Opinion
10-200564.
June 29, 2011.
For the plaintiff-Eugene W. Bechtle, Jr., Garden City, New York.
For the defendant-Steven A. Meisner, Garden City, New York.
Attorney for the Children: Jill C. Stone, Bellmore, New York.
The following papers were read on this motion:
Notice of Motion/Order to Show Cause................... 1 Attorney for Children Affirmation...................... 2 Notice of Cross-Motion................................. 3 Affidavit and Affirmation in Reply and in Opposition... 4 Reply Affidavit and Affirmation........................ 5Plaintiff husband (hereinafter referred to as the "husband")moves by order to show cause for an order granting him exclusive use and occupancy of the marital residence, subject to reasonable periods of access by the defendant wife (hereinafter referred to as the "wife") for purposes of reasonable visitation and directing the wife to pay temporary child support to the husband pursuant to the C.S.S.A. The wife opposes the motion and cross-moves for an order denying the husband's application in its entirety and appointing a neutral forensic accountant to value his business and determine the income stream. Conspicuously absent from the husband's motion is a request for temporary custody of the children, however, the thrust of the husband's application is for exactly that, and the court deems the motion to include a request for temporary custody.
The parties were married on August 30, 1992. The wife is 41 and the husband is 45 years of age. The parties have four (4) children: J.F., born March 25, 1994 (age 17), N.F., born July 25, 1995 (age 15), H.F., born November 5, 1996 (age 14) and J.F., born November 11, 1999 (age 11).
The parties and the children reside together in the marital residence located at 45 Winding Road, Rockville Centre, New York, except for daughter N. who resides with her paternal grandparents, also in Rockville Centre. The marital residence was purchased in 2002 for $495,000.00 and has a first mortgage of $200,000.00 and a home equity line of credit totaling $39,000.00. Title to the premises is in the name of the husband and the wife.
The wife is a high school graduate and works as a receptionist at Moritt, Hock, Hamroff Horowitz, and claims gross income of $32,500.00 per year. The husband has a Bachelor of Science Degree in horticulture, earned in 1986, and is the self-employed owner of F.F., Inc., with locations in Garden City and Merrick, New York, and claims monthly gross income of approximately $2,733.00. ($32,796.00 per year)
The wife drives a 2005 Honda Odyssey that is paid in full. Title to the car is in the name of the husband who pays $100.00 per month for car insurance. The husband drives a 2009 Chrysler Voyager for which he pays $560.00 per month on a loan that will be paid in full in 2012. He pays $100.00 per month for insurance on said car, which is titled in his name.
The wife paid a retainer to her attorney of $5,000.00, with funds from her grandfather. The husband paid a retainer to his attorney of $7,500.00 with funds from his parents.
A preliminary conference was held on August 25, 2010. Pursuant to the so-ordered preliminary conference stipulation, the parties agreed that the husband would pay the homeowner's insurance and car insurance for the parties. Additionally, it was agreed that the wife would maintain an existing health insurance policy that covers the entire family. The husband agreed to maintain an existing dental insurance policy that covers the entire family. No life insurance policies are in effect for either party. Grounds was also resolved at the preliminary conference and the husband will obtain a divorce on the ground of constructive abandonment. The parties agreed to attend the P.E.A.C.E. program and, by separate order, Jill Stone, Esq, was appointed as the Lawyer for the Children, with the husband and wife each paying 50% of her fees. The appointment of a forensic evaluator was deferred, as was the appointment of a real estate expert to value the marital residence and a business appraiser to value the husband's business, F.F., Inc. On the cross-motion, the wife now seeks the appointment of a neutral forensic accountant to value the husband's business and determine the income stream available to the husband above his claimed income.
