Darby v Darby

[*1] Darby v Darby 2012 NY Slip Op 51004(U) Decided on May 30, 2012 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 30, 2012
Supreme Court, Kings County

Kristopher Peter Darby, Husband,

against

Auyanna Maria Darby, Defendant.



53792/2011



Yvonne E. Gardener, Esq.

Attorney for the Husband

251 East 57th Street

Brooklyn, New York 11203

Angela Scarlato

Attorney for the Defendant

26 Court Street, Suite 405

Brooklyn, New York 11242

Jeffrey S. Sunshine, J.

Introduction

This Court is called upon to determine, inter alia, if income may be imputed to a party when determining pendente lite counsel fees where the payor-spouse, who commenced the divorce action, voluntarily terminated his employment as a New York [*2]City Police (NYPD) officer. The payor spouse earned in excess of $89,000.00 annually, and moved to Georgia where he entered the police academy as an entry-level officer at a more than fifty (50%) percent reduction in annual income. He now alleges that he should not be required to abide by his support obligations pursuant to the parties' pendente lite stipulation and that he should not be required to contribute to the wife's counsel fees because of his reduction in income.

Upon the foregoing papers in this matrimonial action the defendant-wife moves by Order to Show Cause for Contempt, dated February 21, 2011, seeking an Order of this Court:(1) holding husband in contempt of court for failure to comply with the so-ordered stipulation dated November 16, 2011 which directed husband to pay spousal support, child support and arrears; (2) directing husband to post security in the amount of $10,000.00; (3) granting a money judgment in favor of defendant in the amount of $14,462.65; (4) granting defendant counsel fees for the costs associated with defending this litigation in the sum of $20,000.00, including the costs of conducting a deposition of husband regarding his financials; and (5) such other and further relief as the Court may deem just and proper. The husband opposes the application.

Facts and Procedural Background

The parties were married on May 5, 2000. There are four (4) unemancipated children of the marriage under eleven (11) years of age. On June 10, 2011, the wife initiated a Family Court proceeding against the husband for child support and maintenance alleging that he abandoned her and the parties' four (4) children in March 2011. On June 22, 2011, the husband commenced this action for divorce on the grounds of irretrievable breakdown in the marital relationship for a period of at least six (6) months pursuant to Domestic Relations Law (DRL) 170(7). The husband moved for an Order of this Court: a) consolidating the Family Court proceeding; b) granting him pendente lite joint legal custody of the children; c) establishing an access schedule; d) settling pendente lite child support to wife for the unemancipated children of the marriage; and e) establishing childcare expenses to the wife.

The wife opposed the husband's Order to Show Cause and filed a Cross-Motion, requesting an Order of this Court: a) granting the husband's motion for consolidation of proceedings; b) granting her temporary sole custody of the children; c) directing the husband to pay pendente lite maintenance; d) modifying the Family Courttemporary order of child support, e) directing the husband to provide the wife with a car to facilitate transportation of children to and from their respective schools; f) awarding exclusive use and occupancy of the marital residence to the wife; and g) directing the husband to pay, pendente lite, the sum of $7,500.00 for the wife's counsel fees without prejudice to further application.

Based on the parties' consent, this Court issued a consolidation Order, dated [*3]September 6, 2011, consolidating the Family Court proceeding commenced by the wife and the Supreme Court proceeding commenced by the husband.

At the preliminary conference on September 12, 2011, the parties stipulated, on consent, that the husband would pay pendente lite legal fees to the wife's attorney in the sum of $5,000.00 and adjourned the remaining pendente lite relief to November 16, 2011.

On November 16, 2011, the parties entered into a pendente lite stipulation wherein the husband agreed to pay the wife the sum of $1615.40 bi-weekly through the Support Collection Unit, allocated as $1,200.00 for temporary maintenance and $415.40 for temporary child support. The stipulation provided that the support was retroactive to August 5, 2011 and that the sum of $6,408.00 was due and owing for support arrears between August 5, 2011 and November 11, 2011. The parties also stipulated that the husband would pay the support arrears in the sum of $150.00 bi-weekly in addition to his bi-weekly support obligation until the support arrears were paid in full.

