A joint custody/child support trial was held

2012 NY Slip Op 50447
R.L., Plaintiff,
v.
J.L., Defendant.
50363/2008
Integrated Domestic Violence Court, Richmond County
Decided on February 22, 2012
Plaintiff:
Richard LaRosa, Esq.
Defendant:
Alison Aplin, Esq.
Attorney for the Child:
Christopher Robles, Esq.
Catherine M. DiDomenico, J.

Plaintiff R.L. (“Wife/Mother”) commenced this action for divorce against Defendant J.L. (“Husband/Father”). Husband answered the complaint. Both parties seek custody of the only issue of this marriage, A.L. (DOB 7/22/99). In the alternative, Husband seeks an Order of parenting time with A.L. which includes overnight parenting time, holidays, and summer vacation. For the reasons set forth below, Wife is granted an Order of Sole Legal Custody. Husband is granted parenting access time (day visits) as set forth herein. A Final Order of Child Support is issued as set forth more fully below.
Procedural Background

On May 6, 2008, Wife filed this matrimonial action by Summons with Notice. On May 6, 2008,
Page 2

a complaint was filed. The complaint seeks a divorce on grounds of constructive abandonment and constructive trust of the Former Marital Residence. Husband filed a Verified Answer. On April 28, 2008, Husband filed a Petition for Custody in the Family Court. On or about April 29, 2008, Husband was arrested and charged with fifty-one criminal counts of Aggravated Harassment in the Second Degree [Penal Law §240.30(2)] for allegedly calling Wife on her home and mobile telephone lines over fifty-one times stating in sum or substance on at least one occasion, “If you try to divorce me things are going to get ugly, you don’t know what you are in for, I’ll start carrying a weapon”. (Criminal Complaint dated 4/29/08). On June 3, 2008, Husband’s criminal case and the matrimonial action were transferred to be heard by this Integrated Domestic Violence Court Part.

On June 10, 2008, Husband’s Custody Petition was consolidated into the matrimonial action. On March 24, 2009, Husband pled guilty to Disorderly Conduct [Penal Law §240.20(1)]. Wife was issued a Final Order of Protection, full stay away with no contact by mail, telephone, email, or voicemail for a period of two years. (Plaintiff’s Ex. 5). The Order of Protection expired on March 23, 2011.

On October 27, 2009, the parties settled equitable distribution by Oral Stipulation of Settlement. On September 1, 2010, the parties went to inquest on grounds. On consent, a Judgment of Divorce was granted to Wife on grounds of constructive abandonment by Husband.1

A joint custody/child support trial was held on August 31, 2010, September 1, 2010, September 9, 2010, December 7, 2010, February 14, 2011, February 17, 2011, and March 10, 2011. All parties were represented by Counsel2 . An in camera interview was held on May 9, 2011, at which time the child testified in the presence of the Court and her attorney. Counsel for all parties submitted proposed questions for the in camera interview.
The report of the Court appointed Forensic Evaluator (Dr. Nicole Faubister) was stipulated into evidence as Plaintiff’s Ex. 6. Wife testified on her own behalf and introduced the following documents into evidence: (Plaintiff’s Exs. 1-5). Wife called Dr. Nicole Faubister and Husband as witnesses. Husband did not introduce any documents into evidence. Husband called his father, G.L., as a witness.

After the in camera, the trial was reopened to afford the parties an opportunity to present testimony with respect to an event that allegedly occurred on a Palm Sunday 2011 visit between Husband and the subject child. On September 29, 2011, Husband testified on his own behalf and called his mother as a witness on this limited subject. The trial record was closed on September 29, 2011. Written summations were submitted by counsel for Wife, Attorney for the Child, and Husband pro se on January 9, 2012.
Page 3

After observing the witnesses testify at this trial, this Court credits the testimony of Wife on all of the issues critical to this custody/child support determination. This Court finds not credible Husband’s testimony with regard to the events most critical to this Court’s decision including, but not limited to, the circumstances surrounding Husband’s departure from the Former Marital Residence, his arrest, Wife’s arrest, the Barnes and Noble bathroom incident, and the Palm Sunday incident. This Court also finds that Husband was not forthcoming as to his income, the current status of his practice and his future earning ability. The Court credits the testimony of Husband’s parents to the extent that they admit an incident occurred at their home on Palm Sunday 2011 and that they have been paying all of Husband’s expenses relating to this litigation, his daily support and his ongoing podiatry practice. The Court credits the testimony of Dr. Nicole Foubister.

After the close of evidence, on November 17, 2011, the Attorney for the Child filed an application for renewal of A.L.’s passport after Husband refused to sign the authorization form. On January 3, 2012, prior to submission of his written summation, Husband filed an Order to Show Cause seeking, among other things, modification of his current visitation schedule to include holidays and overnight parenting time, and for an Order compelling A.L. to attend therapy. On January 26, 2012, the Attorney for the Child’s Order to Show Cause was granted. Wife was granted permission to apply for renewal of A.L.’s passport. Husband’s Order to Show Cause which sought the same relief which was the subject of the trial and this pending decision was denied.
Findings of Fact

The parties were married on August 10, 1997. During the marriage, the parties resided at [REDACTED] Avenue, Staten Island, New York (hereinafter the “Former Marital Residence”). In 2003, the Former Marital Residence was purchased jointly by Wife and Husband’s father (G.L.). Wife credibly testified that the parties agreed to this arrangement because Husband’s student loan debt affected their ability to borrow. Wife believed that the deed would be changed to vest title in her name and Husband’s name immediately after the closing. This deed transfer never occurred. Consequently, the deed remained in Wife and G. L.’s names.

