S.C. v R.N.

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[*1] S.C. v R.N. 2023 NY Slip Op 23092 Decided on April 5, 2023 Supreme Court, New York County Chesler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on April 5, 2023
Supreme Court, New York County

S.C., Plaintiff,


R.N., Defendant.

Index No. 365483/2020

Counsel for Defendant
The McPherson Firm, P.C.
Tower 45
120 West 45th Street
Suite 2801
New York, N.Y. 10036
By: Laurie McPherson, Esq. and Deepti Shenoy, Esq.

Counsel for Plaintiff
Pro-se Ariel D. Chesler, J.

It is hard to imagine a more egregious, terrifying and shocking action than the sudden abduction of a child to India — a country that is not a member to the Hague Convention - during the midst of an ongoing custody and divorce proceeding in New York. Plaintiff mother's purposeful and intentional acts in this regard may have permanently severed the relationship between Defendant father and his daughter causing lifelong psychological and emotional harm to both of them. Even more outrageous is that the subject child is autistic and has special needs which were being met by various services provided to her in New York, but which have now been terminated, and there is no indication she is now or can ever receive such services in India. Plaintiff has jeopardized the child's emotional stability and support system, rattled the stability of her life and routine and taken her away from her father, her school, her friends, and everything she knows. In sum, Plaintiff's extreme course of action may have permanently limited and seriously harmed the child's life and her future prospects in all regards.


The parties were married in a civil ceremony on August 5, 2010 and have one child, T.N., born on XX XX, 2012. Plaintiff commenced this action on December 8, 2020. In the Preliminary Conference Order, the parties resolved the issue of grounds, and agreed that either party could obtain a divorce on the grounds of DRL 170(7).

This was a contentious matter throughout, and various related criminal and abuse and neglect investigations occurred, all of which were unfounded. Since 2014, the Plaintiff has instigated at least seven groundless criminal and ACS investigations against the Defendant and had him arrested on two separate occasions on the basis of false claims of abuse. In fact, this matter began in May 2020 when the Plaintiff had the Defendant arrested and forcibly removed from the parties' marital apartment on the basis of false accusations of abuse which she repeatedly recanted promptly thereafter.

However, because of the allegations and ongoing investigations Defendant had various degrees of supervised access with his daughter during the proceedings. In June 2021, the Court appointed an attorney for the child and as well as a forensic evaluator. Various orders and so-ordered stipulations provided Defendant with parental access through the use of Comprehensive Family Services.

On July 21, 2022, the Court denied Defendant's motion requesting an order of interim sole custody or supervised parenting time for Plaintiff since the Court was awaiting the report from the forensic evaluator and more information was needed. It is also notable that on August 18, 2022, the Court issued an order permitting Plaintiff to travel with the child to India to attend the Plaintiff's father's funeral. The order issued in this regard noted that New York is the child's home state, provided an end date for the trip, and directed a return to the United States. Although Plaintiff traveled and returned to New York in accordance with the order, it now appears that she may have also utilized the trip to make plans for her eventual flight and abduction of the child in November 2022.

On or around October 24, 2022, the forensic evaluator provided his report to the Court. On November 10, 2022, Plaintiff fled with the child to India.

On November 17, 2022, the Court issued an order directing Plaintiff to return the child to New York within 72 hours, and granting Defendant sole interim custody in the event Plaintiff failed to comply.

Following motion practice, on December 19, 2022, the Court granted the motion of Plaintiff's prior counsel to be relieved. Following Plaintiff's failure to participate in the proceedings or comply with orders, including the directive to return the child, the Court also found Plaintiff in contempt of Court, issued a warrant for her arrest, deemed Defendant to have sole custody of the child, and granted Defendant exclusive use and occupancy of the marital apartment.

Despite Plaintiff having been in receipt of the orders of this Court, on December 19, 2022, she contacted the Court via e-mail only to inform the Court that she had commenced proceedings in India and considered the matter here to be withdrawn.[FN1]

A warrant for Plaintiff's arrest was issued on December 20, 2022, as was a separate order [*3]granting Defendant a final order of sole legal and physical custody of the child.

