Opinion
No. 56564/09.
07-28-2014
A.M., Plaintiff, v. A.V., Defendant.
Plaintiff appeared pro se. Richard Min, Esq., Camhi & Min, LLC, New York, NY, for the defendant.
Plaintiff appeared pro se.
Richard Min, Esq., Camhi & Min, LLC, New York, NY, for the defendant.
Opinion
DELORES J. THOMAS, J.
Upon the foregoing papers, in this action for divorce and ancillary relief, defendant moves by order to show cause, under motion sequence number 16, postjudgment, for an order: (1) modifying the custody provision of the parties' Stipulation of Settlement dated December 20, 2010 so as to grant her sole decision-making power and legal custody of her and plaintiff's child, H. M., (2) allowing her to relocate outside of Kings County or New York County, on the claimed basis that she can no longer afford to reside there due to plaintiff's failure to live up to his financial obligations, and (3) consolidating this action with a proceeding between her and plaintiff in the Family Court, Kings County, captioned A.V. v. A.M ., (the Family Court proceeding). Plaintiff, appearing pro se, opposes defendant's motion and cross-moves, under motion sequence number 17, for an order: (1) dismissing defendant's motion for consolidation with prejudice, and (2) holding defendant accountable for her alleged perjury with respect to the allegations made by her in her motion. Plaintiff further seeks an order: (1) appointing a more affordable parenting coordinator and simultaneously granting that parenting coordinator decision-making authority, and (2) appointing him counsel to represent him with respect to the issues of custody and relocation.
Facts and Procedural Background
The parties were married on March 7, 2009 in a civil ceremony in Jamaica. Plaintiff is 37 years old and defendant is 31 years old. There is one child of the marriage, H.M., who was born on April 30, 2009. During the marriage, defendant did not work and plaintiff was employed as an investment banker. On December 21, 2009, plaintiff filed this action for divorce. On December 20, 2010, the parties, who were represented by separate counsel, executed a Stipulation of Settlement (“Stipulation”). A Judgment of Divorce, which was entered on May 20, 2011, granted the parties a divorce pursuant to Domestic Relations Law § 170(1), and the Stipulation was incorporated but not merged into the Judgment of Divorce.
The Stipulation provided for spousal maintenance payments by plaintiff to defendant of $1,500 per month through September 1, 2012, and required plaintiff to pay child support to defendant in the amount of $2,500 per month, which was to increase to $2,700 per month in September 1, 2014, and to $2,975 on September 1, 2020. Plaintiff was also to pay certain add-on expenses and maintain health insurance for the Child. The Stipulation gave the parties joint legal custody, and gave physical custody to defendant, providing that the Child's primary residence would be with defendant, subject to a parenting schedule set forth therein.The parties agreed to have Rami Mosseri, Ph.D. (Dr. Mosseri) serve as the parenting coordinator and to share all of his (or any successor parenting coordinator's) fees and expenses equally, provided his schedule permitted him to assist the parties in the near future. The Stipulation provided that unless the parties otherwise agreed, they were to meet with Dr. Mosseri “as often as required for all access issues and no more than one time per month for any decision-making issues.”
In November 2011, plaintiff lost his job after his employer filed for bankruptcy. In August 2012, plaintiff lost his job with another employer. On February 8, 2012, plaintiff moved in the Supreme Court postjudgment for downward modification of his child support and maintenance obligations, and defendant filed a cross motion seeking past due child support and attorney's fees. By a decision and order dated September 5, 2012, this court denied plaintiff's motion and granted defendant's cross motion. The matter of defendant's attorney's fees and the reasonableness of the arrears awarded to defendant were referred to a Special Referee to hear and report.On September 28, 2012, defendant filed an order to show cause in the Kings County Family Court (the Family Court), pursuant to Family Court Act § 651(b), for an order immediately suspending plaintiff's parenting time, giving plaintiff only “appropriate and/or supervised visitation”, and granting her temporary and final orders of protection. In her petition before the Family Court, defendant argued that plaintiff had put the Child's health, safety, and well-being at risk during his parenting time. Specifically, defendant alleged that on September 25, 2012, the Child returned from a visit with welts and bruises on his face and head; that during camping with plaintiff, he sustained scratches, scrapes, and welts from bug bites; that plaintiff drove his car with the Child sitting in his lap; and that plaintiff took the Child to the beach, resulting in him receiving a “severe” sunburn. The Children's Law Center (CLC), a non-profit law firm that represents children in custody, family offense and related child protective proceedings, was assigned to represent the Child. An investigation by Administration for Children's Services (ACS)was also initiated.