In 2008, the Former Marital Residence was the subject of a foreclosure action. A constructive trust action was filed by Husband’s father (G.L.) on September 15, 2008 and consolidated into the matrimonial action. On October 27, 2009, the parties settled the constructive trust action by an Oral Stipulation of Settlement. In June 2010, the Former Marital Residence was sold. The proceeds of the sale were divided in accordance with the Oral Stipulation of Settlement.

After the Former Marital Residence was sold, Wife and A.L. moved into Wife’s parents’ house in a separate two bedroom apartment. Husband currently resides with his parents in their home in Valley Stream, Long Island. Husband and his parents intend to move to Staten Island if he is granted custody of A.L.
Page 4

1. Mother.
Mother is forty-four years old. Mother has three siblings. Prior to the marriage, Mother earned a Bachelor’s Degree in Pharmacy, Magna Cum Laude, from Long Island University. A.L. is the parties’ only child. Prior to the child’s birth, Mother was employed full time as a Pharmacist at the VA Hospital in Brooklyn. Mother earned approximately $60,000.00 per year. During the marriage, the parties agreed that Mother would resign from her job to be a stay at home mother. Father, a licensed podiatrist, supported the family as a sole practitioner. Father handled all of the finances and paid all the bills.

A.L. was diagnosed with low muscle tone at two months old. Mother took A.L. to physical therapy several days per week until she was approximately three years old. Physical therapy continued until A.L. was five or six years old. The condition eventually resolved. Mother credibly testified that A.L.’s current physical health is excellent. A.L. has attended private school since kindergarten. She is in the sixth grade at St. Joseph Hill Academy. A.L. started attending St. Joseph Hill Academy in the second grade. She attended Notre Dame Academy for kindergarten and first grade.

Mother returned to work part time at the VA Hospital when A.L. was seven years old. Mother continues to work one day per week on Fridays from 9 a.m. to 5:30 p.m. Occasionally, when available, Mother works additional days and shifts during the week. Mother earns $52.00 per hour. Mother’s parents stay with A.L. when Mother is working. A.L. is very close with her maternal grandparents and extended family.

In 2003, Mother was diagnosed with breast cancer. From 2003 through 2008, she was treated at the New York University Cancer Center. Father accompanied Mother to many of her treatments. Mother’s parents assisted with child care. Mother is currently in good physical health. She also credibly testified that she does not have any mental health issues.
Prior to the parties separation on February 17, 2008, Father was actively involved in A.L.’s life. He assisted in the child’s daily routine preparing her meals and transporting her to school. Mother credibly testified that, on February 17, 2008, Father voluntarily left the Former Marital Residence. In the months that followed, Mother learned that Husband greatly misrepresented the true state of their finances. Father had forged Mother’s name on home equity loan checks and spent the entire $25,000.00 of credit. The Former Marital Residence went into foreclosure. Mother was left with many questions. For example, Mother never received an explanation from Father as to why he left their home or how they ended up so deeply in debt.

Since this action was commenced in 2008, Mother has provided Father, A.L.and herself with health coverage through her employer. Mother pays $400.00 per month for this family coverage. Mother testified that it costs her $225.00 per month to cover Father and A.L. Father has not contributed towards the family health coverage premium. In addition, Mother paid $4,575.00 for A.L.’s braces without contribution from Father. Pursuant to Order dated December 18, 2008 (Plaintiff’s Ex. 1), Father is responsible for 66% of all un-reimbursed non-elective pharmaceutical, medical and dental expenses.
Page 5

In 2010, Mother earned approximately $58,000.00. In 2009, Mother earned $57,602.00. (Mother’s Statement of Net Worth dated 5/1/10). In 2008, Mother earned $41,999.00. (Mother’s Statement of Net Worth dated 5/1/10). Mother credibly testified that the parties agreed to send A.L. to private school when they enrolled her in kindergarten at Notre Dame Academy. Marital funds were used to pay A.L.’s tuition until the parties’ separation in 2008. Father failed to contribute any funds towards A.L.’s tuition for school years 2009 and 2010. Mother testified that, in 2009, she paid $6,075.00 in tuition. In 2010, Mother paid $6,225.00 in tuition. Pursuant to Order dated December 18, 2008 (Plaintiff’s Ex. 1), Father is responsible for 50% of A.L.’s tuition and school related expenses.

A.L. refuses to have overnight visits with Father. Mother credibly testified that she would support Father’s request for overnight parenting time if A.L. was willing to attend. Mother credibly testified A.L. is often sad and angry when she returns from visiting with her father. There have been occasions where A.L. leaves the house for a visit with Father yelling and screaming that she does not want to go on the visit. A.L. has also come home from visits upset, climbed into bed and pulled the covers over her head refusing to talk. A.L. told Mother that she does not like that Father and his parents converse in Italian in her presence. It causes A.L. great anxiety because she doesn’t know what they are saying or whether they are talking negatively about her or Mother. A.L. asked Father and his parents not to speak Italian around her but they did so anyway.

Father often pressures Mother for parenting time with A.L. A.L. cries and says she does not want to go. Mother believes that if Father saw how A.L. responds to his requests for additional time he wouldn’t pressure her. Mother is constantly under stress to encourage A.L. to have additional visits with Father. Mother seeks an Order of Sole Custody and to continue the current Order of day visit parenting time with no overnights as this is the only arrangement A.L. would comply with at this time given A.L.’s strained relationship with Father.

