Matter of Traci M v Russell M

[*1] Matter of Traci M v Russell M 2016 NY Slip Op 51927(U) Decided on September 20, 2016 Family Court, Monroe County Ruhlmann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2016
Family Court, Monroe County

In the Matter of a Proceeding Under Article 4 of the Family Court Act Traci M, Petitioner,

against

Russell M, Respondent.



Index No. XXXXX



Traci M, Petitioner, Pro Se

Russell M, Respondent, Pro Se

Susan A. Laragy, Esq., Attorney for the Child
Dandrea L. Ruhlmann, J.

Petitioner Traci M (Mother) filed a modification petition on February 21, 2016 seeking a decrease in the amount of child support she currently pays for the parties' child, Jacob M (DOB:XX/XX/2003) alleging Jacob's father, Respondent Russell M (Father) "has continuously interfered with my rights to visitation." This Court finds that Mother has sustained her petition.

Procedural History:

Mother's petition was transferred from a support magistrate to this Court (see Fam Ct Act § 439[a]; see also Matter of Rubino v Morgan, 203 AD2d 698 [3d Dept 1994], appeal after remand, aff'd, 224 AD2d 903 [3d Dept 1996]; Matter of Mitchell v Remy, 24 AD3d 558 [2d Dept 2005]; Matter of Tornheim v Rube, 90 AD3d 1059 [2d Dept 2011] [jurisdiction of support magistrate]) to determine Mother's claim of alienation (see Matter of Coleman v Murphy, 89 AD3d 1500 [4th Dept 2001] [hearing required if prima facie case established for alienation]).

This case has a protracted history. The Court took judicial notice of orders issued in all prior Article 6 Custody and Visitation cases. The first order of custody and/or visitation V-XXXXX-04 entered June 1, 2004 upon consent granted, inter alia, the parties joint custody with primary physical residency to Mother. By order entered February 10, 2005, V-XXXXX-04/04D,E,F,G, Father, upon Mother's default, was granted sole custody of Jacob with Mother [*2]having supervised visitation.

Ensuing Article 6 orders addressed visitation between Mother and Jacob. The most recent order V-XXXXX-04/14J, K entered March 12, 2015 granted Mother continued weekly therapeutic visitation with Jacob through the Supervised Visitation and Exchange Program at the Society for the Protection and Care of Children (SPCC) with additional periods of unsupervised visitation every other Saturday from 12:00 p.m. to 3:00 p.m. Mother filed two petitions on December 16, 2015, V-XXXXX-04/15L; a violation petition alleging Father failed to bring Jacob for the last fifteen visits and V-XXXXX-04/15M, a modification petition wherein Mother requested unsupervised visits. By Oder to Show Cause also filed on December 16, 2015, Mother sought, among other things, a court-ordered custodial evaluation as Father had not complied with the Court's order of visitation and since SPCC terminated services for the family because of the purported stress it imposed on Jacob. SPCC's report dated December 9, 2015 attached to Mother's Order to Show Cause specifically states, "Jacob's refusal of visitation is a manifestation of the extremely high degree of conflict which exists between Mr. M and Ms. M. This conflict has had immeasurable impact on Jacob's ability to maintain healthy relationships with either parent." On January 26, 2016 Mother withdrew her motion, and her violation modification petitions. She no longer exercises her court-ordered right of visitation.

Mother filed the instant support modification petition F-xxxxx-03/16L on February 21, 2016, seeking a decrease in the amount of child support she currently pays for Jacob alleging Father "has continuously interfered" with her right to visitation. At a trial to determine whether Father alienated the child's affections, the Court heard the testimony of Mother, Father and Mother's adult son from a prior relationship, Joseph V. Both Mother and Father appeared, pro se. The Court also received the following exhibits into evidence: Petitioner's Exhibit 1, received over objection of Father and given the appropriate weight due to remoteness (Mother's journal spanning from March 3, 2004 to November 11, 2004), Petitioner's Exhibit 2, (Mother's journal from November 21, 2012 to July 21, 2013), Petitioner's Exhibits 3-A to 3-FF, (pictures taken at various visits from 2012-2014 including at the library and at The Strong National Museum of Play). The remaining exhibits, screen shots of various text messages between the parents, were received absent objection, and included Petitioner's Exhibits 3-GG and 3-OO (September 28, 2012 and August 12, 2012), Petitioner's Exhibits 3-II and 3-JJ (June 22, 2014) and 3-HH (November 30, 2014). Finally Petitioner's Exhibits 3KK - 3NN received into evidence, are hereby afforded no weight as they are text messages sent between the parties after February 21, 2016, the filing date of the support modification petition.

