E.V. v. R.V.

Full title: E.V., Plaintiff, v. R.V., Defendant.

Court: Supreme Court, Westchester County

Date published: Feb 26, 2016

2016 N.Y. Slip Op. 50243 (N.Y. Sup. Ct. 2016)

Opinion

xxxxx/2007

02-26-2016

E.V., Plaintiff, v. R.V., Defendant.

Wilson Elser Moskowitz Edelman & Dicker, LLP Co-Counsel for Plaintiff 1133 Westchester Avenue White Plains, NY 10604 Collier, Halpern, Newberg & Nolletti, LLP Co-Counsel for Plaintiff One North Lexington Avenue White Plains, NY 10601 Ronald J. Bavero, Esq. Co-Counsel for Defendant 222 Bloomingdale Road, Suite 303 White Plains, NY 10605 Timothy M. Tippins, Esq. Co-Counsel for Defendant 123 Isabella Court East Greenbush, NY 12061 George E. Reed, Jr., Esq. Attorney for the Child 222 Mamaroneck Avenue White Plains, NY 10605

John P. Colangelo, J.

Wilson Elser Moskowitz Edelman & Dicker, LLP Co-Counsel for Plaintiff 1133 Westchester Avenue White Plains, NY 10604 Collier, Halpern, Newberg & Nolletti, LLP Co-Counsel for Plaintiff One North Lexington Avenue White Plains, NY 10601 Ronald J. Bavero, Esq. Co-Counsel for Defendant 222 Bloomingdale Road, Suite 303 White Plains, NY 10605 Timothy M. Tippins, Esq. Co-Counsel for Defendant 123 Isabella Court East Greenbush, NY 12061 George E. Reed, Jr., Esq. Attorney for the Child 222 Mamaroneck Avenue White Plains, NY 10605 John P. Colangelo, J.

The following papers were considered by the Court on this Motion and Cross-Motion: Plaintiff's Notion of Motion with Exhibits...1 - 73 Defendant's Affirmation in Opposition with Exhibits...74 - 95 Attorney for the Child George Reed's Notice of Cross-Motion...96 - 108 Defendant's Affirmation in Opposition to Cross-Motion with Exhibits...109 - 135 Attorney for the Child George Reed's Reply Affirmation...136 - 141

In this post-judgment matrimonial action, the principal issue for the Court was and is custody of the parties' child, G. ("G" or the "Child"). By Decision and Order dated July 2, 2014 (the "Decision and Order") this Court ordered, inter alia, an immediate change in legal custody from Plaintiff E. V., now E. R. ("Plaintiff" or "E.") to R. V. ("Defendant" or "R."); that R. be awarded primary physical custody of G.; and that beginning on July 12, 2014, E. and R. share time with G. on a 50/50, alternate week basis (Dec. and Order p. 39-40). The Decision and Order followed 44 days of testimony, the admission into evidence of hundreds of exhibits (the "Hearing"), and extensive post-Hearing memoranda of the parties and the Attorney for the Child.

Plaintiff first obtained a temporary appellate stay of this Court's Decision and Order, then on August 14, 2014 the Appellate Division, Second Department continued the stay pending Plaintiff's appeal. As a result of the stay, the legal and physical custody and visitation regimen that obtained before this Court's Decision and Order remained, and continues to remain, in place.

Approximately one year after the Appellate Division's stay went into effect, that Court, by a decision dated July 22, 2015 (the "Appellate Division Decision" or the "App. Dec."), remitted the case to this Court. In its Decision, the Appellate Division directed that this Court promptly order "an updated forensic mental health evaluation conducted by the same court-appointed expert, Dr. Stephen Paul Herman, if he is available," and that this Court then proceed with a "re-opened expedited hearing solely to receive" such evaluation (App. Dec., p. 2; emphasis supplied). The Appellate Division also directed the Court to conduct "an in camera examination of the child," and continued the stay of this Court's Decision and Order with respect to custody and visitation pending the "new expedited determination" of this Court. (Id.).

Pursuant to the Appellate Division Decision and after verifying that Dr. Herman was available, this Court, by Order dated August 7, 2015, appointed Dr. Herman to prepare such an updated evaluation (the "Order of Appointment"). Dr. Herman proceeded to do so and he prepared an updated forensic report, dated December 14, 2015 (the "Updated Report") and provided it to the Court. Copies of the Updated Report were furnished to counsel for the parties and to the Attorney for the Child. On January 26, 2016, following the resolution of motion practice initiated by the Attorney for the Child, the Court conducted an in camera examination of G.