2. Father.
Father is forty seven years old. He has no siblings. Since February 2008, Father has resided rent free in his parents’ home located in Valley Stream, Long Island. Father is a self-employed podiatrist. Father does not have any living expenses in his parents’ home.
Father received his temporary podiatry license in 1996 and permanent license in 1999. In 1996, Father began working as a podiatrist at the Brooklyn VA Hospital. Father could not recall his salary at the VA hospital. In June 1997, Father left the VA Hospital to work for Dr. Edmond McGraft. Father earned approximately $225.00-$325.00 per week. In approximately 1998, Father left Dr. Graft’s practice to do a one year residency program at St. Vincent’s Hospital, Staten Island. Father does not recall his salary at St. Vincent’s.
In 1999, Father started his own practice on Fourth Avenue in Brooklyn. After one or two years Father relocated his practice to 86th Street and 23rd Avenue in Brooklyn. Several months later, Father moved his practice to [REDACTED] Stillwell Avenue in Brooklyn. Father’s Stillwell Avenue office was open less than three years.
Page 6

In approximately 2000, Father opened an office located at [REDACTED] Bay Parkway, Brooklyn. Father testified that his Bay Parkway office closed in 2008 when this divorce action was commenced. Father claims that the neighborhood where his office was located was “taken over by Russians”. Father claims that several Russian podiatrists opened offices in the area and took all of his business by luring patients with free lunches and filing false medicaid claims. Father did house calls for a period of time after his Bay Parkway office closed.

Father currently rents an office located at [REDACTED] Nassau City South, Garden City, New York. Father opened the office approximately eighteen months ago. Father works Monday through Saturday and occasionally on Sunday. Father pays $700.00 per month for office rent which is paid for by his father. Father’s hours are: Monday 10 a.m.-7p.m.; Tuesday 3 p.m. to 7 p.m.; Wednesdays are reserved for house calls; Thursday the office is usually closed; Friday 10 a.m. to 5 p.m; and Saturday by appointment.

Father could not recall his gross income for 2010. Father believes he made “several hundred dollars”. Father claims that he borrows money from his father to pay $9,600.00 per year for office rent. Father denies that he earns enough income from his practice to cover rent. Contrary to that claim, Father admits that, in December 2011, he posted a help wanted ad at Wagner College looking to hire up to ten students at a rate of $10.00 an hour to take notes for him during house calls. Father testified that, other than his podiatry practice, his only employment was a management position with Bob’s Furniture Store where he worked for a few months.

Father claims that his Bay Parkway, Brooklyn office was his only successful practice location. However, Father could not recall how much he earned from that office until he was confronted with the parties’ joint income tax returns for years 2004-2006. In 2004, the parties’ joint tax return claimed $152,093.00 gross receipts; $36,873.00 business income. (Plaintiff’s 2). In 2005, the parties’ joint tax return claimed $184,588.00 gross receipts; $72,490.00 business income. (Plaintiff’s 3). In 2006, the parties’ joint tax return claimed $150,219.00 gross receipts; $53,849.00 business income. (Plaintiff’s 4). Father claims that he is financially unable to support himself at this time. Father testified that he works every day to make his business successful by “going out to meet people”, “trying to get more house calls” and “trying to advertise”. (Defendant’s Tr. 2/14/11 p. 83). Father testified that in 2008, his gross receipts totaled $48,229.00 and business income was $11,763.00.

Father testified that his parents provide him with a car and pay for gas and maintenance expenses. He has “no idea” how much money his parents have given him in the past few years. Father incredibly claimed that he had his former lawyer prepare a promissory note in favor of his parents in the approximate amount of $100,000.00. Father failed to provide documentation of the alleged promissory note. Father was unable to recall how much money he owes his parents other than $9,600.00 for office rent. Father admits his parents have paid all of his legal fees. Father claims that he borrows money from his parents on a regular basis to pay his current child support obligation of $453.00 per month.
Father does not deny that he paid A.L.’s private school tuition up until Mother
Page 7

commenced this divorce action. Father admits he has not complied with the Court’s Order (Plaintiff’s Exhibit No.1) that he pay one half of A.L.’s school tuition claiming he cannot afford it. Father further admits that he has not complied with the Court’s Order (Plaintiff’s Exhibit #1) that he pay Mother $1,500.00 per month in temporary maintenance. Notwithstanding his non-compliance with these Court Orders, Father went to Panama for a vacation with a female friend last Spring which trip he claims was paid for by his father. Father could not recall how much the trip costed. Father did not explain why, if his parents paid nearly all his expenses, he did not ask his parents to loan him the funds necessary to comply with his Court ordered maintenance payments to Mother or tuition payments to A.L.’s school.

On the subject of mental health services, Father claims that he saw a psychiatrist on two occasions, but could not recall the name of that doctor. He testified that the only reason he saw a psychiatrist was because Mother made him go as a condition for taking him back into the home. This psychiatrist gave Father prescriptions for Xanax and Lexapro. Father claims he was diagnosed with situational anxiety but was not recommended to attend any follow up appointments.

3. Husband’s father (G.L.)
Father borrows money from his parents on a weekly and monthly basis. Father’s parents paid his attorney’s fees in this divorce action totaling over $200,000.00 . Father’s parents also give Father money every month to pay his child support obligation. Father’s parents own commercial property in Queens and two homes in Long Island. Husband’s father (G.L.) denied the existence of a promissory note purported prepared by Father’s criminal attorney for the hundreds of thousands of dollars he has loaned to Father. Father’s parents paid $2,000.00 for Father’s vacation to Panama.

