Opinion
Index No. 12/12036
10-29-2021
M.W. v. S.A.W.
KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN LLP, Margaret McMullen Reston, Esq., Attorney for the Plaintiff M.W., Rochester, New York 14623 LAW OFFICES OF PAUL B. WATKINS, Paul B. Watkins, Esq., Attorneys for the Defendant S.A.W., Fairport, New York 14450
KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN LLP, Margaret McMullen Reston, Esq., Attorney for the Plaintiff M.W., Rochester, New York 14623
LAW OFFICES OF PAUL B. WATKINS, Paul B. Watkins, Esq., Attorneys for the Defendant S.A.W., Fairport, New York 14450
Richard A. Dollinger, J.
The trial in this matter maybe the final chapter in a long and painful road for a father and his family which endured a divorce, a stark fracture of the son's relationship with his father and complications over support and college education financing. But when the bottom line emerges, the fractured relationship and estrangement falls in the lap of a father who misjudged the emotions of his teenaged son.
The couple involved in this matter have argued over support for almost half a decade, after what was stormy divorce. The father, after a break in his relationship with his son almost a decade ago, repaired the relationship as he adjusted to a new post-divorce life. The father and son built a relationship on a shared interest in baseball — the son's sport — and other activities but, the relationship turned sour when communication between father and son broke down and the father, perhaps lacking the necessary parental sensitivity to repair the rupture, allowed it to fester until the son failed to communicate with his father. The father now seeks to terminate his support obligations, including any financial support for the son's college education.
The details of this complicated matter are found in other sources. The Appellate Division, Fourth Department in 2019 reviewed the college expenses for the couple's daughter and held the father was not entitled to a credit for the daughter's room and board expenses while she was away at college because the record established that the mother should maintain a household for the daughter during school breaks. Matter of Wheeler v Wheeler , 174 AD3d 1507 (4th Dept 2019). In 2018, the same appellate court upheld the father's obligation to pay for the daughter's college even though he had not been consulted on the selection of the college. The Court held that nothing in the couple's agreement gave the father a right to such consultation. Matter of Wheeler v Wheeler , 162 AD3d 1517 (4th Dept 2018). This Court convened a trial on the issue of the couple's son's constructive emancipation from his father and the father's allegations that the mother had alienated the child from his father. This Court, in a yet-to-be-published opinion, held, at the conclusion of the father's proof, that the father's claim for parental alienation against the mother should be dismissed but the Court allowed the father's claim for constructive emancipation to proceed to additional proof both from the mother and the couple's son. The Court held that the father could prove that his son's refusal to engage with him lacked any reasonable justification or was unrelated to any conduct by the father that caused the estrangement. He also established, at the father's close of his proof, that the he made efforts to engage his son after the son discontinued visitation and other contact.
To support a finding of constructive emancipation, the father must demonstrate by the preponderance of the evidence that he did not cause a breakdown in communication with his son and that he made serious effort to contact the child and exercise his visitation rights. Matter of Saunders v. Aiello , 59 AD3d 1090 (4th Dept 2009). The burden of proof as to emancipation is in this case, on the father, the party asserting it. Matter of Dewitt v Giampietro , 66 AD3d 773 (2d Dept 2009). Therefore, the father must show that the breakdown in the relationship was caused through no fault of his own. Matter of Gansky v Gansky , 103 AD3d 894 (2d Dept 2013) ; Matter of Barlow v Barlow , 112 AD3d 817 (2d Dept 2013) (no constructive emancipation if the parent, through his misconduct toward the mother and the child, caused the breakdown in communication with the child); see also Cornell v Cornell , 47 Misc 3d 605 (Sup. Ct. Monroe Cty 2015) (Dollinger, J.); Matter of Saunders v Aiello , 59 AD3d at 1091 (the obligated parent must attempt to achieve a serious relationship with a child). However, in what is a decisive factor in this case, the father's proof must show that whatever the circumstances, his conduct did not contribute to the deterioration of the relationship with his son. Radin v. Radin , 209 AD2d 396 (2d Dept 1994) (the record established that the father contributed to the deterioration of his relationship with his daughters and the father has not shown that his daughters constructively abandoned him); see also Matter of T.M-H. v D.L.H. , 30 Misc 3d 1223(A)(Fam. Ct. Nassau Cty 2010) (no abandonment found if the parent contributes to the alienation between the parent and child); P.S.G. v. J.E.F. , 2008 NY Misc. LEXIS 260 (Fam. Ct Nassau Cty 2008)(no constructive emancipation if the objecting parent "contributes" to the alienation from the child).