Plaintiff filed a cross motion and answer to defendant's order to show cause in the Family Court on October 15, 2012, in which he opposed defendant's application to suspend his visitation, and sought a finding that defendant had violated the Stipulation's provisions regarding visitation and decision-making. He explained that the Child's injuries occurred accidentally, when he tripped and fell on a sidewalk.
On October 19, 2012, the parties, defendant's attorney, and plaintiff's assigned counsel appeared before Family Court Judge Dean Kusakabe (Judge Kusakabe) who directed ACS to submit a court-ordered investigation report, and directed Dr. Mosseri to submit a written report containing his recommendations for plaintiff's parenting time. On November 30, 2012, Judge Kusakabe issued an order directing Julia Werman, LMSW to observe and evaluate three interactions between the plaintiff and the Child, and to submit a written report to the Family Court. In addition, Ashley Lane, Esq., a staff attorney with CLC, informed the Family Court on December 11, 2012 that she had interviewed the Child and the parties and had spoken with several collateral sources, and recommended that plaintiff should have unsupervised visitation.On February 28, 2013, plaintiff again moved in the Supreme Court for a reduction of child support, as well as a full cessation of his remaining financial obligations under the Stipulation. Plaintiff additionally requested an order requiring that he and defendant work with a less expensive parenting coordinator in lieu of Dr. Mosseri. Defendant cross-moved for an order directing plaintiff to comply with court orders requiring him to pay certain child support arrears and counsel fees, and to make certain other payments.On April 18, 2013, plaintiff filed a motion in the Family Court, in which he again requested, among other things, that a new, more affordable parenting coordinator be selected and that the new parenting coordinator have final decision-making authority with respect to matters pertaining to H.M.'s welfare. On May 9, 2013, Judge Kusakabe determined that plaintiff's motion was essentially an application to modify the Stipulation and he would not consider making a change in the parenting coordinator without conducting a full evidentiary hearing. On June 18, 2013, defendant informed the Family Court that on February 28, 2013, plaintiff had filed the February 28, 2013 motion in the Supreme Court, in which he also sought the removal of Dr. Mosseri as the parenting coordinator on the grounds of economic necessity. In response, plaintiff explained that the Family Court proceeding involved defendant's application to modify his visitation whereas the Supreme Court action pertained solely to financial matters.
By a decision and order dated July 22, 2013, this court, in ruling on plaintiff's February 28, 2013 motion, referred plaintiff's request for a downward modification of his financial obligations to a Special Referee to hear and report, and confirmed an April 29, 2013 report and recommendation of the Special Referee with respect to the amount plaintiff owed defendant with respect to maintenance, basic child support, and additional child support expenses, and her award of counsel fees. Plaintiff's request for a less expensive parenting coordinator was denied.
On July 3, 2013, Judge Kusakabe ordered a forensic evaluation of the parties and the Child and also modified a temporary order of visitation. He also determined that there was no longer any basis for a temporary order of protection, which had previously been granted to defendant.
On July 25, 2013, defendant, pro se, filed a motion to consolidate the matter pending before the Family Court with this Supreme Court action. In her supporting affidavit, defendant argued that consolidation should be granted because plaintiff had made the same application to replace Dr. Mosseri due to his inability to afford Dr. Mosseri's fees in both the Supreme Court and the Family Court. On August 15, 2013, the parties and Ms. Lane appeared before this court. Plaintiff then argued that defendant was seeking consolidation because “things were not going her way” in Family Court, and that consolidation should be denied because the Family Court proceeding had been pending for 10 months. Ms. Lane also opposed consolidation on the grounds that the only issues pending before the Supreme Court involved the parties' finances, and plaintiff had previously requested a change in the parenting coordinator only in the context of a downward modification motion which had already been denied by the court's July 22, 2013 decision and order. After hearing oral argument, this court denied defendant's motion for consolidation on the basis that it was defendant who chose to file the case in the Family Court instead of the Supreme Court, the Family Court case had been already pending for 10 months, and as the parties had settled the divorce, the only matters before the Supreme Court in all of the motions that were decided by it pertained solely to financial issues.
