Opinion
18/2571
05-14-2019
Lesley Tia ZARETSKY, Plaintiff, v. Howard ZARETSKY, Defendant.
Maureen Pineau, Esq., Attorney for Plaintiff, Rochester, New York Lisa Sadinsky, Esq., Attorney for Defendant, Rochester, New York
Maureen Pineau, Esq., Attorney for Plaintiff, Rochester, New York
Lisa Sadinsky, Esq., Attorney for Defendant, Rochester, New York
Richard A. Dollinger, J.
Attending summer camp - a delightful and universal tradition for many children - is a decision at the heart of joint custody and, in this case, requires this court to cast a tie-breaking vote in a parental dispute over the costs.
In this matter, a father seeks relief from a prior court order which mandated that he cover the cost of summer camps for his several children. The father claims that financing the summer camps will be costly and he cannot afford to incur those costs this year. In response, the mother mounts both procedural and substantive arguments. First, she claims that the remedy for a prior temporary order-which required the father to pay for summer camps — is a prompt hearing or trial and there should be no change in the interim. Second, she argues that the father's claims of an inability - or even a limited ability - to pay are unfounded, adding that as an attorney, he had performed work for clients and not billed those sums in an attempt to disguise available sources of income for his family. The wife's counsel argues that this unbilled and unrealized income is readily available to pay the cost of summer camps. The wife also cites deposition testimony from the husband in which he admitted that he took substantial depreciation losses form rental properties in 2017, made substantial charitable contributions in the same year, paid no income taxes and paid off more than $35,000 in credit card debt.
The wife also submitted her own affidavit in which she states that the children have historically attended summer camps, the husband failed to pay $16,000 for summer camps ordered by this court in 2018, the wife advanced $1600 for two children to attend camp in the summer of 2019, advanced $5,300 for a third child and still owes $6,400 for the first two children, all of which will be forfeited if the children do not attend. The wife also directly rebuts the husband's assertion that his parents have previously financed camp for the children, acknowledging that they paid for one year for an older child, but the couple have otherwise financed the camp expenses from current income.
This matter is still a joint custody case, which means that the expenses for the camps requires either this court's continuation of the prior order or the consent of both parents. Neither circumstances exists here. The mother argues that the children have always attended camps and the June, 2018 order did require the husband to pay for camps in the summer of 2018. The June 2018 order, however, makes no reference to financing summer camps in 2019. When this court ordered payment of the 2018 camp expenses, the court did not have a full picture of the family's income and other resources. Even now - after a day's hearing on the underlying divorce matter - this court has only a murky understanding of the family income although it is abundantly clear that most, if not all of the income, originates in the father's employment. However, at this stage, it seems imprudent to order the family to expend significant additional sums for summer camps when there are other pressing financial concerns for the family including child support, maintenance and other financial issues.
Joint custody means "joint decision-making." Conroy v. Conroy , 47 Misc 3d 1214 [A], 5 N.Y.S.3d 711, 2015 NY Slip Op 50576[U] (Sup. Ct. Monroe Cty. 2015). In that instance, this court reiterated the rule of joint custody:
The spending of post-divorce family resources or incurring additional expenses for the child - not contemplated at the time of the signing of the separation agreement or the divorce - are at the heart of such joint decision-making. The concept of joint decision-making precludes either parent from unilaterally spending available income without approval of the other parent.
Id . at p. 8. This court added that subsumed in the concept of joint custody is an obligation for parents to timely communicate about choices for their children and both parents must reasonably respond to unforeseen changes. Consequently, in that respect, joint custody " ... is not meant to be a door stop to keep one's foot in the door of decision making and parental stature. It is meant to enable two parents to work together to make joint decisions in the best interests of their children." G.D. v. D.D. , 52 Misc 3d 1220[A] (Sup. Ct. Westchester Cty. 2016). See also Matter of Herman v. New York City Dept of Hous. Preservation & Development , 36 Misc 3d 1240 (a) (Sup. Ct. New York Cty. 2012) (legal custody involves decision-making regarding the child's healthcare, education, religious upbringing and discipline). In this instance, while the couple is not yet divorced, the same theory applies during the pendency of this action: neither parent can commit the family to optional expenses without the approval of the other parent.
In evaluating the parental choices in this matter, this court can examine the father's rationale for the proposed camp spending to ensure that his objections have a rational basis. This court, in evaluating a parent's exercise of their joint custody rights, is not required to simply condone a parental choice: the court, vested with the obligation to consider the best interests of the children, must cautiously examine any proffered rationale by the father. The father, in his papers, argues that he cannot afford the expense. In reviewing the husband's application, the father does not include an updated tax return. The only evidence of his income relates to 2016, which was filed more than two years ago. He claims his "income has stayed about the same for the last three years." While he makes claims of inordinate expenses for the children and a lack of available funds, there is simply insufficient evidence - no documentary evidence -* to support these claims. The husband also claims that he has "dipped" into his savings to cover costs during the divorce, but the court finds no documentary evidence to support that claim either. The father also attaches a partial statement of net worth, cannot that document does not include evidence of the invasion of "savings" as he suggests. However, this court notes that the father is paying substantial family expenses including private school tuition, the mortgage and other costs associated with the marital residence, an apartment for visits with his children. These expenses are a substantial drain on family resources.
However, despite the lack of evidence of a strict inability to pay for the camps, in this court's view, the summer camps, while a time-honored and religiously-significant tradition for the children in this orthodox Jewish family, are not a necessity and represent a substantial expense in family resources. In a unified family, if one parent vetoed the summer camps because, in their judgment, the family could not afford them, then the children would not go to camp. In this instance, the family is still governed by the concept of joint custody: either parent can veto the summer camps and their cost. This court has not worked out all the annual costs associated with this family and its available resources, but at this stage, the substantial cost for summer camps - when combined with the monthly costs for active children and their food, clothing and shelter - is not justified.
This court is well aware that this decision, upholding the father's veto of the camp expenses, may not set well with his children and may disrupt his relationships with them. But, that consequence would occur if this family were still together and the father decided not to finance the camps. This court cannot shield the father from the consequences of his decisions respecting the children. He has a right to make these decisions, but he may suffer loss of esteem and affection from the inevitable disappointment to his children. Simply put: his choices, his consequences.
While not requiring the payment of the 2019 camp expenses, this court notes that the wife has already advanced funds as deposits for the camps. The husband must reimburse her for those expenses if she is unable to obtain a refund.
The court declines to order the father to pay for the 2019 summer camps. The father's application to modify the interim order and delete any requirement that he pay for summer camps in 2019 is granted.