Matter of S.M-C. v S.C.

[*1] Matter of S.M-C. v S.C. 2010 NY Slip Op 50438(U) [26 Misc 3d 1237(A)] Decided on March 17, 2010 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2010
Supreme Court, Dutchess County

In the Matter of S.M-C., Plaintiff,

against

S.C., Defendant.



xxxxxx



DANIEL H. STOCK, ESQ.

GELLERT & KLEIN, P.C.

Attorneys for Plaintiff

75 Washington Street

Poughkeepsie, New York 12601

SAMUEL P. BROOKE, ESQ.

BROOKE & BRADY, LLP

Attorneys for Defendant

31 Collegeview Avenue

Poughkeepsie, New York 12603

PAUL L. MOLLICA, ESQ.

Attorney for the Children

40 Cannon Street

Poughkeepsie, New York 12601

James D. Pagones, J.

The court conducted a trial on the issue of custody on January 19 and 20, 2010 and February 9, 2010. The court subsequently conducted separate in camera interviews with the parties' children, M.C. and A.C., on February 23, 2010.

The issue of custody was put before the court because of the inability of the parents to navigate around the mire of their own enmity. The attorney for the children and the children's social worker each stated the obvious — the children, particularly M.C., feel torn between these warring parents, who are equally loved by their children. The court's interviews with the children revealed that this litigation has had a profound negative impact on the children, particularly A.C. A.C.'s trembling visit to my chambers dramatized the tangible consequences of one parent's decision to win at all costs. Custody should not be a prize awarded to the victor of a vicious and cynical campaign against the parent of your child. Instead, parties should strive for a custodial arrangement which will promote the best interests of their children. (Eschbach v. Eschbach, 56 NY2d 167, 182 [1982].)

Every attorney who has prepared for custody litigation knows how enigmatic the "best interests" standard is. There is a surfeit of case authority which attempts to divine a pragmatic explication for "best interests" to apply in the crucible of custody litigation. However, "the only absolute in the law governing custody of children is that there are no absolutes." (Friederwitzer v. Friederwitzer, 55 NY2d 89, 93 [1982].) Notwithstanding the ephemeral nature of the best interests "standard," every authority concurs that it should not be a battle over which parent "deserves" custody more. The focal point of the court's inquiry must be the children.

The fact that the parties herein have been unable to amicably resolve custody is prima facie evidence that one or both of them is incapable of supplanting his or her selfish desires for the benefit of the children.

Our courts have noted:

"Custody disputes arise in emotionally charged circumstances, and require that the court conduct a careful balancing of all the applicable factors in determining the best interests of the [*2]child under the prevailing circumstances." (Ginsberg v. Ginsberg, 164 AD2d 906, 907-908 [2d Dept. 1990].)

The court has considered the following factors: the ages of the children; the physical and emotional needs of the children; the educational needs of the children; the children's preferences; the need to keep the siblings together; each party's fitness as a parent; the appropriateness of joint custody; and the parties' respective lifestyles.

The plaintiff mother presented the testimony of Karen Pomarico, Colleen Quartuccio and Terry Ann Sanker. The father presented the testimony of Janine DeFranco. Both parties testified. The children were interviewed in camera but not under oath. The certainty of words always depends upon the integrity of the speaker. "For the ear tests words, as the mouth tastes food." JOB 34:3. I had the unique opportunity to observe the testimony of the parties, their respective witnesses and the statements of the children. In so doing, I considered the following factors in weighing their testimony: the interest or lack of interest of the witness in the outcome of the proceeding, potential bias or prejudice on the part of the witness, the appearance, sincerity, demeanor, the manner in which the witness gave testimony, the opportunity the witness had to observe the facts about which he or she testified and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence in the proceeding. The defendant father is a stranger to the truth and an alien to honesty. His testimony on all relevant issues was not credible. The plaintiff mother was forthright and painfully honest, even when her testimony appeared adverse to her litigation posture. As between plaintiff and defendant, I resolve all issues of credibility and reliability in favor of the plaintiff mother. (Ivani v. Ivani, 303 AD2d 639, 640 [2d Dept. 2003].) I found each of the parties' four fact witnesses to be highly credible. The parties' son, M.C., was frank and truthful except when he discussed his father's relationship with Carolann B. At that juncture, M.C. was evasive, avoided eye contact for the only time in the interview and answered in a rote manner. The court concluded that M.C. had been coached regarding this line of inquiry.

