Opinion
Index No. 50842/2021
12-31-2022
D.J., Plaintiff, v. J.M.J., Defendant.
Dina S. Kaplan, Esq. Berkman Bottger Newman & Schein, LLP Attorneys for the plaintiff Faith G. Miller, Esq. Tiffany E. Gallo, Esq. Miller Zeiderman, LLP Attorneys for the defendant Kathleen M. Hannon, Esq. Attorney for the children
Unpublished Opinion
Dina S. Kaplan, Esq.
Berkman Bottger Newman & Schein, LLP
Attorneys for the plaintiff
Faith G. Miller, Esq.
Tiffany E. Gallo, Esq.
Miller Zeiderman, LLP
Attorneys for the defendant
Kathleen M. Hannon, Esq.
Attorney for the children
HON. ROBERT S. ONDROVIC, J.S.C.
The following papers were considered in connection with the defendant's motion seeking an order, inter alia, vacating the so-ordered pendente lite support stipulation dated May 7, 2021, or, in the alternative, vacating the interim relief granted to the plaintiff pursuant to the conformed order to show cause dated March 31, 2021, directing the defendant to pay interim child support to the plaintiff in accordance with the so-ordered pendente lite support stipulation dated May 7, 2021; permitting the defendant to relocate with the parties' two children to Okemos, MI; in the event that the plaintiff does not relocate with the defendant and the children, awarding the defendant primary physical custody of the children and final decision-making authority with respect to school enrollment, school and extracurricular activities, and choice of health care providers for the children, and awarding parenting time to the plaintiff; and adjudicating the plaintiff in contempt based on her willful failure to comply with the provision of the so-ordered transcript dated February 27, 2022, directing the parties to continue to work with Abby Rosmarin, parenting coordinator, and an award of counsel fees:
PAPERS NUMBERED
Order to show cause, affidavit, affirmation, 1-38
exhibits A-HH, order to show cause conformed copy
Affirmation of the attorney for the children 39
Affirmation in opposition, affidavit in opposition, 40-68
exhibits A-AA
Factual and Procedural Background
The parties were married on July 10, 2014, and are the parents of two unemancipated children, ages 4 and 2. This acrimonious divorce action was commenced in January 2021, upon the filing of a summons and verified complaint. The plaintiff simultaneously filed an order to show cause, which was signed by the Court on January 25, 2021, pursuant to which the plaintiff was awarded temporary legal and physical custody of the children, and the defendant was directed to vacate the marital residence. On March 5, 2021, Kathleen M. Hannon, Esq. was appointed attorney for the children (hereinafter the AFC). Since the commencement of this action, counsel for the parties and the AFC, with the aid of the Court, have worked tirelessly with the parties toward a resolution of this matter.
The defendant, a hand surgeon, has experienced a staggering decrease in income stemming from his loss of employment in 2020. The plaintiff had been working part-time as an analyst for the Federal Bureau of Investigation (hereinafter the FBI), but began working on a full-time basis in around February 2022. During the course of this action, the plaintiff had been residing with the children in a rental home in Rye, NY costing $5,000 per month, whereas the defendant has been living in his parents' home in Chappaqua, NY. In around September 2022, the plaintiff moved into a home in Rye Brook, NY.
On May 10, 2021, the parties entered into a so-ordered pendente lite support stipulation, pursuant to which the parties agreed, inter alia, that commencing May 1, 2021, the defendant shall pay to the plaintiff pendente lite unallocated support in the amount of $3,600 per month (hereinafter the pendente lite stipulation). The parties acknowledged that their respective 2019 income tax returns reflected that the defendant's income was $816,198.09, and the plaintiff's income was $70,645.16.
On February 17, 2022, the parties, their counsel, and the AFC appeared before the Court, at which time the defendant's attorney stated:
"It's my understanding that with the assistance of the Court, the parties are settling all pending matters before you, with the exception of equitable distribution, which will await either further agreement or intervention of the Court, as follows.
The parties will continue to have joint physical custody of the children pursuant to the extant schedule.
The holiday vacation, snow day schedule, will follow and be fully fleshed out, but the concept is that all holidays and vacations will be either shared equally or alternated pursuant to a schedule to be written up in the next week or two and provided to the Court.
The parties will also have joint legal custody of the two children and will make major decisions where the parties are unable to find mutual ground. That also will be subject to a fully fleshed-out written agreement to be provided.
