Rosenstock v Rosentock
Annotate this CaseDecided on December 6, 2016
Supreme Court, Kings County
Rosenstock, Plaintiff,
against
Rosentock, Defendant.
xxxxxx
Plaintiff was represented by Deborah G. Fiss, Esq.; Defendant was represented by six separate counsel during the course of litigation, including Peter Lomtevas, Esq. at the time of trial.
Rachel A. Adams, J.
This contested matrimonial action was tried after many years of bitter and acrimonious litigation exclusively concerning the parties' two children, twins. The marriage was of significantly less duration (18 months) than the litigation before this Court which was obligated to conduct several hearings and interim inquiries before a trial on all ancillary issues could be held. Rarely, if ever, has the Court been able to say with such confidence that the delay and level of complexity is to be blamed on one party. These proceedings, discussed in detail below, and caused primarily by the Mother's duplicitous behavior hindered the Court's ability to conclude the underlying divorce action. In the instant action, it is primarily the result of the Mother's conduct as she presented a never-ending supply of stories and explanations which appeared plausible but ultimately proved untrue. What follows below is the relevant trial testimony and recapitulation of the earlier proceedings conducted by the Court that have bearing on the decisions made herein.
PROCEDURAL HISTORY
The Father commenced this divorce action against the Mother by filing a summons with notice on June 16, 2011. The Father sought a divorce on the grounds of irretrievable breakdown of the marriage (DRL § 170[7]) and sought joint legal custody of the two children of the marriage, with liberal parenting time for the Father, and equitable distribution of the marital debt. The Father was represented by Deborah G. Fiss, Esq., who remained his counsel throughout, and Chemtob Moss Forman & Talbert, LLP by Jeremy G. Betherl, Esq. filed a notice of appearance as attorney for the Mother on July 11, 2011.[FN1] A Request for Judicial [*2]Intervention was filed on July 26, 2011. Both parties engaged in an extraordinary amount of motion practice, some of which was essential while others merely burdened the Court.
The parties appeared on September 13, 2011 for a preliminary conference, the Mother now represented by Boris Nikhman, Esq. In the preliminary conference order, the parties stipulated that the Father would take the divorce on the ground of irretrievable breakdown of the marriage pursuant to DRL § 170(7). The Court also issued an access order, on consent, granting the Father parenting time on Thursday afternoons and alternate weekends and the Court ordered the parties to attend parent education. Regarding the parties' circumstances at the time, the Father represented to the Court that he graduated medical school and was currently in a residency program. The Mother represented that she was a medical student and anticipated starting her residency thereafter. Throughout these early proceedings, the Father disputed the Mother's representation to the Court that she was a matriculated medical student.
On November 21, 2011, the Mother filed an order to show cause requesting, inter alia, pendente lite orders that the Father pay one half of the child-care expenses, and for temporary maintenance, and attorney's fees (mot. seq. No. 1). On November 22, 2011, the Court issued an order appointing Brad Nacht, Esq. as attorney for the children and directed that the parties share the costs of same equally and directed that funds be deposited into an attorney escrow account for this purpose.
On December 28, 2011, the Father filed an order to show cause seeking to hold the Mother in contempt for her failure to comply with the September 13, 2011 access order, as the Father alleged that the Mother had not permitted him to see the children from the first week of November 2011 through the time of the filing (mot. seq. #2).
On the return date of the motion, February 1, 2012, the parties appeared and the Court issued orders that the Father was to have parenting time with the children, supervised by a certified social worker who would provide a report to the Court. The Mother was to provide the children's school and daycare schedules and proof of why childcare was necessary. On February 10, 2012, the Court appointed Eileen Montrose, CSW, to supervise the visits. The supervised visitation was ordered on the Father's consent, the purpose of supervision being to ease the young children (approximately 1.5 years old) into regular contact with the Father, as the Mother had withheld contact between the Father and the children for several months. Several visits were conducted, however some were canceled by the Mother.
The parties next appeared on March 20, 2012, on which date the Court received a written report regarding the supervised visits, and the Court issued an order that the Father resume the unsupervised alternate weekend parenting time schedule and pay bi-weekly child support to the Mother in the amount of $500, calculated based on his income as a medical resident at that time.
The Mother's pendente lite application (mot. seq. #1) was withdrawn without prejudice by order dated July 20, 2012, and the Mother was directed to submit a financial disclosure statement. On the same date, the Court issued a temporary parenting access order for the Father [*3]to have visitation on July 21, 2012, and for the previous parenting time order to continue the following week. Thereafter, on July 23, 2012, the Mother filed three pro se orders to show cause requesting a money judgment for child support arrears, an order for the Father to pay the Mother's counsel fees and for the Court to appoint her an attorney, and an order for temporary relief, including custody, maintenance, and child support (mot. seqs. # 4, 5, and 6 respectively) and an application for a poor person's order. The Court issued an order on July 24, 2012 declining to sign the Mother's pro se orders to show cause and poor person's request in light of the Mother's failure to file a consent to change attorney (from Boris Nikhman, Esq. to herself pro se). The Court received a signed substitution of counsel from the Mother on July 25, 2012, however the Mother did not refile her motions.
As facilitation of the Father's access to the children remained problematic, the Court scheduled a hearing on the Father's contempt application for August 9, 2012 (mot. seq. #2). On that date, the Father appeared with counsel, Mr. Nacht, Esq. appeared on behalf of the children, and the Mother failed to appear. She called to notify the Court that she was in Wisconsin for her grandfather's funeral and requested an adjournment. The Mother was given an opportunity to provide documentation of the death and funeral but failed to do so, and therefore her request was denied. The hearing proceeded in the Mother's absence with the testimony of the Father, the substance of which is addressed in detail in below. The Court issued an order adjourning the matter for a decision on the contempt motion to September 10, 2012, and permitting the Father to resume the March 20, 2012 access schedule for alternate weekend unsupervised parenting time. The order was directed to be served on the Mother by certified and regular mail to both a New York and Wisconsin address provided to the Court by the Mother (see August 9, 2012 order on contempt hearing).
On the adjourn date of the contempt hearing, September 10, 2012, the Father appeared with counsel, Mr. Nacht, Esq. appeared on behalf of the children, and Maria Novak, Esq., appeared for the Mother, and submitted a notice of appearance for the Mother on that day. The Court issued a written decision and order finding that the Mother was in contempt of the Court's September 13, 2011 order for parenting time. In the decision, the Court directed the Mother to forthwith return to New York with the children and to provide the Court with a verifiable address. The order stated that the Mother could purge the contempt by returning to New York and complying with the access order. The Court further granted the Father's parenting time supervised by a certified social worker two times per week, as the Father had not seen the children for an extended period of time and he requested supervision to ease the adjustment for the children. The Court issued an order appointing Dr. Bernice Schaul to conduct a forensic evaluation (see September 28, 2012 order).
On December 13, 2012, upon the Mother's continued failure to produce the children to the Father or the Attorney for the Children, the Court found that the Mother failed to purge the contempt of the Court's September 10, 2012 order. The Court issued an order granting temporary physical and legal custody of the children to the Father, and permitting the children to reside at the Father's residence. The Court further ordered a warrant for the arrest of the Mother, and ordered that the appropriate law enforcement agencies assist the Father in effectuating the change [*4]in custody.[FN2]
On January 11, 2013 the Court was informed by the New Jersey Court that the children were in the care of the maternal grandmother and were currently located in Brooklyn, New York. The Court directed the Father to retrieve the children and appear before the Court with the children. Upon the successful retrieval of the children, the Court then issued an order granting temporary physical and legal custody of the children to the Father, and permitting only video conferencing access to the Mother twice daily. Thereafter, the warrant for the Mother's arrest was vacated. The Court issued a separate order on this date, pursuant to Judiciary Law § 35 Subdivision 8 and Family Court Act § 262, appointing Cheryl Solomon, Esq., to represent the Mother in this matter regarding all issues of custody, visitation and contempt, as the Mother submitted a signed consent to change attorney from Maria Novak, Esq. and was proceeding pro se.
The parties and counsel appeared on January 17, 2013, and the Court directed the Mother to provide the Father with information regarding the children's eating habits, and to provide releases for the Father to obtain the children's medical, school, and early intervention information. The Court further ordered that the Mother was to have supervised visitation at an agency that could provide security. The order also continued video conferencing access for the Mother with the children twice daily, provided that she refrain from denigrating the Father, his family, or his girlfriend in the presence or within earshot of the children. On January 25, 2013 the Court issued an order directing Comprehensive Family Services (CFS) to conduct three observed and evaluated visits for the Mother and the two children, which were to take place in the CFS office, and to submit a report to the Court regarding its findings.
On February 13, 2013 the Husband filed an emergency order to show cause (mot. seq. # 8) requesting an order of protection against the Mother on his behalf, based upon, inter alia, alleged incidents in which the Mother called in unfounded reports to the police and the New Jersey child protective services agency (DYFS) alleging that the children were abused and maltreated, an incident in which the Mother loitered in the entryway of the Father's residence waiting for the police to arrive, and text messages and emails from the Mother threatening to call the medical board and the Father's employer, in order to defame the Father. The Father further requested an order limiting all access between the Mother and the children until the forensic evaluator was able to complete the mental health assessment, based on allegations of the Mother's alleged criminal activity in Wisconsin, her inappropriate calls to police and child protective agencies, and having inappropriate conversations with the children on FaceTime.
The Court issued a temporary order of protection on February 13, 2013 against the Mother requiring her to stay away from the Father and the children, the home, business, and place of employment of Father, and the schools and day care facilities of the children, and to refrain from any mail, telephone, or electronic communication with the Father and the children. The order permitted only the supervised visitation in accordance with the orders of January 11, 2016, January 17, 2016, and January 25, 2016 and any subsequent visitation orders, and text [*5]messaging for the purpose of arranging supervised visits and video conferencing visitation.
On February 25, 2013 the Mother filed an order to show cause (mot. seq. # 9) requesting orders for child support arrears, discovery enforcement, and pendente lite spousal maintenance. The Court granted only the requested relief requiring the Father to maintain his current life insurance policy and directed that all discovery orders remain in full force and effect.
The Court issued an order on March 27, 2013, on consent of all counsel and over the Mother's objection (proceeding pro se on financial issues) adjourning the conference on all pending motions to April 11, 2013, and extending the temporary order of protection to April 11, 2013.
A compliance conference was held on April 11, 2013 and all parties and counsel appeared. The compliance conference order directed the Father to re-serve discovery documents on the Mother and to submit updated employment information, and directed the Mother to submit proof of employment and sources of income for 2012. The Court issued an order directing the Father to make one payment of $500 to CFS, representing the child support he owed to the Mother from December 2012, and to satisfy the Mother's owed portion of the fee for supervised visits. On this date, the Court also directed the Attorney for the Children to contact CFS to assist in coordinating an opportunity for the appointed forensic evaluator, Dr. Bernice Schaul, to observe the Mother interacting with the children in a supervised setting.
On March 17, 2013, the Court issued an amended forensic order directing Dr. Schaul to specifically address the Mother's allegations of bruising on the subject children.
At the next court appearance on July 23, 2013 the Court heard oral argument on the Mother's request for pendente lite child support and marked the application decision reserved. The Court issued an order declining to hold the Father in contempt for failure to provide documents pursuant to a prior order, as he provided the required documents to the Mother in court at the appearance. The Court directed the Father to provide documentation of his life insurance policy and, as the Mother represented that she was now a surgical resident, directed the Mother to provide a countersigned copy of her employment contract and her first two pay stubs. The Mother also filed an order to show cause on July 23, 2016 requesting an order of protection against the Father on her behalf and an award of sole custody of the children to her (mot. seq. # 11).
On September 19 and September 20, 2013, the parties and counsel appeared for a fact-finding hearing on the Father's motion for an order of protection (mot. seq. # 8). On September 20, 2016, the parties agreed to an order laying out a specific schedule for twice daily video conferencing contact between the Mother and the children. The fact-finding hearing on the order of protection continued on January 23, 2014.
The Father filed a subsequent order to show cause on October 23, 2013 requesting the Court enforce the order of protection against the Mother, prohibiting any contact for reasons other than setting up FaceTime, and limiting the Mother's FaceTime contact to once daily (mot. seq. #12). The matter was adjourned to January 23, 2014 and the order of protection was extended to that date.
While continuing to be represented by Cheryl Solomon, Esq. the Mother filed a pro se order to show cause on December 5, 2013 requesting, inter alia, dismissal of the order of [*6]protection against her, sole legal and physical custody of the children, an order of protection for her and the children against the Father, sanction of the Father's counsel, removal of the Attorney for the Children, and a mental health evaluation of the Father (mot. seq. #13). The Court rejected the order to show cause as the Mother remained represented by assigned counsel, Cheryl Solomon, Esq.
Thereafter, on December 13, 2013, the Mother on her own filed a petition for an order of protection in Kings Country Family Court, on behalf of the subject child, against the Father. A temporary ex-parte order of protection was granted by the Family Court. Brad Nacht, Esq., the Attorney for the Children, submitted an emergency application before this Court requesting that it vacate the temporary order of protection issued by the Family Court. The Attorney for the Children, and the Mother's attorney appeared before this Court, and the Father's attorney appeared by phone on December 13, 2013. The Court granted the Attorney for the Children's application and stayed the enforcement of the Family Court order of protection.
Parties and counsel appeared on December 16, 2013 for oral argument and addressed the Attorney for the Children's emergency application. The Court issued orders vacating the Family Court order of protection and consolidating the action with the present action, directing the Attorney for the Children to pay the filing fee for his emergency application, directing the Father and the Mother to submit opposition papers by January 17, 2014, and scheduling an appointment for the Attorney for the Children to meet with his clients.
The Court issued a written decision and order on December 16, 2013 addressing the requests contained in the Mother's motion sequence #9. In this decision, the Court denied the Mother's request that the Father's child support payments be retroactively modified, as the children were no longer in her custody, and denied her request for reimbursement of childcare expenses, as she failed to provide documentation of said expenses for the period in which the children were in her care. The Court also denied the Mother's request for pendente lite maintenance due to the lack of credible information regarding the parties' income and expenses, or about their standard of living prior to the separation. The Court granted the Mother's request for pendente lite counsel fees, but requested further documentation in order to determine the appropriate award.
The Court issued an award to the Mother on January 30, 2014 for pendente lite counsel fees in the amount of $30,000, to be held in escrow and delivered to the Mother's counsel after receiving a copy of the retainer for said counsel. On February 18, 2014, the Father filed an order to show cause requesting re-argument of the Court's award of pendente lite counsel fees to the Mother, and requesting child support retroactive to December 12, 2012 (mot. seq. #14).
At the next court appearance on February 27, 2014, the Court read a decision from the bench granting the Father's motion for an order of protection against the Mother (mot. seq. #8). The Court issued a two year final order of protection pursuant to the terms and conditions of the temporary order of protection that was previously in place. The Court directed that the Father pay the forensic evaluator's fee of $7,500, and directed the Mother to reimburse the Father for this full amount, due to her failure to comply with the Court's escrow and replenishment orders, within forty-eight hours. The Court also issued an access order which provided for the Mother to have once daily video conferencing access to the children and supervised visitation, supervised by CFS, once every alternate week for one hour. The Court set a motion schedule for the Father's [*7]motion to reargue the pendente lite counsel fee award and adjourned the matter to May 29, 2014 for a pre-trial conference.
On March 5, 2014 the Court ordered replenishment of the escrow deposit for the fees of the Attorney for the Children and the forensic evaluator in the amount of $14,000 from the Father and $6,000 from the Mother. The Court issued a separate order on this date relieving Cheryl Solomon, Esq., from representation of the Mother, as per the Court's order of December 16, 2013, which provided for counsel to be relieved at the completion of the order of protection hearing and as the Mother represented that she was a medical resident and as she had been awarded counsel fees. The Mother subsequently retained Jerome Leitner, Esq., as counsel on all issues.
The Mother filed an order to show cause on April 24, 2014 requesting the Father be held in contempt for his failure to place the entire $30,000 deposit into escrow in accordance with the Court's January 30, 2014 order (mot. seq. #15). On April 29, 2014, the Father filed an order to show cause requesting the enforcement of the February 27, 2014 order of protection and modifying the schedule for video conferencing access (mot. seq. #16) which was resolved by order dated May 29, 2014, modifying the video access schedule and limiting the Mother's right to text the Father to the extent of addressing access time only.
The parties and counsel appeared on July 24, 2014, on which date the Court issued an order setting forth the Mother's supervised visitation schedule for the rest of July and August of 2014, and ordered that future visit dates be submitted by stipulation to be so ordered by the Court. The Court further issued a decision from the bench on motion sequences 14, 15 and 17. By separate orders settled on notice and dated October 7, 2014: (1) the Mother was directed to pay pendente lite child support of $587.50 per month and 20% of unreimbursed medical expenses and child care costs based on her representation of her income (mot. seq. 14); (2) the Father was found to be in contempt for failure to pay $30,000 into an escrow account pursuant to a counsel fee award to the Mother, but the Court declined to consider incarceration as the Father was the custodial parent of the parties' two young children (mot. seq. 15); and (3) the Court, denied in part the Mother's application to vacate and/or modify the February 27, 2014 order of protection (mot. seq. 17).
The Father filed an order to show cause on August 18, 2014 requesting orders that the Mother be held in contempt for violating the order of protection, that the Mother be precluded from adducing financial information or testimony at trial, that the Court grant a set-off against the award of counsel fees to the Mother for child support and add-on arrears, and requesting that the Mother be ordered to pay counsel fees accrued for the purpose of filing the contempt motion (mot. seq. #18).
The parties appeared with counsel on October 23, 2014 and after a hearing, the Court found that the Mother was in willful violation of the order of protection dated February 27, 2014. The Court further granted the Father's request that the Mother be precluded from offering any previously undisclosed financial documents at trial. The Court issued separate orders on October 24, 2014 for a sentence of six days incarceration for the Mother for her violation of the order of protection, with the sentence to be suspended pending continued compliance with the order of protection, and for an award of counsel fees to the Father for the purpose of the contempt motion in the amount of $1,500 to be paid by the Mother, and to be reduced to a money judgment upon [*8]the Mother's failure to pay.
