Opinion
Index No. 301937/2014
06-08-2023
D.I., Plaintiff, v. Y.I., Defendant.
Counsel for Plaintiff Corallo & Corallo, By: Gerald A. Corallo, Esq. Counsel for Defendant Law Office of Lawrence LaBrew, Attorney & Counselor-at-Law, By: Lawrence P. LaBrew, Esq.
Unpublished Opinion
Counsel for Plaintiff Corallo & Corallo, By: Gerald A. Corallo, Esq.
Counsel for Defendant Law Office of Lawrence LaBrew, Attorney & Counselor-at-Law, By: Lawrence P. LaBrew, Esq.
ARIEL D. CHESLER, J.
On March 1, 2023, Defendant filed a Notice of Motion seeking an Order modifying child support, granting the Defendant a Temporary Order of child support, and for damages based on Plaintiff's alleged breach of contract.
BACKGROUND
The parties were married on June 21, 2010, in Lawrenceville, Georgia and there is one child of the marriage, S.I. (DOB [Redacted]). The Parties entered into a Stipulation of Settlement dated April 11, 2017 and obtained a Judgement of Divorce in New York County on April 17, 2017, which reflected that the child resided with the maternal grandmother - E.D. - in Russia. Notably, the Judgment of Divorce granted the maternal grandmother custody of the child. The Stipulation and Judgment further provide that each party agreed to pay $25 per month as child support directly to the Defendant's mother, E.D..
The parties are currently engaged in multiple proceedings in Brooklyn Family Court including a custody proceeding and a family offense proceeding before Referee Denise M. Valme-Lundy (Docket Nos. O-6205-21, V-06222-21, V-01828-23, and V-01828-23A). Predating this current motion, Defendant was previously advised to file a modification petition in Kings County Family Court by Support Magistrate Danielle A. Noel on or about July 2022, after filing a petition to establish an order of child support which was dismissed without prejudice.
Support Magistrate Noel stated on the record "you cannot proceed on an establishment petition until that [previous] order is modified or vacated." Instead, of filing the appropriate modification petition Defendant retained Counsel and decided to file an objection on August 5, 2022, to the Order of dismissal only for it to be affirmed by Honorable Gregory L. Gliedman on September 1, 2022. Defendant then appealed the affirming Order from Family Court. The Appellate Division, Second Department recently affirmed the September 1, 2022, Order on May 17, 2023, again implying Defendant could simply file a modification petition for child support in Kings County Family Court (see 2023 NY Slip Op. 02660 [2d Dept 2023]).
Additionally, Defendant previously sought an excessive amount of relief including an establishment of temporary child support by Order to Show Cause before this Court on or about January 3, 2023, and the Court declined to sign the motion for multiple reasons. At that time, this Court advised Defendant to file specifically for a modification of child support in Kings County Supreme Court or Family Court.
In this motion sequence, Defendant has again requested relief previously sought from this Court. However, it is unclear why Defendant continues to ignore both this Court's and Family Court's directives to properly file a modification petition for child support in Kings County Family Court.
Current Motion
Initially, this motion is invalid and defective as it was filed by Notice of Motion. Rule 15 of this Part's rules requires that all motions be made by Order to Show Cause. This is on its own a basis for denial of the motion.
Secondly, the motion must be denied as all requested relief must await an order modifying custody as will be discussed more below.
Further, as a general matter, "spouses, along with their children, are better served by having their matrimonial disputes heard in a county to which they have a real connection" (see Anonymous v. Anonymous, 63 Misc.3d 1219 (A) [Supreme Court, New York County 2019]). For this reason, it is also current policy and practice that all modification or enforcement proceedings following a Judgment of Divorce be filed in a county where at least one of the parties resides. Since neither party resides in New York County, the only conclusion to be drawn is that New York County is not the proper county for this case to be heard. Indeed, the only county where venue is proper under CPLR 503[a] is Kings County (see Castaneda v. Castaneda, 36 Misc.3d 504 [Supreme Court, New York County 2012] [discussing proper venue under CPLR 503[a] and the interplay of CPLR 509 and CPLR 510].
Here, both parties reside in Brooklyn and are currently engaged in actions including a custody proceeding and a family offense proceeding in Brooklyn County Family Court before Referee Denise M. Valme-Lundy (Docket Nos. O-6205-21, V-06222-21, V-01828-23, and V-01828-23A). These parties have no ties to New York County and there has not been any emergency or outstanding reason described in the papers before this Court as to why this must be in this county.
There has been no argument as to why New York County is a more appropriate venue other than simply pointing to the Stipulation. While Defendant has cited to cases that were heard in Supreme Court, in an attempt to keep this matter here, the only matrimonial and family law cases cited involved child abuse and an equivalent emergency does not exist here. While New York County Supreme Court may be one of many forums available, Kings County is the appropriate venue for this matter. This Court, again, strongly suggests that Defendant seek the appropriate relief from Kings County Family Court where the parties are already engaged in pending litigation.