In support of the motion for exclusive occupancy and child support, the husband alleges as follows: that this application is necessitated by facts and circumstances that have developed since the Preliminary Conference, that have created stress and tension in the household, caused by the wife's conduct and her alienation from the children; that the wife has developed a relationship with a "significant other" and that anger and impatience with the children spilled over, on November 15, 2010, when she struck daughter N. causing a bloody nose; that this event compounded a year's worth of anxiety and stress from which the children have been suffering which forced the husband to go to the Family Court for an Order of Protection, granted ex-parte against the wife on behalf of N. with a direction to refrain from acts of violence; that the wife's extra-marital relationship has been upsetting to the children and has served to alienate her from the children because the wife has stopped providing for the children's daily needs, such as preparing healthy meals, doing their homework with them, etc.; that N. Is suffering from extreme depression, is unable to get out of bed in the morning and her grades have been suffering in school; that Nancy has been seeing a therapist for one (1) year and the husband claims that the therapist believes that Nancy's problems are the result of the breakdown in the mother-daughter relationship, the household deterioration and the wife's frequent absences from the home; that the wife has become an adversary of the children, except for H., with whom she has fostered a closer relationship to the exclusion of the other children; the husband states that N. cannot live at home if her mother is present and the husband has arranged for her to live with his parents who live nearby in Rockville Centre, but this arrangement is unfair to N. and the other children; that three (3) of the parties four (4) children are now in therapy — N., J. and J.; that J. has an eating disorder that is treated monthly at Long Island Jewish Hospital and the husband fears that N. may have an eating disorder as well; that, for over a year, the husband has tried to work out a parenting schedule with the wife and split the week, when each parent would be responsible for caring for the children at different times; that this arrangement has not altogether worked out because the wife frequently fails to provide healthy meals on a timely basis and she never helps with homework; that, now that N. has moved to her grandparents home, J. and J. are reticent to remain in the marital residence under the present arrangement; that the husband maintains his responsibility to his business but has become the full time parent to the children who is involved in their everyday lives — he is in contact with their teachers and social workers, he plans and prepares balanced meals and buys fresh food for the house, he prepares school lunches and monitors the children's eating habits; he does homework with them and works with them on school projects, he arranges for their medical care and has mature discussions with them about topics of concern, that, if the wife is removed from the house, he is hopeful there will be a healing process as he encourages the children to have a strong relationship with their mother; in essence the husband contends that the wife's priorities have changed as exemplified by the assault on N.; that, on most nights, the wife remains away from the marital residence until past midnight and, sometimes, does not come home at all, that an award of exclusive occupancy is appropriate because there has been domestic violence and there is the threat of increased domestic violence in the future; that, in the past, the wife has agreed to pay for gas, electric and Verizon (televison, Internet and phone) for the household from her salary, which amount to approximately $580.00 per month, but has periodically reneged on that commitment; that the husband is asking that the court direct child support of 31% of the wife's salary, or $580.00 per month, and her continued payment for family medical insurance; that the husband's business has been struggling for the last three (3) years and his income is down to $400.00 per week, with no further draw except for some "perks".
In opposition to the motion and in support of the cross-motion, the wife alleges as follows: that the parties marriage has been deteriorating since 2008; that, since that time, the husband has embarked on a course to punish the wife by utilizing the children as a weapon against her; that he has improperly involved the children in the parents marital difficulties by showing the children text messages received by the wife from her significant other, discussing all aspects of the divorce litigation with the children and blaming the wife for all of the children's long standing emotional problems; additionally, the husband and his father have engaged in certain financial transactions which warrant review by a forensic accountant; that the husband has seized on an isolated incident with daughter N. to benefit his position in the ligation but his application is devoid of merit and contrary to the law as it exists; that the husband is not entitled to an award of exclusive use and occupancy of the marital residence as the wife has neither established an alternate residence nor been away from the home as misrepresented by the husband; that the husband's application to force her from the marital residence is not for exclusive occupancy of the home but is actually for exclusive possession of the children; that throughout the marriage, the husband, as the 51% owner of the family business, was able to pay the mortgage even when the wife did not work, that, since the commencement of the matrimonial action, the husband has claimed that he could no longer afford to pay the mortgage and has pressured the wife to sell the residence; that this is all part of the husband's litigation strategy and, when his plan failed, he used the confrontation with N. as a way to force the wife from the home; that there is no estrangement between the wife and the children and she is neither angry nor impatient with the children nor dismissive of their needs; that, unfortunately, the husband has pushed the children to "choose sides" in the divorce and has stepped up his campaign of interference and manipulation with the intention of causing the children to divorce the wife because she has a significant other; that N's behavior is not the result of the wife's conduct; that, of