A.S. v K.S.

[*1] A.S. v K.S. 2017 NY Slip Op 51342(U) Decided on October 6, 2017 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2017
Supreme Court, Kings County

A.S., Plaintiff,

against

K.S., Defendant.



XXXXX



A.S.

Plaintiff Pro Se

Yuriy Yaroslavskiy, Esq.

Attorney for the Defendant

3171 Coney Island Ave, 2nd Fl.

Brooklyn, NY 11235

Ira Forman, Esq.

Attorney for the Children

26 Court Street, #2403

Brooklyn, NY 11242
Jeffrey S. Sunshine, J.

The following papers numbered 1 to 6 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and Affidavits (Affirmations) Annexed 1 ,4

Opposing Affidavits (Affirmations) 2, 5, 6

Reply Affidavits (Affirmations) 3,

Transcript of Oral Argument Dated August 17, 2017

Introduction and Background

This Court must determine if the plaintiff, now self represented, who asserts he suffers from bi polar disease and is on disability is entitled to court assigned counsel in a custody, visitation, exclusive use and occupancy and order of protection trial pursuant to Judiciary Law 35(8). Plaintiff asserts that he utilized loans and credit cards to pay his first attorney $90,000.00 and his second attorney $10,000.00 and that he has no other assets to pay counsel. In appointing counsel, the Court must consider if the appropriate remedy is to require that plaintiff potentially repay the state of New York and his assigned counsel the difference between the government hourly rate and reasonable private pay compensation if it is determined that the wife's claims that he is a fraud has merit. Finally, the Court must determine if plaintiffs application for maintenance and counsel fees should be granted even though he had an opportunity to have a pendente lite evidentiary hearing and, with prior counsel, waived that hearing on the eve of trial (see A.S. v. K.S., 54 Misc 3d 1201(A), 50 N.Y.S.3d 24 (NY Sup. Ct. 2016)).

On April 25, 2016, plaintiff-husband moved by order to show cause (mot. seq. #1) for pendente lite custody of the children and subsequent thereto on July 11, 2016, the plaintiff filed a second order to show cause (mot. seq. #2) for pendente lite exclusive use and occupancy of the marital residence, pendente lite custody of the parties' two (2) children pendente lite maintenance and counsel fees in connection with this action. On July 15, 2016 the defendant filed a cross-motion (mot. seq. #3) requesting sole physical and legal custody of the parties' children; exclusive use and occupancy of the parties' marital residence, child support payable by the plaintiff including add-on expenses for the parties' children and counsel fees for the defendant.

On August 15, 2016 Dr. N.G. Berrill was appointed to conduct a Forensic Evaluation in this matter. The matter was adjourned two (2) separate occasions after the appointment of a forensic expert, first on October 13, 2016 and second on November 15, 2016 to January 17, 2017.

This Court issued an extensive decision on December 12, 2016, after oral argument on August 3, 2016, in which the Court, unable to determine the parties' assets and expenses based upon their papers, ordered a formal evidentiary hearing and stated inter alia:

"The Court has seriously considered denying both parties relief based upon the claims and alleged defenses put forth given the clear inability for the parties to live on the income they report. The Court though must consider the needs of the children in as much as the children did not create either this business model or sign the tax returns of the affidavits submitted herein. The Court is well aware of the statutory maintenance guidelines (D.R.L. § 236(B)[5-a]) and the child support standards act ((D.R.L. § 240(1-b)). These two statutes provide a formulaic, predictable basis for the establishment of both maintenance and child support awards, yet both statutes and case law allow for alternative methods in determinating said awards where the income of the parties cannot be determined [...]" [Footnote omitted].

The Court also noted:

Pursuant to this decision and order a formal evidentiary hearing will take place on [*2]February 3, 2017 at 9:30 a.m. The Court intends to address the issue of whether a party who admits to fraud in the operation of a business is entitled to maintenance from income derived from that business; this in the context of $400,000.00 in unaccounted monies together with the failure to list certain real estate in an affidavit of net worth.