Karen Pomarico offered little insight into the issues which the court must resolve in this proceeding. She did aver that when she observed the parties' children, they were appropriately dressed; neat and clean; and they were happy and well-behaved. The witness observed the plaintiff interact with her children in an affectionate, nurturing and loving manner. Karen Pomarico testified that she has observed the plaintiff mother present well-balanced meals to her children. On cross-examination, Ms. Pomarico acknowledged that the last time she had been at the plaintiff's home was a "couple" years ago and that she has observed the children being affectionate to the father although she has never observed them alone with him.

Colleen Quartuccio is a kindergarten teacher who taught A.C. during the 2008-2009 school year. During that year, the plaintiff mother was a parent-assistant every Monday and Ms. Quartuccio had the opportunity to observe the plaintiff interacting with A.C. and the other children in the class. Ms. Quartuccio testified that she was extremely satisfied with the plaintiff's performance as a parent-assistant and that the plaintiff was reliable and the kids enjoyed her presence. Ms. Quartuccio observed the plaintiff interact with A.C. and averred that she was very affectionate; frequently hugging and kissing A.C. Ms. Quartuccio testified that A.C. came to school dressed appropriately and was always neat, clean, well-behaved and polite. Ms. [*3]Quartuccio recalls having met the defendant father on one occasion during the school year at the very first parent-teacher conference, but does not recall any other interactions with him during A.C.'s kindergarten year. Both parents signed A.C.'s homework but the mother signed much more often than the father.

Terry Ann Sanker has known the plaintiff mother for about nine years and has had the opportunity to observe her with A.C. and M.C. "hundreds" of times. Ms. Sanker averred that the plaintiff is a "good" mother who is loving and affectionate toward her children. Ms. Sanker described the plaintiff mother as calm and patient with her children and that the children were well-behaved and polite. Ms. Sanker observed the children to always be clean, appropriately dressed and well-groomed.

The defendant called Janine DeFranco who is a licensed clinical social worker counseling the parties' children. Ms. DeFranco testified that she is the children's counselor and not a counselor for either one of the parents. Ms. DeFranco testified that the plaintiff mother brings the children to her every week and that on occasion, she has discussed different strategies for interpreting M.C.'s behavior. The counselor has spoken to the father several times on the telephone. Ms. DeFranco testified that the children had a lot of information about the pending custody litigation which she believed was coming from "both sides." Ms. DeFranco testified that one of the things which came up during her discussions with the plaintiff was the mother's belief that M.C. was disclosing things to her and Don K. which he was not disclosing to Ms. DeFranco. The witness related that the plaintiff had talked to M.C. and encouraged him to tell Ms. DeFranco, and not other people, because Ms. DeFranco could help him. Ms. DeFranco opined that based on her own observations the father seems very concerned about his children and that his interactions with them are appropriate. Ms. DeFranco averred that the mother seems to genuinely care for her children and has definitely expressed that she wants what is best for them. Ms. DeFranco acknowledged that she did not conduct any formal evaluation of either party to assess their parenting abilities and her testimony was based entirely upon observations made in the waiting room or during telephone conversations. When asked by the attorney for the children if the mother has the ability to put the children's needs in front of her own, Ms. DeFranco testified that she did although "at times it has been very difficult for her." Ms. DeFranco testified that she was aware that an individual named Don K. was residing with the plaintiff and the parties' children and that although she had had discussions with the children about Mr. K., she never relayed any concerns that the children might have about Don to the mother.