On October 1, 2013, after the parties' appointments with the forensic evaluator had been scheduled, defendant, represented by new counsel, Richard Min, Esq., raised, for the first time, whether the Family Court had subject matter jurisdiction. On December 19, 2013, Mr. Min informed the court that he intended to make an application to withdraw defendant's petitions in Family Court and indicated that defendant wished to proceed in the Supreme Court. Plaintiff's counsel and Ms. Lane opposed this application since the forensic evaluation was ordered and significant progress had been made towards restoring plaintiff's visitation. On January 21, 2014, Judge Kusakabe denied defendant's application to reduce plaintiff's temporary order of visitation to day visits on alternating weekends.
On January 29, 2014, defendant filed her instant motion, in which she again seeks to consolidate the Family Court proceeding with this Supreme Court action, now adding to her motion the further requests for permission to relocate with the Child and to modify the Stipulation of Settlement by granting her sole legal custody. On March 7, 2014, plaintiff filed his cross motion in opposition. Ms. Lane has submitted an affirmation which vehemently opposes defendant's motion.
Defendant's Contentions
Defendant argues that the Stipulation granted the Supreme Court exclusive subject matter jurisdiction over custody issues arising out of it, as well as issues regarding Dr. Mosseri, and that she is, therefore, now bringing her motion in this court seeking modification of the custody provision of the Stipulation and granting her sole decision-making power and legal custody. She contends that she is seeking such relief on the ground that there has been a substantial change in circumstances since the parties' Judgment of Divorce was entered on May 20, 2011 in that plaintiff has not cooperated with her in co-parenting and has shown poor judgment in parenting the Child. In support of this contention, defendant describes the very same incidents that had occurred during plaintiff's parenting time which she had previously described in her September 28, 2012 order to show cause before the Family Court, and she reiterates the identical allegations that she had previously made in the Family Court proceeding, again arguing that plaintiff was neglectful of the Child during his parenting time. Defendant maintains that plaintiff does not provide adequate supervision and that plaintiff would rather retaliate against her than act in the Child's best interests. She also states that the Child is having problems in pre-school, and that he is biting classmates and kicking teachers.Defendant contends that the joint legal custody arrangement that she and plaintiff now have is not working and that she should have full legal custody. She claims that the Stipulation was tailored to utilize Dr. Mosseri's services to facilitate co-parenting between her and plaintiff, and that plaintiff refuses to meet with Dr. Mosseri, making it impossible to effectively make decisions.
Defendant argues that this action and the Family Court proceeding should be consolidated before this court on the claimed ground that the Family Court lacks subject matter jurisdiction to decide the issues pertaining to modification of custody and visitation and regarding the parenting coordinator. She also seeks to be allowed to relocate outside of Kings County or New York County, which was a limiting provision agreed to in the Stipulation.
Plaintiff's Contentions
Plaintiff contends that defendant's motion is predicated on false testimony. He asserts that he was unable to meet with Dr. Mosseri due to his financial limitations, and that he has repeatedly engaged in efforts to co-parent with defendant, which she has impeded. He notes that a large portion of defendant's affidavit is a repetition of the accusations of abuse and neglect that she made in Family Court and which ACS ultimately determined to be “unfounded”.
Plaintiff points to the fact that defendant's previous request for consolidation was denied, and he asserts that defendant's attempt to expand the scope of her motion by now including custody and relocation is unsupported and insufficient to change the court's prior ruling denying consolidation, which was not appealed by her. He argues that defendant is forum-shopping in an attempt to re-litigate issues raised in the Family Court, and that this is prejudicial to him. He points out that the Family Court has already had at least 16 months of unique familiarity with this case and that a consolidation would interrupt the ongoing efforts of Judge Kusakabe to resolve the issues in this case. He further points out that the issues being addressed in Family Court involving his visitation are separate and distinct from the financial issues which have been raised in the Supreme Court.