The Court acknowledges that the test for constructive emancipation includes examining whether the father made an effort to stay in contact with the child. There is no dispute that the father communicated with his son numerous times between the summer of 2017 and well into 2018 but, the communication occurred in only dribs and drabs thereafter, until the father filed his petition in September, 2019, after his son turned 19. This Court declines to analyze this aspect of the constructive emancipation test and relies instead on the issue of whether the child was justified in ending visitation. The Court declines to comment on whether the father had an obligation to enforce his visitation rights via a court order as a prelude to bringing this peition.
The distinction that emerges in these precedents drives a conclusion in this matter. There is no doubt that the son in this matter lived amidst turmoil between his father and mother. The son knew that the parents referred to each in vulgar terms and were antagonistic to each other. The father's counsel argues that the son never had a "normal home life" and further that the son, having experienced the emotional and heart-wrenching parental conflict, "did not have a chance at a normal relationship with his father." However, New York's courts have created a more nuanced landscape for resolving these conflicts. Because of the importance of parental support of children embodied in the state's Child Support Standards Act, the New York courts have concluded that a child can rely on parental support and if the child fails to attend visitation, then the objecting parent must demonstrate that his conduct played no role in the child's refusal to visit with them. If the objecting parent's conduct contributed to the breakdown of visitation, then the child would be justified in refusing visitation. The burden on the objecting parent is a heavy one — proving that their conduct did not have any influence on the child's choice to discontinue visitation. But, the allocation of that burden is easily justified as a matter of policy because New York requires parent financial support and a parent should only be relieved of that obligation if their conduct can not be interpreted as distancing them from their children. The "contribution" standard, while a much higher standard of proof for a parent seeking to discontinue support because his child refuses to visit, is nonetheless consistent with New York's longstanding presumption that children, up to age 21, deserve their parent's financial support.
During the time that texts and emails were exchanged, the mother was fighting a battle with advanced stage ovarian cancer and it is undisputed that the father and son were readily aware of its progression.
In this case, applying that standard requires this Court to step in the shoes of the child — in this case, an older teenager — to assess whether the father's conduct "contributed" to the son's refusal to engage with his father. In reaching any conclusion, the Court must assess the father's conduct through the eyes of a teenager who, despite domestic turmoil, did have a long and stable relationship with his father for a number of years until it disintegrated in 2017.
After the Court refused to dismiss the constructive emancipation claim during the hearing, the son testified about this relationship with his father. He acknowledged that after therapy, he had reunited with his father in the middle of the last decade. During the critical time in this matter, the son attended high school and lived with his mother. The father testified that he had a strong relationship with his son during that time. The father's current wife also testified and described the relationship between father and son in the period from 2013 through 2017, as "glorious," an observation that the Court credits. Yet, in 2017, the son discontinued any relationship with his father. It is undisputed that he has had no visitation or meaningful contact with him since that year.
In considering the resolution of this matter, this Court declines to look any further back than 2017. While there were factual disputes over the interaction between the father and son, the most probative evidence of the father and son relationship emerges in a series of text messages exchanged between them in 2017 and beyond. The text messages commenced with a shared admiration for the New York Yankees, their shared baseball passion and the son's engagement in the game as a player. However, the father's texts, at times, exhibited a hardened tone. He used the phase "man up" to describe how the son should react when he stays with his father. In addition, the father's messages criticized the mother. At one point, the father said:
The father had a therapist testify regarding his work with the family almost a decade ago. The therapist, whose observations were nearly a decade old, was sharply critical of the mother's conduct. However, the Court declines to credit that testimony in assessing the father-son relationship here because the son did restore a strong relationship with his father after the therapy and it persisted until 2017. The therapist had no interactions with the father or son after 2017, when the rupture occurred.
