K.W. v O.E.

[*1] K.W. v O.E. 2022 NY Slip Op 50812(U) Decided on August 22, 2022 Supreme Court, Richmond County Castorina, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2022
Supreme Court, Richmond County

K.W., Plaintiff,

against

O.E., Defendant.



Index No. 51095/2014



Counsel for the Plaintiff, K.W.:

Robert Beau Kellogg, Esq.

Legal Aid Society

60 Bay Street - 4th Floor

Staten Island, Ny 10301

Phone: (347) 390-1868

Counsel for Defendant, O.E.:

Melissa Johanna Rutigliano, Esq.

Murgolo & Rutigliano, Attorneys at Law, LLP

370 Saint Marks Pl

Staten Island, NY 10301

Phone: (929) 484-9950
Ronald Castorina Jr., J.

DECISION AND ORDER [FN1]

The following papers were read on the motions, to wit: Defendant's "Notice of Motion for Vacation of Order Granting Full Custody to Plaintiff and All Subsequent Orders Entered on [*2]August 22, 2017," Defendant's "Affidavit in Support of Motion for Vacation of Order Granting Full Custody to Plaintiff and All Subsequent Orders Entered on August 22, 2017 with Exhibits," Short Form Order of August 22, 2017 signed by Justice Catherine DiDomenico, Plaintiff's "Affidavit in Opposition to Defendant's Motion to Vacate Orders Dated August 22, 2017," Defendant's Notice of Motion (dated April 4, 2022), and Defendant's Affidavit in Support with annexed Exhibits. In addition to the papers read on this motion, the court provided counsel an opportunity to orally argue the matters at bar, in court, on Thursday, August 4, 2022. Counsel for both parties asked the court to rely upon the arguments in their client's papers and opted not to proceed with oral argument in court.

Procedural History

This court inherited this matter from the inventory of retired Justice Barbara I. Panepinto, in January 2022. In an action for divorce and ancillary relief, the Defendant appealed from portions of a Judgment of Divorce of the Supreme Court, Richmond County (Robert W. Soos, Ct. Atty. Ref.), dated December 17, 2018. The Judgment of Divorce awarded the Plaintiff sole legal and residential custody of the parties' two children, with certain parental access to the Defendant. The basis for the award within the Judgment of Divorce, is a Short Form Order on consent of the parties.[FN2] The terms of the Short Form Order were spread forth on the record in court on August 22, 2017. An Order with respect to Motion Sequences No.'s 006, 007, 011, 012, 013, and 014, was entered by Justice Barbara I. Panepinto [FN3] on March 5, 2018. The relevant portion of that order pertains to Defendant's Motion Sequence #007, where the court denied Defendant's pro se request for the Court to vacate the "Stipulation and Final Order relating to Custody and Parenting Time."

On appeal, the Second Department held that the "Supreme Court failed to conduct the requisite inquiry before allowing the Defendant to proceed pro se with regard to the hearing and determination of the Defendant's motions to modify and/or vacate the custody order." Accordingly, the Second Department issued a Decision and Order, dated November 10, 2021, modifying the Judgment of Divorce, on the law and the facts, by deleting the provision thereof awarding the plaintiff sole legal and residential custody of the parties' two children, with certain parental access to the Defendant, and the remaining portions of the Judgment of Divorce was affirmed without costs or disbursements. The court directed that the matter be remitted to the Supreme Court, Richmond County, for a determination of whether the Defendant wishes to waive his right to counsel, the assignment of counsel if warranted, a new hearing and a new determination of that branch of Defendant's motion which was to vacate the custody order and of the Defendant's motion to modify the custody order, and the entry of an appropriate amended Judgment of Divorce thereafter.

In the interim, the Second Department ordered that the provisions of the Judgment of Divorce, including those relating to custody and parental access, remain in effect pending the [*3]entry of an appropriate amended Judgment of Divorce.