RELIEF REQUESTED IS IMPROPER AND/OR FRIVOLOUS
The myriad prayers of relief sought by Defendant are not only conflicting and confusing but also inappropriate and should not be brought before this Court. Some of the relief requested include: 1. Defendant incorrectly, seeks an Order modifying the parties Stipulation Agreement for child support rather than the child support order in the Judgment of Divorce; 2. Defendant seeks, an Order granting temporary child support, which as stated previously by this Court and Kings County Family Court, is not possible when there is already an established order for child support in place; 3. Defendant seeks $100,000 for a breach of contract which is an inappropriate form of relief to seek in this action; 4. In the Attorney Affidavit, Defendant requests an award of counsel fees, which cannot be awarded if the case is being handled pro bono by Defendant's counsel as indicated. According to Defendant's first line of the Attorney Affidavit, and stated within the retainer agreement, the Defendant's representation in this matter is pro-bono with the exception of appellate work related to this index number 301937/2014; and 5. Defendant again seeks arrears for unpaid child support, based on her belief that Plaintiff has not made appropriate payments to the third party, E.B., in accordance with the parties Stipulation. The Court finds that there is no jurisdictional basis, nor has any been asserted, to have this allegation heard, and the Court further finds that this claim is not one upon relief can be granted as Defendant cannot move for arrears owed to a third party.
Throughout Defendants papers the relief sought all differ in substance and quantity between the Notice of Motion, the Attorney Affidavit, and the Defendant's Affidavit. All of which cannot be addressed in this Decision as it would be a continued waste of judicial resources.
Moreover, as is noted by Plaintiff's counsel, Defendant failed to seek a modification of custody in this Court which is a prerequisite to the child support related relief sought. In other words, it would be inappropriate for the Court to consider any support related relief until a new order modifying custody is issued. At the same time, proceedings to modify custody are already pending in Brooklyn Family Court. That custody modification proceeding will dictate who may appropriately petition to modify and then receive child support.
While some of the relief requested may be appropriate it is apparent that Defendant did not look over their paperwork before filing with the Court again. This is made clear by the fact that not one of Defendant's papers have matching relief sought. While the Court acknowledges this can be deemed an oversight, coupled with the blatant disregard as to the Court's guidance this conduct of pursuing yet another motion in New York County Supreme Court is frivolous in prolonging the resolution of the litigation (see 22NYCRR 130-1.1 [c](2)).
PLAINTIFF'S REQUEST FOR SANCTIONS
While the Court recognizes parties are entitled to pursue objections and appeals as they see fit, the Court relies on Counsel to use reason to explore more appropriate methods to make resolution successful. Defendant's Counsel has continuously and repeatedly undermined the directives of the Family Court and Supreme Court, which have now been echoed at the Appellate Division, proving to make the resolution of this matter difficult. Counsel has made frivolous requests of multiple courts and Counsel failed to accept that his arguments were procedurally incorrect. Moreover, Counsel pursued procedurally defective, time consuming and costly methods to accomplish what may be substantively appropriate relief. This matter can seemingly all be resolved in one Court, where associated matters are already pending. Additionally, Plaintiff seems amenable, and has even suggested to Defendant's Counsel that upon filing in Kings County Family Court a global resolution may be discussed to resolve all matters pertaining to this family and child. Instead, Defendant's Counsel chose to disregard those efforts.
Defendant's Counsel made it evident that he was not going to listen to the Court's directive in an email following the Court decision to decline to sign the previous Order to Show Cause, alluding to the fact that he would file the same motion as a Notice of Motion for the sake of appealing it. Again, Counsel appears to be choosing a lengthy and costly approach instead of the simple solution suggested, nearly a year ago, numerous times by the Court and opposing Counsel. While Defendant's Counsel's conduct continued after it became apparent the conduct was frivolous, exhibited by the matter reaching the Appellate Division affirming Kings County Family Court, according to 22NYCRR 130-1.1 [c] the Defendant's positions were not wholly devoid of merit in law as to warrant sanctions. At this time the Court will issue a warning rather than impose sanctions. However, if further steps are taken to again ignore Court instruction, and delay what can otherwise be a reasonable approach to resolving the issues, Defendant's Counsel may be subject to sanctions in the future.
In sum and substance Defendant's Counsel emailed the Court stating" I appreciate the prompt response. While the Court does not have to provide a reason for declining to sign an Order to Show Cause, if the Court decides to do so that would be great. The Defendant will either proceed in Kings County Supreme, In New York County Supreme by Notice of Motion, or in the Appellate Division First Department. Be well. If it's by motion in New York County Supreme, a negative written decision opens the door to the Appellate Division."
Accordingly, it is
ORDERED, the motion is denied in its entirety.
This constitutes the Decision and Order of the Court.