I've paid for your drivers permit test over and over through the monies I've sent her, don't ask me again. It's not my fault your mother has misappropriated the bountiful funds she receives for you. Dude, at $900 a month per child I pay her plus her income potential and her boyfriend, she should've been putting away a nice chunk of change every month so that you'd have $20-$50,000 saved up for college. I'm sorry your mother chose to work less, to take so many vacations, dining out and investing in her self and property so you have no college savings and get a hard time every time you want a calculator or drivers test. . do you think lawn service, driveway service, hair nails, clothes, lots of wine, extravagant kitchen, siding, trips, a car for your sister who never worked a day and a $50,000 a year college are cheap.
The father added in another text: "sorry bud, I'm not paying for things twice over and that includes private college tuition." The same day, the father texted: "I think it's time for you to man up and take care of your financial future."
The father and his son argued via text message. In another entry in the same timeframe, the son objected when his father failed to abide by the son's request, commenting: "if you really cared about me you would've done what I asked two days ago." The father responded: "no [son]. Doing what a 16 year old wants instead of what is best is not good parenting." The son then responded: "don't talk to me today." The arguments continued later when the father accused the son of "lacking honesty." The son responded:
I don't even have words to describe how unfairly you treated me ... I don't know why you had to be so mean and not even listen to me I can't stand it over there anymore ... I hate the way you treat me, I hate the unfair punishment so I can't stand how you take [your wife's] side on everything ... every day I feel you care for her more than me ...
During September 2017, the antagonism in the text messages was more pronounced. The father told the son that he had blatantly disrespected him "did not listen to what I said you must do." The father directed that the son had to go to school, family functions and church "when I say so." The son later said:
"you know what the way I feel every day is terrible ... I want to leave and never come back. I am uncomfortable there I hate th drive I don't like the house ... you treat me like a child I can't get a snack without being yelled at. And you've basically closed me off from my friends I am so afraid to even ask you to not come over there because of something that may be going on.
Subsequent text messages demonstrated further deterioration in late September. The father said "I cannot allow you to do as you please" and added that his son had showed a "lack of maturity" and "wisdom to respect your father." The father said that he was trying to teach his son "to be a man" and "to use words face-to-face not texts." The messages deteriorated further, with the son suggesting "[I] am shut down ... I was treated like a child and told I'm being being disrespectful" and adding "I may be defying you it's not without ample reason." The son added: "Every time I speak up, I'm punished." At another point, the father says that his son is going about things "the wrong way." The father added: "just maybe try to learn something new by reading rather than playing mindless games too much. Perhaps that's too much to ask a child ... I would think a young man could handle that list easily maybe if you did you wouldn't feel treated like a child." At another point, the father states: "I'm supposed to give you everything you want? And if I don't, you say screw you I'm not coming over ... something is going to have to give I don't see a way you can have everything you want at the same time for me to parent you properly."
The text messages also convey the father's sharp and caustic criticism of the mother. The son was apparently told by his mother about a derogatory email or text sent by his father to his mother. The son texted his father: "How do you think I feel when I see you are texting my mother to talk to her on her deathbed." In response, the father erupted: Your mother should not share texts, "she's a complete ass and a lying cheating piece of shit" and added by saying that he "wished her harm every time she texts me going forward." Father added: "doesn't surprise me she would share that text in hopes to further alienate you and I. No other reason to share that. Sure hope you don't fall for that manipulation." By early November, 2017, the father accused his son of not telling him the truth about the son's contacts with his mother. During testimony at trial, the son said that his father made "pretty terrible comments" about his mother, all of which created a "deeper hole" in the relationship between father and son The son, at another point indicates that his mother had encouraged him to have a relationship with his father "never has she not" and he adds that "the way you [the father] spoke to her is unforgiving in any context." The son later added: "I'm still mad at you even if I could I wouldn't what I hate about all of this is that you haven't even said that you have to change that maybe you are too harsh that you're sorry for treating me like a child." At another point the son said: "you know what, I tell you that I am unhappy there, on a daily basis, that I am upset with the way you handle things and that something has to change ... I'm not going over there until you make a change."
