Matthew A. v Jennifer A.

[*1] Matthew A. v Jennifer A. 2021 NY Slip Op 50254(U) Decided on March 3, 2021 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2021
Supreme Court, Monroe County

Matthew A., Plaintiff,

against

Jennifer A., Defendant.



2017/08147



AFFRONTI & AFFRONTI, LLP

Francis C. Affronti, Esq.

For the Plaintiff Matthew A.

Rochester, New York

KELLY WHITE DONOFRIO, LLP

Donald A. White, Esq.

For the Defendant Jennifer A.

Rochester, New York

LAW OFFICE OF DENISE R. MUNSON, ESQ., PLLC

Denise R. Munson, Esq.

For the Children

Walworth, New York
Richard A. Dollinger, J.

In this seemingly never-ending battle, this Court was asked to address several issues which, even the Court now acknowledges, lacked sufficient definition and explanation in its prior decision dated February 3, 2021. This supplemental decision is designed to clarify several of the current issues which should have been more precisely resolved in the prior opinion.

1. Suspension of the Father's Child Support Payments

In its original decision, this Court suspended the father's child support obligation. The rationale was that the children were no longer following the agreed parental visitation schedule — alternate weekends and one dinner evening a week — and there was no justifiable reason for their [*2]failure to do so. As emphasized throughout this opinion, the children simply "did not want" to bother to attend, in large measure according to their mother and the attorney for the children, because their complicated personal lives — extracurriculars and other events — cramped their schedules and made visitation inconvenient. This Court also drew an inference that because the children were assisted in the filing of the original family court application and their mother transmitted a letter to the Court from the children asking to change the agreed visitation, there was prima facie evidence that the mother was actively interfering with father's access to his children. It is undisputed that the letter sent to the family court judge requested changes to the visitation plan that the mother had agreed to less than 18 months before.

In this Court's view, the mother's complicity in transmitting that letter, the lack of any reasoned justification for the sons' refusal to visit their father and the mother's lack of encouragement to discipline the children for failing to visit their father rises to the level of frustration — by the mother — of the father's visitation rights and justifies the suspension of child support. As the mother's counsel notes, the support may only be suspended upon a finding that the mother frustrated or actively interfered with the father's visitation. Fiedler v. Fielder, 134 NYS 3d 261 (2d Dept 2020). However, the uncontested proof in this matter is eerily similar to that in Matter of Thompson v Thompson, 78 AD3d 845 (2d Dept 2010):

The evidence at the hearing supported the Family Court's finding that the mother deliberately frustrated the child's court-ordered visitation with his father such that suspension of child support payments until visitation resumes was warranted. There was evidence that the mother communicated her enmity towards the father to the child, made inappropriate disclosures concerning the parties' history, and failed to encourage and facilitate regular visitation, missing numerous scheduled visitations and ultimately supporting the child's decision to refuse visitation. Thus, the evidence supports the finding that the mother, by her example, her actions, and her inaction, deliberately frustrated visitation by manipulating the child's loyalty and orchestrating and encouraging the estrangement of father and son.

Id at 846-47 (emphasis added). In particular, the New York courts have suggested that delegating to the children the choice of whether to abide by an agreed visitation plan can constitute "frustration" of a parent's visitation rights. See Matter of Sullivan v Plotnick, 145 AD3d 1018 (2d Dept 2016) (parent deliberately frustrated the court-ordered therapeutic visitation in many ways by telling children it was "up-to-them" to decide whether to follow a court order and the mother influenced the children to view visitation with the father negatively). In Sullivan v. Sullivan, 2019 NYLJ LEXIS 4539 (Sup. Ct Putnam Cty 2019), the court noted that child support should be suspended where there was evidence that the custodial parent "supported the child's decision to refuse visitation" and "failed to encourage and facilitate regular visitation." In addition, the court in Sullivan v. Sullivan held that a mother frustrated visitation by declaring she wanted to give her children "space" to make their own decisions with respect to their father, as opposed to openly encouraging a relationship with him. Id. Finally, in determining what constitutes "deliberate frustration," the New York courts have determined that where a parent fails to make an effort to affirmatively encourage the children to have contact and a relationship with the non-custodial parent, it is appropriate to suspend the non-custodial parent's payment of [*3]child support. See e.g., Usack v. Usack, 17 AD3d 736 (3d Dep't 2005). Essentially, "deliberate frustration" can exist in situations — like those present here — where there is no evidence of physically preventing or directly interfering with scheduled access time. Sullivan v. Sullivan, 2019 NYLJ LEXIS 4539 at 39.

In this Court's view, the evidence supports the finding that the mother, by her example, her undisputed actions — filing the visitation change petition based on her children's wishes and conveying the letter to the family court — and her inaction — failing to encourage and facilitate agreed visitation or disciplining the children for failing to attend visitation — manipulated the children's loyalty, encouraged the estrangement of the father and children, and deliberately frustrated visitation. Under these circumstances, the Court reaffirms the suspension of child support and will not permit the support to accrue arrears until the children comply with the established and agreed parental visitation.