Ms. Lane's Contentions
Ms. Lane opposes defendant's motion. She asserts that she has interviewed the Child six times since she was assigned to represent him in Family Court, and that she has additionally had telephone conversations with the ACS caseworker, interviewed the parties, and reviewed CLC's file and the Family Court files relating to this litigation. She notes that she was also present and participated in prior proceedings in this matter.
Ms. Lane argues that defendant is “simply unhappy with the current situation in Family Court and the orders issued by Judge Kusakabe with respect to plaintiff's visitation,” and that she is forum-shopping. She contends that to allow defendant to remove the proceedings from Family Court to Supreme Court would be extremely prejudicial to plaintiff and to the Child. She notes that since defendant's filing of the Family Court petition, the Family Court has conducted a multitude of conferences in this case, the parties have appeared before the Family Court more than 15 times, and the Family Court has issued temporary orders of visitation. She points out that the Family Court has ordered a forensic evaluation and is very familiar with the issues involving custody and visitation, whereas the Supreme Court has only addressed financial issues in the postjudgment matter. She further notes that defendant has assigned counsel in Family Court, but is appearing pro se in the Supreme Court.
Discussion
Subject Matter Jurisdiction
The constitutional grants of subject matter jurisdiction to the Family Court for resolution of custody proceedings are found in the New York Constitution, article VI, §§ 13 and 19. Article VI, § 13(c) of the New York Constitution provides that “[t]he family court shall ... have jurisdiction to determine, with the same powers possessed by the supreme court, ... when referred to the family court from the supreme court ... in actions and proceedings for ... divorce ... applications to fix temporary or permanent ... custody.” Article VI, § 19(a) of the New York Constitution provides that “[t]he supreme court may transfer any action or proceeding, except one over which it shall have exclusive jurisdiction which does not depend upon the monetary amount sought, to any other court having jurisdiction of the subject matter within the judicial department provided that such other court has jurisdiction over the classes of persons named as parties.”
The legislative grants of subject matter jurisdiction to the Family Court for resolution of the issues of custody and visitation in divorce actions are found in Family Court Act § 447 (which permits the Family Court, in the absence of an order of custody or of visitation entered by the Supreme Court, to make an order of custody or of visitation, in accordance with Domestic Relations Law § 240[1] ), Family Court Act § 467 (which permits referral by the Supreme Court to the Family Court of applications to fix custody or visitation in divorce actions and, in the event no such referral has been made and unless the Supreme Court provided in the order or judgment awarding custody or visitation that it may be enforced or modified only in the Supreme Court, permits the Family Court to determine an application to modify the order or judgment awarding custody or visitation upon a showing that there has been a subsequent change of circumstances and modification is required); Family Court Act § 651 (which provides the Family Court with jurisdiction over habeas corpus proceedings and petitions for custody and visitation of minors) and, as is particularly pertinent to the present motion, Family Court Act § 652 (which provides the Family Court with jurisdiction over applications to fix custody and visitation in matrimonial actions on referral from Supreme Court, and, in the event no such referral has been made and unless the Supreme Court provides in the order or judgment awarding custody or visitation in a divorce action that it may be enforced or modified only in the Supreme Court, permits the Family Court to determine an application to modify the order or judgment awarding custody or visitation).
Pursuant to Domestic Relations Law § 251, the Supreme Court has the power to refer the issues of support, custody, or visitation to the Family Court. Family Court Act § 652(a) states that “[w]hen referred from the supreme court to the family court, the family court has jurisdiction to determine, with the same powers possessed by the supreme court, ... applications to modify judgments and orders of custody or visitation in actions and proceedings for ... divorce ...”
Significantly, Family Court Act § 652(b) provides as follows:
“In the event no such referral has been made and unless the supreme court provides in the order or judgment awarding custody or visitation in an action for divorce, separation or annulment, that it may be enforced or modified only in the supreme court, the family court may: (I) determine an application to enforce the order or judgment awarding custody or visitation, or (ii) determine an application to modify the order or judgment awarding custody or visitation upon a showing that there has been a subsequent change of circumstances and modification is required.”