Throughout the late fall and early winter of 2017, the son had only brief discussions with his father but failed to visit with him. In early December, an incident occurred which appears to have further dimmed the son's interest in communicating with his father. The son agreed to a meal with his father and his father told him that the son should get "dinner cash" from his mother and they would "go Dutch," which meant that the son would have to pay for his own meal. The son erupted in outrage and disappointment:
... obviously I can see how wrong I was I wanted us to get back to a more normal routine and wanted to take it slowly instead of jumping right back into it. I figured that would be the best course of action instead of picking up where we left off in a bad spot then you don't even care enough to pay for dinner ... clearly you don't give a shit about me and our relationship.
The father's response is stark:
... me not being able to afford taking you to dinner gets that kind of response? Wow wow I thought I taught you to be kind caring and understanding. You equating my feelings for you with the things I buy you or the price of a meal really saddens me.
On December 7, 2017, the son said: You know, I am just done. Have great Holiday." After the Christmas holiday the father told his son in a text: "you obviously are trying to hurt me and choosing to diss everyone related to me and Christine. I am very disappointed in you thought I raised you better."
Finally, at one point, the father offered an apology to his son: "for what it's worth I'm very sorry for my role in getting us where we are I value our relationship and would like to fix it." For almost a month, the son did not respond. The son finally responded:
I took a break from you for a while although you think I'm doing so terribly without you I've been happier now than I have been with you. The constant texts are upsetting especially when you threaten to make a scene at work ... it caused a lot of stress. I'm tired of it and it has by no means made me want to reconnect please stop, respect my wishes and tell Christine as well.
In response, the father criticized his son's decision making. At one point, he suggested: "are you doing drugs?" The father added that he did not respect his son's "terrible decisions," adding:
16-year-old immature children do not get to choose to take a break from dad, stepmom and a whole bunch of family that care about you ... it is selfish immature and improper behavior ... I'm man enough to forgive you for being confused and/or manipulated and ... I don't hold your bullshit behaviors and actions against you ... deal with the texts, think about what is being said, get off the drugs and get your head out of your ass.
During the first six months of 2018, a pattern emerges: the father entreats his son to respond to texts and the son ignores most of them and seldom responds. One of the text message, dated in July 2018, is poignant: the father found an old baseball in the yard which reminded him of games played with the son and he send that message to his son. But that text, like dozens of others, failed to elicit a response from the son. Thereafter, the father periodically during 2018-2020 sent text messages to his son, seeking to re-open the communication path but the son replied only four times.
In short, the text messages, which cover several years of the father-son relationship, present a difficult combination. The father, at one point, seems gracious and accepting and, then flips a switch and scolds his son for a lack of honesty. The son seems genuinely hurt by his father's new marital relationship and makes it clear that he believes the father has chosen his new life — and wife — over him. The father offers an apology at one point and then chides his son to "get off drugs" and get "his head out of his ass." In the background of this fluctuating interaction, the relationship between the child's parents is awful and to add fuel to the fire, the mother has health complications from cancer and the father has an estrangement from his daughter, which, based on the evidence before this Court, also impacted the son's relationship with his father.