4. The Child.
A.L. is twelve years old. She is in seventh grade in St. Joseph Hill Academy. A.L. takes piano and dance lessons. A.L. is an excellent student. Prior to the parties’ separation A.L. had a great relationship with both of her parents. Since the separation, A.L. has struggled with the changes in her life resulting from her parents’ divorce, Father’s traumatic departure from the Former Marital Residence, her forced move from the Former Marital Residence into an apartment, and the changes she perceives in Father and their relationship. A.L.’s relationship with Mother is extremely close.

A.L. does not like the way Father treats her. Father often lectures A.L. about their strained relationship. A.L. knows that Father had Mother arrested and has tape recorded Mother. She believes Father has tape recorded her conversations with him. This makes A.L. upset, angry and distrustful of Father. In addition, Father consistently criticizes A.L. for not calling him and for ignoring his text messages.

Page 8

Father often tells A.L. that he doesn’t have any money when she asks him to purchase something for her at a store. A.L. was particularly upset after a shopping trip to Staples when Father told A.L. he couldn’t buy her a $5.00 binder for school. Instead of telling A.L. he couldn’t buy it, he asked the child if she had any money to pay for it. A.L. pulled $2.00 out of her wallet to show him that she didn’t have enough. Father’s mother ended up giving A.L. the additional $3.00 to pay for the binder. The child was humiliated by this and similar incidents perceived by her to be mean and withholding.
5. The Parenting Orders.

By Order dated April 13, 2010, Father was granted parenting time with A.L. every Wednesday from 5 p.m. until 8:30 p.m. and alternative Saturdays and Sundays from 10 a.m. until 6 p.m. By Order dated September 9, 2010, Father is permitted to communicate with A.L. daily by one phone call and two texts from 4 p.m. until 8 p.m. By Order dated February 17, 2011, Father is permitted to briefly respond to Mother by text messaging regarding the child if she texts him and may contact Mother by brief text regarding the child. This limited contact was permitted under the Final Order of Protection.
6. The Forensic Evaluation.

Dr. Foubister was qualified as an expert in child psychiatry. Dr. Foubister interviewed Father seven times, Mother six times, and A.L three times. Dr. Foubister observed A.L. with each parent individually. Dr. Foubister submitted a written report to the Court with recommendations.

Dr. Foubister recommends that Mother have sole legal and physical custody. Dr. Foubister further recommends that Father and A.L. attend family therapy. Dr. Foubister recommends that Father receive individual counseling for further work up related to anxiety to “have more control over his anxiety and learn to consistently put A.L.’s emotional and developmental needs before his own”. (Plaintiff’s Ex. 6 at p.14).

Father’s claim that he saw a psychiatrist after his departure from the Former Marital Residence could not be confirmed by Dr. Foubister who had Father sign an authorization. Dr. Foubister found Father to be disorganized, overwhelmed, anxious and repetitive. Dr. Foubister observed that A.L. was guarded in the presence of her father. Dr. Foubister made the following observations respecting Father:

“Father was noted to repeatedly ask A.L. if she misses and loves him, which represents a role reversal in the parent-child interaction whereby Father is seeking emotion reassurance and support rather than providing this to his daughter”. (Plaintiff’s Ex. 6 at p.12).
Father reported to Dr. Foubister that he believes he is “the victim of parental alienation”. (Plaintiff’s 6 at p.12). However, Dr. Foubister concluded that:

“in the current case, there is no evidence of parental alienation…A.L. appears to have
Page 9

feelings of ambivalence toward Father and may resist contact with him, however this is in part driven by her perception that her father has changed and no longer behaves in the manner that he did prior to her parent’s separation”. (Plaintiff’s Ex. 6 at p.12).
Dr. Foubister could not make a conclusive psychiatric diagnosis of Father because it requires self reporting of symptoms and Father denied any symptoms. (Plaintiff’s Ex. 6. pp.11-12). However, from her observations of Father’s appearance during his interviews, Dr. Foubister believes Father suffers from generalized anxiety disorder.
The Significant Events

Both parties have testified to a litany of criminal incidents that have occurred over the past few years and throughout this protracted and bitter litigation. This Court discusses herein only those significant events that weighed most heavily in this Court’s decision to grant sole custody to Mother with parenting time to Father.

1. Father’s Departure From the Former Marital Residence
Mother credibly testified that on February 17, 2008, she awoke early in the morning to find that Father was gone. Mother called his cell phone. Father said he was on his way to his parent’s house in Long Island and realized he forgot something. Father said he would be home shortly. Father returned home. Father blurted out that he “can’t deal with this anymore and he is going to Canada”. Father asked Mother for his passport. Father repeated that he “can’t deal with this” and “can’t take this anymore”. Father told Mother “it’s not about you”. He told Mother to “take care of A.L. and go live at her parents house”. Despite Mother’s pleading with him to stay or to tell her where he was going, Father left the Former Marital Residence with his passport.

Mother called Father on his cell phone. She asked where he was and if he needed money. Father said he “wasn’t right in the head” and to tell A.L. that “she still has a father but he can’t be there anymore”. Father stopped taking Mother’s phone calls. Mother frantically called and texted Father for two days begging him to come home. For the next two weeks, Mother and A.L. slept at her parents’ house because Mother was scared to sleep at the Former Marital Residence given Father’s erratic behavior. Mother did not know the cause of Father’s apparent breakdown.