In addition, my understanding is that the parties will continue to work with Abby Rosmarin as parent coordinator, or a successor parent coordinator to be mutually agreed upon.
Further, there will be no child support paid to either party in this case. Both parties are waiving child support, and it is understood that each party will pay their own expenses for the children when the children are with them.
Each party is waiving child support and will pay any and all expenses that they bear when they have the children. The exception to that is with regard to health insurance and unreimbursed medical expenses, understanding that the parties will only use in-network providers, unless otherwise agreed in writing or emergency. The children's share of the health insurance and the unreimbursed medical expenses will be shared equally between the parties.
That is, in sum and substance, our agreement, your Honor. And as I said, it awaits the fully fleshed-out document but does not change the major terms (hereinafter the February 17, 2022 stipulation)."
NYSCEF Doc. No. 589, pp. 3-5.
When the plaintiff's attorney interjected that "either party can come back to court if economic circumstances change, to seek a child support adjustment or an award," the defendant's attorney replied, "I assume that for no less than a year, the parties will be waiving support." The Court stated, "I think a year is a fair period." The transcript of the February 17, 2022, appearance was so-ordered by the Court on February 27, 2022.
id. at 5.
id.
Although the parties contemplated entering into a comprehensive settlement agreement memorializing the terms set forth on the record, none was provided to the Court. Instead, one month later, the plaintiff moved by order to show cause (hereinafter motion seq. no. 4), inter alia, to vacate that portion of the February 17, 2022 stipulation regarding the one-year waiver of child support. The Court signed motion seq. no. 4, which included an order directing the defendant to pay to the plaintiff interim child support in accordance with the pendente lite stipulation pending a determination of the motion (hereinafter the conformed order to show cause).
The defendant opposed the motion and, in turn, moved by order to show cause (hereinafter motion seq. no. 5), inter alia, to vacate the interim relief granted to the plaintiff in the conformed order to show cause. The defendant requested that if the Court vacates that portion of the February 17, 2022 stipulation regarding the one-year waiver of child support, the Court issue an order vacating the pendente lite stipulation and issue an interim order directing the plaintiff to pay child support to the defendant in the amount of $2,684.99.
On the return date of the motion, the Court granted those branches of motion seq. no. 4 which were to vacate that portion of the February 17, 2022 stipulation regarding the one-year waiver of child support, reinstate the pendente lite stipulation, pursuant to which the defendant was directed to pay to the plaintiff pendente lite unallocated support in the amount of $3,600 per month, and uphold the remaining portions of the February 17, 2022 stipulation, and denied the remaining branches of that motion. The Court denied motion seq. no. 5 in its entirety, noting that the parties' financial circumstances and any perceived inequities in pendente lite child support would be addressed at trial.
The parties continued to engage in extensive motion practice. In September 2022, the plaintiff moved by order to show cause (hereinafter motion seq. no. 6), inter alia, to confirm that the February 17, 2022 stipulation is a final order and to restrain the defendant from asserting any claim at trial related to relocation. In October 2022, the plaintiff moved by order to show cause (hereinafter motion seq. no. 7), inter alia, to stay the matter, including the trial that was scheduled to commence on November 7, 2022, pending a determination on motion seq. no. 6. The Court signed motion seq. no. 7, which included an order staying the trial pending a hearing and determination of the motion.
The defendant then moved by order to show cause (motion seq. no. 8), pursuant to CPLR §§ 2304 and 3103 to quash items 1 and 2 of the so-ordered judicial trial subpoena duces tecum dated September 28, 2022, or, in the alternative, entering a protective order excluding disclosure of the materials sought to the extent they predate the February 17, 2022 stipulation.
Motion Seq. No. 9
By this motion, the defendant seeks an order, inter alia, vacating the pendente lite stipulation, or, in the alternative, vacating the interim relief granted to the plaintiff pursuant to the conformed order to show cause dated March 31, 2021, directing the defendant to pay interim child support to the plaintiff in accordance with the pendente lite stipulation; permitting the defendant to relocate with the parties' two children to Okemos, MI; in the event that the plaintiff does not relocate with the defendant and the children, awarding the defendant primary physical custody of the children and final decision-making authority with respect to school enrollment, school and extracurricular activities, and choice of health care providers for the children, and awarding parenting time to the plaintiff; and adjudicating the plaintiff in contempt based on her willful failure to comply with the provision of the so-ordered transcript dated February 27, 2022, directing the parties to continue to work with Abby Rosmarin, parenting coordinator, and an award of counsel fees.