FINDINGS

The parties were married on June 10, 1995 and there are two children of the marriage: M.C., d/o/b: 01/14/98 and A.C., d/o/b: 08/31/03.

Age and Preference

A.C. is six years old and M.C. is twelve years old. No evidence was presented that there are any specific age-related factors which would compel that either child be placed in the custody of a particular parent. On the contrary, the evidence establishes that the children relate well to both parents and reciprocate the love and affection of both the mother and father. [*4]

Consistent with his function [FN1], the attorney for the children has stated that his clients "want an almost equal time sharing with their parents."

Neither child articulated a preference for residing with either parent during the in camera interviews, although there was evidence that A.C. would prefer to live with her mother. A child's preference regarding custody is not determinative and the court must examine all relevant circumstances. (Nehra v. Uhlar, 43 NY2d 242, 249 [1977].) No competent evidence was adduced at trial that either parent has exerted influence on either child to express a particular preference and the overwhelming evidence is that the children love both parents and have no particular preference regarding residential custody.

Needs of the Children

The court finds that both parents are appropriately meeting the physical needs of the children.

The parents recognized the potential emotional trauma their marital discord could inflict on the children and enrolled them in counseling with Ms. DeFranco without court intervention. Both parties acknowledge that the children should continue with Ms. DeFranco. While there is evidence that both parents initially attempted to use Ms. DeFranco for their own strategic purposes, the evidence establishes that the mother has abandoned such efforts. However, by calling the children's counselor as the only witness on his behalf, the father has demonstrated his continued willingness to place his own needs over those of his children. The parties jointly decided that the children needed counseling to deal with the emotional repercussions of their parents' breakup. This was a mutually astute decision aimed solely at addressing the children's emotional needs. The fact that both parents initially attempted to manipulate the counseling process for their own advantage may be chalked up to the winner-take-all mentality commonplace in custody litigation. The father's premeditated effort to exploit the children's counselor as a weapon against the mother is entirely antithetical to the best interests of the children.

Ms. DeFranco testified that both parents had been involving the children in this litigation. Ms. DeFranco testified that the mother has the ability to put the children's needs "in front of her own" but that "at times it has been very difficult for her." That testimony illuminates the mother's evolving progress toward preserving the preeminence of her children's emotional needs while struggling to extricate herself from a failed marriage. Ms. DeFranco did not testify that the father has the ability to put his children's needs ahead of his own. This is a glaring omission considering the counselor voluntarily appeared as the defendant's only witness. The nature of Ms. DeFranco's direct examination demonstrated that the father called his children's counselor as a witness in a desperate attempt to elicit negative testimony about the mother from a credentialed professional who admittedly never performed a formal assessment of either parent. The father demonstrated his inability to place the children's emotional needs above his own by placing the children's counselor in the untenable position of testifying against her clients' mother, jeopardizing the critical relationship the counselor must maintain with both parents if she is to effectively treat the children. The mother must be credited with not allowing this attempted assault to undermine her confidence in Ms. DeFranco. The father's trial strategy completely [*5]ignored the long-term need for the children to enjoy emotional stability in favor of his own need to win the custody battle. On the other hand, the mother has demonstrated that she is willing to place her children's needs above her own by asking Donald K. to remove himself from her residence. The mother testified that when she learned from the law guardian's arguments in Family Court that the children were disturbed by the presence of Mr. K. in the household she told him he needed to move out, which he did. Although defendant's attorney suggested that the plaintiff had earlier ignored similar advice from Ms. DeFranco, the counselor testified that she had never discussed any of the concerns the children had about Mr. K. with the plaintiff mother.

Fitness and Lifestyle

Among the factors to be considered by the court is the "overall relative fitness" and lifestyle of the parties. (McGovern v. Lynch, 62 AD3d 712 [2d Dept. 2009].) The attorney for the children observed in his summation that "absent the stressors of litigation...both of these parents are good and loving parents."