On February 17, 2012, the wife moved by Order to Show Cause for an Order of this Court (1) holding the husband in contempt for failure to comply with the so-ordered pendente lite stipulation dated November 16, 2011; (2) directing the husband to post security in the amount of $10,000.00; (3) granting a money judgment in favor of Wife in the amount of $14,462.65 with interest thereon; (4) granting the wife an additional award of interim counsel fees in the sum of $20,000.00; and (5) granting such other and further relief as this Court may deem to be just and proper.

The wife contends that, immediately following the November 16, 2011 court appearance and stipulation, the husband defaulted on his support obligation under the parties' pendente lite order. The wife alleges that within weeks of the November 16, 2011 court appearance the husband unilaterially resigned from his employment as a police officer with the New York Police Department (NYPD), where he earned $89,380.00 annually [FN1], and moved to Georgia for an entry-level police officer position, earning only $36,852.00 annually. The wife further alleges that the husband had the internet and cable service to the marital residence shut off, without any notice to her, and that he only had those services restored when the wife's attorney advised the husband's counsel that the wife would seek the appropriate Court intervention if service was not restored. She also contends that in December 2011 her landlord threatened to evict her and the children from the marital residence because the rent went unpaid for November 2011 and December 2011. She avers that she continues to be solely responsible for the monthly rent, utility bills, health insurance, food and clothing expenses for herself and the parties' four (4) young children, who are eleven (11), nine (9), six (6) and two (2) years of age.

The husband does not dispute that he unilaterally reduced his annual income by almost $50,000.00 when he voluntarily resigned from his employment with NYPD and [*4]moved to Georgia to enter the Dekalb County police academy as an entry-level officer; however, he contends that his move was motivated by a decision to change career path and not by a desire to reduce his income available for child support or to avoid paying maintenance. The husband contends that he first contemplated a move to Georgia prior to commencing the divorce proceeding. The husband did not provide any documentation in support of this assertion. The husband posits that his decision to move should not reflect negatively on him because, he alleges, the wife knew he wanted to leave New York. Further, the husband contends that he should not be responsible for the pendente lite support obligation that he agreed, and stipulated, to at the November 16, 2011 court appearance because he earns only $1,417.38 bi-weekly from the Georgia police academy, which is less than the $1,765.40 support obligation he is required to pay pursuant to the parties' so-ordered stipulation. The husband avers that he intends, in the future, to seek a second job in order to meet his pendente lite support obligations; however, he alleges that he cannot find a second job until his Georgia police academy training is complete and a one (1)-year probation period, allegedly required by the Dekalb County Police Department, is completed. The husband does not provide a date when his training will be completed or offer any supporting proof of the alleged probation period or when it will conclude.

The husband posits that, between November 2011 and March 2012, he paid the sum of $4,350.00 in rent for the marital residence, the sum of $400.00 to the wife through the Support Collections Unit and another $9,000.00 on March 16, 2012 directly to the wife toward his support arrears [FN2]. The husband contends that as of March 29, 2012 he is current with his financial obligations [FN3] and alleges that he cannot be found in contempt because of his voluntary past payments to the wife [FN4]. The husband further posits that any noncompliance by him with the parties' pendente lite stipulation resulted from his dramatic reduction in income and not from any willfulness on his part as his new employment allegedly prohibits him from securing a second job while he is in training. He further avers that he has made efforts to obtain funds from other sources in order to [*5]meet his pendente lite support obligations. The husband also posits that the wife has effectual alternative remedies, including a money judgment, available to her so a finding of contempt would be inappropriate in this case.[FN5]

In her Affidavit dated April 2, 2012,the wife contends that, as of March 31, 2012, the husband was in arrears for pendente lite support in the sum of $2,580.00 [FN6]. The wife further avers that the husband, without her knowledge or consent, filed income tax returns for 2011 as married filing jointly in violation of the parties' pendente lite stipulation which provided that the husband could claim the parties' four (4) children as dependants for purposes of filing income tax returns only if he was current with his support obligation, which, she alleges, he was not when he filed the tax returns. The wife further alleges that the husband then utilized the parties' 2011 joint tax refund in the sum of $4,223.00 to pay his support arrears on or about March 16, 2012. The wife requests that the sum of $2,111.50, half (50%) of the parties' 2011 joint tax refund that the husband utilized, be credited to her.