In an affidavit in support, the defendant avers that on October 20, 2022, he was offered a full-time hand surgery position with Sparrow Medial Group in Lansing, MI, that this is the first job offer he has received since November 2021, and that he has exhausted all resources available to him to locate employment in the tri-state area to no avail. He asserts that he is in dire financial circumstances and unable to pay $3,600 per month in child support. The defendant emphasizes that he has earned a total of $46,661 in the first 10 months of 2022, whereas the plaintiff will have income of at least $139,000 in 2022. He notes that as a result of his employment search efforts, he was able to secure job offers for positions located in MI, WI, FL, TN, AZ, MO, and KS, but the plaintiff refused to inquire about a transfer within the FBI to an office proximate to one of those locations.
The defendant states that the job offer in MI includes an annual base salary of $630,758, and "will afford the children a comfortable lifestyle with many opportunities for enrichment and extracurricular activities, [and he] will also be substantially available to care for them when they are not in school.' (NYSCEF Doc. No. 564 at ¶ 19). He asserts, among other things, that Okemos, MI is ranked #1 on niche.com as best place to live and raise a family in Michigan and that the Okemos school district is top ranked in the area. The defendant notes that if the plaintiff is willing to relocate, there is an FBI office in East Lansing, MI. He also emphasizes that the plaintiff's family members are located in Janesville, WI, which is within driving distance of Lansing, MI, and that his parents would buy a home nearby if he is permitted to relocate.
According to the defendant, one of the overarching reasons he is unable to obtain local employment is because he is a plastic surgery-trained hand surgeon and is neither trained, nor board certified in orthopedic surgery. The defendant further states that the enactment of the No Surprises Act in January 2022, has had a devastating impact on his medical practice's income and drastically limits his insurance reimbursement as an out-of-network medical provider. In support of this contention, the defendant submitted various charts to the Court reflecting the decrease in reimbursement rates and collections from 2021 to 2022. The defendant emphasizes that he cannot find enough work to meet the volume necessary to maintain his credentials, and that his request to relocate with the children is based on economic need.
The defendant states that if the plaintiff elects not to relocate, he requires final decision-making authority related to school enrollment, school and extracurricular activities, and choice of health care providers for the children given that the plaintiff has ceased all communication with the parent coordinator, Abby Rosmarin, has ignored his messages regarding the children, and refuses to co-parent with him. The defendant asserts that he waived any potential conflict that exists as a result of the plaintiff's attorney becoming a partner at the same law firm at which Ms. Rosmarin is a partner, yet it is the plaintiff who refuses to waive the conflict. He contends that "[p]laintiff's refusal to go forward with [Ms. Rosmarin] has absolutely nothing to do with a purported conflict and has everything to do with Plaintiff's displeasure with certain recommendations made by [Ms. Rosmarin]."
NYSCEF Doc. No. 564, ¶ 63.
In a supporting affirmation, the defendant's attorney argues that the defendant has presented sufficient facts to warrant a hearing regarding whether the parties' joint custodial arrangement should be modified so as to permit the defendant to relocate with the children to Michigan. The defendant's attorney emphasizes that there has been a change in circumstances since the February 17, 2022 stipulation, including the Court's vacatur of the child support waiver, the precipitous decline of the defendant's income in 2022 as a result of the enactment of the No Surprises Act, and the defendant's inability to secure employment in his field with a medical practice or a hospital in the tristate area despite his diligent efforts. She contends that relocation is in the best interests of the children because it will provide them with enhanced financial stability, access to their extended family, and a rich selection of educational and enrichment activities. According to the defendant's attorney, the defendant's "dire economic need and the benefits that will enrich the children's lives if permitted to relocate far outweigh any basis Plaintiff may assert for remaining in New York." She emphasizes that the defendant will earn income in excess of $600,000 if permitted to relocate to Michigan, as compared to his income of less than $60,000 this year, with anticipated reduced earnings in the future. The defendant's attorney contends that the defendant has made substantial efforts to grow his medical practice, but that the new insurance reimbursement law has made it impossible to have a profitable private practice in New York.
NYSCEF Doc. No. 565, ¶ 14.