Mother had no idea why Father wanted to go to Canada. Mother reviewed her EZ pass statements. On February 17, 2008, Father left the Former Marital Residence and drove back and forth in both directions on the New Jersey Turnpike. Father drove north towards Canada for a few exits and then drove south towards Staten Island and exited several times. Mother ran a credit report on herself and discovered that Father had spent the entirety of the $25,000.00 home equity line of credit which was in Mother and Husband’s father’s (G.L.) names. Father forged

Mother’s name and signed for his father (G.L.). Mother also realized at that time that Father was having all of their bills mailed to his parents’ home.

Mother finally got in touch with Father after two days of phone calls and text messages. Mother said she was going to call his parents. Mother questioned Father about the home equity loan. He didn’t answer. Father told Mother not to tell his parents about their financial difficulties and threatened that if she does, “it will be her fault A.L. doesn’t have a father anymore”. Father further threatened Mother not to go anywhere near his parents home in Long Island or “he would call the cops”. Mother was distraught that Father wouldn’t let her help him. Despite Father’s threats, Mother called Father’s parents in Florida pleading with them to return home to help Father. Mother was convinced that Father’s parents would be able to help him.

Two days later, Father’s parents returned from Florida. After his parents returned, Father started taking Mother’s phone calls. Mother began asking Father about the true state of their marriage and their finances. For example, why was Mother driving a Lexus if they had no money? Father’s response was “I’m a loser”. Mother believed Father was making $150,000.00 per year from his Brooklyn podiatry practice. Mother credibly testified that during her five years of cancer treatments, Father did not raise concerns about money or their ability to maintain their lifestyle. Mother trusted Father to take care of their finances. Father often told Mother that his podiatry practice was busy and his waiting room was “filled with patients”. Mother continued to plead with Father to return home to live with her and A.L.

On several occasions, Mother returned to the Former Marital Residence to pick up clothes and was disturbed to find that Father had been there without her knowledge. Father left a different token item on the marital bed each time. Some of the items included his wedding ring, his Rolex watch, and a life insurance policy. On one occasion Mother discovered information about carbon monoxide poisoning on the family computer Father admitted at trial that he searched for carbon monoxide poisoning information on the family computer, but claimed that Mother told him to do it. (Father’s direct 2/14/11 p.122).

Mother pleaded with Father’s parents to take Father to the hospital for a psychiatric evaluation. Husband’s father (G.L.) told Mother that his son was “lying in bed covered in pictures of A.L. and eating only shredded wheat”. Mother continued to be very concerned for A.L.’s safety. Mother believes Father saw a family doctor who prescribed Lexapro and Xanax and referred him to a psychiatrist.

Sometime several months later, Mother overheard a conversation that led her to believe that Father had a girlfriend. At that point, Mother stopped begging Father to return home. On March 15, 2008, Father, Mother and their extended families held a meeting at the Former Marital Residence to discuss the state of the parties’ marriage. Father arrived with his parents. Mother started explaining to Father’s parents about their financial problems. Rather than participate in the conversation, Father ran out of the house. At the end of the meeting Mother, her family and Father’s parents agreed that the parties’ marriage should end in divorce. Father’s parents called Mother’s parents frantically when they arrived home. Father was not there. All he left was a note saying “he was going far away”.
Page 11

The Court finds Father’s varying account of his departure from the Former Marital Residence self serving and not credible. Specifically, Father told Dr. Foubister that “R.L. (Mother) and her family were attempting to get him out of the house” (Plaintiff’s #6 p.6). Father also told Dr. Foubister that “he was forced [by Mother] to move out which he stated he complied with to try and save his marriage”. (Plaintiff’s #6 p.6). In a later interview, Father told Dr. Foubister that “he elected to leave the marital home on February 17, 2008 reporting I had enough”. (Plaintiff’s #6 p. 6). In yet another version of the facts, Father claimed in a sworn Family Court Custody Petition dated April 28, 2008 that “Respondent (Mother) changed locks on residence and illegally evicted Petitioner (Father) from his home”. Father finally admitted on cross examination at this trial that he “left on his own accord” (Tr. 2/17/11, p. 132).
2. Tape Recording

After their separation, Mother gave Father numerous opportunities to visit with A.L. at the Former Marital Residence. Mother credibly testified that she would do anything to make A.L. happy and often invited Father over for dinner during the week. Mother’s only request was for Father to leave at 8 p.m. so she could get A.L.(then eight years old) ready for bed.
Father often acted bizarre during these dinner visits. On one occasion, Father and Mother were in the kitchen and Father said “so are you still taking the valium?”. Mother said “what are you talking about I can’t take valium”. Mother walked into the living room where A.L. was having a guitar lesson. She noticed that Father had a tape recorder in his jacket. Mother picked the tape recorder up and found that it was recording. Mother asked Father why he was taping them. He denied it. Father started screaming and yelling at Mother to give the tape recorder back. Mother broke the tape recorder. This was not the first time she suspected Father was tape recording her and A.L. On another occasion, when she asked him if he was recording their conversation, Father dropped his pants, grabbed his testicles, and said “here is your f***ing recording device”.