Despite the explicit language of the Appellate Division Decision - - that the Hearing be reopened "solely to receive" Dr. Herman's Updated Report, Plaintiff now insists that the Hearing be reopened for testimony - - of Dr. Herman and for "rebuttal" testimony as well - - and has made the instant motion demanding that the Court do so. The Attorney for the Child, in essence, joins in that request. Plaintiff also seeks to strike portions of Dr. Herman's Updated Report and, not to be outdone, the Attorney for the Child has interposed a cross-motion for the appointment of yet another forensic examiner. Defendant opposes both Plaintiff's motion and the Attorney for the Child's cross-motion.

As discussed more fully below, this Court declines to reopen the Hearing for additional testimony or for the input of more experts and therefore denies both Plaintiff's motion and the Attorney for the Child's cross-motion for a simple and fundamental reason: the Appellate Division has ordered otherwise. The Second Department has directed, in no uncertain terms, that the Hearing be reopened solely to receive the Updated Report from Dr. Herman, a report which the Second Department itself commissioned in its Decision. The Appellate Division Decision is not susceptible to any contrary interpretation, and for good reason: after years of litigation, a Hearing lasting 44 days with hundreds of exhibits followed by extensive post-trial memoranda, the custody issue in this case cries out for the expedition and finality demanded by the Second Department.

Discussion and Conclusions

Plaintiff's initial contention, that hearing testimony by a forensic expert must invariably follow the submission of his or her report, is meritless, particularly under the circumstances that obtain here. Contrary to Plaintiff's contention, the law is clear that a forensic expert's testimony need not necessarily follow the submission of his or her report, particularly where, as here, the expert has previously testified. Indeed, in custody cases, courts have often either relied upon such a report alone without the forensic's testimony, or made a custody determination without the benefit of any input from a forensic expert. The decision as to whether to require such testimony lies in the sound discretion of the Court

For example, in the Second Department case of Navarete v. Navarete, 126 AD3d 801, 802 (2d Dept. 2015), the Appellate Division affirmed the Family Court's modification of the custody protocol then in place based upon evidence that included the report of the forensic evaluator but without conducting a hearing, much less requiring the testimony of the forensic. As the Court held,

"Here immediately following the conclusion of the family offense proceeding in which the mother's inappropriate conduct toward the subject child and others, and the father's positive parental relationship with the child, were amply demonstrated at a hearing, the Family Court granted the father's petition to modify custody without conducting an additional hearing. Contrary to the mother's contention, a separate hearing and the submission of additional forensic evidence was unnecessary under the circumstances of this case, since the Family Court had adequate relevant information, including the testimony adduced at the hearing in the family offense proceeding and the report of a forensic evaluator, to enable it to render a provident and informed determination as to the petition to modify custody and the subject child's best interests."

(Emphasis added).

Similarly, in Williams v. O'Toole, 4 AD3d 371 (2d Dept. 2004), the Second Department affirmed the Family Court's suspension of the mother's visitation rights without conducting an evidentiary hearing since it possessed "sufficient information, including the report of a neutral forensic psychiatrist, to render an informed determination consistent with the best interests of the children." See also Porter v. Burgey, 266 AD2d 552, 553 (2d Dept. 1999) ("Contrary to the mother's contentions, the Family Court possessed adequate information to enable it to make an informed and provident custody determination . . . The uncontroverted evidence before the Court was sufficient to enable it, even without a hearing, to reach a sound conclusion that, under the circumstances of this case, it was not in the children's best interests for custody to be awarded to the mother."); Rodman v. Friedman, 33 AD3d 400 (1st Dept. 2006) ("Contrary to plaintiff's contentions, no hearing was required where the Court had sufficient information with which to make a comprehensive, independent review of the best interests of the child. . . The Court based its finding that the mother had alienated the child from the father not simply on the forensic report, but also on its in camera interview with the child, another forensic report, and numerous documents, interviews and court appearances.").

In the instant case, after 44 days of testimony and now two forensic reports, this Court certainly has "sufficient information" as to the best interests of the Child to make an "informed and provident custody determination" without a further evidentiary hearing. The cases cited by Plaintiff are not to the contrary, and even implicitly recognize the primacy of the Court's reasoned discretion since no case cited by Plaintiff holds that a hearing featuring testimony by the forensic examiner is invariably required. (See cases cited at pp. 4-7 of Plaintiff's motion papers).

Moreover, the cases on which Plaintiff relies do not advance her position and are actually consistent with the decision not to convene another full blown evidentiary hearing. In the main, such cases stand for the general and undisputed proposition that there must be a "sound and substantial" basis in the record in order for a court to render a custody determination. (See Roldan v. Nieves, 51 AD3d 803, 804 (2d Dept. 2008) (Decision after an "abbreviated hearing" deemed improper since the Family Court's determination did not otherwise have a "sound and substantial basis in the record."); Nalty v. Kong, 59 AD3d 723, 724 (2d Dept. 2009); D'Esposito v. Kepler, 14 AD3d 509, 510 (2d Dept. 2005); Kahn v. Dolly, 6 AD3d 437 (2d Dept. 2004) (all cited at pp. 4-7 of Pl.'s Moving Papers; see also cases cited supra, pp. 4-5). In light of a 44 day Hearing that can scarsely be characterized as "abbreviated", such "sound and substantial basis in the record" is manifestly present here. Plaintiff also cites cases to the effect that consent of the parties is typically obtained before a forensic report is admitted. (Wilson v. Wilson, 226 AD2d 711 (2d Dept. 1996) and Chisaidos v. Chisaidos, 170 AD2d 428 (2d Dept. 1991), cited at pp. 4-7 of the Plaintiff's Moving Papers) - - a proposition rendered inapplicable in the instant case by virtue of the Appellate Division's Order that the Hearing be reopened "solely to receive" the Updated Report.

Indeed, whatever some courts may have stated in other contexts regarding a forensic evaluator's testimony, this is an exceptional case: this Court has already conducted a lengthy Hearing at which Dr. Herman testified for several days; thousands of pages of exhibits, including Dr. Herman's initial report dated January 31, 2012 (the "Initial Report", Court Exh. I) have been considered; and most significantly, the Appellate Division has spoken. It has directed that this Court do nothing more than order an updated forensic report, which has been done, conduct an in camera examination of the Child, which the Court has done, then reopen the Hearing solely for the purpose of receiving such an updated report and then issue an "expedited determination."

As the Court reads the Appellate Division Decision, expedition is the watchword, and with good reason: in light of the history of this case, absent a prompt disposition, this case will, to G.'s detriment, continue indefinitely and conclude only when G. attains the age of emancipation. After several years of protracted custody litigation culminating in a 44 day Hearing with thousands of pages of exhibits, the Court shares the Appellate Division's view and will adhere to the letter of its directive. The cases cited and arguments raised by Plaintiff and the Attorney for the Child fade in the light of this appellate imperative.

The Court also notes that the contention raised by Plaintiff and the Child's Attorney that Dr. Herman's Updated Report somehow runs afoul of the Appellate Division Decision is of no moment. The Court re-appointed Dr. Herman, pursuant to the Appellate Division Decision, to do what the Appellate Division ordered - - perform an "updated forensic mental health evaluation." As the Court's Order appointing Dr. Herman provides, he was duly assigned the task of "preparing an updated forensic mental health evaluation to his report dated January 31, 2012, and to submit such update to the Court" and that "[s]uch report shall include any updated recommendations to the Court." (Order of Appointment, pp. 1-2).

No party objected to the Court's Order of Appointment, and the Updated Report is plainly consistent with both the Appellate Division Decision and such Order. Any fair reading of the Updated Report, including Dr. Herman's recitation of the interviews he undertook and documents he reviewed, would lead inexorably to the conclusion that he engaged in a thorough review and update in compliance with both the Appellate Division Decision and this Court's Order of Appointment in preparing and promulgating the Updated Report. To be sure, the new report is in the nature of an update; that is what the Second Department mandated. After all, Dr. Herman previously issued a comprehensive Initial Report in January 30, 2012. Neither the Appellate Division nor this Court asked him to start from square one, and for good reason: a lengthy trial, post-trial memoranda and a comprehensive Decision and Order have since intervened, obviating the need for a full blown re-evaluation.