When the parties next appeared for a status conference on December 12, 2014, the Court signed an income withholding order, directing the Mother's employer (New York Presbyterian Hospital) to withhold $550 biweekly for the purpose of child support. The Court also issued an order scheduling the Mother's supervised visitation with the children for the month of December and issued a subsequent order on December 19, 2014 directing the parties submit a stipulation scheduling the Mother's supervised visitation through July 1, 2015. The order directed that any change to the stipulated visitation schedule would require a further stipulation by the parties three days in advance of the scheduled visit.
The parties were scheduled to appear on February 2, 2015 for a trial conference, but the Attorney for the Children, the Father, and the Father's counsel were unable to attend due to inclement weather. The Court issued an order adjourning the trial conference to April 1, 2015 and directing the parties to notify the Court of any request to update Dr. Schaul's February 19, 2014 forensic evaluation.
On March 26, 2015, the Court issued an order scheduling trial dates for the matter, directing that Dr. Bernice Schaul complete an updated forensic evaluation of the parties, the subject children, and their co-habitants, and further directing that the parties pay Dr. Schaul's fees in the amounts of $3,150 from the Father and $1,350 from the Mother by April 17, 2015. The order specified that in the event of the parties' failure to pay their portion of the fee, the forensic evaluation was to be limited to the cooperating party and that the Court may in it's discretion draw a negative inference against the non-cooperating party. The Court issued a separate order acknowledging receipt of the Mother's consent to change attorney from Jerome Leitner, Esq. to herself pro se, and directing that all counsel return the original copies of the February 19, 2014 forensic evaluation issued by Dr. Schaul to Chambers, which are only available for review by counsel and the parties in the courtroom when any party is pro se.[FN3]
As the Mother did not wish to disclose her current address, on April 1, 2015, the Court directed the Mother to submit an application for a confidentiality order and to provide an address upon which papers could be served and mailings sent. The Mother filed an order to show cause on April 1, 2015, requesting the Father be held in contempt for "willful disregard of orders for attorney fee awards" along with thirteen other requests for relief including orders assigning the Mother 18-b counsel, reimbursing attorney fees owed to the Mother's prior counsel, reallocating the fees for experts and the Attorney for the Children, appointing N. G. Berrill as an expert witness, removing the Attorney for the Children, and modifying the visitation to unsupervised visits (mot. seq. # 21). The Mother submitted an application for an address confidentiality order the next day, which the Court signed on April 7, 2015.
The Mother's former counsel, Jerome Leitner, Esq., filed an additional order to show cause on May 11, 2015 requesting that the Father be held in contempt for his alleged violation of the Court's order of January 30, 2014, directing the Father to deposit $30,000 in an escrow account for the Mother's attorney fee award, and for failing to pay the additional $4,000 due to [*9]the Mother's counsel.
On June 3, 2015, the Court denied the Mother's oral application for assignment of counsel, citing the Mother's failure to offer any proof to establish a change in her financial circumstances and the lack of an application for a downward modification of her support application.
When the parties next appeared on June 19, 2015, the parties orally argued the Mother's contempt motion (mot. seq. #21). The Court declined to make a finding that the Father was in contempt or willful disregard of the orders for the attorney fee award. The Court denied the Mother's request for 18-b assignment or state-paid counsel, stating that she provided no credible financial information to the Court. The Court further declined to direct the Father to pay any additional funds for the Mother to privately retain counsel, as the $30,000 previously awarded was intended to be sufficient to get the case through trial and no financial information was submitted with this request. The Court found no basis, and denied the request to award additional fees or reimbursement to the Mother's prior counsel, Mr. Leitner. The Court declined to appoint the requested expert witness, but advised the Mother that she could retain him, and if retained, he would be permitted to review Dr. Schaul's report. The Court found no basis for, and denied the application to remove the Attorney for the Children and finally, the Court again declined to award the Mother pendente lite childcare and un-reimbursed medical expenses, as no documentation of said expenses was submitted to the Court, though noting that the Mother would be entitled to the requested relief at trial if she were to provide such documentation.
A subsequent status conference was held on August 18, 2015 at which time the Father was directed to file the note of issue, and the parties and Attorney for the children were directed to exchange and submit several documents in preparation for trial including statements of proposed disposition, updated net worth statements, and witness and exhibit lists.
The Mother filed an order to show cause on October 13, 2015 requesting an order to compel the Father to deposit another $30,000 into an escrow account for the Mother's counsel fees (mot. seq. # 23). At the subsequent pre-trial conference held on October 23, 2015, the Court directed the Mother to submit an affidavit of service of her motion on the Father's counsel and the Attorney for the Children, and further directed her to submit documentation regarding the withholding of child support and a supplemental affidavit with an affirmation from counsel who she intended to retain for trial. The Court set a briefing schedule and adjourned the matter to November 6, 2015.
On November 6, 2015, the Court ordered the Father to furnish $25,000 to the Mother's trial counsel, Peter Lomtevas, Esq., $5,000 to be paid to him by the Mother, and directed Mr. Lomtevas to contact the Father's counsel to make payment arrangements.
As the Mother represented that although she had paid $12,000 in child support, she disputed the legitimacy of her obligation under the pendente lite support order and had filed an Article 78 proceeding, an additional conference was held on November 16, 2015 to give the Court an opportunity to inquire into this representation. The Court directed the Mother to fax all records of any such proceedings filed by her and to provide copies of all administrative proceedings she had filed with Albany, the child support collection unit or any other agency the Mother purported was collecting her child support paid on behalf of the parties' children. The Court also issued an order directing New York Presbyterian Hospital to comply with a previously [*10]issued subpoena for any and all certified documents related to the Mother's employment by the following day.
As the Mother failed to provide documentation of any administrative filings by November 17, 2015 which might assist the Court with locating her purported child support payments, the Court reappointed Cheryl Solomon, Esq., to represent the Mother on the limited issue of contempt for failure to comply with the November 16, 2015 order directing the release of that information. The Court further directed that a notice of appearance be served and filed when the Mother retained private counsel and ordered a payment schedule for the Father to pay the $25,000 in counsel fees for the Mother.[FN4] On December 15, 2015 the Court issued an order scheduling eight trial dates in the month of April 2016.
The Father filed an order to show cause on February 3, 2016 requesting a continued order of protection against the Mother, an order committing the Mother to a period of incarceration pursuant to the Court's October 24, 2014 order for her violation of the February 27, 2014 order of protection, and an order suspending the Mother's FaceTime visitation with the children (mot. seq. # 24). The Court heard oral arguments from both counsel and the Attorney for the Children and issued a decision on the record granting a two year order of protection for the Father against the Mother. The Court ordered that the Mother's FaceTime visitation was to continue, but notified the Mother that
this contact must be appropriate, and that the Father was to monitor that contact and could terminate the interaction if inappropriate. The issue of the Mother's incarceration for violating the order of protection was referred to the upcoming trial. The Court's oral decision was put into writing and signed on April 12, 2016 and the trial commenced on April 5, 2016.
PROCEEDINGS BEFORE TRIAL
During the course of this long and drawn out litigation, the Court has held multiple hearings as a result of the parties' voluminous motion practice and inability to resolve nearly every issue that has arisen without substantial Court intervention. The Court sets out below three proceedings in particular which are directly relevant to the Court's final determination on the issues litigated at trial.
Contempt Hearing: August 9, 2012
This Court references and incorporates herein the entirety of its findings relative to the granting of the Father's motion for contempt for Mother's failure to comply with Court ordered access, which resulted, ultimately, in the change of temporary physical custody of both children to the Father and an award of temporary legal custody to the Father. It is these orders that the Mother seeks to reverse at trial.
Of particular note are those findings relative to Mothers's failure to appear in Court on August 9, 2012 which was premised on her representation to the Court (made by phone and on the record) that she was attending a funeral for her grandfather who had passed away "not last night but the night before, around 2:30 in the morning, and (she) was notified yesterday 6:30 in [*11]the morning by phone call" (Decision and Order Mot. Seq. #2 September 10, 2012). She advised the Court that the funeral was that day (the day of the hearing) in about an hour and a half from when she was speaking to the Court and there was currently a gathering of relatives to say their goodbyes with a Jewish service and funeral to follow. The Mother provided to the Court details about her grandfather, the name of the funeral home and the cemetery. The Mother represented that corroborating documentation would be in the Court's chambers within half an hour. No substantiating documentation was provided to the Court at the time of the hearing or at any time thereafter.
The Father, upon calling the funeral home during a Court recess, represented to the Court that he was unable to verify that the Mother's grandfather's funeral was taking place or that the funeral home was still waiting for the documentation necessary to have the body released from the hospital. The Father reported that the funeral home had received a phone call from the Mother and was told by her that the body had not yet been released from the hospital in Wisconsin. The Mother's failure to provide any documentation to the Court substantiating the death of her grandfather, his funeral, and the Mother's attendance, was of great concern to the Court in August of 2012 and remained so throughout the balance of the litigation.
Also of note was the Mother's representation to the Court that, although she was speaking from the funeral home in Wisconsin, she represented to the Court that she was actually residing in New York. The children, she stated, were currently at that apartment, being watched by her best friend, while she attended her grandfather's funeral.
As a result of the contempt hearing, the Court ultimately concluded that the Mother had indeed relocated, without Court permission, to Wisconsin and that the addresses provided by the Mother to the Court were "deliberate misrepresentations" made in an effort to hide her actual location from the Court. Further, that her actions in failing to produce the children in accordance with the Court ordered access schedules were sufficient for the Court to find the Mother in contempt of Court. The Mother was warned that her continued interference with the Father's access to his children could seriously impact these proceedings. As the Father had not seen the children for several months, the Court directed that he arrange for a schedule of supervised visitation to take place pending further order of the Court, anticipating that continued supervision would not be required for long.
The Mother was directed to return with the children to New York in order to purge the finding of contempt and to comply with the interim order of supervised visitation. The Mother was advised that her failure to comply would permit the Court to consider other remedies pursuant to Judiciary Law §753.
On the Mother's continued failure to comply with the Court's order to purge the contempt by returning the children to New York and complying with the order of supervised visitation for the Father, a warrant was issued for her arrest. On December 13, 2012, the Court issued an amended and modified decision and order which awarded the Father temporary custody of the two children and permitted them to reside with him in New Jersey.
Thereafter, the Father, with the assistance of the New York City Sheriff's Department, retrieved the children from the home of their maternal great grandmother and obtained physical [*12]possession of the children on January 11, 2013.[FN5] The Mother was permitted agency supervised access to the children and FaceTime or Skype access to the children. On January 11, 2013 the Court assigned Cheryl Solomon, Esq., pursuant to Judiciary Law §35, to represent the Mother on issues of custody, visitation, and contempt.[FN6]
Family Offenses Hearing: January 23, 2014
In response to Father's orders to show cause (Mot. Seq. #8 and Mot. Seq. #12) a hearing was conducted on the Father's application for an order of protection on behalf of himself and the two children, who were now residing solely with him. The Court granted ex parte relief when the application was filed and issued a temporary order of protection on the Father's testimony that he had been visited by the police department in response to reports received that the children were in danger and had been abused in his home. An earlier report had been made to child protective services that the children were malnourished, abused, and otherwise mistreated. These reports were determined to be unfounded by the Court and accordingly a temporary order of protection was issued on behalf of the Father and the children. The temporary order of protection was a full stay away order directing the Mother to stay away from the Father and the children and to refrain from communication or any other contact including third party contact. The only permissible communication was text messaging to set up Skype visitation and the order was subject to any orders of visitation issued by this Court on or after February 13, 2013. The latter order to show cause was characterized and tried by the Court as a violation proceeding.
After a hearing, conducted over three days, the Court made various findings, which must be considered in reaching its ultimate determination herein. Specifically, the Court concluded that the Mother's testimony, offered in opposition to the Father's, was rife with contradiction and was incredible. Shortly after the children were transferred into the care of the Father, the Mother sent numerous threatening text messages to the Father and made calls to various New Jersey institutions making allegations that the children were being mistreated and abused by the Father. The Mother admitted making these calls which resulted in several investigations by both the New Jersey police department and the New Jersey child protective agency. As no further action was taken by the authorities in New Jersey, and after the Attorney for the Children's meeting with his clients, this Court concluded, that the children were safe and well cared for. The Mother admitted making these calls which the Court found to have no legitimate purpose.
Prior to the issuance of the temporary order of protection, the Mother sent various text messages to the Father that threatened police action if in fact the Father failed to accede to her demands. These demands consisted of arranging Skype access when requested by the Mother or calls would be made to the police, complaints that their daughter was covered in bruises, that the Father's girlfriend did not know how to care for the children resulting in the children crying, which went unheeded, resulting in unannounced visits from the Hackensack Police Department and child protective services.
Skype or FaceTime visits were to be terminated if the Mother spoke poorly about the [*13]Father, his family, or his girlfriend, within the presence of the children. The Court found credible that the Father did not terminate access time when this occurred as he was concerned that termination would result in calls to the police and/or child protective services.
The Court found sufficient evidence to support the Father's application for an order of protection, further finding that, in the context of a custody and visitation proceeding the Court may issue an order of protection in assistance or as a condition to the issuance of an order of custody and visitation. The Mother admitted to making these reports and sending text messages although she characterized them as efforts to "educate" the Father and give him appropriate parenting classes, to teach him how to be a parent, and, also to have a state agency step in and ensure the safety of the children. At the time of these proceedings the Mother had not exercised her right to agency supervised visitation and had only seen the children during Skype or FaceTime visits.
The Court issued a decision on the record modifying the Mother's access schedule (see order dated February 27, 2014) and issued a final two year order of protection on behalf of the Father and the two subject children subject to court ordered visitation.
By emergency order to show cause dated February 3, 2016, the Father sought a two year extension of the February 17, 2016 final order of protection and an order finding the Mother in violation of the order of protection. On February 3, 2016, the Father played a visual recording of the Skype interaction between the Mother and the two children wherein the Mother told the children that the Father's actions were the reason she was not seeing them. She also told them that they would soon be living with her. This was in addition to the allegations in the moving papers that the Mother continued to send inappropriate text messages and text messages that violated the order of protection restricting the text messages to the purpose of scheduling Skype or FaceTime. The order to show cause was signed and made returnable February 17, 2016.
On the return date of the application, although provided notice of the scheduled proceeding, neither the Mother nor her attorney appeared in Court in opposition to that application. The Attorney for the Children supported the motion in part and in opposition raised concerns on behalf of his clients, who were not seeing their mother for supervised visitation and only had access to her through Skype or FaceTime. The order to show cause was not opposed by the Mother although her counsel was permitted to argue on the record on the scheduled return date. Accordingly the Father's application to continue the final order of protection was granted (see In the Matter of Molloy v. Molloy, 137 AD3d 47 [2016]) and the Court continued the temporary access orders, of which, only the Skype access was being exercised by the Mother.[FN7] The Father's request for an order of incarceration was referred to trial (see orders dated October 24, 2014 and April 12, 2016).
November 17, 2015 Hearing:
On November 6, 2015 the Court granted a second and final award of pendente lite counsel fees in the amount of $25,000 payable to Mother's counsel of choice, Peter C. Lomtevas, [*14]Esq.[FN8] The Mother remained responsible for the balance of $5,000 owed to her attorney to satisfy the $30,000 retainer requested by him in order to prepare for and conduct the trial.[FN9] The award of counsel fees was decided on the record and reduced to a short form order dated November 6, 2015. The Father, who opposed the motion but made efforts to comply offered to apply the monies due him in child support to partially satisfy the counsel fee award. The Mother's child support payments to the Father were ordered to be paid pursuant to an income deduction order served on the Mother's employer, who she stated was New York Presbyterian Hospital Columbia Campus.
Both on the record and in the papers in support of her motion, the Mother represented that approximately $12,000 had been deducted from her earnings pursuant to that order and those monies were being held by an agency in Albany pending an administrative proceeding that was the subject of an Article 78 filed by her against the Court disputing the pendente lite order. It was the Mother's representation that these monies were being deducted from her paycheck and that she had opened her own account in Albany to collect the income executed payments after the Father received only two payments of $587 each (see para.19 of Mother's affidavit, mot. seq. #23). She stated that she therefore objected to releasing the monies and the Father's use of those monies to satisfy the counsel fee award as monies reserved for children "cannot be applied towards attorneys fees to fulfill the Father's obligation...." She did not, she stated, "want to be part of breaking the law" (11/16/15 tr. 25). Although, she had indicated on November 10, 2015 that she had indeed authorized the release of the "escrowed" child support, it would take 30 to 60 days before the monies would be received. In the interim, however, the Mother adamantly refused, at several times throughout the November 16, 2015 proceeding, to provide to the Court the information necessary to verify the location of the child support that she swore was being deducted from the income she was earning on a regular basis as a medical resident.
The papers filed in support of the Mother's application for pendente lite counsel fees (mot. seq. 23) include a statement of net worth wherein the Mother affirms her employment as resident physician and her employer as "New York-Presbyterian Medical Center" and includes several pay stubs as additional exhibits. These pay stubs contain the Mother's name and address and indicate her employer to be "New York Presbyterian Columbia University Medical Center" These pay stubs indicate gross biweekly earnings of "$2850.50" with a year to date gross of "$32452.30."[FN10] The pay stubs indicate amounts withheld for Federal and State taxes as well as [*15]Social Security Medicare Taxes.[FN11] Various other deductions include Aetna Health PPP and Humana Dental. Also shown is a $587.00 biweekly deduction for "DCSE" consistent with the child support amount ordered by the Court.
In an effort to locate these monies, estimated to be about $12,000, the Father served a judicial subpoena on the Office of Child Support Enforcement who appeared by David Chin, Special Assistant Corporation Counsel on November 16, 2015. Mr. Chin indicated to the Court that in response to the subpoena he brought a "certification of no record" executed by a duly authorized custodian of business records of the Support Collection Unit (SCU) of the New York City Human Resources Administration Office of Child Support Enforcement. Mr. Chin further stated that his understanding is that the system database used in the preparation of the records is called "ASSETS"[FN12] and they have access statewide, but he is personally affiliated with New York City cases and only cases payable through the SCU.