Lastly, the wife asks this Court to order the husband to pay her additional interim counsel fees in the sum of $20,000.00 on the basis that this instant motion practice was necessitated solely by the husband's failure to comply with the preliminary conference order and his default of his support obligations under the parties' November 16, 2011 pendente lite stipulation. Additionally, the wife avers that an award of counsel fees is necessary because a deposition of the husband is required due to his refusal to comply fully with discovery demands and interrogatories regarding certain financial matters, including documentation regarding the disposition of the sum of $17,000.00, which the husband withdrew from a Chase saving account on July 26, 2011, the same day that the Family Court issued the initial support order herein in response to the wife's application for support [FN7]. The husband contends that this Court cannot award the wife counsel fees [*6]unless there is a finding that his noncompliance with the so-ordered pendente lite stipulation was willful and he is held in contempt.

At the court appearance on April 3, 2012, the parties resolved the issue of support arrears as of March 30, 2012 and the issue of the tax refund. The only remaining issue before this Court is the wife's application for counsel fees.

Discussion

In determining an award of pendente lite counsel fees in matters commenced after October 12, 2010, the Court is required to apply the rebuttable presumptions that counsel fees shall be awarded to the less monied spouse pursuant toamended Domestic Relations Law § 237, which provides that there:

" shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys may make such application" (see also Moccia v Moccia, 82 AD3d 1064, 918 N.Y.S.2d 802 [2 Dept.,2011]).

Furthermore, it is well-established that "[a]n award of an attorney's fee pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case' "(Grant v Grant, 71 AD3d 634, 895 N.Y.S.2d 827 [2 Dept. 2010], quoting Gruppuso v Caridi, 66 AD3d 838, 839, 886 NYS2d 613 [2d Dep't 2009], quoting Morrissey v Morrissey, 259 AD2d 472, 473, 686 NYS2d 71 [2d Dep't 1999]). "In determining whether to award such a fee, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Gruppuso, 66 AD3d at 839, quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 [1987]). Further, " [a]n appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances'" (DiBlasi v DiBlasi, 48 AD3d 403, 405, 852 NYS2d 195 [2d Dep't 2008], lv denied 10 NY3d 716, 862 NYS2d 468 [2008], quoting Grumet v Grumet, 37 AD3d 534, 536, 829 NYS2d 682 [2d Dep't 2007] [citations omitted]).

It is also well-settled that "[a]n award of interim counsel fees is designed to create parity in divorce litigation by preventing a monied spouse from wearing down a nonmonied spouse on the basis of sheer financial strength" (Rosenbaum v Rosenbaum, 55 AD3d 713, 714, 866 NYS2d 234 [2d Dep't 2008], citing O'Shea v O'Shea, 93 NY2d 187, [*7]193, 689 NYS2d 8 [1999]; Wald v Wald, 44 AD3d 848, 844 NYS2d 86 [2d Dep't 2007]; see generally Witter v. Daire, 81 AD3d 719, 917 N.Y.S.2d 870 [2 Dept.,2011]). Stated differently, "[s]uch awards are "designed to redress the economic disparity between the monied spouse and the non-monied spouse" and ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (Kaplan v Kaplan, 28 AD3d 523, 523, 812 NYS2d 360 [2d Dep't 2006], quoting Frankel v Frankel, 2 NY3d 601, 607, 781 NYS2d 59 [2004], quoting O'Shea, 93 NY2d at 190). Further:

" Such an award "is appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation"' (Gober v Gober, 282 AD2d 392, 393, 724 NYS2d 48, quoting O'Shea v O'Shea, 93 NY2d at 193; see Charpie v Charpie, 271 AD2d 169, 710 NYS2d 363). If the playing field were not leveled by an award of interim counsel fees, a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior) matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis' (Sassower v Barone, 85 AD2d 81, 89, 447 NYS2d 966).