The defendant's attorney further argues that the pendente lite stipulation does not reflect the actual financial circumstances of the parties, the plaintiff is the monied spouse having earned at least $139,000 in 2022, and the defendant has no earnings from which to pay pendente lite child support. She contends that the plaintiff is not in need of child support, as evidenced by her ability to work part-time since the commencement of this action, while employing an au pair and now nanny, paying $5,000 per month in rent, and then purchasing a 10% interest in a home in Rye Brook. The defendant's attorney also argues that the plaintiff "has exploited her counsel's move to Berkman Bottger Newman & Schein LLP to excuse her willful noncompliance with parent coordination, asserting a conflict that is not hers to assert," and that she should be held in contempt and directed to pay the defendant's counsel fees in an amount not less than $10,000 based on her violation of the February 17, 2022 stipulation.
id. at ¶ 26.
The AFC's opposition
The AFC submitted an affirmation in opposition to those branches of motion seq. no. 9 seeking an order permitting the defendant to relocate with the children to Okemos, MI, awarding the defendant primary physical custody of the children and final decision-making authority with respect to certain topics, and adjudicating the plaintiff in contempt. The AFC argues that the February 17, 2022 stipulation constituted a final order and the defendant failed to make a sufficient showing that there has been a change in circumstances in the past 9 months such that a modification of the parties' joint custodial arrangement is necessary to ensure the bests interests of the children. The AFC reminds the Court that in July 2021, when the defendant was contemplating a relocation to Tennessee with the children, it was the opinion of the court-appointed forensic evaluator, Dr. Robert Verno, that the plaintiff be awarded physical custody of the children, the parties share joint legal custody of the children, and that the defendant be required to travel from Tennessee to New York for visitation with the children.
The AFC reports to the Court that the children are thriving and stated that "[t]o disrupt [the] custodial arrangement for any reason would be harmful to [them]." She asserts that the defendant's relocation request is centered on his ability to earn in excess of $600,000 in Michigan, and his inability to earn commensurate income in New York, and that "[a]ffluence is far less important than a loving relationship with both parents." The AFC states that the plaintiff is not relocating, that a joint custodial arrangement is in the best interests of the children, and that permitting the defendant to relocate with the children 702 miles away from the plaintiff would cause the children irreparable harm. The AFC further contends that the plaintiff should not be forced to continue using the services of Ms. Rosmarin since she has expressed concern about her relationship with Ms. Rosmarin from the start.
NYSCEF Doc. No. 603, ¶ 15.
id. at ¶ 21.a.
The plaintiff's opposition
In an affirmation in opposition, the plaintiff's attorney argues that there has been no change of circumstances since the February 17, 2022 stipulation sufficient to warrant a hearing on the issue of whether the parties' existing custody arrangement should be modified. She asserts that "[d]efendant claimed to be bereft of funds and not able to find employment prior to the [February 17, 2022 stipulation and claims again to be bereft of founds [sic] and not able to find employment." The plaintiff's attorney argues that the vacatur of the waiver of child support does not constitute a change in circumstances such that modification is required to protect the best interests of the children. According to the plaintiff's attorney, a plain reading of the February 17, 2022 stipulation "makes it clear he withdrew his relocation demand for that day, not for a week, a month or a year." She asserts that although the Court is of the view that the plaintiff "'changed her mind' about the waiver in remorse for having agreed to the terms of the [February 17, 2022 stipulation]," it was the defendant who failed to disclose that he deferred $58,000 of income to a retirement account at the end of 2021, while also claiming to live in poverty.
NYSCEF Doc. No. 604, ¶ 13.
id. at ¶ 24.
id. at ¶ 25.
According to the plaintiff's attorney, it is incredible that the defendant, "an ivy league educated plastic surgeon," cannot find a job in the tristate area. The plaintiff's attorney argues that the parties share joint custody of the children, the plaintiff has a steady and stable job with the FBI and cannot simply relocate to Michigan, and the defendant's "self-serving and egotistical desire for economic betterment" does not outweigh the significant harm that would result from cutting the plaintiff out of the children's lives.
id. at ¶ 19.
id. at ¶ 51.
The plaintiff's attorney further argues that no basis exists to vacate the order directing the defendant to pay interim child support to the plaintiff in accordance with the pendente lite stipulation. She contends that the defendant has a history of concealing his income, that the defendant has no expenses given that he resides with his parents, and that his alleged current income is substantially similar to his alleged income at the time the parties entered into the pendente lite stipulation. The plaintiff's attorney asserts that the plaintiff should not be held in contempt for failing to use Ms. Rosmarin's services because the February 17, 2022 stipulation is "undefined and uncertain," and the use of a parenting coordinator has proven to be unhelpful under the circumstances of this case.