Mr. Chin responded that it was his understanding that if the order of support was made direct to the recipient (as in the instant matter) and the income execution was to be made payable direct to the custodial parent, the Office of Child Support Enforcement (SCU) would have no record of an order. Asked by the Mother if he was aware of provisions under the CPLR which permitted a payor to open up their own account with Child Support Enforcement in order for Child Support Enforcement to maintain accurate records, Mr. Chin stated he was unable to answer. However, based on the "certificate of no record," if an account was set up and payments were received or if they hadn't been properly identified for that account then it would not appear. No further records were provided to the Court by the Office of Child Support Enforcement other than the "certification of no record."
Whereupon the Mother was specifically directed by order dated November 16, 2015 to "fax all records of any and all Article 78 proceedings filed" by her. The Mother was further directed to "provide copies of all administrative proceedings she filed in Albany, with the Support Collection Unit, or any agency..." that the Mother represents is collecting child support on behalf of the parties' children. As the Mother continued to argue that the monies she was paying for child support should not be made available to the Father to satisfy his counsel fee obligation, the Court advised her that if she again refused to reveal the whereabouts of the money she claimed was being deducted from her income, the Court would consider holding her in contempt until such time as she released the information to the Court. Prior to the lunch recess, Cheryl Solomon, Esq. was reassigned to represent the Mother on the limited issue of contempt of court (see January 16, 2015 order).
At the close of the proceedings on November 16, 2015, the Court issued a second order which directed New York Presbyterian Hospital Columbia University Medical Center to appear subject to the judicial subpoena served on them by the Father. Annexed to the Court's order was a copy of the income execution signed by the Court as well as copies of the earnings statements [*16]submitted by the Mother in support of her application for an award of counsel fees.[FN13]
Upon issuance of the two November 16, 2015 orders, the first, directing the Mother to fax proof to the Court of the Article 78 proceeding and any other administrative entities involved in the collection of her child support obligation, and, the second, directing the New York Presbyterian Hospital to appear with their employment records of the Mother, the Court put the Mother on notice that if in fact she was not telling the truth the consequences would be severe as this was a "credibility issue of the highest order" (tr. 11/16/15 p 42).
On November 17, 2015 the Court reconvened and pursuant to the judicial subpoena (dated 11/10/15) and Court order dated November 16, 2015, Seth Kavanagh appeared and identified himself as the Corporate Director, Human Resources Technology and Analytics for New York Presbyterian Hospital. Also appearing in response to the subpoena was Patricia London-Wager, Esq., Associate General Counsel at New York Presbyterian Hospital. Mr. Kavangh testified that he did not locate an employee by the Mother's name or by her maiden name as an employee of New York Presbyterian Hospital. They searched their records by Rosenstock, by Goberman and by social security number and found nothing. This includes, he stated, "medical residents and employees at the Campus, every one of our main campuses here in the city..." (tr. 11/17/16 p 6).
The witness was asked about the pay stubs annexed to the Court order and in response to Father's question responded that they did not appear to be one of New York Presbyterian Hospital's pay stubs. He testified that the Mother's pay stubs annexed to the Court order differ from pay stubs issued by New York Presbyterian Hospital in several ways; the hospital's pay stubs do not have a logo printed on their stubs, the address on the stub is not the Columbia campus address, the hospital does not express vacation and PTO (personal time off) as a single "thing," they are expressed in hours and not weeks. He continued that the hospital does not have Humana dental; they do have Aetna PPO but it is a dental plan.
Asked if they were served with an income withholding order but the individual to whom it applies is not employed by the hospital, they would not, he said, be able to honor it.
Asked by the Attorney for the Children, if an individual self identified as an employee of New York Presbyterian Hospital Medical Center, the witness responded that no such entity exists...they are...New York Presbyterian Hospital. He continued, that there is Columbia University Medical Center, the Weill-Cornell Medical Center, however, there is no such entity as New York Presbyterian Medical Center. Asked if someone was employed by Columbia University College of Physicians and Surgeons, it would, he said, be a separate payroll. He stated that he did not imagine that their pay stubs would have New York Presbyterian on it...they (Columbia University College of Physicians and Surgeons) are not New York Presbyterian Hospital.
At the conclusion of the above testimony the Mother's assigned counsel stated for the record, on behalf of the Mother, that she "cannot produce to the Court verifiable documentation [*17]proving garnishment of wages in satisfaction of the temporary order of support issued by this Court, the diversion of child support through the Child Support Enforcement Unity, and the filing service of an Article 78 proceeding, as was previously represented to the Court. My client concedes this inability to defend against the findings which are the basis of these contempt proceedings" (tr. 11/17/15 p 13). Thus, the Mother indicated irrevocably that she was unable to substantiate, in any manner, that she was employed and if so where she was employed, that she paid any amount of child support, or that she filed an Article 78 against this Court in an effort to rectify what she perceived to be an injustice.
The November 17, 2015 proceeding closed with further discussion among counsel about the Father's obligation to satisfy the counsel fee award, selection of new trial dates, and the Mother's statement that she was pregnant with two children, which she represented, were not the Father's.
TRIAL TESTIMONY
Father's Direct Examination
April 5, 2016
The Father testified that he married the Mother in Kings County in a religious ceremony on September 5, 2009 and that he was a resident of the State of New York for at least two years prior to the commencement of the action. There are two children of the marriage born in 2010. The Father testified that there are no other actions pending between the parties in any court of competent jurisdiction. The marriage became irretrievably broken at least six months prior to commencement of the action and that the breakdown took place at the marital residence at that time. The Father testified that he will take all steps necessary to remove any barriers to the remarriage of the Mother. Both parties and the children remain covered under the Father's health insurance plan, Oxford United.
He stated that he obtained his medical license in New York in 2007 or 2008 and at the time of the marriage, he was a surgical resident at North Shore Long Island Jewish University Health System. Following his residency he did a one year fellowship in minimally invasive surgery at New York Hospital Queens in Flushing, New York. He started his current job in 2012.
The Father requested that the Court take judicial notice of the orders issued in the context of the ongoing litigation. Although a continuing objection was made to take judicial notice of these orders in the absence of motion practice giving rise to them, the Court overruled the objection and took notice of its own orders. Specifically, the Court took notice of a series of parental access orders issued by the Court on consent of the parties culminating in the orders of: September 10, 2012 holding the Mother in contempt for failing to facilitate visitation; December 13, 2012 granting temporary custody of the subject children to the Father, the warrant of arrest issued on the same date against the Mother on behalf of the Father; January 11, 2013 granting temporary physical and legal custody of the children to the Father; and ultimately, January 17, 2013 granting agency supervised visitation to the Mother. Finally, Father asks the Court to take notice of the final order of protection dated February 27, 2014 issued on behalf of the Father and the two subject children and extended by order dated February 17, 2016.
The Father testified that since the order awarding him temporary custody the children [*18]have at all times resided with him in New Jersey, first in Hackensack and now in River Edge. He resides with the children and his girlfriend. The Mother's last supervised visit at CFS (Comprehensive Family Services) was November 1, 2015. He testified that he has remained available to arrange visits, but the mother has not reached out to him to arrange visits. The Mother has communicated with the children between November 2015 and the date of trial by use of FaceTime which is supervised by whoever is caring for the children that evening or that morning (i.e. the Father or his girlfriend).
Referencing text messages received from the Mother, the Father testified that he was concerned criminal complaints by the Mother and possible police involvement at his home would follow. The Mother has called the police in the past and a text message he received July 4, 2015, states "(c)onsider this a warning, I filed a criminal complaint against you and the beast. Check the judicial orders carefully...." (pl. ex. 1) There were, he said, three visits by the Hackensack Police Department (in January of 2013, March of 2013 and September or October of 2013). The text messages which refer to the "beast," he replied, are a reference to his girlfriend. Texting is permitted, he said, only for "scheduling of visitations or FaceTime." The text messages he received, he stated, did not pertain to scheduling, visitations, or FaceTime. He asks the Court to punish the Mother for sending the text messages and that the suspended jail sentence be enforced. The Father explained that during a FaceTime session on December 19, 2015 the children asked when they would see the Mother again and she answered that the children had to ask him as the reason was because this is what the Father wanted and then she told them that they would be living with her soon.
In response to counsel's question, the Father answered that prior to November 2015 he sought the continuation of the supervised visitation and Facetime access. If, however, the children are not going to see their Mother in person and supervised, they shouldn't have inappropriate access to Facetime either. He does not believe that the Mother is employed; from the date of the temporary order (February 18, 2014) he has received two checks for child support totaling $587.50. She has not contributed to child care add-ons. He is not seeking any type of equitable distribution from the Mother but he is seeking continued child support.
As to the children, the Father testified that they are in good health, that he has Oxford United health insurance and that Jennifer brings the children to the pediatrician, which is adjacent to his office so that he is able to meet them at the appointments. The children are currently in kindergarten from 8:00 a.m. until 5:30 p.m. at the Turell school. The school also offers an extra hour in the morning and in the evening, should he need it. He stated that he pays $2,234.87 each month for the children's child care. When he first took temporary custody of the children, he had a live-in nanny and since preschool this is the only school they've attended. Each month $2,234.87 is deducted automatically from his bank account and deposited into Turell School.
Cross Examination
Regarding the children's attendance at the Turell School, he did consult with the Mother when he enrolled them. He stated that he made the decision because he has temporary, full legal custody of the children. The charges for tuition have previously been submitted in court but he did not send them to the Mother because he did not know what address to send them to.
In response to questions, he testified that he went to Drexel University College of [*19]Medicine in Philadelphia, Pennsylvania and graduated in 2006. In order to get a medical license between the years 2006 and 2008, the Father responded, you have to graduate from medical school, pass the United States medical licensing examinations, and apply for a New York State license. He agreed that he obtained his license in 2008 and believed that he met the Mother in 2007. He was a general surgery resident at North Shore Long Island Jewish Hospital (LIJ) at the time he married the Mother in 2009. In response to counsel's questions regarding what the Mother was doing during that time, the Father responded that, he did not know, because she lied to him.
The Father answered that he completed his residency in 2011 and filed for divorce in June 2011 before finishing his residency in general surgery. His fellowship was from July of 2011 until June of 2012 and was an advanced fellowship in minimally invasive or laparoscopic surgery as well as bariatric surgery; the fellowship was paid.
Regarding his 2015 tax return (pl. ex. 3) The Father answered that he is a W-2 employee in a private practice and that his gross annual income on his 1040 form is $322,000. Asked about his work hours, the Father stated that when he is "on call" he takes calls from his private patients and covers himself and his partner for questions or issues that arise after five o'clock; he is reachable by beeper after hours. He does not remember specific weekends he has worked but he stated, he is on call one weekend out of every month. He works five days a week and his salary of $322,000 is for 12 months a year; he does not work any other side jobs or for any other clinics.
The Father agreed that his girlfriend is the person who watches the children and is who the Mother refers to in her text messages. The text message that states, "(t)he $3 garbage Old Navy shoes [the daughter] had on today are too small for her" (pl. ex. 1) frustrates him, he responded, because he takes "great time, effort, as well as money to dress the children appropriately..." It hurts him personally when anyone attacks his children, whether it be the Mother or another child at school, he would be just as frustrated. The Father testified that the statement made in the text message is not an attack on the shoes but rather is an attack on the people who chose the shoes. When asked about the next sentence, "If you can afford to feed a 300 pound unemployed beast, you can buy a decent pair of quality shoes for our daughter," the Father testified that the Mother is attacking him and disparaging his girlfriend. He continued that the Mother is personally attacking him and his girlfriend for choosing the shoes but she is also attacking the daughter because he lets the daughter "choose within reason which shoes she wishes to dress in...." He concluded, that the Mother is attacking his girlfriend, and him in that text message.
Regarding the text message sent by the Mother, "(d)o you ever get tired of being sued by everyone?" the Father answered that at the time of this message the Mother was referring to a case brought by her mother in New Jersey and a case brought by her mother and father in Family Court in Brooklyn. He did, he said, file a brief on an appeal but he did not know what other lawsuits were being filed against him which were referenced in the Mother's text message (pl. ex. 1). The text message he received from the Mother regarding his litigation strategy and the complete waste of money was frustrating to him because he stated, the case is about children. The Father agreed that he and the Mother were involved in a landlord tenant action in Queens Housing Court in 2010 or 2011but he did not believe that the reference to litigation included the landlord tenant case as that case was dropped when he filed for bankruptcy and he included the [*20]money owed to the landlord in his bankruptcy petition.
The Father agreed that he sent a text message about taking the children on a trip however, he did not notify the Mother as he had full temporary legal custody and he can decide whether he goes on a trip. The Mother has FaceTime access on a daily basis, regardless of whether the Father is home and he chose to travel on a weekend when the Mother did not have supervised visitation. The Father testified that it was his understanding that there were no travel restrictions placed on him or the children while in his custody as long as he was planning to come back. He answered that he knows what it feels like when the shoe is on the other foot as the Mother "[t]aking the children away and not coming back for a year or year and a half" was one of the worst things that ever happened to him. This, he explained, refers to the period of time when the children were living in Wisconsin and he did not know where the Mother and children were for a very long period of time. He only found out their location because the children remained covered by his health insurance and he received a print out of where the Mother had taken the children for health visits; he knew, in theory, that she was living in Wisconsin. Here, he was going away for a weekend. He did not like the Mother's text message saying he had no permission to travel and he had testified that the Hackensack police were called three times in 2013.
In response to counsel's question, the Father testified that he paid child support when the Mother had temporary custody and he would not be surprised if the Mother took the stand and testified that he did not pay support.
Cross Examination by the Attorney for the Children
The Father testified that he seeks full, permanent, legal and physical custody of the children. He answered that since the children resided with him in January 2013 he has not encountered any difficulties in his ability to care for the children. He agreed that the children have a regular pediatrician and that they have attended the same school for three years and the cost has remained constant. In choosing a school, he engaged in a detailed search in Bergen County, New Jersey with security being his main objective; the children's school requires a key code every time you enter, you have to fingerprint in and out with the code. There is also someone at the door at all times and the playground is locked and supervised. His security concerns are with respect to the Mother because in the 18 months prior to that, she was living in Wisconsin, against court orders, and he had just spent a year and a half fighting for her to return the children to New York and to allow him to see the children again. He thinks about it every single day. He testified, "(w)hen you've had your kids taken away from you for 18 months, if you don't think about that every day, you are not on top of things." He added that "it is hard for [him] to put into words exactly the way [he feels] about that period of [his] life" (tr. 96).
It was his understanding that at the time the initial access orders were in place the children were living with the Mother at her grandmother's apartment in Brooklyn, however, she had given to the Court multiple addresses in Manhattan as well as an address in New Jersey. He agreed that, according to the Mother, during the time the access orders were in place, she and the children were residing in New York. He later learned that the statements she made on the record were in fact false. To his knowledge, the Mother has a father and stepmother living in Wisconsin and she had a grandfather. He replied affirmatively that her father's name is in his phone and that occasionally he would text message the Mother's father. He does not recall the exact date or month, but he did learn that the Mother was residing with the children for substantial periods of [*21]time in Wisconsin; it was certainly prior to the contempt motion which was heard in August of 2012.
From June 2011 until approximately October 2011, the children received medical care in New York and from October or November 2011 until December of 2012 they received such care exclusively in Wisconsin. Specifically, they received care in Forderter Hospital and from Dr. Paula Keppler, located outside Milwaukee, Wisconsin. The Father testified that he did not give consent for the children to reside outside of New York or to receive medical care outside New York. He recalled that the Mother was not present at the contempt hearing but that she appeared by telephone just prior to the commencement of the hearing and stated that she was in Wisconsin attending to her grandfather's funeral. He acknowledged that the Mother requested an adjournment of the hearing the day prior to same because her grandfather died. He subsequently saw a certificate of death that postdated the contempt hearing.
He testified that when he met the Mother he believed she was a medical student at Stonybrook University as this is what she told him; she was living on the Stonybrook campus. It was his belief that after she graduated she became a surgical resident at Mount Sinai Hospital from around 2008. The Father stated that he believed this because that is what she told him; he had no reason not to believe her. He saw her leave the house and she said she was going to work. In response to counsel's question, he answered that he learned she was not a surgical resident. She always said she was a surgical resident and instead of doing clinical work with patients, she was doing laboratory work; it is very common to take off one or two years to do laboratory research. The Mother never actually admitted that she was not in a residency program; she started to admit that part of what she was telling him was false. It was the first time that she admitted to him that something was not one hundred percent true.
The Father is aware that the Mother claimed to be an employee of New York Presbyterian Hospital and that she produced to this Court pay stubs from her current employer. However, he heard a witness from New York Presbyterian Hospital testify in November 2015 that the Mother's claim that she was an employee of New York Presbyterian Hospital is false and that the witnesses (from New York Presbyterian Hospital) determined those pay stubs were false. The Father also affirmed that the Mother claimed the child support payments were being deducted from her pay pursuant to the court order but that the checks he received were direct from her bank. He did not open an account in Albany with respect to receiving child support. The Father testified that he heard the Mother's claim in court under oath that the child support being deducted from her pay was deposited into an account in Albany pursuant to the Support Collection Unit. He also heard testimony from the SCU representative that there was no such account in Albany with respect to holding child support. In response to counsel's question, he stated that he heard the Mother's counsel's representation that the Mother was unable to produce any statement contrary to what had been represented by the witnesses from the State of New York and New York Presbyterian Hospital.
To his knowledge, the Mother was not a doctor at New York Presbyterian Hospital, such that she would have privileges at Bright Horizons Preschool for the children as the Mother represented to the court in her emergency order to show cause (mot. seq. 11 dated July 23, 2013).
The Father responded that he was aware that the Mother had the children evaluated for [*22]early intervention services while they were in her care, but he does not recall receiving any assessments regarding this. Within a month to six weeks of having custody of the children, the Father had them evaluated at his apartment in New Jersey. The Father responded that the children were not eligible for early intervention services.
