130-1.1 [a]. Conduct is frivolous under 22 NYCRR 130—1.1 if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law or it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another. Miller v. Falco, 170 AD3d 707, 710 (2d Dept. 2019). The Respondent has not presented any evidence which would tend to the show that the Petitioner has engaged in litigation primarily to harass or that his filing was completely without merit.
Notify parties and counsel.