On December 21, 2016 the parties appeared before this Court and entered into a consent order modifying their previous custody and access schedule. On January 19, 2017 the parties agreed by consent stipulation to adjourn the evidentiary hearing from February 3, 2017 to February 27, 2017 and to March 1, 2017 due to Defendant's counsel being actually engaged. On January 30, 2017 defendant filed a consent to change attorney from Brian Perskin, Esq. to Yuriy Yaroslavskiy, Esq. Subsequently on February 21, 2017 plaintiff filed a consent to change attorney from Yonatan S. Levoritz, Esq. to Barry R. Feerst, Esq.

Incoming counsel then agreed, on consent, to postpone the evidentiary hearing on February 27, 2017 which was so-ordered by the Court, adjourning the matter to March, 23, 2017 for the evidentiary hearing so Mr. Feerst could prepare for the pendente lite hearing. Unbeknownst to the Court, the consent of the Attorney for the Children, Ira Forman, Esq had not been obtained.

On March 23, 2017 instead of going forward with the pendente lite evidentiary hearing the parties withdrew all pre-trial motions by consent order including any requests for pendente lite custody, maintenance and counsel fees. The matter was then scheduled for trial on custody and parenting time for June 26 and June 27, 2017 and for a pre-trial conference for May 9, 2017. The pre-trial conference was subsequently adjourned to May 22, 2017, on consent, due to Defendant's counsel's illness. On June 22, 2017 (shortly before the custody and parenting time trial was to commence) plaintiff's second counsel filed an emergency order to show cause (motion seq. #4) to be relieved as counsel. On June 23, 2017 plaintiff's counsel, Barry Feerst, Esq., was relieved as the attorney of record, on consent of the plaintiff as much as there had been a clear irretrievable breakdown in the attorney-client relationship on the record in open court, and the matter was stayed, pursuant to CPLR 321(c), until July 24, 2017 for the plaintiff to obtain new counsel. Plaintiff consented to his second attorney being relieved at the oral argument.

In the midst of the stay, plaintiff, now pro se, filed an order to show cause on July 17, 2017 (motion seq. #5), which is for the most part a repeat of his original pendente lite application which was the subject of the hearing withdrawn in open Court in the presence of the parties while he was represented by counsel. His application requests the following relief: A) Pursuant to DRL §§234 and 236(B), granting the Plaintiff, A.S. [name redacted by the Court], Pendente Lite exclusive use and occupancy of the Marital Residence, located on Voorhies Avenue [Address redacted by the Court], and excluding the defendant therefrom; B) Pursuant to DRL §§236(B) and 240, granting the Plaintiff, A.S., Pendente Lite custody of the parties' two (2) children to wit, I.S. born June 28, 2006 and L.S. born October 24, 2011 [names redacted by the Court] pursuant to a 50/50 access schedule; C) Pursuant to DRL §236(B), directing that defendant, K.S., pay to Plaintiff, A.S., Pendente Lite maintenance in the amount and sum of Ten Thousand Dollars [$10,000,000] per month, pursuant to the Guidelines, a needs-based award of Pendente Lite Spousal Maintenance; D) Pursuant to DRL §237(B) directing that defendant, K.S., pay to Plaintiff, A.S., as and for Pendente Lite counsel fees in connection with this action, the sum of [*3]One Hundred Eighteen Thousand Dollars [$118,000,000]; E) Granting the Plaintiff, A.S., a Court Appointed Attorney; and F) For such other and further relied as this Court may deem just and proper, including costs upon this motion.

Defendant filed an affidavit in opposition on July 28, 2017. Plaintiff filed a reply affidavit on August 15, 2017. Defendant filed an order to show cause on July 21, 2017 requesting the following relief: A) Pursuant to CPLR §602(b), removing to this Court all proceedings commenced by defendant in the Kings County Family Court [caption redacted by the Court]; B) Pursuant to DRL §252(1), issuing an order of protection against Plaintiff-husband, A.S. and in favor of defendant-wife, K.S., with a provision that the parties may communicate via text or electronic mail regarding the parties' children only; C) Pursuant to DRL §234, granting defendant-wife, K.S., exclusive use and occupancy of the marital residence located on Voorhies Avenue in Brooklyn; and D) For such other and further relief as the Court deems necessary and proper, including costs upon this motion.

Plaintiff filed an affidavit in opposition on August 16, 2017. The attorney for the children filed an affirmation in opposition to both motions on July 31, 2017. The parties and counsel appeared for oral argument on August 17, 2017 on these two (2) motions with plaintiff representing himself.