Regarding police visits to his home, the Father testified that they came unannounced, knocked and came in. "They made sure that the children were okay, and then they left" (tr. 101). It is also true, he said, that DYFS (Division of Youth and Family Services) visited his home after the children came into his custody on "two or three occasions which resulted in at least four or five separate visitations." In explaining DYFS visits, the Father testified, "...they walk around the house. They open my refrigerator. They look at the children. They undress, at least partially, the children to look for any bruises or signs of abuse" (tr. 101). They also question him and whoever is in the apartment at the time then they leave. The Father agreed that in papers submitted by the Mother she acknowledged calling DYFS. He has not, he said, ever caused any injuries to his children. When the children came into his care, he said, they were a little over two years old, active, would fall from time to time and play with and hit each other.
As to the Mother's allegations in motion sequence #11, the Father stated that he has never canceled a supervised visit in order to give time for an injury he caused to the daughter to heal, nor did his son have a cut lip caused by the girlfriend. He has not been diagnosed with any mental illness nor has he been charged by any entity or have any criminal convictions. The Mother, he said, has a criminal conviction pertaining to a fraud case involving the rental apartment in Long Island City.
His children, he said live in a "very loving, very safe environment, surrounded by family and friends. They get excellent care at home and at school. They are loved by both his and his girlfriend's families (immediate and extended). He stated that it's a great environment that he wishes he grew up with. The Father described his home, which he rents, as having three bedrooms and being located on a quiet block in River Edge, New Jersey, surrounded by a lot of young kids and families. His testimony continued with a description of the neighboring parks they use and the sports and recreational activities the children engage in. Their typical school day starts, he said when they arrive between 8:00 and 9:00 in the morning and they get picked up after 5:00 p.m.
Asked about statements made by the Mother in her moving papers that the Father's girlfriend is mentally ill and borderline suicidal, the Father stated that she is not mentally ill or borderline suicidal. He also testified that the nanny he hired was vetted and interviewed by multiple people; he has no concerns about the quality of care that the nanny provided.
The Father testified that when the divorce action was commenced (June of 2011) he believed the Mother was residing in New York with the children. Asked about the Mother's April 9, 2013 affidavit in which she indicates on November 1, 2011that she began a three month rotation at the Medical College of Wisconsin and that the children resided with her in Milwaukee, he stated that he had not been previously informed that they were living in Wisconsin. The Father also testified that the Mother is incorrect in alleging that she intended to bring the children to visit on alternate weekends but did not because the Father failed to confirm the visit or show interest in seeing the children. He was also not aware that during the month of February 2012 her medical studies required her to live in Denver, Colorado during the week and [*23]that arrangements were offered to have the children produced for visits. The Mother stated that she left the children in the care of her father during the week which, Father states, he was not aware of. Nor, he responded was he aware of her statement that during March 2012, the Mother did a rotation in Paterson, New Jersey and that she resided in her boyfriend's apartment in Manhattan and returned in April 2012 to Wisconsin with the children for another rotation. He did not know that in June 2012 she was in Israel and Africa with a group of American and Israeli medical students receiving firsthand gynecological experience delivering babies and that his children were with her father in Wisconsin during that time. He was not aware, he said, that the Mother made arrangements while she was in Israel and Africa for the children to remain in residence with someone other than herself.
The Father also did not know (as alleged by the Mother in the same affidavit) that she had a course of study at the Children's Hospital in Wisconsin between July 1, 2012 and August 30, 2012 and that the children resided with her in Wisconsin during this time. In this affidavit she states she did not appear in court on August 9, 2012 because her grandfather had passed away in Wisconsin. The Father acknowledged that the Mother stated in the same affidavit that beginning in September 2012 her medical studies were complete and that she began to reside in New Jersey and that is what she represented in court. The Father stated that the Mother had not seen or had any physical contact with the children since November 1, 2015. She also did not exercise her parental access time with the children between June of 2013 until April of 2014. The access order was the same with respect to supervised therapeutic visits at CFS (Comprehensive Family Services) and she was seeing the children on average about every three out of four weeks with the cost shared equally between the parties. The Father has no reasonable explanation why the Mother would not have seen the children from June 2013 to April 2014 and from November 1 2015 to the present.
The Father testified that they call the Mother "mommy" and they ask about seeing her; sometimes the Mother's response is "ask daddy," or "that's what daddy wants." If the children persist in asking him, he stated that he tells them the truth which is that they can see her any time the Mother wants on a Saturday or Sunday.
In response to further questions about his choice of school, the Father testified that the school he selected is "very high tech," well funded, the playground is new and the equipment in the school is new, which he thought was very beneficial. The school is also flexible in terms of time; you can drop the children off at 7:00 a.m. if you need and if you need to pick up at 6 p.m., you can call to say you'll be late and they keep the children.
Testimony continued with a description of the children's social lives, birthday parties and friendships. They will attend public school in the fall (2016). He selected the pediatrician on the advice of his partner who used the doctor for his own three children and who is highly rated amongst people he works with. The pediatrician's office is five steps from his own office; he can walk next door and participate in their visit. The children do not have any special education or developmental needs. They do not have any deteriorating language skills. Since the access order has been in place he has never refused to bring them for a visit. He has complied with every access order the court has issued, however, the same could not be said of the Mother.
Asked what is the basis for his statement that "nothing she says could surprise me," the Father stated that he has known the Mother since 2007 and that ninety five percent of whatever [*24]she has told him about herself, the children, where she is living, what she is doing, has been a lie. She has, he said, committed fraud and bank fraud on multiple occasions, she has been convicted of fraud on at least one occasion. She told him and the Court that her grandfather died (but he had not), she lied about her job. In his opinion, there is very little that she tells that is truthful. He agreed that he has received less than a thousand dollars in child support, and that he is able to financially support the children. He stated that he would be absolutely shocked if he ever got a dime in child support from the Mother; and that this litigation is all about custody. In response to counsel's question, the Father stated that he does not believe there is any scenario in which it would be in the children's best interests to be in the Mother's custody.
The Mother
Direct Examination
Asked about the Mother's affidavit that the Attorney for the Children referred to during his cross examination of the Father, the Mother stated that she would have to "examine the affidavit for the veracity of the signature." She last saw her children, who are in the temporary custody of the Father, in November 2015. She sees them on FaceTime. She would like the court to award her primary residential and legal custody of the children and allow the Father every other weekend and one night a week visitation schedule with some uninterrupted vacation time. She testified that her accommodations for the children are a large, three bedroom apartment, that she lives in with her significant other. She follows an organic, low meat diet; all food is cooked fresh every day and produce is procured from a CSA along with trips to Whole Foods for any additional items.
When asked about her work schedule, the Mother testified that she is currently on maternity leave, so she is home. She is a reformed conservative Jew and she speaks English, Russian, and some Hebrew. She has some fluency in Spanish and Italian. If awarded custody, she said, the children would attend PS195 in Manhattan Beach, Brooklyn. She described the school as A-rated according to the New York City rating system. The Mother stated that the school is highly funded by the wealthy neighbors that attend the school. The children would return to Dr. Eric Gould in Long Island, the same physician she researched with the Father when she was pregnant.
Cross Examination by Father's Counsel
Asked how the children would travel from Manhattan, where the Mother resides, to Manhattan Beach, where the children would attend school, the Mother testified that she would drive them in her car. She stated that she has an SUV leased in her name and titled to Lexus Motor Financial (the loan holder); they checked her credit and found it sufficient. She does not recall being asked to list her place of employment on the car lease application. Nor does she recall a question on the application as to her annual income. The monthly car payment, which she pays, is $279. She uses a debit card linked to a personal account at Discover Bank to buy gas every two weeks. The Mother stated that she has a checking account and a savings account with Discover Bank. Monies currently deposited into her account are from her disability insurance, her boyfriend and her parents. Her boyfriend is a pediatrician and pediatric gastroenterology fellow who is affiliated with a hospital in Long Island.
The Mother explained that her parents deposit money into her account as she needs it, probably $2,500 about once per month, but the amount and frequency vary. She testified that her [*25]boyfriend's salary goes into their joint bank account; she has full access to his salary and does not spend it without his knowledge or consent.
The Mother reiterated that she last saw her children in November 2015; they witnessed a disturbing altercation at CFS. She explained that the visit was scheduled to take place in a private room but none was available so the children were placed in a center vestibule with access to everyone. The Mother testified that a lady walked in (to CFS) that was clearly dissatisfied with the services, proceeded to scream very loudly for fifteen minutes in front of her children who were upset; the Mother stepped in and asked the screaming woman to leave. The Mother continued that she was paying $125 an hour for CFS visitation, did not have a private room, and added that CFS serves absolutely no purpose in these proceedings. She chose, she said, to terminate CFS visitation immediately. She also found out that the Attorney for the Children receives "referral fees from CFS for sending clients there."
Her dissatisfaction is not just with CFS but with supervised visits. When asked what documentary proof she had to back up her allegation against the children's attorney, the Mother stated that she had none. Her source of information is from a fired social worker at CFS who will not be called as a witness; she stated that there is no need for her to be called as a witness. The Mother has not recommended an alternative to the supervision provided by CFS and she added that she will not participate in any more supervised visitation. If custody is awarded to the Father, the Mother stated that she is willing to participate in unsupervised every other weekend visitation and nightly visitation.
When asked how the court would determine child support if the Father were to be awarded custody, the Mother guessed that her earnings will be imputed based on her bank statements. Asked to identify a statement of net worth (pl. ex. 7), the Mother identified her signature signed in front of a notary public dated October 16, 2015 and testified that she executed the statement of net worth on that date and it was submitted to the Court on that date.
Asked about her rental expense listed as $1,850 per month, she stated that it related to the three bedroom apartment, and that she pays the rent each month from her bank account, which is funded by her parents, temporary disability and her boyfriend who pays a significant portion of the rent from the same account. The Mother acknowledged that her parents deposit $2,500 into her account and the disability is $2,400 a month from AFLAC. She stated that the disability is from a "job that I had that I had to now take time off for because of having a complicated pregnancy." The job was at Columbia University Medical Center, not New York Presbyterian. Her annual income, she said, was $65,000 a year. She went out on maternity leave on February 1 and she was also out on medical leave most of the last year for unrelated reasons. In response to counsel's question, she testified that she began her employment with Columbia July 1, 2013 and her income was $56,000 until July 1 of this year (2015); she made $37,000 last year (2014) because she was out for surgery. She is required to be back at work August 1, 2016, assuming she gives birth at an appropriate time. She was, she explained, doing patient care as a resident with Columbia. The Mother stated that New York Presbyterian does not employ residents...(it) employs nurses and other support staff....medical staff is employed through Columbia.
Her medical records, she states, were submitted to the Judge for an in camera review a year and a half ago. She stated that for privacy reasons, because she is in fear of her life, all medical records to corroborate the major surgery that she underwent were submitted to the Judge [*26]privately.
Referring to page 5 in her statement of net worth, the Mother testified that she had two New York State 529 plans for the children and it is her intention to contribute to their college educations. She will, she said, pay a pro rata share of their college education until the age of 22 if the Father does so.
Asked about her education, the Mother stated that she graduated from Downstate Medical School in October of 2012; she does not have a copy of her diploma, she was waiting for the Father to present his case first. The Mother testified that she is not licensed because it takes approximately three years from the time of medical school graduation until New York State grants a medical license. She is in that three year period. She testified that it is correct that when the Father met her she was living on the campus of Stonybrook University and was a student of their medical school. However, she stated, she did not complete her education because she needed a break so she left school. She took time off, she said, upon returning to school to care for her children.
Regarding the criminal case, the Mother stated that she was charged with "possession of a forged instrument," a cashier's check. When asked if the case concluded, the Mother stated that it was concluded on April 1, 2016 and the sentence was five years probation with conditional discharge after eighteen months. She explained that she took a plea but then filed a motion to reverse the plea because new evidence came to light; that motion was denied and that determination is being appealed. The Mother stated that Mr. Lomtevas (her matrimonial counsel) represented her for a fee of $4,500 and agreed to a generous payment plan. The Mother denied that any of the $25,000 counsel fee award in this case was used to pay Mr. Lometevas in the criminal case. She does not have her retainer (for the divorce case) with her but she paid him $5,000 spread into several payments with monies from her job at the time.
Cross Examination by the Attorney for the Children (April 5, 2016)
The Mother stated that she has lived with her boyfriend for about two years. She moved to a larger apartment about a year ago and before that she lived in his apartment. She has been seeing her boyfriend for about three years now. He is 38 years old and does not have any children.
The Mother denies advising the court in November 2015 that she was pregnant and due in March 2016; she testified that she is scheduled for a C section on May 4, 2016 however, she could give birth at any time as she has a history of premature labor.
The Mother reiterated that she would return the children to the care of Dr. Eric Gould, whose office is in Manhasset. After being gone for eleven months in Wisconsin, she chose a doctor at Cornell that the Father did not approve because he did not have Saturday or late hours; she chose Dr. Gould because he is a specialist with secondary training in developmental delays which her children had at that time. She stated that she does not know if her children have developmental delays because she has been denied access to her children's medical records. If told that the children do not have developmental delays, she might go as far as having a discussion with the Father about a pediatrician with appropriate hours for his "very buy schedule." Asked if she would consider driving to Bergen County to see their current pediatrician, Dr. Harlow, she answered that she looked into him, that he is Board Certified and that she would speak to him but that he did not take her phone call on Father's instructions.
Regarding her claims about CFS, the Mother replied she did not ask to modify the location of the supervised visits in part because she was precluded from filing motions by the court. Asked if the motion to which she attached her statement of net worth (now in evidence) was filed after the Court's direction that no further motions be filed, she responded that it was not correct. The motion was filed before the Court directed no more motions, she asked the Court for permission to file that motion after her poor person motion was denied. Asked again, she stated her poor person motion was filed prior to that ruling; she had no other choice.
Asked is she knows the difference between the truth and a lie, the Mother answered that the truth is "a recitation of facts" and a lie is "a recitation of false facts." She stated that she has never lied to the Court. Asked again if she ever made a false recitation of facts to the Court, she responded, "(n)ot knowingly." Asked what account she deposits child support payments into, she answered "into multiple accounts"; asked what State accounts she deposits payments into she stated "I don't have the information in front of me." Asked if it was still her testimony that child support payments for the Father pursuant to pendente lite orders of the court were deducted from her pay and deposited in state accounts, she replied that the question does not reflect her November 2015 testimony. In response to further questions, the Mother responded that she did not recall submitting pay stubs to the court that contain "line items" indicating child support being deducted from her pay. She agreed that she claimed, in filings with the court, that child support was being deducted from her employment funds and are being held in accounts with the State of New York, she does not know where those funds are. She does not have that information in front of her; she would have to talk to her lawyer. Reminded that she is under oath, the Mother testified that she chose not to answer that question, asserting her Fifth Amendment rights. Asked to explain what criminal liability she might face if she were to answer the question the Mother again asserted her Fifth Amendment right not to answer the question.
Asked when she last received an employment check from Columbia Hospital, the Mother responded, "[f]rom Columbia University, Sir, I believe the last one was in February" (tr. 169). She does not have a copy of that pay stub with her. It would be, she agreed, the same form of pay stub that she submitted in her filings in support of her pendente lite applications.
Regarding her allegation that the Attorney for the Children (AFC)was receiving "referral fees from CFS," the Mother stated that it was the children's lawyer who was quite insistent on CFS and that he objected to visitation with the children at any organization other than CFS. She cannot recall if she provided the attorney with phone numbers for a place in New Jersey that was able to provide nicer facilities and multiple weekly visits. She does not have any documentary evidence establishing that the attorney for the children received "referral fees" other than the "immediate removal of Danielle (social worker) from CFS..." Danielle had made statements to the effect that Rick Spitzer (director of CFS) "throws money their way" for visitation (tr. 172).[FN14] Asked at what point Danielle specifically said "Brad Nacht receives money from Rick Spitzer for [*27]the referral of your family to that office for supervised visits" the Mother responded, "it was my assumption when she said 'AFC', you are the only 'AFC' we have in this case" (tr. 172). Asked by counsel if she put this allegation in a sworn affidavit before the Appellate Division, she answered "yes" (tr. 172), it is her belief that Mr. Nacht received kickbacks from CFS. She agreed that this is affirmatively stated as a fact and is one of the reasons she ceased attending visits at CFS, because they are "crooks." Asked when Danielle gave the Mother this information, she responded as "[Danielle] was being escorted out by Rick Spitzer and security....I don't remember the exact day" (tr. 173). Mother testified that this happened sometime in April or May. Asked if from April or May of 2015 she continued her twice monthly supervised visits despite knowing that CFS were "crooks," she responded, "(y)es" (tr. 174).
Asked by counsel, to whom she filed complaints based on her allegation that he is a "crook," the Mother said the issues raised about "missing money" were referred to trial by Judge Adams. She did, she said, file a criminal complaint, and filed a complaint with the Grievance Committee...she also filed a complaint against Ms. Fiss at the same time. Asked what financial stake the attorney might have in the Mother's case, she answered that, "(t)his is a private gig for you...it is in your interest to deprive the children of their mother and to make a quick buck or not so quick buck...."(tr. 177).
The Mother testified that she has resided in four residences in the last five years: two in New York, one in New Jersey and one in Wisconsin. Asked about time overseas, she acknowledged that in 2012 she was in Nairobi, Kenya and Israel for about three weeks. When she was away, the children stayed in her residence and her father came and stayed so they would not be uprooted. She has always maintained residence where she claimed- going somewhere for two or three weeks is not maintaining a residence there. Asked if she informed the Father that she was not with the children, the Mother testified that he was aware of the children's location and gave her permission at all times while they were outside of New York State. Asked if the Father was informed where she was and where the children were, she responded, that the Father was informed that the children were in Wisconsin at all times even if she was not physically there for a short duration. Her father was instructed to give access to the Father any time he wanted it but he never wanted it.
Asked why the Father would file a contempt motion against her (mot. seq. #2) that resulted in a contempt finding if he had no interest in the children, the Mother reiterated that the Father's interest in the children was strictly financial. The contempt motion was in response to her motion to limit his visitation and to modify his child support obligation. In response to counsel, the Mother stated that she did not purge her contempt in September 2012 after the court's finding (the same time she indicated she had permanently moved to New Jersey) by making the children available for the Father's visitation, because he refused to meet the required schedule as ordered by the Court for visitation, citing work commitments.