Family Court Act § 652(c) specifies that “[i]n any determination of an application pursuant to this section, the family court shall have jurisdiction to determine such applications, in accordance with [Domestic Relations Law § 240 ], with the same powers possessed by the supreme court.”
The purpose of enacting Family Court Act § 652(b) was to reconfirm the legislative intent that both the Supreme Court and the Family Court could concurrently enforce or modify the custody awards of either court (see Renzulli v. McElrath, 185 Misc.2d 242, 249 [Sup Ct, Richmond County 2000], affd 286 A.D.2d 335 [2d Dept 2001] ). “This statute thereby removed the necessity of language in an order or judgment granting dual jurisdiction [of the Supreme Court] with the Family Court over future custody and visitation proceedings” (id. ). “[I]t also clarifies the scenario when the order or judgment from the Supreme Court is silent on the issue of retaining exclusive jurisdiction over enforcement or modification of custody and visitation matters” since it mandates that “the only time when the Supreme Court has exclusive jurisdiction over custody and visitation enforcement or modification proceedings is when the Supreme Court expressly provides for exclusive jurisdiction in an order or judgment” (id. ).
“Unless the Supreme Court has a particular interest in a case ... [it] rarely reserves exclusive jurisdiction over custody or visitation matters” (Id. at 250 ). Thus, absent the rare event that the Supreme Court expressly provides in the judgment that it is retaining exclusive jurisdiction, the Supreme Court and the Family Court “have equal power to entertain motions for modification of the custody and visitation portions of the decree” (id.; see also Metzger v. Metzger, 133 A.D.2d 524, 525 [4th Dept 1987], citing Family Ct Act § 652 [b] ).
Defendant cites to Family Court Act § 652(b), which expressly provides that the Family Court may determine an application to modify a judgment awarding custody or visitation unless the Supreme Court provided in the judgment that it may be modified only in the Supreme Court. She notes that the Judgment of Divorce herein, fully incorporated by reference the Stipulation, and argues that the Stipulation provided that the Supreme Court would have exclusive jurisdiction of these issues based upon the terms of Article XXIII of the Stipulation.
Article XXIII of the Stipulation of Settlement, entitled “Legal Interpretation,” provides that “[t]he parties agree to submit themselves to the jurisdiction of the New York State Supreme Court, New York County, for all issues arising out of this Stipulation or a Judgment of Divorce between the parties so long as one of the parties is residing in New York County.” Defendant states that this reference to New York County was an inadvertent error and that she and plaintiff actually meant Kings County since she and plaintiff litigated their divorce action in the Supreme Court, Kings County, and she and the Child lived in Kings County when the Stipulation was executed. She construes this language in Article XXIII as mandating exclusive jurisdiction in the Supreme Court, Kings County.
However, it is well established that “[w]hen interpreting a contract, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation so that the parties' reasonable expectations will be realized' “ (Matter of McMahon–Rohan v. Rohan, 113 AD3d 771, 771 [2d Dept 2014], quoting Matter of Katz v. Dotan, 95 AD3d 1328, 1329 [2d Dept 2012] ; see also Matter of Duggan v. Duggan, 83 AD3d 703, 704 [2d Dept 2011] ; Matter of Schiano v. Hirsch, 22 AD3d 502, 502 [2d Dept 2005] ). “The words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties' “ (Matter of McMahon–Rohan, 113 AD3d at 771–772, quoting Matter of Bokor v. Markel, 104 AD3d 683, 683 [2d Dept 2013] [internal quotation marks omitted]; see also Matter of Scalabrini v. Scalabrini, 242 A.D.2d 725, 726 [2d Dept 1997] ). “A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning” (Matter of Scalabrini, 242 A.D.2d at 726;see also Matter of Bokor, 104 AD3d at 683). “Where such an agreement is clear and unambiguous on its face, the parties' intent must be construed from the four corners of the agreement, and not from extrinsic evidence” (Matter of Cricenti v. Cricenti, 60 AD3d 1052, 1053 [2d Dept 2009] [internal quotation marks omitted] ).