"In Frankel v Frankel (2 NY3d 601, 781 NYS2d 59), the Court of Appeals recognized that the realities of contentious matrimonial litigation require a regular infusion of funds,' and that more frequent interim counsel fee awards would prevent accumulation of bills' (id. at 605 n 1, 607)."

(Prichep v Prichep, 52 AD3d 61, 65, 858 NYS2d 667 [2d Dep't 2008]).

The Appellate Division, Second Department, therefore held that:

"[A]n award of interim counsel fees to the non-monied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties. Accordingly, courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause."

(Penavic v Penavic,60 AD3d 1026, 877 N.Y.S.2d 118 [2 Dept.,2009], citing Prichep v Prichep, 52 AD3d at 65 [emphasis added]; see also Many v Many, 84 AD3d 1036, 925 N.Y.S.2d 87 [2 Dept.,2011]; Amante v Amante, 78 AD3d 622, 909 N.Y.S.2d 666 [2 Dept,2010]). Additionally, unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees(see Prichep v. Prichep, 52 AD3d at 65, 858 N.Y.S.2d 667 [2 Dept.,2008]; see also Singer v. Singer, 16 AD3d 666, 792 N.Y.S.2d 541 [2 Dept., 2005]; Flach v. Flach, 114 AD2d 929, 495 N.Y.S.2d 202 [2 Dept.,1985]).

Furthermore, "[t]he court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" (Brantly v. Brantly, 89 AD3d 881, 933 N.Y.S.2d 300 [2 Dept.,2011], quoting [*8]Dellafiora v. Dellafiora, 54 AD3d at 716-717, 864 N.Y.S.2d 72, citing Timpone v. Timpone 28 AD3d 646, 813 N.Y.S.2d 752; see also Morrissey v. Morrissey, 259 AD2d 472, 473, 686 N.Y.S.2d 71 [2 Dept.,1999]; see generally Ciampa v. Ciampa, 47 AD3d 745, 850 N.Y.S.2d 190 [2 Dept.,2008]).

The Court finds that there is a considerable disparity in income between the parties. According to her Statement of Net Worth, dated June 22, 2011, the wife is unemployed and a full-time homemaker and mother to the parties' four (4) children who are all under the age of twelve (12). The wife further averred in her Affidavit dated February 14, 2012 that the support she receives from the husband is her only source of income. Pay stubs annexed to the husband's Affidavit dated March 29, 2012 show that, as of December 3, 2011, he earned the sum of $89,380.25 from his 2011 employment with the NYPD; however, in the same Affidavit he avers that he is currently earning the sum of $36,852.00 annually from his employment with the DeKalb County Police Academy.

Awards of interim counsel fees to a non-monied spouse are warranted where there is a significant disparity in the financial circumstances of the parties, in order to avoid compromising the ability of the non-monied spouse to adequately litigate the case (see Penavic v. Penavic, 60 AD3d 1026, 877 N.Y.S.2d 118 [2 Dept.,2009]; see also Palmeri v. Palmeri, 87 AD3d 572, 929 N.Y.S.2d 153 [2 Dept.,2011]). In this case, there is no doubt that the plaintiff earns considerably more than the defendant and is the monied spouse. Additionally, a substantial amount of legal fees have been incurred by the wife in seeking discovery and compliance with this Court's Orders.

The wife request the sum of $20,000.00 in counsel fees based on being the non-monied spouse in need of counsel fees to participate meaningfully in this litigation and because the husband's failure to comply with the terms of the parties' so-ordered stipulation for pendente lite support required her to engage in motion practice, which forced her to incur unnecessary counsel fees. The husband opposes her application claiming that he cannot afford to contribute towards her legal expenses because he earns an annual salary of approximately $38,000.00 in Georgia rather than the almost $90,000.00 annual salary he earned in New York when he commenced this divorce and entered into the November 16, 2011 pendente lite support stipulation.