Plaintiff mother is a 38 year old self-employed fingernail technician who earns approximately $15,000.00 annually. Plaintiff currently resides in the marital residence, which is the subject of a foreclosure action because defendant stopped paying the mortgage in February, 2009. The defendant admitted that he purchased season tickets to the New York Yankees in 2009 even though he was not paying the mortgage on the only home where his children have ever resided. Defendant father earns about $68,000.00 annually as the head custodian for a public school and is in good health. Defendant has filed for bankruptcy. Defendant currently resides in a one bedroom apartment which includes a livingroom, diningroom, kitchen and one full bath. The children do not sleep together when staying with him. Neither party is taking prescription medication. During re-direct examination, defendant averred that plaintiff has "mental health issues" although he presented no evidence to support this pernicious assertion. In fact, defendant had earlier testified on direct that the plaintiff was a "good" parent "except for the past year" which coincides to the period since he was removed from the marital residence by court order.

The plaintiff mother takes the children to all of their medical appointments; attends school conferences; was a parent-assistant for A.C.'s kindergarten class; does their clothes shopping; gets them to extracurricular activities; assures that they are attending to personal hygiene; helps with homework and disciplines them if necessary. The father tries to get to doctor appointments for the children if his schedule permits. He helps the children with their homework; is involved in their extracurricular activities; occasionally attends school conferences and tends to the children's needs when they are visiting.

Both parties have paramours. Plaintiff acknowledged inviting Don K. to move in with her and the children but asked him to leave after she learned that the children were upset by his presence. Defendant denies that he has a romantic relationship with Carolann B. but his tortuous attempt to describe a strictly platonic friendship was improbable. The evidence adduced establishes that both Carolann and Don have occasionally inappropriately injected themselves into this custody war. The mother has acted responsibly by curtailing Don's involvement while the father selfishly clings to a fiction. Neither child described any conduct by either party which would raise concern about their respective fitness as parents or their lifestyle. Neither child expressed any negative feelings about either Don or Carolann. [*6]

The plaintiff testified credibly about the defendant's physical and emotional abuse of her before he was removed from the marital residence. The defendant becomes particularly abusive when he drinks alcohol to excess. While the defendant has not hit or abused the children in the past, his malevolence has not been restricted to the plaintiff. The defendant frequently has punched the family's ten year old dog and repeatedly shot it with a BB gun, both in the presence of the children. The defendant acknowledged shooting at a neighbor's dogs and his denial that he shot the family dog was implausible.

The defendant admitted that on at least one occasion he drove by the plaintiff's house in violation of an order of protection.

Need to Keep Children Together

It has been observed that:

"Young brothers and sisters need each other's strengths and association in their everyday and often common experiences and to separate them, unnecessarily, is likely to be traumatic and harmful" (Eschbach, supra at 173.)

The in camera interviews revealed that A.C. and M.C. have an

excellent and healthy bond and nothing has been presented which would suggest that it is necessary to separate these siblings.

Joint Custody

The attorney for the children has represented to the court that the children want to spend equal time with both parents. It has been held that an award of joint custody is inappropriate where the parents are unable to cooperate on matters concerning the children. (Bliss v. Ach, 56 NY2d 995, 998 [1982].) The parties failed to amicably resolve their differences before trial. Joint custody would have been an appropriate voluntary alternative prior to trial because it would have affirmed the ability of the parents to amicably behave in a civilized fashion for the children's best interests. (Braiman v. Braiman, 44 NY2d 584, 589-590 [1978].) At trial, the father demonstrated his ongoing animosity and bitterness toward the mother. In addition to all the negative testimony he presented, he was unable, during his own direct examination, to articulate any good quality about the plaintiff as a mother. The father's unjustified antagonism and his inability to set aside his animosity to promote the children's best interests precludes joint custody. (Edwards v. Rothschild, 60 AD3d 675, 677 [2009].)

DECISION

The court has carefully evaluated the testimony of the parties and their respective witnesses and has considered their character and sincerity. (Eschbach, supra at 173.) After balancing all of the relevant factors, the court finds that the plaintiff-mother, S.M-C, is better able to provide an appropriate home environment and parental guidance for A.C. and M.C. The plaintiff mother is better able to provide for the children's emotional and intellectual development and is able to sufficiently provide for the children's needs. The mother will ensure that the children enjoy frequent and meaningful contact with their father. In the context of this custody proceeding, the plaintiff mother is, overall, more fit than the defendant father. Based upon all of the circumstances established by the credible evidence, the court finds that sole, exclusive custody of the parties' children, A.C. and M.C., shall be with the mother, S.M-C. The mother shall have final decision-making authority with regard to the children's healthcare, education and religion. The father shall be allowed visitation with the children as follows: [*7]

Beginning on April 9, 2010 alternating weekends commencing Friday at 5:30 p.m. until Sunday at 5:00 p.m. The mother shall drop the children off at the father's home on Friday and the father shall return the children to the mother's home on Sunday. If the Monday immediately following the father's scheduled visitation is one of the following school holidays: Labor Day, Columbus Day, Veteran's Day, Martin Luther King, Jr. Day, President's Day or Memorial Day then, in that event, the father shall return the children on Monday night at 5:00 p.m.

Beginning on April 15, 2010 alternating Thursdays commencing after school until 8:00 p.m. The father shall pick the children up from school and drop the children off at the mother's house.

The father shall have three weeks visitation with the children each summer but no more than two weeks shall be consecutive. The mother will notify the father by May 1st of each year, commencing in 2010, which weeks the children will be with him, by both regular mail with certificate of mail and certified mail, return receipt requested.

Each parent shall always spend time with the children on each child's birthday and on the parent's birthday. The father shall have access time with the children on Father's Day and the mother on Mother's Day. If, on those occasions, the children are not in the custody of that parent, then they shall be dropped off at 4:00 p.m. and returned at 8:00 p.m. to provide for the required access time.

Commencing in 2010, the father shall have visitation with the children in alternating years for Christmas break starting at noon on Christmas Day until noon on the day before school resumes. In the years when the father's visitation does not commence on Christmas day, the mother shall drop off the children at noon on December 24th and the father shall return the children at noon on Christmas day.

The father shall have visitation with the children in alternating years during their Spring recess from school commencing in 2011. The mother shall drop the children off by 8:00 p.m. on the last day of school and the father shall return the children by 5:00 p.m. on the day before school resumes.

The father shall have visitation with the children in alternating years commencing in 2011 on Thanksgiving Day. The mother will drop the children off at 1:00 p.m. on Thanksgiving Day and the father shall return the children at 5:00 p.m. the next day, unless his regularly scheduled visitation is to take place.

The following co-parenting provisions apply:

a.Each parent shall have complete access to all health care records, information and providers concerning all matters relating to the mental and physical well-being of the children; a copy of all health care information received by one parent shall be provided to the other within forty-eight hours of receipt; each parent, while the children are in his or her care, shall inform the other of any illness, injury or condition which confines a child to bed for more than three days or which requires medical intervention; each parent shall sign releases or other documents necessary and/or required to permit the other to have access to health care information and/or providers.

b.Each parent shall have complete access to all school records and all personnel [*8]involved with the education of the children; a copy of all report cards, school bulletins and schedules of events, PTA meetings and the like or any other material received from any school the children are attending shall be mailed to the other parent within forty-eight hours of receipt; each parent shall sign releases or other documents necessary and/or required to permit the other parent to have full access to such educational records and/or providers.

c.Both parents shall be listed with all schools, day care providers, health care personnel and facilities, camps and similar individuals and institutions as the primary parties to be contacted in the event of an emergency and to receive all records and information from such individuals, institutions and agencies with respect to the children of the parties.

d.Each parent shall advise the other of any special events, dinners, ball games, plays, recitals and the like in which the children are involved and which parents may attend; advice about such events shall be given by e-mail within forty-eight hours of receipt.