The matter came before Justice Ronald Castorina, Jr., for the first time on April 25, 2022 for a motion, filed by the Defendant, pro se, seeking inter alia [1] A Continuation of the poor person status granted by the Court on July 24, 2018, [2] An appointment of an attorney for the Pro Se litigant, and [3] Compliance with the directive of the Appellate Court. The Court, orally granted Defendant's request to proceed as a "poor person" and, assigned the Defendant counsel,[FN4] to wit: Melissa Rutigliano, Esq., upon a finding of Defendant's financial inability to obtain counsel. A status conference was held on June 1, 2022, and both parties appeared with counsel before the court. Defendant's appointed counsel requested an opportunity to review the voluminous file, and to discuss the matter with her new client, and the court granted an adjournment for further status conference on the motion, as well as the Decision and Order from the Appellate Division.

On June 15, 2022, the parties appeared in Court for a status conference, and there was some cause to believe that the parties might be able to resolve the issues of the motion by and between themselves, with the benefit of counsel. The Court adjourned the matter and marked it as "final" for either resolution by the parties, and/or oral argument on the motion,[FN5] and for compliance with the Decision and Order of the Appellate Division. The parties and their attorneys appeared before the Court on August 4, 2022, unable to settle the matter. The Court provided counsel with the opportunity to argue the motion on the record. Both counsels requested, after consultation with their respective clients, for the Court to proceed to Decision without oral argument, asking the Court to rely upon the papers already submitted to the Court on the motion, as well as the Decision and Order of the Appellate Division, Second Department, dated November 10, 2021 (See Wondemagegehu v Edem, 199 AD3d 871 [2d Dept 2021]). The Court granted the request. This is a Decision and Order on Defendant's motion [NYSCEF Document No.: 180].

Discussion

I. Custody and Parenting Time Remitted to the Supreme Court

Plaintiff and Defendant were both represented by counsel with respect to the issues addressed in the within Decision and Order. Notably, this Court appointed counsel for Defendant (on April 25, 2022) in connection with issues pertaining to custody and parenting time, pursuant to the Judiciary Law and at no cost. After consultation with their clients, neither party requested permission to file further affidavits or affirmations to supplement either the motion pending before this Court, or the prong of Defendant's motion remitted to this Court from the Appellate Division (both of which were filed by the Defendant at a time that he was pro se). Although the parties were afforded the opportunity for oral argument, the parties, through their counsel requested for the court to rely upon the previously filed papers on the motions. The Court granted this request on the record in Court on August 4, 2022.

A parent who seeks a change of custody is not automatically entitled to a hearing, but [*4]must make an evidentiary showing sufficient to warrant a hearing (see Salick v Salick, 66 AD3d 757 [2d Dept 2009]; Jean v Jean, 59 AD3d 599 [2d Dept 2009]; Jackson v Jackson, 31 AD3d 386 [2d Dept 2006]; Smoczkiewicz v Smoczkiewicz, 2 AD3d 705 [2003]; DiVittorio v DiVittorio, 283 AD2d 390 [2d Dept 2001]). The Defendant proffered only conclusory allegations and ad hominem attacks upon Plaintiff, counsel, Justice DiDomenico, her law clerk and part clerk to the Supreme Court in support of the branch of his motion that was remitted back from the Appellate Division. Thus, Defendant failed to meet his threshold burden of proffering sufficient evidence to warrant a hearing to determine whether, under the totality of the circumstances, a change of custody would be in the best interests of the children.

Before subjecting children and their parents to additional litigation, courts require that, before a full hearing is ordered, the parent seeking a change of custody must make an evidentiary showing of a change in circumstances demonstrating a need to conduct a full hearing into whether a change of custody is appropriate in order to insure the child's best interests" (Matter of Newton v McFarlane, 174 AD3d 67, 76—77 [2d Dept 2019]; see Matter of Slade v Haymes, 176 AD3d 1078, 1079 [2d Dept 2019] ; see also Matter of Fitje v Fitje, 87 AD3d 599, 600 [2d Dept 2011]). Here, the conclusory, inflammatory, unsubstantiated, and nonspecific allegations set forth in the Defendant's motion fail to meet this standard.