This Court finds the husband's argument wholly unpersuasive. The husband's current financial situation is a direct result of his willful premeditated and purposeful decision, after commencing this divorce action, to leave his employment with the NYPD and to relocate and begin a new career with law enforcement in Georgia earning less than half (50%) of what he earned in New York. This Court will not allow the husband to control this litigation or attempt to financially restrain the wife's ability to participate meaningfully in this litigation by his self-serving claim that he is unable to pay, particularly under the facts and circumstances presented here. On May 24, 2012, his attorney, in open court, noted that she will be seeking additional discovery and motion practice as it relates to proceeds the wife allegedly received from settlement of a personal [*9]injury proceeding during the marriage.

The husband admits that he decided to terminate his employment with the NYPD and to enter the police academy in Georgia where he would earn a greatly reduced income before he commenced this divorce action. As such, this Court notes that the husband was fully aware of his future financial circumstances when he entered into the so-ordered stipulation dated November 16, 2011; therefore, it is disingenuous for the husband to defend his precipitous default of his support obligation based on a reduction in income or a claim that he cannot afford his bi-weekly support payments. The husband was fully aware of his support obligation when he made the choice to leave New York. The husband's decision to move and voluntarily reduce his income is not a basis to deny the wife counsel fees.

This Court notes that the husband's failure to comply with his support obligation necessitated the wife bringing the instant Order to Show Cause and forced her to incur additional counsel fees to enforce the parties' consent stipulation. Additionally, this Court notes that the husband, after commencing this action, has engaged in dilatory tactics. The husband has repeatedly failed to appear at scheduled court appearances claiming that he is unavailable to appear because he is attending the police academy in Georgia. Litigants are free to chart their own course in many aspects of a matrimonial proceeding; however, the Court will not permit the husband to utilize the financial consequences of his decision to start a divorce action, to change career paths and to relocate to control the wife's ability to seek judicial relief. The husband contends in his Affidavit dated March 29, 2012 that there is "no need for this divorce to be costly through exhaustive discovery and court proceedings"; however, this Court notes that the husband's actions and choices thus far in this litigation have resulted in the financial hardship of his wife and the parties' children and has required the wife to incur additional unnecessary counsel fees in a divorce action that the husband commenced. Furthermore, this Court notes the wife's contention that the husband's failure to comply fully with discovery demands necessitates that her attorney conduct a deposition of the husband, which will force her to incur even more counsel fee expenses.

As of February 17, 2012, the wife had an outstanding bill for counsel fees in the sum of $14,750.00 due and owing to her attorney, of which the sum of $2,745.00 resulted from the preparation of the Order to Show Cause for Contempt to enforce the parties' on consent pendente lite support agreement dated November 16, 2011. According to his Statement of Net Worth, dated July 13, 2011, the husband paid his counsel an initial retain in the sum of $4,500.00. The husband did not provide any representation or documentation regarding any additional payments he made to his counsel since the retainer or whether he had an outstanding bill for counsel fees.

Furthermore, irrespective of his recent reduction in income, the husband continues to be the monied spouse in this litigation as the wife is unemployed outside of the home [*10]where she is a full-time care-giver and mother to the parties' four (4) young children, the youngest of whom is only two (2) years old. As such, the wife lacks sufficient income or funds to pay her own counsel fees. Any lack of income claimed by the husband is a direct and foreseeable result of his decision to relocate and to change career path after commencing this divorce and without the consent of the wife.