She was not aware of any additional applications filed before the Court and stated that Ms. Fiss has "a long, glorious history of serving the garbage can."
Upon counsel's inquiry surrounding the contempt finding and the Mother's failure to purge the contempt and produce the children for the Father's visitation, the Mother denied being tracked down after this Court issued a warrant for her arrest and after she filed a divorce action in [*28]New Jersey. She explained to the New Jersey judge that there was a New York proceeding, whereupon that judge contacted this court. She explained that she was temporarily held by the New Jersey judge, while the Father "retrieved two sleeping babies with two sheriffs from [her] grandmother's house where the children were being baby sat while [she] appeared in court" (tr. 185). She continued, that the Father legally took the children pursuant to this Court's order (of temporary custody) for the sole purpose of returning the children to this Court's jurisdiction. She stated that he should never have been granted temporary custody long term; it is not in the best interests of the children. The Mother agreed that the Father has had temporary custody of the children since January of 2013 as a result of additional actions and orders of the Court. She agreed that there have been extended periods of time when she has absented herself from having physical access to the children, most recently since November 2015 and before that from June of 2013 to April of 2014. She agreed that she stands by her previous statements that the children are doing poorly in the Father's care having suffered both physically and emotionally; her position is they have been neglected by their father. The Mother stated that she is an Americen citizen with freedom of speech and has the right to say what she wants concerning the Father's girlfriend. She "is morbidly obese, severely so, well north of 300 pounds" (tr. 187). In response to counsel's question that, she too, was morbidly obese and had weight loss surgery in July of 2013, Mother answered "[o]h, well, I certainly did. I don't see the relevancy of that" (tr. 188). She added that the girlfriend had the same surgery in 2011 and continues to be morbidly obese and that as a caretaker of her children, the girlfriend is responsible for things like proper nutrition. Agreeing that she has not seen her children in person since November 2015, with only FaceTime access, she stated that she makes it a consistent concern to ask the children what they are eating for breakfast, dinner, lunch. She does not know if the children are obese because she has been denied access to their medical records; she could not determine that by physical inspection with a BMI calculation. Her daughter might be slightly overweight or underweight, she is not sure, it is hard to judge without a calculation (tr. 190).
In response to counsel's questions regarding the adequacy of the children's education provided by the Father, she indicated that they have not been provided with good schooling. Nor have they been provided with excellent medical care or a loving home. She is not aware if they have been exposed to peers, teachers, family, or extended family since they have been with their father. She does not agree with counsel's statement that the children have been thriving while in the Father's care since January 2013. Asked if she will "say...and do just about anything to establish that [she is], in fact, the better parent and that [the Father] is an inferior parent," she answered, "Yes" (tr. 191).
Continued Cross Examination by the Attorney for the Child (April 7, 2016)
Asked to identify her April 9, 2013 affidavit in opposition notarized by Cheryl Solomon, Esq., the Mother testified that she recollects signing it but does not recollect the exact wording of what was in it; it was three years ago. The document states that on November 1, 2011 the Mother began a three month rotation at Medical College of Wisconsin. The Mother agreed that she was residing with the children at that time. The Mother testified that the affidavit also states that in February 2012 her medical studies required her attendance in Denver, Colorado on weekdays. She agreed with counsel that the children remained with her father in Wisconsin during this time and that she would fly in every weekend. The Father knew the children were in [*29]Wisconsin because he sent child support checks to Milwaukee. She informed him that the children were in Wisconsin and offered him visitation (tr. 6).
The affidavit also states that in March 2012, the Mother did a rotation in Paterson, New Jersey, which the Mother states is correct. At this time, she was living with the children in Manhattan in her boyfriend's vacation house. She explained that she was living in Manhattan and working in New Jersey and that in mid April 2012 she was again required to do a rotation in Wisconsin and they went back to Milwaukee. The Mother agrees, and as the affidavit states, in June 2012, she was in Israel and Africa with a group of American and Israeli medical students. The Mother agreed that the children remained with her father in Wisconsin for three weeks. She agreed that the children were in Wisconsin for the entirety of June, July and August (2012).
Regarding the contempt hearing, the Mother's affidavit states that on August 8, 2012 she notified the court that she could not appear for the hearing scheduled for August 9, 2012 because her grandfather passed away, which she agreed, is what happened. She did not recall, she said, communications sent to counsel the day before indicating that she had to fly out to Wisconsin to attend her grandfather's funeral. The Mother testified that she recalls notifying counsel that she would not be available for the hearing, but she does not recall stating that she was flying anywhere (tr. 9).Nor does the Mother recall stating to this court that while she was in Wisconsin attending the funeral, the children were in Manhattan with a friend. Asked which of those assertions were correct, the Mother testified that she does not recall what happened four years ago.
As to the time she resided in Wisconsin, the Mother stated that the children attended the Mequon Jewish Day School from November 1, 2011 until August 2012. They also attended St. Francis Children Center (in Wisconsin) for a couple of weeks but then she and the children "relocated back permanently" (tr. 12). She removed them from daycare in Wisconsin for about one month when she was working in Paterson, New Jersey and resided in New York and again in February of 2012 when the court ordered supervised visitation for the Father.[FN15] The Mother also believes she removed the children permanently in July and August 2012 because she was planning to permanently be in New York in September.
As to daycare in New York, the Mother testified that the children also attended the Chabad Jewish School on the Upper East Side before and briefly during November 2011. For the month or so that she worked in Patterson, New Jersey, the children also attended Chabad daycare. She answered that in October 2011, the children were one year and one month old; in June 2012, they were about to turn two years old. In response to counsel, the Mother stated that she does not recall signing a general release for information to Mr. Nacht. Esq. to contact Chabad Preschools of America.
The Mother explains that in her response to the counsel's email request for contact information for the Chabad Preschool, she made a mistake with the phone number, that it should be a 414 area code, she then stated "[a]ctually, I believe Maquon is 262" (tr. 16). The Mother agreed with counsel that she informed him that the children were attending the Chabad of the upper east side in June 2012. She then agreed that in fact the children were not attending there [*30]because they were living in Wisconsin at that time. She did not agree with counsel that she lied to him, rather, she made a mistake with the area code. Maquon Preschool is a Chabad of America school and she was allowed to transfer the children between schools; she made a mistake in providing counsel a "347 instead of 262" area code (tr. 18).
Asked by counsel about allegations that she was harassed by him (in June 2012) when he requested to visit her home to see his clients, the Mother acknowledged that she brought this same claim to the attention of the Appellate Division. She testified that she does not recall the Attorney for the Children informing her that he reached out to the Chabad of the Upper East Side and was unable to get in contact with anyone who knew his clients, and that he was informed of the school's regulations that children under age two are ineligible for enrollment. Nor does the Mother recall the Attorney for the Children advising her that he was concerned about the whereabouts of his clients and that he wanted to see them immediately. The Mother further stated that she does not recall telling counsel on June 7, 2012 that she would not produce the children, but that he could Skype with them (tr. 20). And in response to counsel's request to see the children within half an hour to an hour, she recalls telling counsel that she did not allow "strange men" (the Attorney for the Children) in her home as a single woman with two young children. When asked by counsel on June 7, 2012 to bring the children to his office, the Mother does not recall telling counsel that there were health appointments at a certain time. Nor, she stated, does she recall being offered an opportunity to bring the children to him the next day before the health appointments. Asked if she was "in fact...in Wisconsin while at the same time misleading [counsel] to believe that the children were in Brooklyn where [she] did not live; is that not correct?" she answered, "[n]o, it is not correct" (tr. 21). She added, [b]ecause I have not lived in Brooklyn since I was 18 years old, sir" (tr. 21).
Asked if she has ever told the children that they do not have to listen to the Father's girlfriend, the Mother said, she has because "[s]he is a de facto parent without permission of this Court" (tr. 23). She stated that the Court granted temporary custody to the Father and he is unavailable to parent these children. The Mother continued, "[the girlfriend] is actually pregnant- who will take care of her children?" Asked if the Mother will be able to care for the (subject) children after she gives birth to the twins she purports to be carrying, the Mother answered, yes.
If awarded custody she would suggest a seventy two hour structured change of custody allowing the children to finish in their current school; the children would still have a lot of visitation and access with their dad. She will be home the whole summer and on September 1st, they will start school at PS 195 in Brooklyn where she has a lot of family support. Asked why, if the Father and his girlfriend are as neglectful as she claims, does she recommend that they have such extended time with the children in the event of a custody change to the Mother, she responded, "Mr. Rosenstock is neglectful. I have never said the girlfriend is neglectful because she is basically their sole care provider....Once she has her baby, she is welcome to raise her child, assuming that is actually her child" (tr. 25-26). Asked why she said "assuming that is her child," the Mother answered that the girlfriend is an elderly woman and morbidly obese. The Mother stated that she and the Father have frozen embryos and that she received notification from the clinic where their embryos are stored that there as been "some action on them." She stated that perhaps she is being paranoid but it is possible and plausible that the girlfriend is [*31]actually carrying one of the parties' embryos (tr. 26).
The Mother, in response to counsel's question, asserts that the Father should have a parenting plan with access because the children love him and that he should have full access to them. She stated that one of the reasons she ended up in Wisconsin with the children is because he did not have time for them. The Mother stated "[m]y one mistake was not allowing this Court to write a formal order. For that, I will never forgive myself" (tr. 27). She testified that there is plenty of evidence that she wanted the Father to be part of his children's lives, that she begged him to see the children during the years 2011 and 2012. When asked what evidence she was referring to in light of the fact that none was submitted on her direct case, the Mother answered, "isn't this the prosecution's case..." (tr. 28).
Asked about the phone call to the Court in August 2012 telling the Court that she was attending the funeral of her grandfather, who had not yet died, she answered that he was on life support. The Mother asserted that it was not a lie to inform the Court she was at the funeral home with the funeral about to begin as her grandfather was brain dead and they were expecting to "turn off the plug" (tr. 29). Asked how she could have been attending a funeral on the day of the contempt hearing for a gentlemen that was not dead, the Mother stated that she did not recall the exact wording she used to inform the Court. Asked about the Court's findings (September 10, 2012) that she called chambers requesting an adjournment because she was "attending a funeral of a grandfather who passed suddenly" (9/10/12 decision), the Mother testified that her grandfather was "brain dead on the 8th....[they]were gathering everybody for the funeral on the 9th...people don't come back from brain dead" (tr. 31-32). Asked why, when she appeared by telephone to explain her absence on the day of the contempt hearing, she gave for the record a Manhattan address at a time when she was in fact residing in Wisconsin, the Mother stated that this was her mailing address and the address of her then-boyfriend's vacation home, and that nobody asked her to indicate that to the Court and she misunderstood the Court's expectation.
Asked how many times, as a physician, she has recommended that someone who is breathing, with a pulse, but is otherwise brain dead be buried, she responded, " (i)f they are good organ donors, a lot" (tr. 35). Asked again how she could have informed the Court that she was attending a funeral on the day of the contempt hearing for a man that was not yet dead, she responded that she and counsel (Mr. Nacht) have different understandings of death. She explained that they said goodbye to her grandfather, they did not want an old man's organs, they turned the machine off, put him in the ground and the rabbi prayed. If the grandfather had had good organs they would have harvested the organs; she "considered brain dead, dead" (tr. 36).
With regard to her application for counsel fees brought in November 2015, the Mother stated that she did recall the suggestion that child support payments which she purported were being deducted from her pay and being held in an account in Albany be released from that account for the purpose of paying counsel, and the efforts made to figure out how to obtain those funds from the account. The Mother also recalled a representative from the child support services testifying, however she did not recall the witness' testimony that there was no account in the Father's name and there was no account holding child support payments made by her. Recalling that the Court reassigned Cheryl Solomon, Esq. to represent her at that proceeding she also recalls an individual from New York Presbyterian Hospital, who testified that the pay stubs [*32]attached to her moving papers were not issued by New York Presbyterian Hospital. However, she could not recall the Court inquiring of any information she could provide to contradict what the child support services and New York Presbyterian witnesses indicated (tr. 38).
Asked again by counsel about her statements to the Court on August 9, 2012 and contained in the Court's findings, that she was asked where the children were located, she responded that the children were in New York at her apartment being watched at the apartment by her best friend. The Mother responded that it was an apartment owned by her then boyfriend. Asked about her earlier testimony that the children had been in Wisconsin for the entirety of June, July and August (2012), a time when she also informed the Court that her residence was New York and the children were in New York, the Mother stated that she did not specifically remember that week and that generally they were in Wisconsin. She stated that they were in New York a lot to give Mr. Rosenstock visits that he did not take advantage of (tr. 41-42). Asked if she simply could not keep track of the lies told to the Court, she answered, "Nobody is lying. People are not recollecting" (tr. 42).
Regarding her November 2015 counsel fee application, the Mother recalled telling the Court that the child support money was being held in an account after it was deducted from her income. She did not recall stating that the reason it was being held was because she filed an Article 78 against this Court and that the Court's decision was overturned. She does recall the Court directing her to produce copies of the Article 78 petition, which she did provide; she explained that what she provided was undocketed becuase she withdrew it but chose to save the filing for the future (tr. 44). Asked if she meant to say that it had "not been filed" because there was no index number on it, she replied, yes. She has no recollection of telling the Court that she had filed the petition and a court had overturned Judge Adams' child support ruling. She does not "recall the specifics" (tr. 45).
Asked, if the Court grants custody to the Father and supervised access to her, would she exercise that access, the Mother said no. She will, however, exercise her right to file additional legal petitions; she wants the Court to make an order "because [she] needs something to appeal" (tr. 45).
The Mother answered that she read the forensic report and update prepared by Dr. Schaul. She added that Dr. Schaul did not conduct a proper evaluation; she didn't observe the children and her in a natural setting; she accepted hearsay from CFS. The Mother inquired how Dr. Schaul would know what her children want without actually seeing her with her children. The Mother saw her three years ago. Asked if she provided a rebuttal report, Mother answered that she did, a rebuttal report from Dr. N. G. Berrill. The Mother has a report provided in November 2015 for the purposes of trial in which Dr. Berrill found Dr. Schaul's report to be "complete hooey" (tr. 48).
Recross Examination by Father's Counsel
Asked about her last residence in Brooklyn where she was served with the summons with notice, the Mother testified that she stayed at her grandmother's for two months in 2011; she was temporarily residing there after the Father left her with no support (June, July and August 2011).
Asked about the funding to travel to Colorado, Israel, Africa, and back and forth from Wisconsin and New York, the Mother stated that she took student loans to support her children, not only for her education, but also to support the children. She did that, she said, because the [*33]Father failed to provide support. Her proof that the Father consented to her relocation to Wisconsin with the children, she replied, was the fact that he paid his child support to Milwaukee every two weeks.
Shown the March 20, 2012 court order, which states in paragraph two that pick up and drop off for visits would be at her residence on the upper east side in Manhattan, the Mother stated that she was living in hospital housing when she was doing a rotation at Lenox Hill. Her address in 2012 was that of her then boyfriend on West 56th Street and prior to that in medical school housing. Asked about her various addresses in 2012 alone, the Mother stated that after her then boyfriend let her use his apartment, she had only one New York address on West 56th Street. Prior to that, she was in Colorado in February 2012, and in March 2012 she was partially in medical school housing for three weeks on East 77th Street in New York (Lenox Hill) and partially at the Medical College of Wisconsin. When asked if the children were residing at the East 77th Street address at the time the Court ordered pick up and drop off there for the Father, the Mother responded that they were at the West 56th Street address and she "would have gladly brought them across town to East 77th" (tr. 55).
Direct Examination of the Father- Finances: April 12, 2016
On the issue of child care and educational costs the Father testified that as a result of his being employed he sought out child care and chose Turell Childcare and Early Learning Center. The children were almost three years old when they were enrolled; in 2014 they were in preschool level one, and in 2015 in preschool level two in the same facility. They continued in 2016, in the same facility, within their kindergarten class. In 2016 they continued in the same kindergarten class.
In 2013 the tuition was $2,234.87 per month and the cost has not changed. He answered that he shared these bills with the Mother in court, however, he has not received any payment from her. The child care costs were addressed in open court. He is asking that the Mother pay the twenty percent of preschool fees that are owed from the date of the original order, from the date that they were enrolled to the current date.[FN16]
Cross Examination by Mother's Counsel
Looking at plaintiff's exhibit 9 in evidence (April 8, 2016 certified tuition report from Turrell Childcare and Early Learning Center) the Father stated that he believes William Johnson to be the school's comptroller. He did not speak to the comptroller of the school, but he requested the records from the principal, who he assumes contacted the comptroller. He said he told the principal that he needed official documentation. Asked if he could point out, where on the document, it indicated daycare rather than kindergarten, the Father stated that the September 4, 2013 entry says, "tuition preschool, pre-K" (tr. 20). Asked if it was his testimony that his girlfriend could not take care of the children during these months and years, the Father responded that she works; the children have to go to Turell because he works.
Whatever documentation he provided to the Mother, he provided in Court, he does not recall what receipts he provided in court to the Mother in 2013; in 2014 when he initially requested payment, similar bills were submitted. Payments are automatically deducted, he does [*34]not have copies of statements that could be looked at right now.
Asked by the Court when the children are eligible for public school, the Father stated that they are "technically eligible for public school starting in September; the cut off for public school in New Jersey is September 30, 2015, however, he said, he made a decision that since they were over a month premature, they are very small, to hold them back from public school until September of this year (2016). The children are starting kindergarten in public school September of this year
April 21, 2016
Marked in evidence (pl. ex. 10) are the records from North Shore Hospital Reproductive Clinic. The records show on page 9 of 52, that a total of eighteen embryos were frozne. Despite discussion on the record regarding Mother's allegation that the Father's girlfriend may have used one or more of the Mother's embryos to become pregnant, the parties entered into a trial stipulation, in writing and acknowledged, agreeing that the remaining embryos "constitute the parties' personal property and should be 18 in number are recognized to be presently in storage at North Shore Center for Reproductive Medicine...and all such embryos shall be destroyed forthwith by the clinic per the annexed embryo discard form" (Court ex. IV). By this stipulation, the parties removed from the Court's consideration the distribution of the parties' remaining embryos. The parties were allocuted on the record concerning their understanding of the signed agreement (tr. 12-14).