In light of Plaintiff's refusal to participate in this matter, and her filing of a divorce proceeding in India, Defendant moved for an expedited judgment of divorce. In his affidavit in support of the motion, Defendant explained that Plaintiff had recycled the various allegations against him that had been deemed unfounded and that his Indian counsel informed him that the Indian Court has set a date of April 21, 2023 with respect to the divorce proceeding at which the Court could assume jurisdiction and issue ex parte orders.

Following Plaintiff's failure to appear or respond to the motion despite being served with the same, the Court granted the motion to the extent of setting this matter down for an inquest.

An inquest was held on April 4, 2023, at which the Defendant provided a sworn Statement of Particulars, an updated Statement of Net Worth, and a Statement of Proposed Disposition. In addition to his affidavit and documentary evidence, the Defendant credibly answered questions from the Court and his counsel, and the Court heard no evidence to contradict any of his evidence.


In addition to the resolution of the grounds in the Preliminary Conference Order, at the inquest the Defendant sufficiently established an irretrievable breakdown in the parties' relationship which occurred more than six months before the commencement of this action (see DRL 170[7]).


The issue of the child's custody was previously determined by this Court. It is reiterated that Defendant is granted sole legal and physical custody of the child. No parental access is awarded to Plaintiff until such time as she participates in proceedings in New York. She may petition for appropriate access, which may be limited or supervised given her flight with the child.


As the custodial parent, Defendant is entitled to an award of child support (see DRL 240). Although the Court is generally directed to award child support in accordance with the statutory formula and to consider the relevant factors, because of insufficient information about the Plaintiff's financial circumstances and income, Defendant asks to be awarded only $300 per year in basic child support.

As will be discussed further, given the unique and awful circumstances of this case, such award of basic child support will be granted without prejudice to Defendant making further application or applications regarding child support at any time.


The Court's first task in distributing assets is to determine what falls within the marital estate (see Fields v. Fields, 15 NY3d 158, 161 [2010]). Here, the credible and uncontroverted evidence submitted by Defendant met his burden of proof to show that certain assets are separate (see DeJesus v. DeJesus, 90 NY2d 643, 647 [1997]) and established that the following accounts and assets are his separate property, funded either by inheritance or premarital income and savings: Bank accounts: Firstrust Bank xxxx; Citibusiness xxxx; Citibank xxxx; Investment accounts: Citibank xxxx; Citibank xxxx; Citibank xxxx; Citibank xxxx; Citibank xxxx; Retirement Accounts: Citibank IRA xxxx; Citibank Roth IRA xxxx; Maryland Supplemental Retirement Plans 401k xxxx; Maryland Supplemental Retirement Plans 457b. Plaintiff is awarded the foregoing as his separate property.

The undisputed evidence also established various liabilities that are solely in Defendant's name or the name of his business. Such liabilities shall thus remain his responsibility. Any liabilities incurred by Plaintiff shall be her sole responsibility.

The marital estate consists of two joint bank accounts at JP Morgan Chase totaling $47,758, a Citibank 401-k account totaling $35,000, the marital residence valued at approximately $900,000 at the time of inquest, and Defendant's LLC.

Regarding Defendant's LLC, the evidence established that it owned no assets, real estate or anything of value, and primarily had extensive liabilities. Having received no contrary information that would support a finding that the LLC has some value, the Court now determines it to have no value.

Regarding the marital residence, Defendant's credible testimony was that the apartment was purchased with his separate property in that he made a $250,000 down payment. Accordingly, he is entitled to a credit in the amount of $250,000. In addition, the apartment is subject to a mortgage in the amount of $490,607. Thus, the remaining equity the Court may consider distributing in light of the credit to Defendant and the mortgage is $159,393. In sum, the marital estate has a total value of $242,151.