their four (4) children, N. is the only one who has acted out and the husband has encouraged her behavior; that, on the day of the incident, the wife entered N's room to wake her for her to do her homework when N. launched a vile and expletive laden verbal temper tantrum during which the child violently kicked her mother in the stomach and the groin as she approached N's bed; that the wife reacted by hitting the child with the back of her hand, an action that she regrets and which only happened one (1) time in her life; that the wife helped the child clean up the bloody nose and, after the conflict, the child was fine; that the husband was not forced to go to the Family Court for an Order of Protection but, rather, exploited the event as a means to punish the wife; that the husband has chosen to share all the details of the divorce litigation with the children including monetary issues, paying the bills, the mortgage and the finances of the business and also shares this information with the former spouse of the wife's significant other, with whom the husband has developed a close relationship; that the husband's claims, that the wife is absent from the house and family, that she has neglected the children and that she has let her social life interfere with her relationship with the children are false, and are intended to mislead the court; that, as a result of the husband's assertions that he had financial difficulties, the wife now works full time, from 8:00 a.m. to 4:30 p.m., five (5) days a week, and earns $34,000.00 per year, from which she pays $9,312.00 for family health insurance; that, now that she is working full time, the wife is not at home as much as when she was not working; that, unlike the husband; who "hangs" around the house during the wife's parenting time enticing the children to do activities with him, the wife feeds the children, ferries them to their activities and checks their homework and offers help if needed on her parenting days, but leaves the home and does not interfere during the husband's parenting time; that she does not stay away from the home over night except on weekends or vacations; that there is no increased threat of violence in the marital residence and it is the husband who causes the atmosphere of tension in the home, which only occurs when the husband is at home during the wife's parenting time interfering with the wife's time and her relationship with the children, that the wife wishes that her relationship with N. was better and states that she never wanted there to be distance between N. and herself; that, while the child has chosen to live with her grandparents, the wife would prefer that she remain at home to allow for the reparation of the relationship; that the husband is not entitled to an award of child support and, although there have been periods when she had problems paying the promised expenses, she has paid all of her obligations; that, unlike the husband, she does not have a cash business at her disposal where she can write off personal expenses as business expenses, alter transactions to reduce the amount of recorded sales or take cash from the register drawer; that the husband's claim of $400.00 per week in income plus minor perks is a gross distortion as, upon information and belief, the husband continues to pay the mortgage and home equity line of credit and pays a manager of his two (2) floral shops more that he claims to earn; the wife asserts that the husband has manipulated the books and records of the business, which the husband took complete control of in 2008, the same year the marriage began to deteriorate; that in 2007, the husband's father, who owned 39% of the corporation, removed $276,000.00 in distributions in excess of his basis, and the husband, who owned 51%, removed only $20,570.00; that until the husband's business records are reviewed by a forensic accountant, the husband's allegations regarding his finances cannot be taken seriously; that the wife believes that the husband and his father arranged to remove hundreds of thousands of dollars from the business in 2008, when the marriage was deteriorating, to reduce the value of the business for equitable distribution purposes and to reduce the husband's stated income with respect to his exposure for the payment of child support, counsel fees and expert fees; that there are many anomalies in the 2007 corporate returns and production of the 2008, 2009 and 2010 corporate returns and the appointment of a neutral forensic expert is warranted.
The Attorney for the Children alleges as follows: that she represents the four (4) children of the marriage who are witnesses to their parents ongoing discord; that the children are articulate and intelligent and have clearly expressed their wishes with respect to their respective relationship with each parent; that it is her firm belief that her clients are of sufficient age and possess the intelligence to understand the issues before the court with respect to their father's application for exclusive occupancy of the marital residence; that, unfortunately, both parents have discussed in detail, the indiscretions of the other with the children, and each child has made their own assessment as to their comfort level and what would be right for them; that each child's individual position is as follows:
J. (age 17)-J. believes that, if his mother was no longer living in the home, that his sister N. would return; that if true, he would prefer his sister to live in the home and his mother be vacated and his father given exclusive possession; that he is aware of his mother's significant other and is of the opinion that she should reside with him and vacate the marital residence;
N. (age 15)-N. has vacated the marital residence temporarily and is living with her paternal grandparents since her mother is still living in the marital residence and their relationship has an emotionally draining effect on her. While she is hopeful that she will still have a relationship with her mother, N. will not move back into the home while her mother is still there; N. misses her siblings but states that it is not only her mother's indiscretions and their relationship that caused her to be depressed and emotionally distraught, but also the family dynamic which significantly impacted her present mental state. That even if her mother vacated the residence, N. does not know if she would return immediately to the home — that she want to make sure that she is strong emotionally to deal with the present and future challenges of the family dynamics.