The Father was called to testify on the limited issue of paternity of the Mother's alleged unborn children conceived during these proceedings. He stated that he physically separated from the Mother sometime in May 2011in Bayside, Queens. Asked if he has had sexual relations with the Mother since that date, the Father stated, "(d)efinitely not" (tr. 17).
The Mother testified that she is currently pregnant and she knows who the father is and the father is not Mr. Rosenstock. When asked when she last had sexual relations with the Father, she responded, "March 18, 2011" (tr. 18). She stated that when the children are born she will nameher boyfriend as the father of the children. She will not file a petition in Family Court for paternity against the Father, nor will she file for child support naming the Father as the respondent.
The Court indicated that the record remained open for the submission, on consent, of a certified copy of a birth certificate or certificates and reserved the right to restore the matter to the calendar for additional testimony with regard to that document.
Since the conclusion of the trial, no documents have been submitted establishing the Mother's alleged pregnancy or the birth of any children.
Forensic Report of Dr. Bernice Schaul
After an argument on the record regarding the admission of the forensic report and the updated report without the appearance of the forensic evaluator as a witness at trial, by order dated April 12, 2016, the Court directed that the Mother pay the sum of $1,800 (30% of $6,000 due to the expert for trial preparation) direct to Dr. Schaul by close of business on April 19, 2016. Upon confirmation that the Mother timely complied with the Court's direction, then the Father was directed to pay the sum of $4,200 (70% of $6,000 for trial preparation) direct to Dr. Schaul by close of business on April 22, 2016. Upon the Mother's failure to make payment as ordered, and as confirmed by Dr. Schaul, then the Father's obligation to make payment is terminated and [*35]the Mother's objection to the admission of the report is deemed waived and on the Attorney for the Children's motion, the Court would accept the reports of Dr. Schaul previously marked for identification only.
Thereafter, the Mother represented to the Court, in advance of the deadline imposed by, that she would not pay for her portion of Dr. Schaul's testimony. Advised by the Court that her statement indicates a waiver to her objection to the introduction of the reports coming in as the expert's direct testimony subject to cross examination, the Mother stated that she understood. Whereupon, the Mother stated that she wants "the issue of the $2,000 that went missing" to be addressed, whereafter the Court indicated, that based on a review of all the orders in the litigation, there is no evidence of fraud or misuse of any money (4/12/16 tr. 35). Further, based solely on the Mother's most recent trial testimony, she receives upwards of $60,000 per year inclusive of $2,400 a month in disability, $2,500 a month from her parents plus support from her boyfriend. There has been no application to modify the orders issued by the Court regarding the allocation of these expenses, thus, the failure to pay is a "conscious decision" that Dr. Schaul is not going to come in to testify and be available for cross-examination (4/12/16 tr. 34; April 12, 2016 order).
On April 18, 2016, on the Mother's continued representation that she would not comply with the Court's order to forward her share of the costs for the forensic expert's trial preparation, the Court directed that upon redaction of inadmissible hearsay, the forensic reports will be marked into evidence (tr. 20-23; court ex. I, II, III).
Dr. Schaul completed two forensic evaluations. The initial evaluation, dated 2/19/14 (Court Exhibit II), was conducted over a one year period and was commenced shortly after the Court transferred custody from the Mother to the Father (see order dated September 28, 2012). According to Dr. Schaul, the delay was occasioned by issues of payment, which were resolved by Court order, other delays were the result of "access to information about the mother's educational and professional activities...." Dr. Schaul concludes, however, that there is "a sufficient amount of information...available and there is a reliable basis for drawing conclusions about the psychological and parenting issues in this family" (2/19/14 report p. 36).
The expert concludes that "(a)lthough [Mr.] Rosenstock's motivation...was to insure that he had meaningful access to his children it gradually became clear to him that his Wife had no intention of allowing him to have a meaningful relationship with [the childre]" (id.). After the award of temporary custody to him "he was delighted with the sudden turn of events and in the last year he has established himself as a stable, reliable and loving parent." Dr. Schaul concluded that the Father "recognized the need for predictable routines as well as competent and caring child care. He made sure their medical and developmental needs were assessed" (id.).
Observations of the children with the Father were related to be "playful and supportive." She reports that the children were "completely comfortable with their father and expressed affection easily." She continues, the Father, "has demonstrated good judgment throughout the past year, has an excellent support system and is committed to providing a healthy and loving home for [the children]" (2/19/14 report at 37). The forensic evaluator indicated that the Father worries about the impact of the Mother's behavior on the children. He is troubled by the fact that the Mother has not participated in supervised visits for many months and by her behavior during FaceTime. Dr. Schaul concludes that the Father is convinced that "he must be vigilant about the [*36]children's safety and he has taken whatever measures he can to insure that they are protected" (id.).
Dr. Schaul finds that in terms of "psychological functioning there is no evidence of pathology or disturbed functioning." She finds that there is "every reason to assume that Mr. Rosenstock will continue to be a competent and responsible parent in the future" (id.).
Regarding the Mother, Dr. Schaul concludes that she is "a bright, articulate and forceful woman who is irate that her children have not been returned to her care, which she believes is evidence of great injustice" (id.). The report continues, however, with the finding that the Mother "suffers from extremely serious psychological problems that have compromised her ability to function not only as a parent but more generally as a competent adult." Dr. Schaul concludes that the Mother's "presentation of herself, her personal history, her education, her work history, her current employment and events in the family, with her children and her husband revealed a persistent distortion of reality and a propensity to fabricate information, at times in stunning ways...she admits that she lied about dropping out of medical school during her relationship with Mr. Rosenstock, the extent of her misrepresentations is far greater than she acknowledges" (id.). Thus, Dr. Schaul questions whether or not she has a medical degree and states that "there are many reasons to question her enrollment and claims to have graduated from any program" as it was "impossible to assume that she was participating in a residency given her inability to provide requested information as well as the absence of collateral data." Dr. Schaul found her descriptions of her educational and employment activities to be "often confusing and chaotic, filled with contradictions and misleading information" (id.). Dr. Schaul's inquiries into the Mother's family relationships were found to be "questionable" in light of "her offering a death certificate for her grandfather after she declared that she could not come to court because of his funeral" when inquiry however, "revealed that her paternal grandfather is alive and living in Milwaukee" (id.).
Other examples of the deficits in terms of the Mother's judgment, revealed during the evaluation, include her acknowledgment that she falsified a tax return in the Father's name and received a refund of many thousands of dollars, expressing no guilt or remorse, rather, feeling entitled to the monies. She also "denied there was a criminal case pending in regard to the fraudulent purchase of a condominium, court records...revealed that the case...was moving forward." (Report p. 38).
In addition, Dr. Schaul finds a "pattern of extensive misrepresentation and fabrication, of chronic lying and a wanton disregard for truthfulness." She found that it was "not possible to rely on [the Mother's] presentation of information or her version of events...from a psychological perspective, it remains unclear if this pattern is evidence of delusional thinking (she believes the statements are correct), which would suggest psychosis, or whether it is evidence of antisocial personality disorder features. Both are significant risk factors in terms of competent parenting" (report p. 38). Dr. Schaul finds countless examples of illogical and disordered thinking and the Mother's analysis of situations appear to be based, Dr. Schaul reports, "more on her internal world than on external reality" (id.).
The evaluator found the Mother to have the capacity to be engaging, "eager to relate to others and express her thoughts and her feelings." Dr. Schaul found, however, that the Mother had the "propensity to become denigrating, demeaning and verbally aggressive at times, hurling [*37]insults without provocation and with no regard for social norms or the impact of her behavior on others...she rarely showed (during the evaluation) any awareness of how extremely inappropriate her hostility is and how unwarranted her attacks can be" (id.). She exhibited no evidence of remorse for removing the children from their father and extremely poor judgment, the evaluator finds, in her calls to the police and DYFS in New Jersey.
The forensic finds that "[t]hese serious psychological issues...observed throughout the evaluation have obvious implications for parenting." The Mother's ability to "provide an environment that is reality-based and one in which she can provide appropriate guidance to the children is limited." She reports, to the evaluator, that she was attentive to the children's developmental issues ...her judgment in many areas is impaired" (id.). At the very least, she opines, she made "unilateral decisions that deprived them of a relationship with their father and demonstrated no regard for orders of the court to make them available" (id. at 39). Also, she concludes, that the Mother demonstrated a lack of attunement to the children's emotional needs and misinterpreted the children's communications and had an insensitivity to their feelings. Dr. Schaul believes these to be serious deficits in terms of parenting.
Dr. Schaul recommends that the current arrangements as set forth by the Court's prior orders remain in effect, such that agency supervised visits continue and that FaceTime continue to be monitored and supervised by a professional. It is recommended that the Mother seek psychiatric treatment and that the clinician have access to the report. Dr. Schaul also recommends that the Mother seek parenting counseling to "help her examine her behavior with the children" to enable a healthier relationship to develop.
In November 2015, in preparation for trial, Dr. Schaul completed an updated report (Court Exhibit III). The children had been with their father since January 2013 and were five years old. The update included interviews with the parties, the children, and the Father's girlfriend. The Mother had cooperated with the order of supervised visitation and had been seeing the children under the supervision of CFS and Dr. Schaul had access to those reports.
Dr. Schaul, in summary, states that the updated evaluation reveals "no major changes in either" parent's functioning. The Father, she reports, "has established a warm, secure, and supportive home for the children and has insured that all of their needs are met...he understands their personalities and their strengths and weaknesses and thoroughly enjoys being a full-time parent."
Regarding the Mother, Dr. Schaul indicates that, she did not reveal any changes in her psychological functioning or any awareness of the significant problems that were previously identified. The Mother continues, she finds, to be an "unreliable reporter" and is prone to "a great deal of distortion and denial...she has serious psychological problems." Dr. Schaul, in response to Mother's interviews, states that there are "no indications that she could plan appropriately to care for the children." Specifically, in response to questions asked by the evaluator about her plans if awarded custody, the Mother answered that "she had access to a top public school, P.S. 195 in New York City, near her mother's apartment in Brooklyn. She explained that she could list her mother's address as her own and drive the twins to school in the morning from Hell's Kitchen in Manhattan, which is where she reports that she lives, "she would drive them at 6AM in the morning and, since she has family support from her mother and stepfather, who live in Manhattan Beach, her mother could pick up the children after school. [*38]Regarding the public school near her apartment, P.S.51, Ms. Goberman noted that it is only 'only B-rated...'"[FN17]
As Mother was then seeing the children in a supervised setting and engaging in FaceTime, Dr. Schaul concludes that "this enables her to be an ongoing part of their lives." Although the Mother began seeing a therapist she was unwilling to authorize him to discuss her treatment, only the number of visits.
The children, she finds, are doing well and thriving in the current custodial arrangement
and they impressed as "lively, bright, happy and loved children who are developing well in all areas."
Dr. Schaul concludes that the children will be "best served if the current custody arrangements become permanent. Supervised access with the mother should continue as currently scheduled."
In Camera Interviews
The Court conducted interviews with the children who impressed as bright and charming children, settled well into their current living arrangement and have an accurate understanding of their relationship to the Father, his girlfriend and the Mother.
DECISION
Evaluating the credibility of witnesses is primarily a matter committed to the sound discretion of the Supreme Court (Varga v Varga, 288 AD2d 210 [2001], citing Diaco v Diaco, 278 AD2d 358 [2000]; Ferraro v Ferraro, 257 AD2d 596 [1999]). The court's assessment of the credibility of witnesses is entitled to great weight (see generally Wortman v Wortman, 11 AD3d 604 [2004]). "In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Ivani v Ivani, 303 AD2d 639 [2003], citing L'Esperance v L'Esperance, 243 AD2d 446 [1997]; accord Krutyansky v Krutyansky, 289 AD2d 299 [2001]; Diaco, 278 AD2d at 359; Solomon v Solomon, 276 AD2d 547 [2000]).
Having reviewed all of the relevant facts and circumstances and reviewed the evidence submitted on the record the Court determines that the Father presents as entirely credible and the Mother is, without doubt, completely and utterly incredible in all respects. As only the parties testified on their own behalf the determination of credibility weighs heavily on the Court.[FN18] As [*39]recognized by the Court in Crivelli v Tollento, 100 AD3d 884 [2012], "custody determinations depend to a very great extent upon the hearing court's assessment of credibility of the witnesses and of the character, temperament, and sincerity of the parties" (quoting Matter of Brian S. v Stephanie P., 34 AD3d 685 [2006]; see also Sweester v Willis, 91 AD3d 963 [2012]).
Both parties exhibited a calm and respectful demeanor with the Court, even during stressful proceedings. The Mother, however, was incapable of candor and was, throughout the entirety of this proceeding, particularly skilled in presenting a plausible explanation or version of events that has consistently proven to be untrue. Her manipulation of facts in an effort to present them in a light most favorable to herself was staggering and her disregard for the truth, in so doing, even when confronted with the inevitable conclusion that she had been unmasked, was breathtaking. These included: where she and the children were living from the date of commencement through her losing temporary custody, where the Mother has been living since she lost custody of the children, the death of her grandfather, her enrollment in, and graduation from medical school, her employment, her criminal record, her compliance with Court orders (inclusive of all pendente lite orders), and finally her post commencement pregnancy of twins.[FN19]
Custody
In all child custody determinations, the best interests of the child remain the absolute, paramount consideration of the court (Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]; Eschbach v Eschbach, 56 NY2d 167 [1982]). In determining the best interests of the child, the other factors to be considered include a party's ability to provide for the child's emotional and intellectual development, the quality of the home environment, extent of parental guidance, and the stability of the respective proposed homes (Matter of Louise E.S. v W. Stephen S, 64 NY2d 946 [1985]).
Pursuant to DRL §240(1)(a) the Court must also consider allegations of domestic violence, when such allegations are made in a "sworn petition or complaint or sworn answer...or [*40]other responsive pleadings that the other party has committed an act of domestic violence against the party making the allegation...and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant...and state on the record how such findings, facts and circumstances factored into the direction" (see Moreno v Cruz, 24 AD3d 780 [2005]; Wissink v Wissink, 13 AD3d 461[2004]; W.Y. v I.V., 26 Misc 3d 1227 (A)[2010]).
The Court appointed expert's recommendation is another factor to be considered by the Court with some weight (Matter of Wilson v Bryant, 2016 NY Slip Op 06835) and should not be readily set aside unless contradicted by the record (Matter of McPherson v McPherson, 139 AD3d 953 [2016] quoting Mater of Supangkat v Torres, 101 AD3d 889 [2012]; see also Baptiste v Gregoire, 140 AD3d 746 [2016]; Matter of Doyle v Debe, 120 AD3d 676 [2014]). However, the Court is not bound to abide by the conclusions and recommendations of the Court appointed expert (Vinciguerra v Vinciguerra, 294 AD2d 565 [2002]; Maysonet v Contreras, 290 AD2d 510 [2002]). If the expert's recommendations are rejected, the Court should explain the basis for the rejection (Baker v Baker, 66 AD3d 722 [2009]). Here, the forensic expert recommends that the Father be awarded custody and that the current access schedule be continued.
The Mother, in failing to comply with the Court's trial order dated April 12, 2016 and the original order of appointment in fact, waived her right to cross examine Dr. Schaul and the redacted reports came in as direct testimony. The Court finds that the opinions of the forensic evaluator are amply supported by the record and should not be set aside (see Matter of Chana J.A. v Barry S., 135 AD3d 743[2016]; Matter of Volpe v Volpe, 61 AD3d 691 [2009]). However, the Court is not obligated to adopt the recommendations of the forensic evaluator and in the instant matter she recommends that the access schedule in place at the time of her evaluations should be continued. As discussed below the Court disagrees.
Further, the opinions and wishes of the child should be considered with some weight, taking into consideration the children's ages and level of maturity (Klat v Klat, 176 AD2d 922 [1991]). The Court must also consider, in the context of the within matter, if the children's attorney has a sufficient basis to substitute judgment for the child as he is authorized to do so only when convinced, either, that the "child lacks the capacity for knowing, voluntary and considered judgment, or, that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child" (22 NYCRR 7.2(d)(3); see Swinson v Dobson, 101 AD3d 1686 [2012]). Thus, the "Attorney for the Child must follow the child's wishes to refrain from taking a position for or against requested relief where the child has the capacity to take such a position and is not at imminent risk of harm, regardless of whether the attorney believes that the grant or denial of the requested relief would be in the child's best interest" (see 22 NYCRR 7.2 [d] [2]); Kreiger v Kreiger, 65 AD3d 1350 [2009]).
Reviewing the totality of the issues raised by the parties in this long and difficult litigation, the Court is required to make several fundamental determinations drawn from the evidence submitted and its assessments of credibility (Chamas v Carino, 119 AD3d 564 [2014]).
Stability of home environment
Since the Father became the custodial parent of his two young children in January 2013, he has provided an appropriate home for them, obtained medical coverage for them, had their [*41]educational needs assessed and made thoughtful and considered decisions about those needs. He has provided child care while he was at work and established a network of friends and family for the children in an effort to provide the children with a nurturing and safe home life. It is clear that the children feel comfortable, safe, and loved in that home (Matter of Plaza v Plaza, 759 AD2d 607 [2003]; Dobbins v Vartabedian, 304 AD2d 2003]).
The children's living arrangements since 2013 are in stark contrast to the peripatetic life the children had when they resided with the Mother, which in various sworn statements made by the Mother, in writing and under oath, included homes in Brooklyn, at least three homes in Manhattan, Wisconsin, and two in New Jersey.[FN20] While it is extremely possible that, in reality, the Mother and/or the children never actually resided in these locations, the fact that Mother failed to acknowledge or correct the record in any credible way permits the Court to determine that she does not have, nor did she ever have, a fixed location to care for and raise the children. Her testimony at trial was that, if awarded custody, the children would reside in a three bedroom Manhattan apartment with her and her significant other (she did not provide an address) and she would personally transport the children by car to a public school in Manhattan Beach, Brooklyn, using her mother's address to establish residency for the children.[FN21] This is in addition to her representation that she would reestablish a relationship with the children's original pediatrician on Long Island. These proposals, made by the Mother at trial, even if accepted as valid, would be burdensome and certainly not in the children's best interests. The Father proposes a local neighborhood public school and continued medical treatment near his home and office. An arrangement that is thoughtful, reasonable, and eminently practical.