A trial court has broad discretion in deciding what is equitable under all of the circumstances in determining a distribution of the assets (see Mahoney-Buntzman v. Buntzman, 12 NY3d 415 [2009]). Indeed, Domestic Relations Law § 236(B)(5)(d)(16) authorizes the trial court to take into account "any other factor which the court shall expressly find to be just and proper." Therefore, "the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances" (Mahoney-Buntzman, 12 NY3d at 420).

Considering the various relevant factors, and especially in consideration of Plaintiff's outrageous and egregious conduct in absconding with the child, a distributive award of marital assets 100% to Defendant and 0% to Plaintiff is equitable and just.

The Court has considered that this marriage lasted ten years, and that Plaintiff is 52 years old and Defendant is 57 years old. There was no evidence to raise concerns about either party's health. The Court also considers that Plaintiff is highly educated, holding two MBA degrees and multiple certificates in marketing and graphic design from Parsons School of Design at the New School and Rochester University. Her career has included high level international and retail marketing roles at Philip Morris International, Villeroy & Boch, Louis Vuitton Malletier and DLF Emporio. Further, at the time of the marriage both parties had considerable income and ability to earn. Presently, Defendant has lost his position and is having difficulty securing new employment in part because of his criminal record (even though dismissed) which appears in background searches.

Next, there is no need for Plaintiff to occupy the marital residence as she has fled the jurisdiction and abducted the child in violation of Court orders. Further, the Court considers that when she fled the home Plaintiff either destroyed or took Defendant's proprietary information, documents, including his Passport and Visa, thereby limiting his ability to travel to India and making it impossible for him to establish the value of certain assets, and limiting his employment options. Specifically, she disposed of numerous documents belonging to Defendant and computers and hard drives which supported his financial claims in this matter, as well as software he uses in his work.

Throughout the marriage, the Defendant has supported the family financially as well as [*4]being a devoted and loving father to his daughter. Any contributions made by the Plaintiff to the marriage, such as by being a homemaker and primary caregiver, are vastly outweighed by her egregious actions, which have undermined the Defendant's ability to earn income and saddled him with severe trauma, depression, and anxiety. The Plaintiff's actions have also severely detrimentally impacted the child.

Moreover, the vast majority of the assets held by the Defendant are separate property assets that have already been diminished in the course of this litigation. Even the marital residence was funded in substantial part by the Defendant's separate property assets. Plaintiff's conduct throughout this litigation continuing to present has also caused Defendant to incur substantial counsel fees and other costs, including $125,000 in fees advanced to Plaintiff's former counsel. Further, the Defendant is faced with the prospect of continuing to incur astronomical fees for the foreseeable future to litigate the baseless claims the plaintiff has made against him in India.

Consideration of marital fault with respect to equitable distribution is appropriate where a party's fault is "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship—misconduct that 'shocks the conscience' of the court thereby compelling it to invoke its equitable power to do justice between the parties." (see Blickstein v. Blickstein, 99 AD2d 287 [2d Dept 1984]; see also Havell v Islam, 301 AD2d 339, 345-346 [1st Dept 2002]). A recent and helpful review of the consideration of marital fault in equitable distribution, including the new domestic violence factor 14, can be found in J.N. v T.N. (77 Misc 3d 894 [Supreme Court, New York County 2022]).

In K.K. v P.K.M. (52 Misc 3d 1220(A) [Supreme Court, Westchester County 2016]), the Court was faced with identical circumstances — the abduction of a child to India. The Court there found that the mother's abduction of the child to India, refusal to return to the marital home, and disobedience of Court orders to return, shocked the conscience and should be considered in equitable distribution. Similar to this matter, the mother there also severely limited the father's ability to communicate with the child.

In finding the conduct egregious, the K.K. Court remarked:

Defendant's actions are heinous and appear to be calculated to further alienate the child from her father by making her afraid of her father and his intention to return with the child to the United States.Defendant has transgressed critical social norms and values, and blatantly ignored every ruling of this Court, refusing to participate and cooperate in the administration of justice. Not only are defendant's actions abhorrent to societal norms, causing plaintiff to suffer immeasurable injury and harm, they are disrespectful to this Court and the judiciary as a whole. Defendant's conduct constitutes egregious fault and will be considered by this Court in determining equitable distribution of marital property.