2. Findings of Contempt against the Mother for violations of the House Rules

In its prior decision, the Court vacated its prior holdings that found the mother in contempt for violation of the house rules. The Court's decision was related to an argument by the mother's counsel in his motion to re-argue. In the decision, the Court vacated all its contempt holdings related to "episodes contained in the mother's attorney's affidavit." The Court had intended that the mother's affidavit, combined with the attorney's affidavit, supported the conclusion that there were disputed factual issues that prevented this Court from determining that there was clear and convincing evidence that the mother had violated certain portions of the Court order, as a finding of contempt requires. In responding to the request for further clarification of its decision on the application to re-argue, this Court notes, however, that two of the findings in the original Court decision were not contested by the mother's attorney and with respect to those two findings the facts are undisputed and no hearing was or is now required. Martin v Martin, 163 AD3d 1139, 1140-41 (3d Dept 2018)(a hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone); Breskin v Moronto, 172 AD3d 1298, 1299-300 (2d Dept 2019)(since a showing of willfulness is not required to establish civil contempt, no hearing was necessary with respect to the defendant's intent). The Court re-affirms the contempt findings involving the grandmother's visits to the mother's residence and re-affirms those findings and penalties associated therewith.

With respect to the contempt findings related to the visits to the mother's residence by her mother, this Court could not have been clearer when it implemented a "house rule" that the mother must bar visits by relatives to the home until the children visit their father consistent with the visitation plan in the separation agreement. The order is unmistakably clear and the mother's attempt to recast this visit as something other than a violation of an "unequivocal mandate" is misplaced. The mother's counsel, in a letter brief to the Court on this question, claims that the grandmother's appearance should be considered an exception to the court order because the visit was designed to help the children with their math. The Court rejects that justification for a violation of the court order. First, the mother has argued throughout this matter that she — and she alone — provided the math tutoring for her sons and she claimed, at the start of this matter, that her tutoring was necessary on Sunday nights because her husband is not an accomplished [*4]mathematician. That was the mother's proffered justification for denying the father the Sunday overnight that he requested. There is no evidence that the grandmother's visits were necessary just on Sunday night or that the mother could not provide the necessary tutoring, as she claimed she did. Second, the Court is simply unwilling to let the mother decide that there is an "escape hatch" in the Court's order that permits the grandmother to visit the children: the mother does not decide who can obtain a free pass around the Court's order. Third, the argument that the grandmother's visit did not prejudice the father is untenable. The question of whether the father was prejudiced by the grandmother's visit is not the point: the point is that the father's imposed discipline — codified in the court order — involved barring his children from access to their relatives until they simply fulfilled the agreed visitation with their father. If the mother can so easily evade the reach of the house rules by allowing a visit from the grandmother, then the message to the children is that their mother controls discipline and their father — seeking to obtain the agreed visitation that he bargained for — can be ignored as can the Court's orders. The "prejudice" to the father is that the mother can decide — alone — what is in the best interests of her sons even though she had agreed to let the father, with joint custody, have an equal say on all issues and a right to extended visitation.

Therefore, based on these conclusions, the following is justified:

(A) the suspension of child support remains in effect and no arrears accrue until the children comply with the agreed visitation plan set forth in the separation agreement;(B) the finding of contempt against the mother for violation of the house rules order remains in effect and the penalties — payment of legal fees and the financing of the Court-ordered therapist — likewise remain in effect.

In addition, this couple appear to disagree in the wake of the prior opinion on the extent of the house rules. The rules apply until the children fulfill the visitation plan that their parent's approved in the separation agreement. Until they visit on alternate weekends — including the Sunday overnight as directed by the Court — and the mid-week dinner visit, the house rules still apply and the mother must enforce them as the court order dictates. There is no partial relief in the order: either the children follow the agreed plan in all of its details or the order remains in effect. This Court notes that father alleges that the children were playing games on their phones — an alleged violation of the house rules and the court order. The mother acknowledges that she accessed certain phones to obtain "daily rewards." This Court is not familiar with these electronic games but if the children were playing the games daily through their phones — or their mother's phones — or other electronics, that activity, if acknowledged by the mother would appear to also violate the court order. The Court declines to find contempt on this alleged violation and will refer that issue to the hearing.

This Court adds one other comment: the AFC, in her applications to the Court, has argued that this Court should let "the children be children." But, as the Court noted previously, New York allows parents to define their child's best interests. Here, the parents decided that alternate weekend visitation — with or without a Sunday overnight — was in their child's best interests. While the Court agrees it should "let a child be a child," the Court is unwilling to "let children become parents." Here, the parents agreed that an alternate weekend visitation was in their child's best interests. Part of being a child is doing what your parent's decide is in your best interests and having consequences if you do not. In seeking to impose the house rules here, the [*5]father is simply seeking this Court's assistance in having his children abide by the "best interests" defined by their parents.

3. Appointment of a Therapist

This Court is astounded that these parents could not even agree on a therapist for the court-ordered therapy. After considering the request from both sides, the Court selects Dr. Tina McCann as the therapist envisioned in the Court orders. The Court has experience with Dr. McCann's skills and she can provide the needed therapy. The therapy should commence immediately and be financed by the mother as indicated previously.[FN1]

The child support suspension remains. The contempt findings based on the mother's allowing the grandmother's visitation remains and all the penalties associated therewith as stated in the original decision remain in effect. All other issues are referred to an already scheduled hearing

SUBMIT ORDER ON NOTICE 22 NYCRR 202.48

Dated: March 3, 2021

_______________________________ Footnotes

Footnote 1:This Court notes that the mother, in her latest affidavit to this Court, accuses the father's attorney of "trying to control every aspect of this case." The comment is out of place: both parties have been represented by earnest and forceful counsel, who, in the best tradition of attorneys, have tried to convince the Court of their respective legal and factual positions. The Court has no objections to forceful advocacy on all sides: it produces a more difficult process but a better result. To be clear: the attorneys are not controlling this case. The law, the facts and this Court are.