H.(age 14)-H. supports her mother and indicates that she would like her mother to remain in the marital residence. She states that the present schedule-"Mom's Day" and "Dad's Day" works for her, however, if her mother vacates the home, she would like to reside with her mother
J.(age 11)-J. is the youngest child and finds the present schedule very annoying. J. would like her sister N. to return to the marital residence, as she misses her older sister immensely. She states that she would like to see her Mom but is content with Dad being in the home as the primary caretaker.
The children state to their attorney that the husband's claims that he takes on the major portion of the responsibility with regard to the children is correct. The court notes that, whether this is because the husband does so during the time reserved for the wife to parent the children is unclear,
Citing the Third Department case of Grogg v. Grogg, 152 AD2d 802, 543 NYS2d 582 (3rd Dept. 1989), which holds that the presence of marital strife can be recognized as a standard for an award of exclusive possession for the protection of the children's emotional and mental state, the Attorney for the Children suggests that danger to persons or property is not the only standard for an award of exclusive occupancy as the emotional well being of the children are being affected each day by the family dynamic.
In reply and in opposition to the cross-motion, the husband alleges as follows: that the husband only seeks to protect the physical and emotional well being of the children; that the children have gone through a long period of stress that deeply affected them; that all of the children are "at risk", with a variety of eating disorders, alcohol abuse, depression, poor grades and acting out in school; that the children need a sense of calm and stability to return to the household; that with respect to the financial circumstances of the business, the husband's attorney has sent tax returns, bank statements, AM EX statements, business ledgers and related documents to the wife's attorney; that there is nothing about the husband's business transactions that are secret or underhanded; that the husband is in "tremendous debt"; that if a forensic accountant is appointed, the parties should share the expense on a 50/50 basis.
In reply on the cross-motion, the wife alleges as follows: that the husband continues to blame the wife for all of the children's problems and refuses to accept any responsibility or role in causing the tension in the house; that the children had pre-existing emotional problems, such as attention deficit disorder and depression, that existed prior to the divorce and which were not caused by the wife; that the wife did not provoke the incident with N., who was an out of control child who physically assaulted the wife; that said incident occurred in November 2010 and there have been no incidents in the house since then; that N. did not leave the residence until recently encouraged to do so by her father and it is the "family dynamic", not the wife, that is the basis of her refusal to return; that the husband's attempts to sell the marital residence and his active role as "victim" does not make the children feel secure; that the husband has not demonstrated that the wife has established another residence, that her presence has caused domestic strife or that the children are in any danger; that it is time to speak to N. about her violent outburst rather than exploiting the incident for the husband's benefit; that the husband has sufficient cash and undeclared income at his disposal to pay for the forensic accountant to value the florist business and to examine the circumstances under which he received his interest in the F.F. shops; that the wife does not have excess discretionary income and she has been forced to borrow funds from her family to fund the litigation.
The Law and Analysis
Courts are statutorily empowered to grant one spouse temporary use and occupancy of the marital residence during the pendency of divorce proceedings (see, DRL § 234). Such 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 NYS2d 157 [2004]; Mitzner v. Mitzner, 228 AD2d 483, 643 NYS2d 674 [1996]; Annexstein v. Annexstein, 202 AD2d 1062, 609 NYS2d 132 [1994]; Fakiris v. Fakiris, 177 AD2d 540, 575 NYS2d 924 [1991]; Goodson v. Goodson, 135 AD2d 604, 522 NYS2d 182 [1987]; Purdy v. Purdy, 117 AD2d 659, 498 NYS2d 397 [1986]; Wolfe v. Wolfe, 111 AD2d 809, 490 NYS2d 555 [1985]).
( Taub v. Taub , 33 AD3d 612 , 822 NYS2d 154 [2nd Dept. 2006]). The courts are generally reluctant to deprive one spouse of equal access to a marital residence prior to trial and recognize the unfairness that could result from forcibly evicting a spouse from his or her home on the basis of untested allegations in conflicting affidavits. The party seeking exclusive occupancy must present specific, detailed factual allegations as to incidents of violence or abuse, of police intervention or severe family strife (McKinneys DRL § 234, Practice Commentaries, Alan D. Sheinkman, p. 464 f.).