In an affidavit in opposition to the defendant's motion, the plaintiff avers that the defendant's application is yet another example of his attempt to maintain control over her. She contends that the defendant's prior employment was terminated for cause and that his "need to maintain a certain status in a certain tax bracket is not a reason to uproot [the children's] lives." The plaintiff states that the defendant's claim that he is financially destitute is incredible given that his 2021 income tax return reflects that he earned at least $240,000, the defendant has approximately $1 million in assets, the defendant has no expenses and has paid only $100 in child support since March 2022, and the defendant earned nearly $25,000 for working a few weekends in July and August 2022 at a temporary Locums Tenens job in Jacksonville, FL. She argues that, "[i]n reality, Defendant is not seeking employment commensurate with the average for his field in this state, but in line with what he was earning at White Plains Hospital," which was an annual salary of approximately $1 million. The plaintiff also asserts that the defendant has failed to indicate what steps, if any, he has taken to grow his medical practice.
NYSCEF Doc. No. 605, ¶ 6.
id. at ¶ 21.
The plaintiff states that she has been working full-time since the February 17, 2022 stipulation, that she disclosed all information regarding her inheritance, which was a one-time payment of $222,864.43 in October 2021, as soon as it was known, and that she does not receive any financial support from her significant other. She underscores that she has worked for the FBI for 13 years - 9 of which have been in the New York office - whereas the defendant has had three different employment positions during the course of the marriage. The plaintiff states that she cannot easily transfer to another FBI office, and given the defendant's employment history, there is no guarantee he will be able to maintain a job even if she were to follow him to Michigan. The plaintiff stresses that the children are thriving in New York, are incredibly well-adjusted given the circumstances, and that "they will be severely negatively impacted by not having the love and stability that [she] provide[s] in their lives." The plaintiff adds that the schools in Okemos, MI are subpar as compared to the schools in Rye Brook, the crime rate is 152 times higher in Lansing, MI and its surrounding areas as compared to Rye Brook, and the distance between Lansing, MI and Janesville, WI, where her family resides, is a 5 ½ hour drive.
id. at ¶ 33.
On the return date of motion seq. nos. 6, 7, 8 and 9, the Court, inter alia, granted that branch of motion seq. no. 6 which was for an order confirming that the February 17, 2022 stipulation is a final order and denied the remaining branches of the motion; denied motion seq. no. 7 as moot; granted that branch of motion seq. no. 8 which was for an order quashing items 1 and 2 of the so-ordered judicial trial subpoena duces tecum dated September 28, 2022, to the extent that they seek disclosure of materials that predate the February 17, 2022 stipulation; and reserved decision on motion seq. no. 9.
Analysis
"In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child" (Matter of Werner v Mazzenga, 174 A.D.3d 727, 728 [2d Dept. 2019] [internal quotation marks omitted]). "Custody determinations should generally be made only after a full and plenary hearing. However, [a] parent seeking a change of custody is not automatically entitled to a hearing. Rather, a parent must make some evidentiary showing of a change in circumstances demonstrating a need for a change of custody in order to ensure the child's best interests" (O'Mahoney v O'Mahoney, 206 A.D.3d 819, 820 [2d Dept. 2022] [internal quotation marks omitted]; see Matter of Blackman v Barge, 207 A.D.3d 537, 539 [2d Dept. 2022]).
"[A] parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" (Matter of Banks v DeLeon, 174 A.D.3d 598, 599 [2d Dept. 2019] [internal quotation marks omitted]). "In determining whether relocation is appropriate, the court must consider a number of factors including 'each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements"" (id. at 599, quoting Matter of Tropea v Tropea, 87 N.Y.2d 727, 740-741 [1996]).
Here, before the Court can even consider whether the defendant satisfied his burden of establishing by a preponderance of the evidence that the proposed move to Okemos, MI would be in the best interests of the children, or whether a hearing is required because facts material to the best interest analysis remain in dispute, the Court must determine the threshold question of whether the defendant alleged a sufficient change in circumstances between the February 17, 2022 stipulation and the filing of motion seq. no. 9 to warrant a hearing. The Court finds that he did not (see Matter of Blackman v Barge, 207 A.D.3d at 538; Matter of Edem v Wondemagegehu, 199 A.D.3d 795, 796 [2d Dept. 2021]; Matter of Werner v Mazzenga, 174 A.D.3d at 729; Matter of Ali v Hines, 125 A.D.3d 851, 852 [2d Dept. 2015]). In reaching this determination, the Court, being intimately familiar with the parties' situation and the issues plaguing this case, has given great consideration to the circumstances at the time the parties entered into the February 17, 2022 stipulation.