The son cited other incidents that disturbed him greatly and eroded his relationship with his father. First and foremost was a baseball game, in which the son was playing. The father argued with an umpire and was ejected from the game and the field and even denied the opportunity to coach baseball in the son's league in the future. The son testified that his father could not control his temper during his son's baseball games and he testified that he was "afraid it would happen at every game." He testified that his father's shouting and comments at other games upset him as well. He said he was embarrassed and added that no matter how much he tried to explain the consequences of the father's behavior to the father, "it did not matter to him." He also described a road rage incident in which father became upset and that incident unnerved the son. Similarly, he testified that at one point, he was afraid that the father, in a fit of pique, would run him — and his sister — over with a car. The son eventually testified that when he was younger teenager, he was "terrified" of his father. He came to realize that his father was just an "angry person."
In reviewing these texts, the Court clearly sees a chasm between the perceptions of the father and son. The father wanted the son to adhere to his dictates: visit with his new wife, cue him in on the son's decisions and abide by his lifestyle. The son embarked on a different path, evaluating the father's conduct as obsessively constricting and demanding. Behind these different approaches, the son's testimony at trial and the exchanged texts evince a continual disenchantment with his father's dictatorial approach. There is no doubt, based on the testimony before this Court, that the son's reactions to his father are also influenced by the father's comments about the mother which crop up from time to time in the texts. The father's complaints about paying child support and what the father alleges were the mother's spendthrift ways can easily lead to the conclusion that the son compounded these derogatory comments into a harsh view of his father.
The father's comments in the text messages, when combined with the son's view of his father's behavior on the baseball field, his constant jibes against the mother and his strained relationship with the son's sister justify the conclusion that the father's conduct "contributed" to the son's refusal to engage with his father. In this Court's view, the father misapprehended his son's reactions to the father's heavy-handed comments and texts. The father, by repeatedly suggesting the son "man up" or subscribe to his father's view, displayed an overbearing hand in dealing with a teenaged son who was trying to find his adulthood in the midst of a bitter and unending divorce fight between his parents. In that respect, it would be easy to simply suggest that the father never did anything extraordinary to cause his son to abandon him: he never rejected the son, never told him that he did not care about him. But, as often occurs in relationships in distressed families, the little indignities — asking the son whether he was on drugs, telling him to get his head out of his ass, asking to "go Dutch" on a dinner, inferring that his mother was shortchanging the child when the father was paying child support, his rage at a baseball game when the father was ejected in front of his son, the father's "anger," the son's longstanding "fear" of his father, describing his son's behavior as "bullshit" and his attitude as "immature and selfish," the constant accusation that his son was "lying" — add up in a teenager's mind and lead to a conclusion that the father is unwilling to forge a reasonable relationship.
In reaching this conclusion, this Court acknowledges that father, on several occasions, confessed that he was "doing the best that he could" to advance a relationship with his son. He repeatedly asked his son to respond to him and open the door to a relationship. But, as the texts indicate, the father insisted on a relationship grounded in his world view, a perspective that the son — for whatever reason — did not share. Instead of retreating from his strong views, the father's emails can be interpreted as hectoring the son to change his perception and abide by the father's dictates. In that regard, the legal issue in this matter turns on whether the preponderance of evidence detailed at trial demonstrates that this father "contributed" to the son abandoning his father. Seen from the son's perspective, the father's conduct over a lengthy period of time, justifies that conclusion.
The father, in his summation, argues that the son's testimony should not be credited because it was a product of the mother's alienation or a lifetime spent in the cauldron of his parent's divorce. First, the Court, in reaching its conclusion regarding the father's contribution to the son's abandonment, relies in significant measure on the email exchanges, which are not disputed and which relate direct communications between father and son. The mother is only occasionally referenced in the emails. Second, this Court cannot determine, with any certainty, how much of the son's testimony was colored by the antagonism of both parents. Neither parent, based on the testimony before this Court, was a role model for parenting children in the midst of a high-conflict divorce that has persisted almost a decade. This Court cannot determine, based on the proof, which parent may have contributed more to child's breakdown in communication with his father. But, under the standard discussed earlier, the Court need not engage in that weighing of the culpability of both parents. The Court simply needs to conclude that the father contributed and the preponderance of evidence establishes that he did. Third, in large measure, the Court in reaching its conclusion focused on the son's reaction to his father's behavior and comments. In his testimony, the son knew he was testifying against his father and he described his reactions to his father's comments and behavior. He was genuine and sincere and the Court credits his reactions as thoughtful and real.