The parties were married in October 2002 in a civil ceremony and have two (2) children, I.S. who is eleven (11) years old and L.S. who is five (5) years old. The defendant is a licensed pharmacist and the plaintiff, who seeks an order of custody, receives disability payments due to his being diagnosed with bi-polar disorder.

That branch of defendant's order to show cause (motion sequence #6) requesting to remove to this Court all proceedings commenced by defendant in the Kings County Family Court [caption redacted by the Court], was granted on consent on July 24, 2017. That branch of defendant's order to show cause requesting an order of protection was granted, pending a hearing on the issue by way of a temporary order of protection in favor of defendant, against the plaintiff.

Discussion

Custody and Visitation

An award of custody must be based upon the best interests of the child, and there is no right of either parent to custody of the child (see Friederwitzer v. Friederwitzer, 55 NY2d 89, 93, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Francois v. Hall, 73 AD3d 1055, 899 N.Y.S.2d 896). Since the court has an obligation to make an objective and independent evaluation of the circumstances (see Trach v. Trach, 162 AD2d 678, 557 N.Y.S.2d 112; Mosesku v. Mosesku, 108 AD2d 795, 485 N.Y.S.2d 122), a custody determination should be made only after a full and fair hearing at which the record is fully developed (see Obey v. Degling, 37 NY2d 768, 375 N.Y.S.2d 91, 337 N.E.2d 601; Matter of Patricia L. v. Steven L., 119 AD2d 221, 506 N.Y.S.2d 198; Audubon v. Audubon, 138 AD2d 658, 526 N.Y.S.2d 474). Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing (see Matter of Nalty v. Kong, 59 AD3d 723, 874 N.Y.S.2d 522; Cieri v. Cieri, 56 AD3d 409, 867 N.Y.S.2d 472; Matter of Roldan v. Nieves, 51 AD3d 803, 857 N.Y.S.2d 716; Matter of Ling Da Chen v. Yue Hua Zhou, 39 AD3d 753, 835 N.Y.S.2d 281).

Here, the parties have had a temporary custody and visitation consent order in place since May 31, 2016 and despite the plaintiff's numerous allegations against the defendant, the [*4]circumstances and evidence presented do not warrant a change in custody before trial. The matter has been on the verge of trial on two (2) separate occasions and requires a full and fair hearing. Plaintiff had numerous opportunities to have his day in court, both times while represented by counsel of his choosing. To now argue that the Court should award him physical custody of the children on the eve of trial would be improper.

The trial shall now commence on Wednesday December 6, 2017 at 9:30 a.m. This date was chosen in open court on Friday September 29, 2017 with all parties and counsel present.

Court-Appointed Counsel

This court has some very serious concerns as to whether or not taxpayer funds should be utilized to provide counsel to an individual that has admittedly spent over $100,000.00 on private counsel ($90,000.00 to Yonatan Levoritz, Esq. and $10,000.00 to Barry Feerst, Esq. allegedly by credit cards or loans with no proof attached) and has caused numerous delays preventing the matter from proceeding to trial. During oral argument on August 17, 2017 the plaintiff stated:

"Your Honor, both of my attorneys they refused service because of the money issues. Mr. Levoritz did not want to file his application to be relieved because for other reasons and he just told me that if I am not going to come up with large sum of money to pay him he will not represent me any longer and he would send his — someone from who office who is not familiar with the case. At this point I found Mr. Feerst and he was substituted to represent me but the nature of the agreement we had with Mr. Feerst that he would represent me for specific sum of money and the way this case was going those moneys finished before the trial even started and he filed application to be relieved few days before trial. And I didn't refuse Mr. Feerst but with the way things were going and suggestion she was making I didn't feel that he is representing my side fairly and he told me to just find another attorney and then he filed for motion to be relieved."

Futhermore, during oral argument it was revealed the plaintiff is a "cosigner" on a mortgage for an apartment with his parents "for them to get the mortgage" although he claims he never lived in said apartment. He also admitted during oral argument that he withdrew $500,000.00 by bank check (and personally authorized the check) from the parties joint account. Defendant alleges plaintiff invested this money into a company he set up prior to the commencement of the action and they dispute whether the defendant was aware of the investment. Plaintiff claims defendant knew and participated in this investment.