While financial stability should not, in and of itself, determine custody, it is a factor which the Court can take into consideration (Crivelli v Tolento, 100 AD3d 884 [2012]; Edwards III v Rothschild, 60 AD3d 675 [2009]). The Father has finished his medical training and is in a private practice earning annual gross income of $322,000. The Mother has yet to provide the Court with any credible documentation to establish either the nature of her employment or her income.[FN22] She herself testified that she assumed the Court would impute income to her based on her bank statements.[FN23] Despite the Father's acknowledgment that he does not expect the Mother to contribute to the support of their children, he is able, he asserts, to support his children, as is evidenced by his ability to support them since January 2013 with little if any contributions from the Mother. Clearly, it is the Father who remains the more financially stable parent and is in a [*42]position to meet the children's financial needs.
Custodial interference
A dominate issue in this litigation is custodial interference. In all custody determinations the Court is obligated to assess the effect of an award of custody to one parent on the other parent's relationship with the children (Dobbins at 155). This issue remains one of the overarching themes in this litigation. Since the issuance of the first temporary order of visitation to the Father issued on consent (September 13, 2011) up to and including the order awarding the Father access to his children after a finding of contempt against the Mother for violating previous access and visitation orders, the Mother has consistently interfered with and denied the Father regular access to the children (id.). The Mother has removed the children from the jurisdiction, provided false and misleading addresses for picking up the children for visitation, denied the Attorney for the Children access to his clients, filed emergency applications in other venues and jurisdictions to avoid compliance with lawful orders issued by this Court, and ultimately failed to return the children to New York requiring the Court to issue an arrest warrant and employ the offices of the New York City Sheriff's Department to retrieve them. Ultimately, the Mother has "defied the legal process by violating...court orders...and isolated the children from their father when they were in her custody" (Plaza at 607).
The Mother's actions were calculated to deny and deprive the children of a normal relationship with the Father and her actions are per se, inconsistent with the children's best interests (see Pierre v Dal, 142 AD3d 1021 [2016]; Carleo v Pluchinotta, 138 AD3d 833 [2016]). Once awarded temporary custody of the children, the Father has consistently complied with access orders issued for the benefit of the children and the Mother despite the Mother's failure to avail herself of same and her continued violation of the order of protection and restriction on the content of her communication with the children and the Father. The record demonstrates that the Father "is the parent who is more likely to assure meaningful contact between the children" and the Mother (Plaza at 607).
Relative fitness as a parent
The Court must also consider "each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being" (Fenech v Fenech, 141 AD3d 683 [2016]). This litigation has revealed the Mother to have engaged in a persistent pattern of deceit and duplicity such that the Court is unable to rely on any representation made by her or on her behalf. She has been convicted of a crime (possession of a forged instrument) and remains on probation for five years. While a criminal conviction is not determinative, in and of itself, of fitness, it is in the Court's view, consistent with the Mother's pattern of harmful behavior and is a factor to be considered (Esposito v Shannon, 32 AD3d 471 [2006]; Tompkins v Holmes, 27 AD3d 846 [2006]). The Mother was put on notice at various times throughout these proceedings that continued deceit would weigh heavily in the ultimate outcome and despite these warnings, the Mother was unable to stop and unable to accept the findings and orders of the Court. Thus, the Court concludes, that only the Father is in the position to provide the children with emotional and financial stability, a consistent and secure home environment, and provide for and foster emotional and moral growth. Further, the Court finds that only the Father can be relied upon to foster an appropriate relationship with the Mother. The totality of the circumstances support a finding that it is in the children's best interests that the Father be awarded sole physical and legal [*43]custody.
Parental Access
The Mother's decision not to avail herself of supervised access to the children is perplexing. However, this is the second time since January 2013 that the Mother failed to exercise her right to such visits. The Court has not been asked to sign a stipulation to provide for an access schedule (as required by court order), and therefore concludes that consistent with her testimony at trial, she will no longer exercise supervised parental access with the children. However, consistent with the Attorney for the Children's position in his closing statement, the Court finds that direct access should continue in a therapeutic and supervised setting once a month for two hours effective December 4, 2016. The Court further orders that FaceTime or Skype be reduced to once a week on Saturday or Sunday between the hours of 5 p.m. and 7 p.m. effective the week of December 4, 2016 and that the Father retains the right to terminate the communications if deemed inappropriate. The Court finds that the Mother's conduct throughout this case, specifically, having absconded with the children from the Court's jurisdiction, failing to purge her contempt in producing them for access with the Father, interfering with the Father's ability to exercise his access when the children were in her care, her consistent evasiveness in providing an accurate residential address, and her inability to communicate appropriately with the children during video conferencing supports this restriction on the Mother's contact with the children in a supervised setting both in person and remotely (Jared CC v Marcie DD, 138 AD3d 1168 [2016]). The costs of such visits shall be shared by the parties pro rata as discussed below.
The Court notes that the Mother's continued failure to engage in supervised visits and/or her inappropriate communication during video-conferencing visits may result in post judgment motion practice to further modify the Mother's access to the children.
Violation of Final Order of Protection
The Court has made various findings to support the issuance of a final order of protection, which has been continued on a finding that the terms of the order have been violated. While there was no physical domestic violence, the nature of the Mother's action are such that they impact on the Court's decision.
By order dated October 24, 2014, the Mother was committed to a period of incarceration for a term of six days, to be served on three non-work weekends. However, that same order suspended the Mother's commitment pending continued compliance with the February 27, 2014 final order of protection. Thereafter, the Father moved by order to show cause for, inter alia, an order finding the Mother to be in violation of the order of protection and by extension the order suspending her commitment (mot. seq. 24). In light of the above parental access schedule limiting the Mother's supervised and therapeutic access and reducing the video access, the Court declines, at this time, to enforce so much of the order that directs incarceration and modifies and continues the order to the extent that the suspension remains in place until February 17, 2018 (the expiration date of the final order of protection).
Child Support The Court must now determine the parties' respective child support obligations. As
articulated by the Court in Holterman v Holterman, 3 NY3d 1 (2004):As [was] explained in Matter of Cassano v Cassano (85 NY2d 649 [1995]), the CSSA provides 'a precisely articulated, three-step method for determining child support.' The first step requires the computation of [*44]'combined parental income' (Domestic Relations Law § 240 [1-b][b][4]; [c][1]). 'The amount of "income" attributed to each parent is derived by adding gross income, as reported on the most recent Federal tax return, and, to the extent not included as gross income, investment income, imputed income and other "income received" by the parent from eight enumerated sources.' (Matter of Graby v Graby, 87 NY2d 605 [1996], citing Family Ct Act § 413 [1] [b] [5]) DRL §240[1-b] requires the Court to follow a three step process for determining child support: calculate the combined parental income; multiply the combined parental income up to statutory income cap by the specified child support percentage, and allocate between the parties on a pro rata basis unless application of the percentage is deemed unjust or inappropriate.
Where the parents' income exceeds the income cap set forth in DRL §240 (1-b)(c)(2) and Social Service Law §111-i(2)(b), as in this case, the amount of child support in excess of the income cap is determined based upon a consideration of factors set forth in DRL §240(1—b)(f) "and/or the child support percentage" (DRL§240[1—b][c][3]; see Matter of Freeman v Freeman, 71 AD3d 1143). The factors set forth in DRL §240(1—b)(f) include, in pertinent part, the financial resources of both parents, the needs of the child, non-monetary contribution that the parents will make to the care and well-being of the child, and any other factor which the court determines to be relevant to the case.
As set forth in Samimi v Samimi, 134 AD3d 1010A [2015], "a court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings" (see Brown v Brown, 239 AD2d 535 [1997]). The Court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives (see Matter of LoCasto v Chiofolo, 89 AD3d 847 [2011]; Matter of Collins v Collins, 241 AD2d 725 [1997]). The Court may properly impute income in calculating a support obligation where he or she finds that a party's account of his or her finances is not credible or is suspect (Matter of Barnett v Ruotolo, 49 AD3d 640 [2008]; see also Matter of Sena v Sena, 65 AD3d 1244 [2009]).
Further, "in exercising the discretion to impute income to a party, the Court is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation" (Barnett v Ruotolo, 49 AD3d 640 [2008]; Gravenese v Marchese, 57 AD3d 992, [2008]; Matter of Kristy Helen T. v Richard F.G., Jr., 17 AD3d 684 [2005]). Where a court fails to specify the sources of income imputed and the actual dollar amount assigned to each category, the record is not sufficiently developed to allow appellate review (see Matter of Sena v Sena, 61 AD3d 980 [2009]; Matter of Ambrose v Felice, 45 AD3d 581 [2007]; Rosenberg v Rosenberg 44 AD3d 1022, [2007]; Matter of Kristy Helen T v Richard F.G. at 685).
Turning first to the Father's income, the Court relies on the income reported in his most recently filed federal tax return, which at the time of trial was for the 2015 tax year. Consistent with the Husband's testimony, the tax return shows gross income of $322,000 and based on his 2015 W-2 statement, his adjusted gross income for purposes of calculating child support is $308,886 ($322,000 - $13,114).[FN24]
As has been discussed throughout, the Mother has at all times failed to provide credible [*45]documentation to support her assertion that she was/is a medical student and then a medical resident and by extension has failed to submit reliable proof of income from an employer. Further, the Court takes judicial notice of its December 16, 2013 order wherein the Court found the Mother's 2012 federal tax return and 2013 statement of net worth to be incredible. The Mother offered no financial documentation at trial to establish her income but testified to her ability to meet expenses and the sources of those funds. She testified to having sufficient income to lease a Lexus SUV on her credit worthiness and meet her expenses. She specifically testified that as of the date of trial, her parents deposit $2,500 into her account, that she receives disability of $2,400 per month, and a non specific sum of money from her boyfriend. Notwithstanding such non corroborated sums the Court finds that the Mother has resources available to her of $58,800 per year [($2,500 + $2,400) x 12].[FN25] The Court does not have sufficient information to account for any statutory deductions.
Accordingly, in determining child support, the Court finds the Father's annual adjusted gross income to be $308,886 and the Mother's annual income to be $58,800. Where, as here, the parties combined income exceeds the current statutory income cap of $143,000, the Court must also determine child support to be awarded above the cap, if any, based upon a consideration of factors set forth in DRL §240(1—b)(f). Here, the Court declines to award child support to the Father on combined parental income in excess of $143,000. The children have been in the Father's physical custody since January 2013 and he has, at all times since then been employed in a private medical practice earning income alone in excess of the statutory cap with only two payments of child support from the Mother during these proceedings. The Court finds that the subject children, by virtue of solely residing with the Father are reaping the benefits of his earnings and there is no doubt in the Court's mind that he has always met, and will continue to meet the children's financial needs despite the Mother's substantial default in meeting her parental obligation to pay child support. Thus the Court calculates the parties' respective child support as follows:
Father's adjusted gross income: $ 308,886
Mother's adjusted gross income: $ 55,800
Combined parental income: $ 364,686
Child support percentage for 2 children: 25
Father's pro rata share: 85%
Mother's pro rata share: 15%
Mother's child support obligation up to $143,000[FN26] : $ 447 per month
Accordingly, commencing December 1, 2016 and continuing on the 1st day of each month thereafter, the Mother is directed to pay to the Father $447 as and for child support of the subject children. Payments are to be made through the SCU and the Plaintiff is forthwith directed to [*46]open an account with SCU.
Under the CSSA, the Mother is further responsible for 15% of the subject children's unreimbursed medical expenses and 15% of the children's health insurance premiums, and childcare expenses. This award is retroactive the Father's first application for same as contained in motion sequence #14, filed on February 18, 2014. However, by order dated October 23, 2014 the Court fixed the Mother's child support arrears through that date. The Court calculates the Mother's retroactive child support for the remainder of 2014 based upon the representation of her income at the time of the pendente lite decision such that her support obligation remained $587.50 per month for November and December 2014 plus 20% of provable unreimbursed medical and childcare expenses. Thereafter, the Court calculates the Mother's retroactive child support owed to the Father based on the Court's findings herein of her 2015 income such that her obligation was $447 per month plus 15% of unreimbursed medical and childcare expenses, and health insurance premiums as of January 2015 through trial in April 2016:
Retroactive child support arrears
November - December 2014: ($587.50) x 2 months = $1,175
January 2015 - April 2016: ($447) x 16 months = $ 7,152
Total child support arrears: $8,327
As to reimbursement for childcare expenses, the Father submitted an affidavit of custodian records indicating that the children's tuition at Turrell Child Care & Early Learning Center was $2,234.87 per month. As the children turned 5 years old in September 2015, the Court finds this expense prior thereto to be a mandatory childcare add-on expense for which the Mother remains obligated. Again, the parties fixed the Mother's arrears under the pendente lite order through October 2014. Therefore, the Court fixes the Mother's retroactive support for same from November 2014 - December 2014 at 20%, as discussed above and at 15% from January 2015 through August 2015. The Mother's total retroactive childcare arrears from November 2014 through August 2015 is $3,576.[FN27]
Upon the children turning 5 years old and becoming eligible for public school, it became incumbent upon the Father to establish what portion of this expense represents necessary childcare in light of his work schedule and which portion represents an educational expense. The records submitted to the Court do not make this distinction and therefore the Court cannot assess reimbursement by the Mother and need not assess the Father's decision to enroll the children in the private school for an additional year (2015-2016) prior to them enrolling in public school in September 2016 as the Father testified to.
The Mother's retroactive support arrears are fixed without prejudice to any sums paid. The Mother shall also reimburse the Father 20% of the costs of any unreimbursed medical or childcare expenses and health insurance premiums incurred during November and December 2014 pursuant to the pendente lite order and 15% of provable unreimbursed medical and childcare expenses and health insurance premiums from January 2015 through April 2016. To facilitate same, within fourteen (14) days of service upon her counsel of the within judgment [*47]with notice of entry, the Mother shall provide the Father with an address to which he can mail proof of such expenses as the children's unreimbursed medical expenses and the health insurance premium. The Mother shall reimburse her pro rata share of same within ten days of receipt of such proof, which may consist of copies of receipts, copies of prescriptions, a redacted copy of documents from the Father's employer establishing same, canceled checks, etc.
Also referred to trial was the Mother's request for a recalculation of the Father's pendente lite child support obligation from the date of commencement through December 2012 (a time period when the children were in her custody) based on her assertion that the Father misrepresented his income at the time the parties stipulated to his pendente lite support obligation of $500 bi weekly based on income of $65,000 per year as a medical resident. However, the Mother failed to proffer any testimony or documentation to establish this claim at trial nor did she submit any documentation of unreimbursed medical or childcare expenses during the period of retroactivity, accordingly her request for same is denied.
The Court notes further that the Mother is not entitled to retroactive pendente lite child support from the date of commencement as she did not file an answer requesting same until August 7, 2013, a date after which the parties stipulated to the Father's pendente lite support obligation in the preliminary conference (September 13, 2011). Thus, even if the Court had sufficient information and/or documentation to assess the Mother's request, she would only be entitled to same from the date of her first application, which the Court considers to be September 13, 2011, the date upon which the parties stipulated that the Father was obligated to pay pendente lite child support to the Mother (see Domestic Relations Law § 236[B][6] [a]; [7][a]; Schiffer v Schiffer, 21 AD3d 889 [2005]).
The Father is directed to provide the Mother with copies of the children's report cards and twice yearly medical summaries.
Birth Certificate of Alleged Non Subject Children
During the months leading up to and during the trial, the Mother alleged that she was pregnant with twins by her paramour and thus that the Father was not the biological father of the unborn children. The Father and the Attorney for the Children questioned the Mother's pregnancy claim, however, based upon her representation and in light of the legal implications as the parties remained legally married, by order dated April 21, 2016, the record remained open for the limited purpose of submitting certified birth certificates to be offered into evidence on consent without prejudice to either party or the Attorney for the Children requesting to restore the matter to the trial calendar on the limited issue of whether the expected children are children of the marriage.
Prior to closing the record, the Father was called to testify on this limited issue and stated that he had not had sexual relations with the Mother since May 2011 through the present date (April 21, 2016). In response to the Court's inquiry whether he has at any time authorized the release of any embryos to be used by the Mother, he answered "No, I have not" (4/21/16 tr. 16).[FN28] Where after the Mother was called to testify on this issue and in response to her counsel's inquiry answered that she is currently pregnant, that the Father is not the father, and that she has not had sexual relations with the Father since March 2011. Asked whether she will ever at any time file a [*48]petition in family court (or any other court of any other jurisdiction) for paternity against the Father or file for child support for these unborn children naming the Father as the respondent, she answered "Absolutely not" (tr. 18).
To date the Court has not received any documentation to establish the existence of the alleged children.
Equitable Distribution
In recognizing a marriage as an economic partnership, the Domestic Relations Law (DRL) mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the trial court to consider a number of statutory factors listed in DRL §236(B)(5)(d)[FN29] (see generally Holterman v Holterman, 3 NY3d 1, 7-8 [2004]). "Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible, there is no requirement that the distribution of each item of marital property be made on an equal basis" (Chalif v Chalif, 298 AD2d 348 [2002] [citations omitted]; accord Arvantides v Arvantides, 64 NY2d 1033 [1985]; Franco v Franco, 97 AD3d 785 [2012]; Kelly v Kelly, 69 AD3d 577 [2010]; Adjmi v Adjmi, 8 AD3d 411 [2004]; Graves v Graves, 307 AD2d 1022 [2003]; Meza v Meza, 294 AD2d 414 [2002]; Saasto v Saasto, 211 AD2d 708 [1995]; Ehrlich v Ehrlich, 184 AD2d 400 [1992]). Courts may use the "flexibility and elasticity with which they are empowered "to mold an appropriate decree because what is fair and just in one circumstance may not be so in another"" (Greenwald v Greenwald, 164 AD2d 706 [1991], citing Rodgers v Rodgers, 98 AD2d 386 [1983]).