Father admitted at trial that he tape recorded Mother on a regular basis. He claimed that he believed Mother and her family were “out to get him” and he was “documenting proof” to present at trial. No such recordings were introduced at this trial. Father denied ever taping his conversations with A.L. but his testimony on this subject was not credible. The Court credits Mother’s testimony that A.L. confided in her that one of the reasons she is upset with Father is that he tape records her. A.L. also told Dr. Foubister that she wanted Father to stop tape recording her on their visits as it makes her uncomfortable.

3. Mother’s Arrest/ Father’s Threats of Police Involvement

On Friday April 5, 2008, Father had Mother arrested for breaking his tape recorder. A police officer accompanied by Husband’s father (G.L.) arrived at the Former Marital Residence at approximately 4 p.m. A.L. was present in the home at the time. A.L. was hysterical crying as police arrested her mother. Mother was crying and told the police she was a breast cancer survivor. The police waited while Mother called someone to take care of A.L.. Mother was handcuffed in front of the child. She was taken to the precinct, fingerprinted and processed. Mother was locked in a cell for several hours with a man handcuffed to the outside of the cell.
Page 12

Approximately four to five hours after her arrest, Father arrived at the precinct and dropped the criminal charges. Two days after having Mother arrested, Father walked into the Former Marital Residence uninvited with coffee and donuts in hand shouting “Surprise!”.

Father incredibly claimed at this trial that he told the police not to arrest Mother. Father was aware that Mother pleaded with police not to arrest her. Father claims he only wanted to document the incident with a police report. Father further incredibly testified that he “dropped the charges immediately”. Over the past few years, Father has filed approximately fifty police reports against Mother.

Mother credibly testified that in Spring or Summer of 2008, she took A.L. on a family vacation to Greece to celebrate five years of being cancer free. When they arrived at the airport in Greece, she learned that Father had called the police alleging that Mother unlawfully removed the child from the country. Father claimed that Mother did not get his permission to go on the trip. However, the trip was planned prior to the parties’ separation and Father was well aware of it. A.L. called Father while they were in Greece. A.L. became upset and withdrawn after she spoke to Father on the phone.

In order to try and ease the burden on A.L., Mother continued to allow Father to see A.L. at the Former Marital Residence even after Father had her arrested. Mother was hopeful that the parties’ would be able to share joint custody. However, Father started saying inappropriate things in front of the child. He told A.L. that he wasn’t sleeping at the Former Marital Residence because “Mommy didn’t want him to”. He would also retreat into the former marital bedroom when the visit was over, close the door and say “good night A.L.”, forcing Mother to order him to leave in front of the child.

During another one of Father’s visits, the parties had an argument. Mother asked Father not to stay for dinner. In response, Father announced in front of the child that “the house has to be sold because if I can’t stay here you have to leave”. A.L. cried hysterically and wouldn’t speak for hours afterwards. During another visit, Father sat at the kitchen table and said to Mother, in front of the child, that if she wants him to leave she will have to call the cops.

4. Domestic Violence/Father’s Arrest
Father was arrested in April 2008 for making over fifty harassing phone calls to Mother. Mother credibly testified that Father threatened that “she was going to lose her job”, ” he was going to start carrying a weapon”, “Husband’s father (G.L.) would lie and tell the cops that Mother threatened his life and that he was a witness”, and “that things were going to get ugly for her if she went forward with the divorce”. Father admits he entered a plea to disorderly conduct to settle the charges against him. Notwithstanding a detailed and lengthy sworn allocution, Father now claims that his lawyer forced him to plead guilty. Mother’s two year Final Order of Protection expired on March 23, 2011. Mother credibly testified that she did not communicate with Father other than responding to his text messages during the pendency of the Final Order of Protection. She also used her attorney to relay information about A.L. to Father. After his arrest, Father stopped visiting with A.L. at the Former Marital Residence.
Page 13

5. A.L.’s Dance Recital
A.L.’s dance recital was on June 21, 2008. A.L. handed Father a ticket to attend and he responded by asking: “Am I invited?”. The child became very upset and confused why Father felt it was necessary to ask if he was invited after she had just handed him an admission ticket. Sadly, Father showed up for the dance recital and left before she performed. After he left, while A.L. was still at the dance recital, he texted her telling her the police were in front of her house. When they arrived home from the recital, the police were not there. A.L. was extremely upset by this incident which occurred only two months after her mother was arrested and handcuffed in her presence. At trial, Father did not explain why he sent this text to the child or why he would frighten her this way.
6. Loss of the Former Marital Residence

Husband’s father (G.L.) initially assured Mother that she and A.L. would be permitted to reside in the Former Marital Residence until the A.L.’s eighteenth birthday. Shortly after that conversation, in July 2008, Mother learned that the mortgage was in default. Mother credibly testified that A.L. misses living at the Former Marital Residence. To make A.L. happy, Mother gave her the larger bedroom in their apartment. Mother’s parents also took down a wall to give A.L. access to their den. Mother believes that A.L. has grown used to their apartment, but she will always miss her old house.
7. Phone Contact

Mother credibly testified that she does not interfere with A.L.’s telephone contact with Father. This Court credits Mother’s testimony that A.L. often chooses not to return Father’s phone calls and text messages. A.L. has two cell phones. A.L.’s maternal grandparents purchased her first cell phone. However, Father refused to speak with A.L. on that cell phone because her maternal grandparents purchased it for her. Father bought A.L. a second phone to be used exclusively for their phone contact. After Mother was accused by Father in this litigation of interfering with his phone contact, “father’s cell phone” is kept on and charged twenty four hours per day. Mother also carries A.L.’s two cell phones with her at all times.