The court cannot ignore that "deprivation of party's fundamental right to counsel in a custody or visitation proceeding is a denial of due process and requires reversal, without regard to the merits of the unrepresented party's position." In the Matter of Kevin Williams v. Bentley, 26 AD3d 441, 442 (2nd Dept. 2006); See also In the Matter of Jody L. Bly v. Hoffman, 114 AD3d 1275 (4th Dept. 2014); In re Deshawn N., 101 AD3d 2013 (2nd Dept. 2012); Rosof v. Makllory, 88 AD3d 802 (2nd Dept. 2011); Soto v. Willis, 143 AD3d 728, 38 N.Y.S.3d 250 [2d Dept., 2016]; Charbonneau v. Charbonneau, 151 AD3d 1060, 59 N.Y.S.3d 50 [2d Dept., 2017]).

Further, in Pugh v. Pugh, 125 AD3d 663, 664 (2nd Dept. 2015) the Appellate Division, Second Department held, "the deprivation of the mother's fundamental right to counsel requires reversal without regards to the merits of her position.". In Pugh, the Appellate Division held that the mother was forced to litigate the case, involving custody, as a pro se litigant because she was unable to retain a lawyer after many adjournments and delays in the court proceedings.

In Matter of Cherrez v. Lazo, 102 AD3d 782, 783 (2nd Dept. 2013) the Appellate Division held "...the father had the financial ability to pay the entire cost of the representation provided to him." Matter of Cherrez v. Lazo, 102 AD3d 782, 783 (2nd Dept. 2013); See also Cohen v. Cohen, 33 Misc 3d 448 (Sup. Ct. 2011). In Cherrez, the Appellate Division, Second Department, affirmed an order from Family Court after a hearing was made, directing the father to pay his assigned counsel,

"...the difference between the amount the attorney would charge a privately retained client for the services rendered and the amount the attorney claimed from the assigned counsel plan." Id.

Consistent with the holding in Pugh, this court shall appoint for the plaintiff an attorney by separate order pursuant to § 35(8) of the Judiciary Law on the issues of custody, visitation and the order of protection. (See Abadi v. Abadi, 48 Misc 3d 380, 387, 8 N.Y.S.3d 888, 892 (NY Sup. Ct. 2015). The Court, given plaintiff's claim of disability due to bi polar disorder, must insure that plaintiff has representation during this phase of the trial.

The court cautions the plaintiff that in these austere budgetary times the utilization of government funds must be tempered with providing those who are truly in need of appointment of counsel. The Court reserves the right to direct reimbursement to the State of New York for the funds expended and to order his Court assigned counsel to be paid by him at the difference between her hourly rate and the rate approved for government paid counsel pursuant to Judiciary Law 35(8).

The Court has serious concerns and reservations in appointing the plaintiff counsel, but given the fact that the right to counsel in a custody and order of protection proceeding has been described as a constitutional right (see, Family Ct Act §§ 261, 262[a] and Judiciary Law §35(8)) such application is granted. The remedy of potential repayment will insure the plaintiff is provided his constitutional protections and simultaneously protect against any potential fraud. The plaintiff is reminded he may not transfer any cooperative apartments in his name, no matter what percentage of ownership, absent court permission pursuant to 22 NYCRR §202.16(c) [Automatic Orders].

Exclusive Use and Occupancy

Courts are statutorily empowered to grant one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings (see Domestic Relations Law § 234). Such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife (see Kenner v. Kenner, 13 AD3d 52, 786 N.Y.S.2d 157; Mitzner v. Mitzner, 228 AD2d 483, 643 N.Y.S.2d 674; Annexstein v. Annexstein, 202 AD2d 1062, 609 N.Y.S.2d 132; Fakiris v. Fakiris, 177 AD2d 540, 575 N.Y.S.2d 924; Goodson v. Goodson, 135 AD2d 604, 522 N.Y.S.2d 182; Purdy v. Purdy, 117 AD2d 659, 498 N.Y.S.2d 397; Wolfe v. Wolfe, 111 AD2d 809, 490 N.Y.S.2d 555).