Further, it is proper for the court to consider the parties' relative economic contributions to the marriage in arriving at a formula for the distribution of the marital property (see e.g. Kaplinsky v Kaplinsky, 198 AD2d 212 [1993], citing DRL §236[B][5][d][1]; Palmer v Palmer, 156 AD2d 651 [1989]; Michalek v Michalek, 114 AD2d 655 [1985]; Kobylack v Kobylack, 111 AD2d 221 [1985]). In this regard, the fact that one party may have made greater economic [*49]contributions to the marriage than the other does not necessarily mean that the former is entitled to a greater percentage of the marital property (Bartek v Draper, 309 AD2d 825 [2003]). Rather, "'[e]quitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the parties' marital property should not be disturbed unless it can be shown that the court improvidently exercised its discretion in so doing'" (Johnson v Johnson, 261 AD2d 439 [1999], citing Oster v Goldberg, 226 AD2d 515 [1996], appeal denied 88 NY2d 811 [1996]).
In deciding equitable distribution, the court must set forth the factors it considered in making its determination. Otto v Otto, cited above, holds that this requirement cannot be set aside in cases heard at inquest after default. The factors set out in DRL §236(B)(5)(d) must be considered, even where there is an inquest taken on the nonappearance of one of the parties (Ettinger v Ettinger, 435 NYS2d 916 [1981]).
DRL §236(B)(1)(c) defines marital property as "all property acquired by either or both spouses during the marriage and before...the commencement of a matrimonial action, regardless of the form in which title is held." Hence, "[p]roperty acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" (Steinberg v Steinberg, 59 AD3d 702 [2009], citing Judson v Judson, 255 AD2d 656 [1998]; D'Angelo v D'Angelo, 14 AD3d 476 [2005]; Farag v Farag, 4 AD3d 502 [2004]). Further, "[m]arital property is to be viewed broadly, while separate property is to be viewed narrowly" (Spera v Spera, 71 AD3d 661 [2010], citing Steinberg, at 704), so that the law favors the inclusion of property within the marital estate (compare DRL §236[B][1][c] and [d]; see Burns v Burns, 84 NY2d 369 [1994]; Majauskas v Majauskas, 61 NY2d 481 [1984]).
Separate property, on the other hand, is defined, in part, as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse" (DRL §236[B][1][d][1]). It is also well settled law that property acquired by a spouse during the marriage is marital property, "unless clearly separate" (Fields v Fields,15 NY3d 158 [2010]). Once this presumption is "triggered," the burden shifts to the spouse seeking the property to be deemed separate, to rebut the presumption (Id). The reason for this is to affirm the legislative intent to foster and effectuate the concept that marriage is an economic partnership (Sclafani v Sclafani, 178 AD3d 830 [1991]). Testimony alone that premarital or separate property funds were used to obtain an asset that was acquired during the parties' marriage "is insufficient to overcome the presumption that the property is marital property" (Marshall v Marshall, 91 AD3d 610 [2012]).
Once property has been deemed marital, the Court must fix a valuation date. DRL §236 B(4)(b) provides in pertinent part: "... the valuation date or dates may be anytime from the date of commencement of the action to the date of trial." The court deems the parties' economic partnership to have dissolved at the commencement of this divorce action (Mensholam v Mensholam, 11 NY3d 24 [2008]; Anglin v Anglin, 80 NY2d 553 [1992]). The court has found that this rule "provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic partnerships end" (Anglin, supra). However, the court may take the specific circumstances of the case into account when ultimately deciding the equitable distribution of the parties' property (Mensholam, supra).
Guided by the above case law, and based upon the record bereft of any evidence at trial, the Court makes the following findings.
The Father does not assert a claim for distribution of any assets. In her answer and counterclaim, the Mother's seeks a "distributive award," "title to New York Giants Personal Seat Licenses" and equitable distribution of the Father's "Surgical Training and Board Certification."
Neither party submitted evidence, nor was any testimony elicited establishing the existence of New York Giants personal seat licenses or any other personal property with the exception of the parties' eighteen embryos being stored at North Shore Center for Reproductive Medicine. By stipulation dated April 21, 2016 (Court ex. 6), the parties agreed that "any and all frozen embryos, which for the purpose of this case constitute the parties' personal property and should be 18 in number, are recognized to be presently in storage at North Shore Center for Reproductive Medicine...[and] consent that any and all such embryos shall [sic] destroyed forthwith by the clinic per the annexed embryo discard form." Accordingly, the parties April 21, 2016 stipulation, which is properly executed and acknowledged under DRL §236 addresses the disposition of the parties' embryos and need not be distributed by the Court.
As to the Father's educational degree, license and board certifications, if any, he testified that he completed medical school in 2006 and passed his licensing exam and obtained his license to practice medicine in 2008. The parties were married in September 2009. Accordingly, the Father's educational degree and license are his separate property and not subject to equitable distribution. As to the Father's board certifications, nothing in the record establishes the acquisition of same during the marriage. However, even if the Mother had established an acquisition date (if any) during the marriage, and was therefore potentially entitled to an award based on the Father's enhanced earning capacity, she never established the value of such enhanced earning capacity, through privately retained expert testimony, or a court appointed appraiser during the course of discovery (Rue Mei Cai v Fai Lau, 133 AD3d 541 [2015]; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814 [2015]). Because there was no testimony as to whether same had a value separate from his medical license, the Court need not reach that issue (Shoenfeld v Shoenfeld, 168 AD2d 674 [1990]). Accordingly, the Court denies the Mother's request for equitable distribution of same.
Marital Debt
The Court is also obligated to address marital debt (Conway v Conway, 29 AD3d 725 [2006], Le v Le, 82 AD3d 845 [2011]; Epstein v Messner, 73 AD3d 843 [2010]). Expenses incurred prior to the commencement of an action for divorce are marital debt to be equitably shared by the parties upon an offer of proof that they represent marital expenses (Epstein v Messner, supra). Expenses incurred after commencement of an action for divorce are, in general, the responsibility of the party who incurred the debt (Id). Where a party has paid the other party's share of what proves to be marital debt, reimbursement is required (Id). The Court has broad discretion in allocating marital debt and liability need not be equally apportioned, but may be distributed in accordance with the principles of equitable distribution set forth in DRL § 236(B)(5)(d) (Difiore v Difiore, 87 AD3d 971 [2011]).
The only equitable distribution sought in the Father's verified complaint is distribution of
marital debt. However, the Father offered no testimony or evidence to establish same. Rather, the only joint debt listed in his statement of net worth (pl. ex. 2) is the sum of $3,769 for rent [*50]arrears accrued between June 2009 and September 2010, and credit card debt for "combined expenses" and "engagement ring" all of which he affirms was discharged in the Bankruptcy Court by order dated August 24, 2012.
While the Mother does not seek distribution of debt in her amended answer, her statement of proposed disposition seeks the Father's payment of debts to [her] former counsel, reallocation of the forensic and Attorney for the Children fees, and reimbursement of the NYS 2010 joint tax return. While her statement of proposed disposition sets forth her position to be taken at trial, no documentation and/or evidence was submitted, nor was any credible testimony offered regarding these claims. It was incumbent on the Mother to establish the existence of these debts, any fees charged to her, payments made by her, and any facts to support a basis to reallocate, which the Mother failed to do. Accordingly, her request is denied.[FN30]
Maintenance
Under DRL §236(B)(6)(a) "the court may order maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties." Such order shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider the factors set forth in the statute.[FN31]
In her amended answer and counterclaim filed on August 7, 2013, the Mother seeks an order "awarding [her] a reasonable sum as and for [her] support and maintenance for no shorter than the time required to complete Residency and Fellowship training." Post divorce maintenance arises only after the current and future need for same is established and is awarded to ensure that the receiving spouse's reasonable needs are met. (Christopher C. v Bonnie C., 40 Misc 3d 859 [2013]; Cooper v Cooper, 84 AD3d 854 [2011]). Once again, the Mother failed to establish her entitlement to this claim at trial, or assert any of the factors set forth in the Domestic Relations Law to support her request. Specifically, she offered no testimony as to a sum of maintenance sought, her need for same, or any other information relevant to the statutory factors the Court must consider. Accordingly, same is denied.
CONCLUSION
After the conclusion of the trial in this matter, the Court grants the following relief: (1) the Father is entitled to a judgment of divorce pursuant to DRL §170(7) irretrievable breakdown of the marriage; (2) the Father is awarded sole physical and legal custody of the subject children, subject to the parental access awarded to the Mother; (3) the Father is awarded child support of $447 per month and reimbursement from the Mother of 15% of unreimbursed medical and childcare expenses and health insurance premiums effective December 1, 2016 and payable through the SCU; (4) the Father is awarded retroactive child support arrears totaling $8,327 plus reimbursement of 20% of unreimbursed medical and childcare expenses and health insurance premiums from November -December 2014 and 15% of same from January 2015-April 2016, basic child support retroactive arrears shall be paid through the SCU; (5) the Father shall maintain the children on his health insurance plan; (6) an award of equitable distribution does not apply; and (7) the Mother may resume the use of her prior surname.
This constitutes the decision of the Court. Any relief not specifically addressed herein is denied. The Father's counsel is directed to settle a judgment of divorce and findings of fact and conclusions of law in conformity with the within decision on the Attorney for the Children and the Mother's counsel within sixty days (60) days or the action may be deemed abandoned. Upon entry of the judgment, Plaintiff's counsel is directed to serve a copy of same on Defendant's counsel and the Attorney for the Children and file proof of service in the Office of the Kings County Clerk. Plaintiff or his counsel shall open an account with the SCU and file a copy of the judgment with SCU. All counsel are directed to retrieve their respective exhibits from the Part 5F Clerk within thirty (30) days or same will be discarded.
ENTER,
_______________________________________
HON. RACHEL A. ADAMS, J.S.C. Footnotes
Footnote 1:The Court notes that the Mother was represented by six separate counsel during the course of this litigation: Chemtob Moss Forman & Talbert, LLP: - July 11, 2011 - on or about September 2011 Boris Nikhman, Esq.: - September 2011 - July 23, 2012 Maria Novak, Esq.: - September 10, 2012 - January 11, 2013 Cheryl Solomon, Esq.: - January 11, 2013 - March 5, 2014 (custody, visitation, contempt) Jerome Leitner, Esq.: - March 3, 2014 - March 26, 2015 Cheryl Solomon,: - November 17, 2015 (contempt of 11/16/15 order) Peter Lomtevas, Esq.: - December 2015 - present.
Footnote 2:While the instant action was proceeding, the Court learned, through the Father's counsel, that on or about December 6, 2012, the Mother commenced a divorce proceeding in the Superior Court of New Jersey Chancery Division Family Part, Hudson County where she asserted that she resided in New Jersey and requested an award of custody to her. In the New York action, she requested an immediate award of custody to her.
Footnote 3:Having not received all copies of the forensic evaluation, by April 1, 2015 order, the Court directed the Mother's prior counsel, the Father's counsel, and the Attorney for the children to return to the Court their copies of forensic reports, CFS reports and any correspondence form the forensic evaluator and CFS.
Footnote 4:In light of the acrimony between the parties, they were not able to agree to effectuate the Court's November 6 and November 17, 2015 orders. As a result, the Court issued a December 2, 2015 order directing the parties and counsel to appear before the Special Referee to facilitate the simultaneous execution of the Mother's counsel retainer agreement and notice of appearance and the Father's counsel fee payment to her attorney.
Footnote 5:During the months between the September 2012 finding of contempt and the retrieval of the children, the Mother filed proceedings in New Jersey for custody of the children.
Footnote 6:That assignment of counsel was subsequently expanded to include representation of the Mother in a hearing for an order of protection.
Footnote 7:The Mother declined to exercise her right to schedule in person supervised visits with the children since November 2015 and had not seen the children in several months. As discussed in the trial testimony, that position on supervised visits did not change although she offered different reasons for declining to schedule the visits.
Footnote 8:By decision dated December 13, 2013 and order dated January 30, 2014, the Mother was awarded counsel fees of $30,000, to be deposited in the Father's counsel's attorney escrow account and released directly to the Mother's retained counsel upon execution and filing of a retainer agreement and affirmation estimating fees to be expended for trial preparation and trial.
Footnote 9:This matter had been set down for trial two times prior to the April 2016 dates. The first trial dates were vacated on the Mother's representation to the Court that she was ill and undergoing surgery and after she had been awarded counsel fees of $30,000 to prepare for and proceed to trial with privately retained counsel. Thereafter, the matter was scheduled for trial to commence in November 2015 immediately prior to which the Mother moved for pendente lite counsel fees which again delayed the commencement of the trial (mot. seq. 23)
Footnote 10:As shown in the annexed exhibit.
Footnote 11:https://www.ssa.gov/news/press/factsheets/colafacts2015.html.
Footnote 12:New York Automated State Support Enforcement Tracking.
Footnote 13:At this juncture the Mother asserted that the subpoena served by the Father on Mother's employer, was in fact, served on the incorrect office and would result in a "waste of this Court's time...." The Mother referred the Court to her witness list which includes her "direct employer," who will be made available for cross examination (tr. 11/16/15 p 35). A review of the Mother's witness list reveals that no one from any hospital or medical training program was included by the Mother as a possible witness on her behalf.
Footnote 14:Visits were to be supervised under the auspices of Comprehensive Family Services. Rick Spitzer is the director of the program and it is he who assigned various social workers to provide supervision and submit reports of those visits to the Court. Danielle Spector conducted supervision for the Rosenstock family from approximately March 2013 through January 2015. From February 2015 through November 2015, Rachel Schimmel primarily supervised the visits. CFS is an approved provider of mental health services by the Appellate Divisions for the First and Second Departments.
Footnote 15:By order dated February 1, 2012, the Father was granted supervised visitation with a certified social worker who would prepare a report to the Court.
Footnote 16:By so ordered stipulation dated October 23, 2014, the Mother agreed that her arrears for "children's child care/school" at 20% for a 9 month period totaled $4,023 ($2,234.87 x 20%) x 9 months = $4,023 (rounded to the nearest dollar).
Footnote 17:P.S. 51 is located at 525 West 44th Street, New York, NY 10036.
Footnote 18:Court Exhibits I. Curriculum Vitae of Bernice H. Schaul, Ph.D. II. Dr. Bernice Schaul's Psychological Report dated February 19, 2014 III. Dr. Bernice Schaul's Psychological Report Update dated November 2015 IV. Dr. Bernice Schaul's Affidavit certifying the 2014 Report dated April 9, 2016 V. Dr. Bernice Schaul's Affidavit certifying the 2015 Report Update dated April 9, 2016 VI. April 21, 2016 stipulation between Father and Mother regarding the destruction of frozen embryos Father's Exhibits 1. Screen shots of text messages between Father and Mother, March 27, 2014 - October 25, 2015 2. Father's September 29, 2015 Statement of Net Worth 3. 2015 Individual Federal Tax Return - Father 4. 2015 Individual New Jersey State Tax Return - Father 5. [For identification only] 6. [For identification only] 7. Mother's Order to Show Cause October 13, 2015 (mot. seq. 23) and attached Exhibits A - E, including Mother's October 6, 2015 Statement of Net Worth 8. [For identification only] 9. Certified Tuition Report from Turrell Childcare and Early Learning Center dated April 8, 2016 10. Records of North Shore LIJ for Mother dated April 18, 2016 Attorney for the Children's Exhibits 1. [For identification only] 2. [For identification only] 3. [For identification only] 4.[For identification only]
Footnote 19:Although not raised during the instant litigation, the Court is in receipt of medical records submitted by the Mother's prior counsel, Jerome Leitner, Esq. These records were submitted by the Mother solely to support her request to adjourn the trial conference scheduled in December 2014. After the application was granted, Mr. Leitner was substituted out of the case for the Mother, pro se. Neither the Attorney for the Children nor the Father inquired of the Mother at trial about the medical records or her medical condition which she alluded to at trial.
Footnote 20:The record reveals that at various times the Mother advised the Court that she was a New Jersey resident; when she filed the divorce proceeding in the New Jersey courts in December 2012 she listed her residence as 100 Manhattan Ave., Union City, New Jersey and when she filed her pro se amended verified answer with counterclaim dated August 7, 2013 she listed her residence as Edgewater, New Jersey.
Footnote 21:The Mother's proposal entails yet another layer of deceit as it requires falsifying the children's residence to that of the maternal grandmother.
Footnote 22:While the Mother was precluded from offering any previously undisclosed financial documentation at trial, the trial record was bereft of any financial information.
Footnote 23:No additional financial documentation was submitted during the Mother's direct case.
Footnote 24:This represents a statutory deduction for FICA however, the Father is a New Jersey resident and there is no deduction for local taxes on his W-2.
Footnote 25:Although precluded by court order, no objection was made by the Father at trial when the Mother was questioned as to her finances.
Footnote 26:Calculation of the Mother's child support obligation on combined parental income in excess of the $143,000 is: [(($364,686 - 143,000) x 25%) x 15%] = $8,313 per year.
Footnote 27:[($2,234.87 x 2 months x 20%) + ($2,234.87 x 8 months x 15%)] = $3,576.
Footnote 28:During the marriage, the parties froze eighteen embryos which, at the time of commencement, were being stored at a clinic.
Footnote 29:As is relevant here, DRL §236[B][5][d] provides that: In determining an equitable disposition of property under paragraph c, the court shall consider: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (8) the liquid or non-liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse; (13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14) any other factor which the court shall expressly find to be just and proper.
Footnote 30:Not withstanding denial based upon the Mother's failure of proof, the Court would be remiss not to note that the Mother was awarded counsel fees totaling approximately $55,000 during the course of this action.
Footnote 31:(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part; (2) the length of the marriage; (3) the age and health of both parties; (4) the present and future earning capacity of both parties; (5) the need of one party to incur education or training expenses; (6) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (7) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor; (9) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (10) the presence of children of the marriage in the respective homes of the parties; (11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity; (12) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment; (14) the tax consequences to each party; (15) the equitable distribution of marital property; (16) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (17) the wasteful dissipation of marital property by either spouse; (18) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and (20) any other factor which the court shall expressly find to be just and proper.
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