8. Barnes and Noble Bathroom
In March 2009, A.L. was in Barnes and Noble with Father and his parents when she received a text message from Father that stated: “Hi A.L. help daddy in Barnes and Noble toilet”. A.L. didn’t respond to Father’s message, did not go into the bathroom, and did not tell her paternal grandparents about the text message. Mother credibly testified that A.L. returned home from the visit visibly shaken and nervous. A.L. said, “daddy asked me to come into the men’s room”. A.L. practically threw her cell phone at Mother and said “look at the text message I received”. Mother credibly testified that the text said “Hi A.L. help daddy in Barnes and Noble toilet”. By Order dated May 4, 2009, Father was Ordered to have professionally supervised
Page 14

visits with A.L. with a certified social worker. Father’s professionally supervised visits continued until July 6, 2009 when the parties agreed to unsupervised visits.
Dr. Foubister testified that Father initially denied sending this disturbing text message. When confronted with a copy of the text message, Father admitted that he had sent the text “to let A.L. know that he was no longer in Applebee’s where they were having a meal and had moved to the Barnes and Noble as he prefers using their toilet” (Plaintiff’s #6 at p.6). Father testified at trial that it was a “joking text message”. Father continued to deny the contents of the text message and denied that he invited the child into the men’s room. Specifically, Father claimed that the text message said that “he was in the bathroom with a stomachache”. When confronted with a copy of the text message at this trial, Father continued to deny it was the text message he sent. In addition, Father failed to explain what he intended the child to do had she followed his command and entered the public men’s room. This Criminal Court does not credit any aspect of Father’s testimony regarding this message.
9. Wednesday Evening Visits

Father often brought his parents along on Wednesday evening visits with A.L. Father repeatedly took A.L. to Bistro restaurant, knowing the child did not like going there. Father was aware that A.L. perceived it as a “dark, pick up place”. Despite the child telling him several times that she didn’t like going there, Father wouldn’t listen. It was not until the Court appointed visitation supervisor expressed to Father that he should consider A.L.’s feelings that he stopped insisting on that location. On those occasions A.L. was allowed to pick the restaurant, Father and his parents refused to order anything. Father and his parents often conversed in Italian when they were with A.L. which made her even more uncomfortable.

In January 2011, during a dinner visit, Father got angry at this child and walked out of a restaurant leaving her alone. Father had asked A.L. if she wanted to go home and she said yes. A.L. was afraid that Father drove away without her. At trial, Father denied that this incident occurred but this Court does not credit his testimony.
10. Father-Daughter Dance

In February 2009, Father and A.L. attended the Father-Daughter dance at school. A.L. returned home at approximately 11:00 p.m. crying. A.L. was dancing with her cousin and Father pulled her off the dance floor. Father sat her down at an empty table. Father had another parent who was a police officer reprimand A.L. for walking away from him. The child was upset and confused because she was dancing right in front of the table where Father was sitting. A.L. was so upset and humiliated that she stayed home from school for three days immediately following this incident.

Shortly after the Father/Daughter dance, A.L. returned home upset from another visit with Father. Father lectured her that they had a terrible time at the Father-Daughter dance and that they have a horrible relationship. Father told A.L. that something is wrong with her. Mother had to take A.L. to the doctor for a thorough check up to convince this child that there
Page 15

was nothing “wrong” with her.
11. Mental Health Services
A.L. attended therapy with Dr. Carrie Mazza until November 2010. A.L. initially attended once per week. Her therapy was reduced to every other week on an “as needed basis”. Father admits that he called Dr. Mazza to “inquire about her credentials”. Specifically, Father demanded to know if Dr. Mazza was experienced in “parental alienation”. Immediately after the telephone conversation with Father, Dr. Mazza discontinued A.L.’s therapy.

Father believes A.L. should continue to attend therapy provided her therapist has an understanding of “parental alienation, child interference, and brain washing”. Father is convinced that Mother and her family are to blame for his “strained” relationship with A.L.
12. Palm Sunday 2011

On Sunday April 17, 2011, Father picked A.L. up from home. During the car ride to Long Island, Father lectured A.L. telling her she is so lucky that her grandparents are still around. Father said, “A.L. you are always cold to me…daddy loves you…I call you everyday…I text you, email you”. Father asked A.L. about school. A.L. would not respond. Father admits that he cursed and yelled during their car ride. Father claims that he was upset with Mother because she posted damaging things about him online. Father said, “I’m not going to take this f***ing shit anymore”. Father admits that A.L. didn’t say anything to provoke him or to suggest she was even aware of the alleged posting.

Father and A.L. arrived at the paternal grandparents’ home. A.L. walked into the house without Father. Paternal grandmother greeted A.L. and hugged her. A.L. appeared sad. A.L. ran into the bathroom and slammed and locked the door. Paternal grandmother asked Father what happened. Father claimed he was asking A.L. questions about school and she wouldn’t respond to his questions.

Paternal grandmother and Father started banging on the bathroom door ordering A.L. to unlock the door and come out of the bathroom. Paternal grandmother yelled through the door to A.L. “are you in there texting your mother?”. After hearing this, A.L. opened the door to the bathroom and threw out her pocket book containing her cell phone. A.L. slammed and locked the door again. Paternal grandmother continued to yell “honey we love you, why do you do that to us?”. Father yelled, “it’s not supposed to be like this”. A.L. didn’t answer. Father yelled that if A.L. didn’t come out of the bathroom he would take her home. Paternal grandmother and Father continued to scream at A.L. to come out. They tried to unlock the bathroom door and force it open. A.L. eventually came out and went into the living room. She opened up a notebook and sat silently. They ate dinner. No one apologized or discussed what had happened. Father and paternal grandmother drove A.L. home later that night.