Furthermore, "In determining whether the custodial parent should be granted exclusive occupancy of the marital home, the trial court should consider, inter alia, the needs of the children, whether the noncustodial parent is in need of the proceeds from the sale of that home, whether comparable housing is available to the custodial parent in the same area at a lower cost, and whether the parties are financially capable of maintaining the residence" (McCoy v McCoy, [*5]117 AD3d 806, 809 [2014], citing Graziano v Graziano, 285 AD2d 488, 489 [2001]).

However, absent an evidentiary inquiry, it is generally an improvident exercise of discretion to award a spouse interim exclusive occupancy of realty unless the interim award is necessary to protect persons or property (see, Hite v. Hite, 89 AD2d 577, 452 N.Y.S.2d 235; see also, Stugard v. Stugard, 122 Misc 2d 571, 471 N.Y.S.2d 442; cf. Delli Venneri v. Delli Venneri, 120 AD2d 238, 507 N.Y.S.2d 855; but see, e.g., Judell v. Judell, 128 AD2d 416, 512 N.Y.S.2d 699).

Here, the plaintiff has been removed from the marital home since May 20, 2016 when an order of protection was issued from the Kings County Criminal Court. The defendant has had de facto exclusive use and occupancy of the marital home by way of an order of protection, first from the criminal court and now through this Court by way of a temporary order of protection. It would be premature for the Court to determine exclusive use and occupancy of the marital home now on the eve of trial during which custody, visitation, order of protection and exclusive use and occupancy are the issues. Thus the issue of exclusive use and occupancy is reserved for the trial court as part of the trial on the issues of custody, visitation and the order of protection. See also DeMillio v. DeMillio, 106 AD2d 424, 482 N.Y.S.2d 517 (2d Dep't 1984) (exclusive use granted without hearing where allegations supported by existence of outstanding order of protection as well as affidavits of third parties); Waldeck v. Waldeck, 138 AD2d 373, 525 N.Y.S.2d 656 (2d Dep't 1988) (in view of conflicting and uncorroborated affidavits, and with no evidence of police intervention, error to grant exclusive occupancy of marital residence without conducting evidentiary hearing). The proper resolution of this issue is the trial scheduled for December 6, 2017. The Court notes that the only reason that the trial has not occurred was plaintiff's disagreements with his second attorney.

Pendente Lite Maintenance and Counsel Fees

22 NYCRR 202.16(k) states in relevant part:

Motions for alimony, maintenance, counsel fees pendente lite and child support (other than under section 237[c] or 238 of the Domestic Relations Law). Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237[c] or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:[...]

(2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section. (Emphasis added by the Court) [...]

[*6](5) The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either:

(I) to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or

(ii) to deny the motion without prejudice to renewal upon compliance with the provisions of this section. (Emphasis added by the Court).

Here, on the eve of trial the plaintiff has filed a near duplicate of the pendente lite order to show cause for maintenance and counsel fees that would have been subject to an evidentiary hearing, but was withdrawn on consent when plaintiff was still represented by counsel and in his presence on the record. Furthermore, it is undisputed that the plaintiff did not annex a statement of net worth to his order to show cause. (See 22 NYCRR 202.16(k)). Plaintiff cannot keep switching counsel, withdrawing set hearing dates and making duplicative applications. Had he not delayed, these issues would have already been determined. In the meantime, all economic discovery must be completed by December 6, 2017 and the note of issue filed. The economic trial shall commence shortly after the custody and order of protection trial.

Conclusion

The matter is scheduled for trial on the issues custody, visitation, order of protection and exclusive use and occupancy for Wednesday December 6, 2017 at 9:30 a.m. This date was selected on the record at the court appearance on Friday September 29, 2017. Plaintiff shall be appointed counsel by separate order on the issues of custody, visitation and order of protection. Plaintiff's application for maintenance and counsel fees are denied as stated above and the Court notes that he previously waived the right to an evidentiary hearing on these issues. Plaintiff and defendant's applications for final exclusive use and occupancy of the marital residence are reserved for the trial court. Pending the decision, the wife and children shall continue to reside in the residence.

This shall constitute the decision and order of this Court.

E N T E R:

Hon. Jeffrey S. Sunshine

J. S. C.