The Court also held an in camera with Jacob (see Lincoln v Lincoln, 24 NY2d 270[1969]; see also Fam Ct Act § 664).

Parental Alienation

A parent has a duty to support a child until the age of twenty-one (Fam Ct Act § 413[1][a]). Child support payments may be suspended where the "custodial parent, 'has unjustifiably frustrated the noncustodial parent's right of reasonable access'" (Matter of Colicci v Ruhm, 20 AD3d 891 [4th Dept 2005], quoting Matter of Smith v Bombard, 294 AD2d 673, 675 [3d Dept 2002], lv denied 98 NY2d 609 [2002]; see also Matter of Orange County Dept. of [*3]Social Servs. v Meehan, 252 AD 588 [2d Dept 1998]). To suspend payments Mother must prove Father is "either 'overtly or covertly undermining visitation'" (Matter of Smith v Smith, 283 AD2d 1000 [4th Dept 2001], quoting Matter of Catherine W. v Robert F., 116 Misc 2d 377, 378 [Fam Ct, Suffolk County 1982]). Active interference or deliberate frustration by Father of Mother's court-ordered visitation schedule "can, under appropriate circumstances, warrant the suspension of future child support payments" (see Coleman, 89 AD3d 1500, 1501, quoting Matter of Hiross v Hiross, 224 AD2d 662, 663 [2d Dept 1996]). Child support payments should be suspended if Father "intentionally 'orchestrated and encouraged the estrangement of [the Mother] from the child[ren]' or that [he] actively interfered with or deliberately frustrated [her] visitation rights" (see Matter of Curley v Klausen, 110 AD3d 1156, 1157 [3d Dept 2013], quoting Matter of Crouse v Crouse, 53 AD3d 750, 752 [3d Dept 2008]).

It is undisputed that Mother had a substance abuse problem which negatively impacted her ability to parent Jacob. Still Mother's unrefuted testimony is that she has been clean and sober for four years and is employed. This Court in related custody and visitation cases has tried to establish a workable visitation schedule for Mother and Jacob. To date Mother's visits with Jacob have not resulted in a consistent loving relationship between her, as the nonresidential parent, and her son.

Father harbors a deep disdain of Mother arising out of an incident that occurred more than a decade ago in March 2004 when Jacob was approximately five months old. Jacob suffered an injury at a birthday party while in Mother's care. The extent and the cause of injury are disputed. Father believes Mother intentionally burned Jacob's genitalia. Mother argues that while Jacob suffered a minor burn on his thigh due to an accidental burn from her cigarette lighter, Father failed to notice Jacob suffered from a serious bacterial infection around his genitalia, thereafter while he was in Father's care.

Mother's adult son, Joseph V, was examined by Father about the injury. Joseph testified, that he was there during the incident, "[m]y mom was lighting candles, okay? She went to pick up Jacob and the end of the cigarette lighter touched his leg." He testified that only Jacob's thigh was burnt and only slightly. At trial Father did not examine Mother about the birthday party or the resulting injury.

Mother's testimony and her 2004 journal received as Petitioner's Exhibit 2, both revealed that after the March 2004 injury to Jacob, Father continued to have a relationship with her, Jacob and her older son Joey, and that she continued to enjoy unsupervised time with Jacob. Father attended substance abuse meetings with her and their relationship did not end until late 2004. Upon questioning by the Attorney for the Child Father refused to acknowledge that Mother should be part of Jacob's life, stating "[f]irst of all, this is my (emphasis added) son and he was abused and being a parent, as we are, you would never get over somebody hurting your child no matter what it is."

Joseph V also testified he thought it had been five or six years since he last saw Jacob and that he would "love to have contact with my brother." He knew of no reason why Father did not want him in Jacob's life. He described an amicable relationship between his own father and Mother. Although his father and Mother separated "there was never any type of guilt, whether I wanted to go, you know, to my mom's house or my dad's house. I mean they always did activities together as far as, you know, as a family even though they weren't together. It just [*4]worked." Joseph testified that Mother never abused him and he loved her with all his heart.