A contract is ambiguous only where its terms are “reasonably susceptible of more than one interpretation” (Chimart Assoc. v. Paul, 66 N.Y.2d 570, 573 [1986];see also Manditch v. Manditch, 87 AD3d 985, 987 [2d Dept 2011] ). “Whether an agreement is ambiguous is a question of law for the courts” (Kass v. Kass, 91 N.Y.2d 554, 566 [1998];see also W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162 [1990] ). Only where a contract is ambiguous may extrinsic evidence be considered to determine the parties' intent (see Greenfield v. Philles Records, 98 N.Y.2d 562, 569 [2002] ). Here, no reasonable construction of this language in Article XXIII of the Stipulation could result in the conclusion espoused by defendant. This language cannot, by its plain meaning, be construed as mandating that the Supreme Court have exclusive jurisdiction over this matter. Rather, this general language, which does not even accurately mention Kings County, simply reflects the parties' agreement to allow the Supreme Court to decide these issues as long as one party resides in the county, without excluding them from bringing proceedings in the Family Court.
Defendant, in further support of her contention that the Supreme Court has exclusive jurisdiction of issues of custody and visitation in this matter, additionally relies upon section 5.3(c)(vii)(k) of Article V of the Stipulation, entitled “Custody,” which provided:
“If, for whatever reason Dr. Mosseri's schedule does not permit him to assist the parties in the near future, or he becomes unable to consult with the parties or serve as a [parenting coordinator], the parties shall seek to designate another mutually acceptable child psychologist or mental health professional with whom they shall consult pursuant to the provisions of this Stipulation. If, after ten (10) days, they are unable to do so, the parties agree to allow their respective lawyers to confer in good faith to select a substitute parenting coordinator. If the parties' respective lawyers are unable to do so within ten (10) days, they agree to submit the issue to the Supreme Court of New York State, Kings County for the selection of a substitute parenting coordinator.”
Defendant argues that this provision shows the intent of the parties that any issue arising out of the Stipulation would be litigated in the Supreme Court, Kings County. This contention is rejected. This provision merely permits the parties to raise this specific issue in the Supreme Court. To adopt defendant's contention would rewrite the Stipulation to impose a new requirement of exclusive jurisdiction of the Supreme Court which cannot be gleaned from the language employed and which would distort the meaning of the plain language used.
Defendant also argues that since her motion deals with an issue arising out of plaintiff's desire to assign a new parenting coordinator, this motion could only be properly brought in this court. This contention is devoid of merit. Plaintiff's motion to appoint a new parenting coordinator was already denied by the court in its decision and order dated July 22, 2013. Moreover, since Article V, section 5.3(c)(vii)(k), did not prohibit the parties from bringing such a motion in Family Court, the Family Court has jurisdiction to decide issues regarding the appointment of a parenting coordinator (see e.g. Matter of Koegler v. Woodard, 96 AD3d 454, 458 [1st Dept 2012], appeal dismissed 19 NY3d 1013 [2012] ).
Furthermore, the December 20, 2010 allocution resolves the issue of any claimed possible ambiguity in the Stipulation. At the December 20, 2010 allocution, the court, on the record, specifically set forth that “the Family Court shall have concurrent jurisdiction with regards to any issues of maintenance, child support, custody, and visitation” (Transcript of Allocution at page 16, filed with the Kings County Clerk on May 20, 2011). The parties raised no objection to this, thereby agreeing that this reflected their true intention to permit both the Family Court and the Supreme Court to have concurrent jurisdiction, as well as this court's intention not to retain exclusive jurisdiction.
Although defendant annexes the transcript of the allocution as Exhibit FF to her motion, page 16 was not included.