This Court rejects the husband's argument that he can commence a divorce proceeding, negotiate and agree to a pendente lite support obligation and then leave his wife and four (4) young children behind in order to take an entry-level job in another state at a more than fifty (50%) percent reduction in income and then refuse to contribute to the wife's counsel fees based on an assertion that his income has decreased. As the monied-spouse, the husband's purposeful and foreseeable reduction in income should not be a basis for him to refuse to contribute to the non-monied spouse's counsel fees. Furthermore, under the facts and circumstances herein, the wife is entitled to interim counsel fees irrespective of the fact that the enforcement issue is no longer before the Court. The defendant-wife has daily and continuous expenses that correspond with caring for and raising four (4) young children. She cannot buy food, clothing or provide shelter without the money to do so. She cannot ask merchants or her landlord if she can pay later or not pay at all because her spouse has not paid support because of a voluntary reduction in his income. The husband shall not be permitted to control this litigation by controlling the purse-strings. This Court notes that the husband only paid the arrears he owed to his wife and their children when the wife was required to seek the assistance of the Court by bringing an enforcement action. Under the facts and circumstances herein, the wife is entitled to an award of counsel fees pendente lite based upon the disparity in the parties' income alone.

The wife has demonstrated that she has incurred counsel fees in proportion to the sum she requested of this Court (see Finnan v. Finnan, - N.Y.S.2d , 2012 WL 1521807 [2 Dept.,2012]). This Court finds that, under the facts and circumstances herein, an additional interim award of legal fees in the sum of $7,500.00 is appropriate. The husband shall pay the sum of $7,500.00 directly to the wife's attorney within thirty (30) days of the date of this decision and Order. This award is made without prejudice to further applications for additional counsel fees as necessary(see Kooper v. Kooper, 74 AD3d 6, 901 N.Y.S.2d 312 [2 Dept.,2010]; see also Jorgensen v. Jorgensen, 86 AD2d 861, 447 N.Y.S.2d 318 [2nd Dept. 1982]; McCully v. McCully, 306 AD2d 329, 330, 760 N.Y.S.2d 686 [2nd Dept. 2003]; Ritter v. Ritter, 135 AD2d 421, 522 N.Y.S.2d 136 [1st Dept. 1987]). If the counsel fees are not paid within the specified time, the Office of the County Clerk may enter a money judgment in favor of the wife's counsel in the sum of $7,500.00, plus costs and statutory interest, upon Affirmation of non-compliance and on ten (10) days written notice to the husband and to the husband's counsel by certified mail.

This constitutes the decision and order of this Court.

[*11]

E N T E R:

Hon. Jeffrey S. Sunshine

J. S. C. Footnotes

Footnote 1:According to pay stubs annexed to the husband's Opposition dated March 29, 2012, the husband earned at least $89,380.25 from the NYPD in 2011.

Footnote 2: The husband contends that this $9,000.00 payment was made from him securing a personal loan from Municipal Credit Union.

Footnote 3: There are mistakes in Plaintiff's Affidavit in calculating the total child support and maintenance through March 18 (scheduled payment of January 21 is missing) and the total payments to Wife through March 16 (numbers have been added incorrectly). Wife appears to be correct in asserting the total due as of March 31, 2012 at $17,650. Wife alleges that out of this amount, $15,070 have been paid.

Footnote 4:The husband contends that he paid-off nearly all of the parties' marital debts after he commenced this divorce proceeding; however, the wife contends that the husband has failed to provide her with documentation supporting his assertion.

Footnote 5:The husband further avers that, in an effort to resolve any pendente lite arrears, he offered the wife a greater share of his pension but that the wife never responded to his offer.

Footnote 6: The wife posits that the husband defaulted in the sum of $17,650.00, but concedes that prior to the return date of the Order to Show Cause that he paid her the sum of $15,070.20.

Footnote 7:A Notice to Take Deposition Upon Oral Examination, dated January 5, 2012, and a Second Demand for Discovery and Inspection, dated January 5, 2012, are annexed to the wife's Order to Show Cause for Contempt dated February 21, 2012. The husband did not dispute that he has not provided full financial disclosure in response to the wife's request, rather he contends that thorough financial discovery is not warranted in this case. The deposition took place the day before oral arguments on the instant application. On February 24, 2012, this Court spoke with the husband's supervisor on the record in open court via telephone call to arrange for the husband's appearance at the deposition and hearing. The husband previously failed to appear in court claiming that interruption in his training which was scheduled to go on for many months would result in this discharge from the DeKalb County Police Academy.