The Applicable Law
A. Custody
Page 16

Where, as here, there is no final order of custody, the standard to be applied by this Court is that of an initial custody determination, namely what is in the best interest of the child. See Eschbach v. Eschbach, 56 NY2d 167 (1982).There is “no prima facie right to custody of the child in either parent.” DRL Secs. 70[a]; 240 [1][a]. When determining custody, the Court must consider the totality of the circumstances including the relative fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher, 11 AD3d 458 (2nd Dept. 2004). Factors to be considered include the parental guidance provided by the custodial parent, each parent’s ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child’s relationship with the other parent. See McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009). The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all of the parties involved. See Bourne v. Bristow, 66 AD3d 621 (2d Dept. 2009). Absent “exceptional circumstances” some form of visitation with the non custodial parent is “always appropriate”. McFarland v. Smith, 53 AD3d 500 (2d Dept. 2008).

Joint custody is encouraged as a “voluntary alternative for stable, amicable parents behaving in a civilized fashion”. Braiman v. Braiman, 44 NY2d 584, 589-590 (1978). The Court must specifically consider the effect of acts of domestic violence proven at trial and explain how the Court’s findings factored into its decision. Domestic Relations Law §240(1)(a). While a Court may not order counseling as a condition of future visitation or re-application for visitation rights, it may direct a party to submit to counseling as a component of visitation. See Sinnott-Turner v. Kolba, 60 AD3d 774 (2d Dept. 2009); Thompson v. Thompson, 41 AD3d 487 (2d Dept. 2007).

After considering the credible testimony of Mother and the documentary evidence introduced at this trial, the Court finds that Mother has proven that Father committed acts of domestic violence which led to the issuance of a two year Final Order of Protection against him after his plea of guilty in the companion criminal case. Domestic Relations Law §240(1)(a). The Court has considered this finding of domestic violence and the parties’ inability to communicate regarding matters concerning A.L.. The Court finds that Mother’s reluctance to communicate with Father other than by text messages is not an attempt to alienate him from this child, rather it is the reasonable result of acts committed by Father against Mother including domestic violence, having her arrested, and his filing of numerous police reports against her. Against this background, joint custody and decision making is not a viable alternative in this case. See Garcia v. Scruggs, 44 AD3d 660 (2d Dept. 2007).

Both parties seek custody of A.L.. After considering Mother’s credible testimony, the documentary evidence introduced at trial, and the in camera examination, Mother is awarded a Final Order of Sole Custody and Sole Decision-Making of A.L.. McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009); Forzano v. Scuderi, 224 AD2d 385 (2d Dept. 1996). The Court finds that Mother is the more fit parent. Mother’s physical and emotional health are excellent. Mother is better equipped to provide for A.L.’s emotional health as evidenced by her initiative to enroll A.L. in therapy to deal with the many changes in her life since the parties separation. Mother has been the primary caregiver since A.L.’s birth, she was a stay at home mother, and has
Page 17

consistently attended to her medical and educational needs. Her work schedule allows her to be home with A.L. every weekend and during the week on Mondays, Tuesdays, Wednesdays, and Thursdays to take her to and from school and activities. On Fridays after school, A.L. is in the care of her maternal grandparents and extended family (including numerous cousins) with whom she enjoys a close and loving bond.

Moreover, given Father’s professed inability to support himself as a podiatrist, Mother presents as more consistent in her ability to support A.L. financially. Notwithstanding her cancer diagnosis and treatment, Mother has been gainfully employed at the Brooklyn VA Hospital for several years, currently on a part-time basis and earns approximately $50,000.00 per year. Mother intends to further her credentials so as to secure full time employment in the future.

The Court further finds that, notwithstanding Father’s poor treatment of Mother and A.L., Mother has encouraged A.L. to have a relationship with Father. The evidence presented at trial fails to prove that Mother has engaged in parental alienation. To the contrary, it appears that Father’s treatment of A.L. during his parenting time has caused this child to act cold to him at times and to leave many of the visits upset and anxious. Roelofsen v. Tiberie, 64 AD3d 603 (2d Dept. 2009). Father does not present as having thoughtfully considered how the events surrounding his departure from the home, and the significant and substantial lifestyle changes experienced by A.L., may have caused her to be conflicted and confused at this time. Rather than examining the part he may have played in these circumstances, Father wants his relationship with A.L. to immediately revert back to what it was when she was a much younger child in an intact family. This lack of empathy, while expedient and convenient for Father, is both unrealistic and unfair to A.L.

The Applicable Law
A. Custody
Page 16

Sadly, Father has squandered many opportunities to reach out to this child such as when he blurted out “I’m not going to take this f***ing shit anymore” in front of her. Here again, rather than assume responsibility for yet another inappropriate act, Father blamed Mother for making him angry. In any event, the fact that Father could not control his temper and resorted to profanity notwithstanding the delicate and fragile relationship between him and his daughter, indicates a lack of impulse control and a total lack of appreciation as to how his conduct might be perceived by this child. Bullinger v. Costa, 63 AD3d 735 (2d Dept. 2009). Father’s lack of insight is also made clear by his repeated demand that A.L. be mandated by the Court to attend therapy notwithstanding his own failure to seek such assistance. