D.H.B. v R.B.
Annotate this CaseDecided on November 30, 2015
Supreme Court, Dutchess County
D.H.B., Plaintiff,
against
R.B., Defendant.
XXX/15
NEVEEN M. NESHEIWAT, ESQ.
Attorney for Plaintiff
598 Tuckahoe Road, Suite 1A
Yonkers, New York 10710
STEVAN A. NOSONOWITZ, ESQ.
Attorney for Defendant
1539 Main Street, Suite No.3
P.O. Box 671
Pleasant Valley, New York 12569
PATRICIA L. CAMPANARO, ESQ.
Attorney for the Child
J.B.
Campanaro & Tomkovitch, Esqs.
Route 376, P.O. Box 123
Hopewell Junction, New York 12533
JAMES D. MEIER, ESQ.
Attorney for the Child
M.B.
Two Austin Court
Poughkeepsie, New York 12603
James D. Pagones, J.
The plaintiff/mother in this longstanding, highly contentious divorce action asks this Court to modify the stipulation between the parties regarding temporary custody, access time, use and occupancy of the former marital residence and family counseling, dated May 31, 2013 and "so ordered" on June 3, 2013, to permit her to have custody of the oldest child, M.B. (d/o/b: 04/09/01), as well as relocate her son to the State of Texas where she currently resides.
A hearing was commenced on November 23, 2015. At the outset, counsel for the mother indicated that her client would not be pursuing custody and relocation of the parties' youngest child, J.B. (d/o/b: 04/06/03). The Court informed counsel and the parties that it would take judicial notice of undisputed court records and files. (Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill, 8 AD3d 485 [2d Dept. 2004].)
The mother, as the parent seeking court approval of her prior relocation to Texas and present application to obtain custody of M.B., has the burden of proving by a preponderance of the evidence that the proposed move will be in the child's best interests. (Scott VV. v. Joy VV., 103 AD3d 945, 946 [3d Dept. 2013], lv to app den 21 NY3d 909 [2013]; Matter of Shirley v. Shirley, 101 AD3d 1391, 1392 [3d Dept. 2012].)
The only witnesses who testified during the mother's case in chief were the father and mother. At its conclusion, counsel for the father moved, pursuant to CPLR 4401, for judgment dismissing her application for her alleged failure to establish, prima facie, that the proposed relocation of M.B. will advance the child's best interests. The Court and counsel received a memorandum of law prepared by the father's attorney in support of the motion. The attorney for J.B. supported the motion on the record. Counsel for the mother and the attorney for M.B. were afforded the opportunity to submit their respective memos of law, which have been received. The mother urges denial of the motion. In the alternative, she requests the opportunity to reopen her case and call M.B. as a witness. The attorney for M.B. has taken the position that since the Court has already heard from the parents, no other testimony from third-party witnesses is needed. Rather, the Court should interview M.B. to complete the hearing. In addition, M.B.'s attorney stated on the record that his client supported the mother's application.
It is settled that "[a] trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no [*2]rational process by which the fact trier could base a finding in favor of the non-moving party." (Szczerbiak v. Pilat, 90 NY2d 553, 556 [1997].) "In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant." (Id); Palladino v. McCormick, 122 AD3d 813 [2d Dept. 2014].)
DECISION
"Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way" (Matter of Tropea v. Tropea, 87 NY2d 727 [1996]).
The above quote, coming directly from the Court of Appeals, accurately depicts not just a family affected by divorce, but also a family in the midst of a divorce action. While the Tropea Court accurately summarized the acrimony associated with divorce, the Court's decision clearly sets forth some of the factors to be included in determining whether a proposed relocation would serve a child's best interest.
These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests (Id); see also, Matter of Melgar v. Sevilla, 127 AD3d 1092 [2d Dept. 2015]; Scott VV. v. Joy VV., supra.)
"I've received a lot of good advice in my life. Near the top of the list is this wise observation from a friend: Life is not made by the dreams that you dream but by the choices that you make.'" (Joe Stowell).
The evidence at the hearing indicates that the mutual distrust and acrimony between the parents continues. The children continue to reside with the father at the former marital residence. M.B. is in ninth grade; J.B. is in seventh grade. M.B. attends a public high school, while J.B. attends a private faith based school. M.B.'s current grades are average at best; J.B. is excelling. M.B. plays golf and takes piano lessons. J.B. competes at the state level as a gymnast and also enjoys dancing. The father provides transportation for the children to and from school, as well as their appointments and [*3]extracurricular activities. The father and children attend special events together to support the child engaged in that occurrence. The father and M.B. have had a few confrontations, verbal and physical, over the son's lax approach to his homework and achievements in the classroom. In addition, the father acknowledged that his parenting style sometimes leads to conflict between them. M.B. believes the father is too harsh a disciplinarian. In 2014, M.B. expressed his desire to move to Texas and live with his mother.
The choices which the mother has made which were disclosed at the hearing are as follows:
1. The Stipulation which was "so ordered" on June 3, 2013 afforded the mother access time with her children. It also ordered the family to undergo counseling with Michael Galano, LCSWR.
2. On or about May 1, 2014, the mother unilaterally and without prior notification relocated to Austin, Texas with her then girlfriend, K.B. They ended their relationship in May, 2015.
3. The mother relinquished her employment as a nurse in New York where she was earning just under $131,000.00 per year prior to her unannounced move.
4. The mother wished to change careers and attempted to become a Texas State Trooper. She took an exam and passed it, but was disqualified twice. The first time was for failing a polygraph test. The second was based upon her bad credit.
5. Presently, the mother is employed as a nurse where she is earning approximately $48,000.00 per year. She currently resides in a one bedroom apartment and pays $1,400.00 per month rent, or $16,800.00 annually. A two bedroom apartment in the same complex where she resides is available at the monthly rent of $1,600.00 or $19,200.00 per year. Utilities are included in the rent.
6. The mother acknowledged she moved to Texas without a job awaiting her, without notifying the father or then attorney for the children or seek leave of this Court to relocate in view of the existing order regarding temporary custody and access time.
7. The mother conceded that it was not in her children's best interests regarding her unannounced move to Texas.
8. At the custody hearing on May 10, 2013, which eventually resulted in the "so ordered" Stipulation of June 3, 2013, the mother testified that her relationship with her children was estranged because she was not spending enough time with them. The move to Texas only heightened the alienation.
9. By moving to Texas, the mother effectively terminated her access time and counseling opportunities set forth in the "so ordered" Stipulation.
10. The mother was directed to pay $2,722.92 per month in [*4]child support pursuant to an order of this Court, dated March 28, 2013. She is currently in arrears in excess of $49,000.00.
11. The mother has not participated in any special events, extracurricular activities or school events involving the children since her move.
12. The mother has returned to New York approximately five (5) times since moving to Texas. She has had full access to the children with each visit.
13. The mother speaks with M.B. by telephone on an almost daily basis. She speaks with J.B. two (2) to three (3) times a week.
14. The mother took vacations to Europe (Germany, Spain, Italy and Ireland) and California within the past year. In her words, the vacation to Europe was for herself.
15. The mother is currently wearing braces which costs approximately $2,500.00. J.B. is in need of braces, but has not seen an orthodontist. The mother is under an order of this Court to pay the children's medical expenses.
16. The mother has investigated two (2) possible private schools for M.B. to attend if relocation is permitted. The tuition for one (St. Andrews) is $24,000.00 per year. Tuition is also based on a sliding scale based upon the family income.
17. The mother testified at the custody hearing on May 10, 2013 that one of her good qualities is self-sacrifice. Yet, she moved to Texas without notifying the father, or the children, or the then attorney for the children. Further, she did not obtain leave of the Court to relocate in light of the existing orders.
18. Texas is now the mother's home. She does not intend to return to New York where she could possibly resume her career as a nurse at a much higher income level.
19. The mother previously testified that family therapy was very important. Her unilateral move to Texas has prevented that goal from being achieved.
20. The mother appeared to be ambivalent as to the effect separating M.B. and J.B. would have on their sibling relationship.
21. The father is resistant to allowing the children to travel to Texas to have access to the mother out of his concern that she will not return them.
22. The mother appears to be seeking de facto approval of her unannounced, unilateral move to Texas and to separate the siblings by securing custody of M.B.
The mother has failed to offer any evidence whatsoever in probative form that separating M.B. and J.B. will be in their respective best interests. Indeed, separating them will in all likelihood engender feelings of isolation from each other, diminish healthy adjustments to and with others, serve as an impediment to their long term stability as individuals, block [*5]opportunities for them to draw upon each other's strengths and association in their everyday and often common experiences and to experience the joys and challenges of growing up together (see, Ebert v. Ebert, 38 NY2d 700 [1976]; Obey v. Degling, 37 NY2d 768 [1975]).
The wishes of the child and the recommendation of the attorney for the child are not determinative. They do not usurp the judgment of this Court. (Matter of Gribeluk v. Gribeluk, 120 AD3d 579, 580 [2d Dept. 2014].) Moreover, since the mother has failed to offer plausible facts or proof in support of her application that M.B.'s interests will be enhanced emotionally, economically and educationally, the Court need not conduct an in camera as there is no basis for it.
On the basis of the foregoing, the father's motion to dismiss, pursuant to CPLR 4401, based upon the mother's failure to advance a prima facie case to assume custody of M.B. and authorize the child's relocation to the State of Texas is granted in its entirety. The evidence, to the contrary, clearly demonstrates that the mother's primary reason to relocate was to benefit herself rather than enhance the best interests of her son.
This Court has presided over thousands of family matters over the course of twenty-two (22) years sitting as a Family Court Judge and Acting Supreme Court Justice. There is one constant in each case involving parents and children. Parents only have one opportunity in which to raise their children. There is no such thing as a do over. As Samuel Smiles is quoted as saying, "Childhood is like a mirror which reflects in after life the images first presented to it." The mother is encouraged to practice her belief in self-sacrifice for the benefit of her children and improve her communication skills with the father. Likewise, the father is encouraged to overcome his bitterness and distrust of the mother to work with her to promote their children's best interests. He should also carefully examine his parenting style and skills, even to the point of engaging M.B. in counseling together, to hopefully diminish the escalating incidents of conflict between them. If the parents do not take these suggestions seriously, they should not be surprised that M.B. and J.B. may turn out to be just like them when they
reach their adult years.
Counsel for the parties are directed to appear for a further conference on January 5, 2016 at 10:00 a.m. The parties are directed to be available by telephone, if necessary. Adjournments are only granted with leave of the Court.
The foregoing constitutes the decision and order of the Court.
Dated:November 30, 2015
Poughkeepsie, New York
[*6]ENTER
HON. JAMES D. PAGONES, A.J.S.C.
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