Because the father contributed to his disengagement from the father, his son is not constructively emancipated from the father and the father's support obligation, both as a matter of law, and under the terms of the couple's separation agreement continues.
The consequences of this Court's determination ripple into the finances of this family. First, the father's obligation to pay child support, consistent with their agreement and prior orders is restored, retroactive to the date of termination or suspension. Second, the father's obligation to pay college costs for both children, pursuant to the terms of their separation agreement, is reaffirmed. Third, the Court denies the father's claim to recoup spousal maintenance payments that were made after a date that a family court judge concluded they should have been terminated. See O'Donnell v O'Donnell , 153 AD3d 1357 (2d Dept 2017) (the recoupment of overpayments of maintenance and/or child support is generally against public policy, since those payments are deemed to have been spent for that purpose); Rader v. Rader , 54 AD3d 919 (2d Dept 2008). With respect to the mother's claim for a declaratory judgment regarding the payment of college expenses, the couple's agreement imposed a SUNY cap on the parent's contribution to college costs. As for the pro rata shares of those expenses, the Court adopts the Support Magistrates’ pro rata determination of 60/40 split of those expenses for 2016/2017. Any further recalculation of the college expenses, based on 2020-2021 income or beyond needs further proof or a further application to this Court.
Both parties request attorneys fees in this matter. The mother argues that the father's legal positions were unjustified and his strategy caused his ex-wife enormous fees in this extended discovery matter and six-day trial. The mother is the lesser moneyed spouse under Section 237(a) of the Domestic Relations Law. The mother claims the father's position on constructive emancipation, ultimately rejected by this Court in this decision, was never well-founded and brought in anger and retribution. The father responds that the mother was paid maintenance beyond what she was entitled to and furthermore, the mother was paid more than $13,500 by the father for college loans but the mother had never applied those funds to the college debt. The father seeks counsel fees for his costs in identifying appropriate college expenses and determining how the mother paid — or, as it turns out, didn't pay — those expenses. The bottom line is that this seemingly never-ending litigation has cost this war-torn family an enormous amount in not just fees and legal expenses but disappointment, dislocation and regret. Both parents contributed to the animosity that drove this litigation. Nonetheless, in its discretion, this Court awards the mother $7,500 in legal fees to be paid within 60 days of the entry of an order based on this decision. These fees shall be paid within 60 days of entry of the order from this decision. The father's claim for fees is denied.
See M.S. v. M.S. , 2021 NY Misc. LEXIS 4994 (Sup. Ct. Monroe Cty 2021). The award of attorneys fees under Section 237(a) depends on the relative merits of the parties’ positions, and if either party engaged in conduct that resulted in a delay of the proceedings or unnecessary litigation. See Vitale v. Vitale , 112 AD3d 614, 977 N.Y.S.2d 258 (2d Dept. 2013). The Court may also consider the relative merits of the parties legal and factual positions in the litigation. Caricati v Caricati , 181 AD3d 1279, 120 N.Y.S.3d 675 (4th Dept 2020). While all relevant factors must be considered, there is a rebuttable presumption that counsel fees should be awarded to the less monied spouse. See Marchese v. Marchese , 185 AD3d 571, 126 N.Y.S.3d 177, 2020 NY Slip Op 03655 (2d Dept. 2020).
Here, the mother is the lesser-moneyed spouse but in evaluating all the factors, the conflict between the mother and father — deep and longstanding — militates against a substantial fee award. The father's personal disappointment in the loss of his son's affection drove much of the father's litigation, even though the finances of the father that are impacted as a result of this decision may be a very important factor as well. In addition, the father was genuinely uncertain of the exact factual basis for his son's detachment and his attempt to get an answer justifies, in part, his litigation stance here, leading to the modest fee award above.