This Court adopts the reasoning of the K.K. Court and finds it further significant that not only has Plaintiff refused to return and disobeyed orders of this Court, but had the gall to e-mail the Court to indicate she considered this action withdrawn and had commenced proceedings in India. This demonstrated an absolute disrespect to the role of the Court, the significance of orders in place and the ongoing legal process, and constituted the usurpation of the Court's power by Plaintiff.

Here, the Plaintiff has abducted the parties' child, cutting the Defendant off entirely from [*5]her and creating a situation in which it appears likely that the Defendant may never be reunited with his daughter. She has wrought extreme mental and emotional trauma on the Defendant and made it impossible for him to earn income commensurate with his prior earning potential. She has interfered with his custodial rights and limited his access to the parties' child. Due to the plaintiff's egregious actions, the Defendant has been afflicted with continuing anxiety and depression. He has also had to endure the humiliation and anguish of being falsely portrayed as an abuser and a sexual molester of his own child in Court filings and ACS and criminal records.

While the Court in K.K. granted the mother 10% of certain marital assets on condition that she return to New York with the child in 30 days, in this case the Court finds no purpose in such a conditional order. Plaintiff here has unequivocally stated her intention not to return and has pursued various legal remedies in India. As a separate concern, the Court finds it unlikely that Defendant will be reimbursed for the $125,000 in counsel fees he advanced to Plaintiff, as is being ordered below. Thus, given that likely reality, it would be inequitable to award Plaintiff even 10% of the marital assets.

In sum, in light of her egregious marital fault, the Plaintiff has forfeited her right to a share of the marital assets.


Although Plaintiff defaulted, made no claim for maintenance, and presented no evidence to support such a claim, Defendant specifically put forth evidence and legal argument in opposition to any award of maintenance to Plaintiff.

In considering an award of maintenance, the Court considers the same factors set forth above in relation to equitable distribution. Of course, the amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts (see Monroe v Monroe, 71 AD3d 647 [2d Dept 2010]). Notably, marital fault is a consideration in determining whether a party is entitled to maintenance where such fault is egregious (see Stevens v. Stevens, 107 Ad2d 987 [3d Dept 1985]; see also Alice M. v. Terrance T., 50 Misc 3d 1204(A) [Sup. Ct. Kings Cty. 2015]).

Here, the Plaintiff has mentally and emotionally traumatized the Defendant and severed the relationship between the Defendant and his child. The Defendant has been severely affected emotionally, mentally and financially by the Plaintiff's actions, and his earning potential has been heavily impacted by the Plaintiff's conduct. Plaintiff has also demonstrated that she is self-sufficient and well able to support herself. In particular, since absconding to India (on tickets paid for by her own assets), the Plaintiff has paid for expensive private school, activities, and baseless litigation in India all on her own account. Additionally, the Plaintiff is well educated, with multiple MBA degrees, impressive educational qualifications and an extensive professional career history, and thus a significant earning capacity.

Accordingly, in these circumstances, the Court concludes that the Plaintiff is not entitled to maintenance.


On June 1, 2022, this Court directed Defendant to pay an interim counsel fee award of $125,000 which is subject to reallocation. An award of attorney's fees is a matter within the sound discretion of the trial court giving due regard for the financial circumstances of the parties and "all the other circumstances of the case, which may include the relative merit of the parties' positions." (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

Here, the plaintiff's actions are offensive, contrary to the Court's orders and directives [*6]and plainly lacking in merit. Further, Defendant explained that Plaintiff clearly has access to considerable assets, having enrolled the child in private school in India and hired costly attorneys in India. Given all the circumstances, financial and otherwise, the interim award of counsel fees is reallocated 100% to Plaintiff, who must now reimburse Defendant the entire amount.

This Constitutes the Decision and Order of the Court.

Dated: April 5, 2023


Footnote 1:In the Preliminary Conference order, the parties waived the right to serve a Notice to Discontinue pursuant to CPLR 3217(a) unless on consent of the parties.

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