Accordingly, this Court, in its discretion, DENIES the remitted branch of the Defendant's motion (Motion Sequence #007) seeking to vacate an Order of custody dated August 22, 2017, and to award Defendant sole custody of the parties' two children, without prejudice to renew (see Peterson v Peterson, 73 AD3d 1005 [2d Dept 2010]; Salick v Salick, 66 AD3d at 758; Jean v Jean, 59 AD3d at 600; Jackson v Jackson, 31 AD3d at 386; McNally v McNally, 28 AD3d 526, 527; Kjellgren v Kjellgren, 286 AD2d 753; DiVittorio v DiVittorio, 283 AD2d at 391).

The Court previously GRANTED Defendant's motion to proceed as a "poor person," and therefore that prong of Defendant's motion is moot.

The Court previously GRANTED Defendant's motion seeking the appointment of counsel, on April 25, 2022, and therefore that prong of Defendant's motion is moot.

II. Judgment of Divorce and the Appellate Division's Order

The Second Department modified the parties' Judgment of Divorce dated December 17, 2018, by deleting the provision thereof awarding the Plaintiff sole legal and residential custody of the children, because the Supreme Court [Panepinto, J.] "failed to conduct the requisite inquiry, before allowing the Defendant to proceed pro se with regard to the hearing and determination of the Defendant's motions to modify and/or vacate the custody Order" (See XXXX v XXXX, XXX AD3d XXX [2d Dept 2021]).

On November 10, 2021, the Second Department struck the language pertaining to the legal and residential custody of the children from the parties' December 17, 2018 Judgment of Divorce, and Ordered an appropriate Amended Judgment of Divorce be entered, consistent with this Court's Decision on the remitted matter. This Court having determined the remitted matter, denying Defendant's request for relief, Orders Plaintiff to file a proposed "Amended Judgment of Divorce" with Notice of Settlement, within 20 (twenty) days of the date of this Decision and Order, in conformity with the November 10, 2021, Decision and Order of the Appellate Division, Second Department.

As this Court denies Defendant's request for relief as to custody and parenting time, the proposed "Amended Judgment of Divorce", should be a replica of the parties December 17, 2018 Judgment of Divorce, with a new title in the caption, to wit: Amended Judgment of [*5]Divorce.

III. Decretal Paragraphs

Based upon the foregoing, it is hereby,

ORDERED, that the branch of Defendant's motion (remitted to this Court by the Appellate Division Second Department) to vacate the custody order and to modify the custody order is DENIED without prejudice to renew, and it is further,

ORDERED, that Plaintiff shall file a proposed "Amended Judgment of Divorce" with Notice of Settlement within 20 (twenty) days of the date of this Decision and Order (in conformity with the November 10, 2021, Decision and Order of the Appellate Division, Second Department), and it is further;

ORDERED, that Any relief requested and not specifically addressed in this Decision and Order is DENIED as moot, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

This shall constitute the Decision and Order of the court.

Dated: August 22, 2022

Staten Island, New York

E N T E R,

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1:This is a combined Decision and Order, on the prong of Defendant's motion to vacate/modify custody and parenting time, and on Defendant's motion seeking a continuation of "poor person's status," for the Court to appoint counsel to him, and for "Compliance with the directive of the appellate court."

Footnote 2:The parties were separately represented by counsel on August 22, 2017. The Short Form Order on Consent was executed by Plaintiff, Plaintiff's Attorney, Defendant, Defendant's Attorney, the Attorney for the Children, and Ordered by Justice Catherine M. DiDomenico.

Footnote 3:Justice Panepinto was assigned this matter after Justice DiDomenico recused herself, upon certain allegations and complaints made and/or filed by the Defendant regarding Justice DiDomenico, her personal court staff, and the Part Clerk of the Court for IDV/MP-11.

Footnote 4:Pursuant to Judiciary Law § 35 [8] counsel was appointed on the issues of parenting and custody.

Footnote 5:Defendant's motion [NYSCEF Document No.: 180] (dated April 4, 2022, and returnable before the Court on April 25, 2022) with remaining prong seeking "compliance with directives of the appellate court [sic]."