The related contention raised by Plaintiff and, to a certain extent, the Attorney for the Child, that Dr. Herman's two reports are contradictory and therefore even more testimony from Dr. Herman and other witnesses is warranted proves too much. In its July 2014 Decision and Order, the Court made clear its understanding that the recommendations contained in Dr. Herman's Initial Report assumed certain facts about and attributes of E. which, after listening to 25 days of her testimony alone (Dec. and Order, p. 31), the Court found not to be the case. For example, Dr. Herman's opinion as to E.'s ability to foster - - or at least not obstruct - - a healthy relationship between R. and G. was equivocal at best. (Court Exh. I, pp. 28-30; Dec. and Order, pp. 25-30; see also Updated Report pp. 21-22). Accordingly, the Court in its Decision and Order read Dr. Herman's conclusions as contained in his Initial Report as "subject to an important caveat: that E. prove capable of fostering a meaningful relationship between R. and G." (Dec. and Order, p. 30).

As the Court determined after the Hearing - - and particularly in light of E.'s own testimony - - Dr. Herman's skepticism was well founded. The Court "did not believe that E., if left to her own devices as the primary care giver and decision making authority for G., would, or ever could, nurture an acceptable, much less fruitful relationship between G. and his father." (Dec. and Order, p. 31; id., pp. 15-20). In his Updated Report, Dr. Herman indicates that he also so concludes. (Updated Report, pp. 21-23).

Indeed, by harping on differences between Dr. Herman's Initial Report and its update, Plaintiff is merely seeking to distract attention from the most salient aspect of Dr. Herman's Updated Report: the confluence of his recommendations and the conclusions of this Court. Plaintiff's attempt at legerdemain notwithstanding, the fact remains that with the benefit of additional, updated information, including the Decision and Order rendered after 44 days of testimony and thousands of pages of exhibits, additional interviews with the Child and the parties, and additional information from G.'s therapist, Dr. Herman reached essentially the same conclusions as this Court did in July 2014 - - that legal and physical custody of G. must change. (Compare the "Conclusions and Recommendations" of Dr. Herman in his Updated Report, pp. 23-24, with this Court's Decision of July 2014, pp. 39-40; see also Dec. and Order, pp. 33-35, listing factors that Dr. Herman was unable to consider when formulating his Initial Report and recommendations).

The Court suspects that Plaintiff's objection to the Updated Report is, put simply, outcome-determinative based; Plaintiff takes the issue with the conclusions reached by Dr. Herman, as she takes issue with the similar conclusions reached by this Court in its Decision and Order regarding custody and visitation. The remedy surely is not, as Plaintiff and the Attorney for the Child suggest, to engage in yet more discovery, evaluations, and hearings which would serve only to delay the ultimate decision indefinitely, to G.'s detriment. Indeed, this Court and the independent examiner, Dr. Herman, have both concluded that an indefinite continuation of the current custody protocol would be prove contrary to G.'s best interests. (See Dec. and Order pp. 38-40; Updated Report, p. 21: "In this matter sadly, G. has lost many good years of his childhood. The ongoing litigation - cursed by huge sums of money expended by both sides - - is causing damage in this child.").

At long last, and as the Appellate Division has already recognized in its Decision, enough is enough. Put simply, this Court will take the Second Department at its word: it will reopen the Hearing on custody and visitation "solely to receive" Dr. Herman's Updated Report, and will then expeditiously issue its decision. As the Second Department clearly recognized, there is, for the Child G., no time to waste.

Accordingly, Plaintiff's motion and the Attorney for the Child's cross-motion are denied in all respects.

Now, pursuant to the direction of the Appellate Division and in accordance with this Court's Order of August 7, 2015, the Court deems the Hearing reopened solely for the purpose of receiving Dr. Herman's Updated Report into evidence. The Updated Report is marked and admitted into evidence as Court Exhibit IA; Court Exhibit I is Dr. Herman's initial report.

The Court will promptly issue a "new expedited determination of that branch of the father's cross-motion which was to modify prior orders of custody and visitation incorporated into the parties judgment of divorce" as directed by the Appellate Division (App. Dec., p. 2).

The foregoing constitutes the Decision and Order of this Court. Dated: February 26, 2016 White Plains, New York Hon. John P. Colangelo J.S.C.