Mother testified that in 2015 she had only eleven visits with Jacob and about twelve visits the year before. Of late, there were thirty consecutive missed visits none of which were caused by her. Her last visit with Jacob was January 13, 2016: She has not spoken to Jacob since then. On that last visit Jacob sat in her truck, looking scared and confused, and wanted to know why "she could not just drop the court case." She testified it "broke my heart" and that she decided she was "not going to make [him] come anymore."

Since Mother "dropped the [visitation] court case" Father has not responded to her many text messages. Father has not allowed her to have Jacob's direct telephone number nor, to her knowledge, does Jacob have her number. On cross-examination of Mother, Father questioned why she initially brought the case to court when he had asked her to "go slowly . . . and not bring him through courts." She responded because of "all of the roadblocks the lies and things, I needed to go through court because I can't trust you." Mother further testified that "[Jacob improperly] has been put in the middle of an adult situation."

Mother testified that at first Jacob enjoyed visits but his demeanor consistently changed from happy to sullen as soon as Father returned at the end of a visit. She soon learned to say goodbye to Jacob before Father appeared. At one visit at the Strong Museum she suggested going outside to the playground area and Jacob refused because "it was not in the agreement." On Christmas Eve 2015, Father's brother transported Jacob to a shopping mall for a visit exchange. The Uncle, however, first brought Jacob to the mall security office and had him sit underneath the security camera and gave mall security notice of the exchange with Mother. Mother testified this is how Father "just constantly instill[s] fear into him." Another example was when she asked Jacob about school. Jacob told her to stop questioning him, because "[h]e doesn't know ... what he [can] talk about." It is uncontroverted that Father videotaped visitation exchanges, further exacerbating Jacob's stress. Father testified he videotaped exchanges simply to prove that he took Jacob to the scheduled visits.

Father testified that it was "Jacob's choice" whether to have a relationship with Mother. When Mother asked how he felt about her having a relationship with Jacob, he replied, "[t]his is Jacob's choice, not mine. He is almost 13 years old. He has made his decision on what he wants to do." When the Attorney for the Child asked, "[a]s you sit here today, do you have any opposition to [Mother] having some type of contact with Jacob?" Father testified, "[i]t's up to Jacob. I know what Jacob thinks. I know what Jacob has said. It's up to Jacob, not me. Jacob has made up his mind." Father consistently testified that Jacob may visit with Mother at Jacob's discretion. Father "absolutely" felt he encouraged Jacob to visit.

This Court finds Mother's testimony and Joseph V's testimony and portions of Father's testimony to be credible (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985] ["respect is to be accorded the Trial Judge's advantage . . . in observ[ing] the demeanor of the witnesses"]; Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; see also Boyd v Boyd, 252 NY 422, 429 [1930], rearg denied 253 NY532 [1930]). However, this Court finds Father was insincere and not credible when he testified that he had encouraged Jacob to visit with Mother (see Matter of Danielle S. v Larry R.S., 41 AD3d 1188, 1189 [4th Dept 2007]; Matter of Whitney v Judge, 138 AD3d 1381, 1383 [4th Dept 2016], denying lv to appeal 27 NY3d 911 [2016]; Matter of Tucker v Miller, 138 AD3d 1383, 1384 [4th Dept 2016]); [court's assessment of the [*5]credibility of the witnesses is entitled to great weight]. Indeed this Court finds Father's actions "rise to the level of deliberate frustration of [Mother's] visitation rights" (see Hiross, 224 AD2d 622, 663 [internal quotation marks and citation omitted]). The Court finds Father has subverted Mother's visitation with Jacob and finds there is a constant undercurrent from Father of disapproval of Mother which constrains Jacob from enjoying time with his Mother. The Court finds Father has engaged in a pattern of undermining Jacob's relationship with Mother so as to require this Court to vacate her support obligation. The Attorney for the Child's position also is consistent with a finding of parental alienation.

NOW, THEREFORE, it is

ORDERED that Petitioner, Traci M has proven alienation and her modification petition filed February 21, 2016 to decrease support is granted. Mother's support obligations are suspended as of the filing date of the petition, February 21, 2016, until her relationship with Jacob is restored and she enjoys a reasonable schedule of visitation.

Dated this 20th day of September, 2016 at Rochester, New York.

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE

PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.