e.Each parent shall encourage the free exercise of the visitation/custodial rights of the other; neither parent shall do any act or make any statement which would directly or indirectly tend to defeat or make exercising visitation/custodial rights of the other parent more difficult; which would tend to disappoint the children; which is derogatory of the other parent; or, which would discourage the children from contact with the other parent. Neither parent shall allow, condone or encourage any other person to engage in any conduct which is contrary to the above provisions. In exercising custodial/visitation rights each parent shall consider the wishes, plans and activities of the children.

f.When the children are with either parent, such parent shall make certain that homework is completed and that the children attend their school, extracurricular, social and religious activities.

g.Neither parent shall schedule any activity or appointment for the children which would tend to defeat, make more difficult or interfere with the visitation or contact the other parent is entitled to receive, without prior consultation with an agreement by the other parent.

h.Prior to discussing with the children any trip, event or activity in which the children's participation might tend to interfere with or defeat the other parent's right of contact or visitation, the parent seeking to allow the children to participate in such trip, event or activity, shall consult with and obtain the agreement of the other parent as to whether and how many missed visitation or contact will be compensated. [*9]

I.Each parent shall arrive on time for any scheduled pick up or return of the children; the children shall be provided with clean, adequate and suitable clothing for any scheduled visitation period and the same or comparable clothing shall be returned at the conclusion of the visit.

j.Neither parent shall expose the children to any conduct or activity which would endanger the physical, mental or moral well-being of the children.

k.Each parent shall keep the other advised of his/her current address and telephone number. If the children are to be outside the State of New York for any reason for a period in excess of seventy-two hours, the parent causing or allowing the children to be at such location shall inform the other parent, in advance, where the children will be and, when possible, the address and telephone number where the children may be reached while outside the State of New York.

l.During any period that the children are with one parent, reasonable, peaceful and private telephone contact between the children and the other parent shall be allowed. The children and parents shall also have the right to communicate in writing or by e-mail without interference.

m.Each parent shall keep the other advised of the name and telephone number of any day care provider used on a regular basis or during a school vacation period.

n.Neither parent shall move from his/her current residence without first giving the other parent at least ninety days prior notice, in writing by regular mail and certified mail, return receipt requested.

The attorney for the children is discharged from further representation of the parties' children with the gratitude of the court. Mr. Mollica is directed to submit his final invoice for services rendered within ten (10) days from the date of this decision. His fees shall be the sole responsibility of the defendant, S.C. Pursuant to the order appointing the attorney for the children, the court has determined to reallocate the total obligation for fees and to require the defendant to reimburse the plaintiff for all sums paid to Attorney Mollica pursuant to the court's order and the plaintiff shall have judgment therefore.

DRL §237(a) permits this court to require the payment of counsel fees to enable a spouse to carry on or defend a divorce action or any portion of such an action. Plaintiff is the non-monied spouse and her testimony revealed that she has been required to undertake extraordinary measures to defend the father's campaign against her. DRL §237(a) was intended to redress the economic disparity between a monied and non-monied spouse. (Frankel v. Frankel, 2 NY3d 601 [2004].) The court finds that in this action, plaintiff was required to incur substantial legal fees because of the defendant's obstructionist negotiating postures and trial tactics. (Walker v. Walker, 255 AD2d 375 [2d Dept. 1998]; Saslow v. Saslow, 305 AD2d 487 [2d Dept. 2003].) [*10]The plaintiff is awarded counsel fees in an amount to be determined upon the submission of an itemized statement of legal services by the plaintiff's counsel within fifteen days of the date of this decision on notice to the defendant's counsel.

The plaintiff's counsel is directed to submit a custody order consistent with this decision on notice to the defendant's counsel. The parties are directed to appear on March 31, 2010 at 9:00 a.m. for a conference to schedule a hearing to determine

child support and any other remaining unresolved issues. Adjournments are only granted with leave of the Court.The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

March 17, 2010

ENTER

Hon. James D. Pagones, A.J.S.C.

TO: [*11]

031110 decision Footnotes

Footnote 1:22 NYCRR §7.2(d)(2)