According to the defendant's own sworn testimony set forth in a prior affidavit, when the parties entered into the February 17, 2022 stipulation and orally agreed to waive the right to child support, it "was not founded primarily upon the parties' 2021 incomes," but rather, was premised upon "(1) our shared (50/50) physical custody of the children; (2) my drastically reduced earnings for 2022 due to my struggling medical practice and new insurance reimbursement laws effective January 2022; (3) Plaintiff's refusal to return to full-time employment and the income imputed to her; and (4) my concession not to seek permission to relocate from New York at that time despite my [] inability to obtain employment here commensurate with my training as a hand surgeon and despite my earning capacity outside of the New York Tri-State Area." The defendant averred that at the time of the February 17, 2022 stipulation, "[he] was forthright about lucrative employment opportunities in other states," including "an offer from a practice in Green Bay, WI with compensation exceeding $600,000 per annum, plus a signing bonus and relocation bonus."
NYSCEF Doc. No. 423, ¶ 3.
id. at ¶ 10.
Nine months later, the defendant filed the present motion to modify the parties' joint custodial arrangement so as to permit him to relocate with the children to Okemos, MI, contending that the circumstances have changed since the February 17, 2022 stipulation based on "(1) the Court's vacatur of the February 17th child support waiver; (2) the precipitous decline of Defendant's income in 2022 from his current medical practice as a result of the Federal No Surprises Act and plummeting insurance reimbursements rendering him unable to support himself or the children; and (3) Defendant's inability to secure employment in his field with a medical practice or hospital in the tristate area despite his thorough, diligent and daily ongoing job search."
NYSCEF Doc. No. 565.
It is readily apparent that the only change since the February 17, 2022 stipulation is that the Court vacated so much of that stipulation regarding the parties' mutual waiver of child support and reinstated the provision in the pendente lite stipulation directing the defendant to pay $3,600 per month in pendente lite unallocated support. The Court does not consider this to be a sufficient change in circumstances to warrant a hearing on the question of whether modification of the existing custody arrangement is necessary to ensure the best interests and welfare of the children (see e.g. Matter of Newton v McFarlane, 174 A.D.3d 67, 76-82 [2d Dept. 2019]). The defendant's deteriorating financial situation and purported inability to obtain gainful employment in his specialty in the tristate area are ongoing issues that have been raised during the course of this litigation since its inception, and were certainly present at the time the parties entered into the February 17, 2022 stipulation. Moreover, the record demonstrates that the defendant anticipated that the new insurance reimbursement laws would have a negative impact on his earnings in 2022 at the time of the February 17, 2022 stipulation and, as expected, that came to fruition.
Accordingly, since the defendant failed to make a threshold evidentiary showing of a change in circumstances, the Court denies those branches of the defendant's motion which were for an permitting the defendant to relocate with the parties' two children to Okemos, MI, and, in the event that the plaintiff does not relocate with the defendant and the children, awarding the defendant primary physical custody of the children and final decision-making authority with respect to school enrollment, school and extracurricular activities, and choice of health care providers for the children, and awarding parenting time to the plaintiff.
With respect to those branches of the defendant's motion which were for an order vacating the pendente lite stipulation, or, in the alternative, vacating the interim relief granted to the plaintiff pursuant to the conformed order to show cause, directing the defendant to pay interim child support to the plaintiff in accordance with the pendente lite stipulation, the Court directs that a trial be held forthwith, at which the parties' financial circumstances can be fully explored in order to determine whether a modification of pendente lite child support is necessary (see Davidoff v Davidoff, 209 A.D.3d 835, 835 [2d Dept. 2022]). As stated above, the pendente lite stipulation, which was entered into between the parties in May 2021, directed the defendant to pay interim child support to the plaintiff in the amount of $3,600 per month. It was noted, among other things, that the defendant's "pre-tax gross income for the first quarter of 2021 based upon net receivables is approximately $35,000 - $45,000," that the defendant is no longer employed at White Plains Hospital and the 2019 tax returns are not reflective of his current income, and that the plaintiff's 2019 income reflects that she was working part-time.