The fact that violence or abusive conduct occurred does not, standing alone, mandate that the court grant a motion for temporary exclusive occupancy. The court must consider, among other things, the financial circumstances of the parties, whether one spouse or the other has available alternate residences, whether one spouse or the other has a particular need to reside in the marital residence for employment, business, geographic or other reasons, and whether there are children and, if so, what custody or visitation arrangements are required.
(McKinneys DRL § 234, Practice Commentaries, Alan D. Sheinkman, p. 465.).
The court is of the opinion that granting exclusive occupancy of the marital residence to either party is equivalent to granting temporary custody, and will have the affect of predetermining that issue which, in itself, will not be in the best interests of the children without a full hearing on the matter. For instance, if the wife's allegations of interference with her relationship with the children is correct, such actions would be inimical to a custodial claim by the father ( c.f. Lauren R. V. Ted R. 27 Misc 3d 1227A, 911 NYS2d 693 [Supreme Nassau Co. 2010]; WJF v. LF, NYLJ 6/10/11). If the husband's claims are correct, that the wife is the causation of the childrens's longstanding emotional problems, that too must be assessed by the court to protect the children and ameliorate their problems.
In the case at bar, although the husband has detailed one (1) confrontation between daughter N. and the wife, and has alleged that the wife's extra marital affair has created a disruptive and tense environment in the residence that is detrimental to the children, he has not demonstrated that the wife's presence has caused domestic strife, police involvement or the type of conduct that would warrant an award of exclusive occupancy ( see, Preston v. Preston, 147 AD2d 464, 537 NYS2d 824 [2nd Dept. 1989]).
That is not to say that the wife's engaging in an extra-marital affair hasn't had a deleterious affect on each and every member of the family. Indeed, beyond the conduct itself, the failure of both parties to insulate and protect their young and impressionable children from the embarrassment, disappointment and sadness they must have experienced by becoming privy to such disturbing revelations may well have a long-lasting affect on their personal peer relationships, in addition to those of an intra-family nature. The entirety of these circumstances are certainly relevant regarding general parenting skills and, in particular, the decisions parent's are required to make in performing their custodial obligations with the best interests of their children as a priority. The litigants herein are reminded that courts are empowered to render difficult decisions concerning custodial issues and, in doing so, seek to select parents who can establish their entitlement to the ever elusive title of "role model".
Under the circumstances of this case, the court does not view one isolated incident of reactive striking to be determinative, nor a harbinger of behavior in the future, particularly in view of the extant Order of Protection, which has not been violated. The wife has not established an alternate residence and its is apparent that the financial circumstances of the parties during the pendency of the action are limited.
It is clear, however, that the parties require a formal schedule of parenting time, free from the presence of the other, when they can spend uninterrupted time with the children, without drama, confrontation, or other provocative acts. During each parties' parenting time, the other party shall not be present and shall not interfere with the plans and activities arranged for the children by the parent exercising supervision and shall not discuss adult matters with the children. The parent exercising parenting time shall provide for all of the reasonable needs of the children, including meals, transportation, medical care and school related activities, and shall contact the other parent by telephone in the case of an emergency. Based on the foregoing, it is hereby
ORDERED, that the husband's motion for exclusive occupancy of the marital residence and for an award of child support is denied; and it is further
ORDERED, that within five (5) days from service of a copy of this order, counsel for each party shall submit a parenting schedule to the court, upon notice to the other and to the Lawyer for the Children, which recites, inter alia, the directions set forth above and, after consideration of said proposed orders, the court will issue its final order; and it is further
ORDERED, that the wife's cross-motion for the appointment of a neutral forensic accountant is granted. Within five (5) days from service of a copy of this order, each party shall submit a list of three (3) names to the court, from which it will select a neutral expert to assist the court. The husband is directed to pay the first $5,000.00 of the fees incurred by the forensic accountant. Thereafter, the parties shall share the costs of said expert on a 50/50 basis, all subject to reallocation at trial.
All further requested relief not specifically granted is denied. This constitutes the decision and order of the court. The parties and their respective decisions shall appear for a scheduled conference on July 15, 2011 at 9:30 a.m.