In addition, defendant chose to bring her petition in the Family Court, affirmatively seeking the relief of that court and actively participating in the proceedings before that court beginning on September 28, 2012 and continuing through the onset of her instant motion on January 29, 2014. This demonstrates not only defendant's intention that the Family Court have jurisdiction over this matter, but also resulted in a waiver of any claim by her that the Family Court, which has inherent subject matter jurisdiction over such claims pursuant to the New York Constitution and the Family Court Act, was in any way restricted from exercising it due to any provision in the Stipulation (see Matter of El–Sheemy v. El–Sheemy, 35 AD3d 738, 739 [2d Dept 2006] [by affirmatively seeking custody and participating in the proceedings, the mother waived her claim that the Family Court did not acquire personal jurisdiction over her]; Matter of Borggreen v. Borggreen, 13 AD3d 756, 757 [3d Dept 2004] [by affirmatively seeking custody and participating in a hearing before the Family Court, the mother waived any claim that the Family Court did not acquire jurisdiction over her to decide the matter]; Matter of Brozzo v. Brozzo, 192 A.D.2d 878, 880 [the petitioner's actions, by affirmatively petitioning for custody himself and actively participating in the hearing, demonstrated his submission to the Family Court's jurisdiction] ).
Thus, the Family Court possesses subject matter jurisdiction to adjudicate the issues raised by defendant in this motion on the merits (see Family Ct Act § 652[b][ii] ; Family Ct Act, § 467[b][ii] ; Matter of Seleznov v. Pankratova, 57 AD3d 679, 680 [2d Dept 2008] ; Matter of Renzulli v. McElrath, 286 A.D.2d 335, 336 [2001];Metzger, 133 A.D.2d at 525;Matter of Michener v. Metcalf, 99 A.D.2d 925, 925–226 [3d Dept 1984] ). Consequently, defendant's contention that this court should remove the Family Court proceeding and consolidate it with this action based upon the claimed ground that the Family Court lacks subject matter jurisdiction is completely unfounded.
Consolidation
Pursuant to CPLR § 602(b), “[w]here an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court.” While defendant argues that the issue of changing the parenting coordinator is a common issue raised in both this court and the Family Court, this court, as previously noted, has already denied plaintiff's motion requesting this relief in its July 22, 2013 decision and order, and this request for relief is no longer pending here.
It is true that the same parties are involved in both this action and the Family Court proceeding, and this court has decided postjudgment motions in this action. However, as previously discussed, this court has only addressed financial issues, whereas the Family Court has presided in lengthy proceedings with respect to the issues of custody and visitation, and it is intimately familiar with this case and these issues. Furthermore, such requested consolidation would result in the necessity of duplication of effort by this court in view of the progress made in the extensive proceedings which have already taken place in the Family Court.
Moreover, as the court has already denied defendant's prior July 25, 2013 motion for consolidation, and there are no issues of law or fact raised by her which warrant changing the court's prior August 15, 2013 determination. As discussed above, defendant predicates her argument for consolidation on her contention that the Family Court lacks subject matter jurisdiction, which is completely devoid of merit. Furthermore, consolidation would be prejudicial to the substantial rights of plaintiff and the Child. Thus, defendant's motion, insofar as it seeks the removal and consolidation of the Family Court proceeding with this action, must be denied (see Cavalire v. Palermo, 21 A.D.2d 672, 672 [2d Dept 1964], appeal dismissed 14 N.Y.2d 486 [1964],appeal dismissed 14 N.Y.2d 937 [1964] ).
Plaintiff's Cross Motion
Plaintiff's cross motion, insofar as it seeks a denial of defendant's motion for consolidation, is granted for the reasons discussed above. Plaintiff also seeks to hold defendant accountable for her alleged perjury in this matter, asserting that defendant has made false sworn allegations against him. The issue of perjury, however, is not properly before this court in the context of this motion and cross motion. Plaintiff's additional requests that the court appoint a more affordable parenting coordinator and appoint him counsel if it consolidates this action with the Family Court proceeding is moot. Since the court has denied consolidation, any issues regarding the parenting coordinator shall be addressed by the Family Court.
Conclusion
Accordingly, it is hereby ORDERED that defendant's motion is denied in its entirety; and it is further ORDERED, that plaintiff's cross motion is granted to the extent that it seeks an order denying defendant's motion for consolidation with prejudice, and in view of this disposition, it is rendered moot with respect to plaintiff's requests for alternative relief.
This constitutes the decision and order of the court.