A trial was originally scheduled to commence in November 2022, however, pending the Court's determination of motion seq. no. 6, the trial was stayed.
The parties' submissions reveal that disputed issues of fact exist concerning whether the defendant is unable to meet his financial obligations. According to the defendant, he earned income of only $46,661 in the first 10 months of 2022, was recently forced to surrender his car because he could no longer afford the lease payments, continues to reside in his parents' home, and incurs no personal expenses for himself or the children other than absolute necessities. He notes that, in the meantime, the plaintiff has been working full-time since around February 2022, and received an inheritance in the amount of $222,864.43, a portion of which funded her purchase of a 10% ownership interest in a home in Rye Brook. The plaintiff asserts that the defendant's 2022 income is substantially the same as the income he earned in May 2021, when he entered into the pendente lite stipulation, that the defendant has approximately $1 million in assets, and has no expenses.
Under these circumstances, the proper remedy is to move forward expeditiously with a trial, which "will serve to elicit the essential facts and facilitate a more exacting appraisal of the parties' financial situations" (Winnie v Winnie, 199 A.D.3d 1258, 1259 [3d Dept. 2021] [internal quotation marks omitted]). The trial of this matter is hereby scheduled to commence on February 2, 2023.
The Court declines to adjudicate the plaintiff in contempt of the February 17, 2022 stipulation based on her failure to cooperate with Ms. Rosmarin. The February 17, 2022 stipulation provides that "the parties will continue to work with Abby Rosmarin as parent coordinator, or a successor parent coordinator to be mutually agreed upon" It was agreed that "if [the parties] have an impasse on a major decision, they would refer to an educator, a guidance counselor, a school principal for educational decisions [m]edical decisions with a physician, their pediatrician, dental; whatever it is," that Ms. Rosmarin "is working with the parties on general parenting principles, and [] if there's a deadlock with regard to another issue, they should go to [Ms.] Rosmarin before coming back to court, but [Ms.] Rosmarin will not override the designated professionals."
NYSCEF Doc. No. 589, p. 4.
Id. at p. 6.
The Court finds that the directive for the parties to continue working with Ms. Rosmarin "on general parenting principles" falls short of constituting an order "clearly expressing an unequivocal mandate" (see Battinelli v Battinelli, 192 A.D.3d 957, 960 [2d Dept. 2021]). In addition, the defendant failed to sustain his burden of demonstrating that the plaintiff's misgivings about continuing to work with Ms. Rosmarin after her attorney joined the same law firm at which Ms. Rosmarin works violates an unequivocal mandate in the February 17, 2022 stipulation (see Matter of Herbst v Palange, 193 A.D.3d 859, 860 [2d Dept. 2021]). According to the plaintiff, the parties began working with Ms. Rosmarin only after the defendant refused to continue working with the first parenting coordinator selected by the parties, Dr. Jeffrey Zimmerman.
Under these circumstances, the Court denies those branches of the defendant's motion which were for an order adjudicating the plaintiff in contempt of the February 17, 2022 stipulation, directing the parties to continue to work with Ms. Rosmarin, and for an award of counsel fees. Nevertheless, the record does not support the contention of the plaintiff's attorney that the parent coordination process has not been helpful in mediating disputes that have arisen between the parties related to the children. Accordingly, the parties are directed to select an alternate parenting coordinator within 20 days of the date of this decision and order. If the parties are unable to jointly select a parenting coordinator, the Court shall do so. It would behoove the parties to enter into a written comprehensive parenting plan expanding upon the terms set forth in the February 17, 2022 stipulation, including but not limited to the specific process by which the parties are to make major decisions, the designated professionals to whom the parties can turn to help resolve disputes related to major decisions, the intended role of the parenting coordinator, and a vacation and holiday access schedule. Finally, the plaintiff is directed to pay a one-half share of Ms. Rosmarin's most recent invoice dated October 15, 2022, reflecting, among other services rendered, email communications with the parties and a telephone conference with the parties' counsel.
Accordingly, it is, ORDERED that the defendant's motion is denied; and it is further, ORDERED that the parties shall select an alternate parenting coordinator within 20 days of the date of this decision and order, and if they are unable to do so, the Court shall do so; and it is further, ORDERED that the plaintiff is directed to pay a one-half share of Ms. Rosmarin's most recent invoice dated October 15, 2022; and it is further, ORDERED that a trial is hereby scheduled to commence on February 2, 2023; and it is further, ORDERED that all other relief requested and not decided herein is denied.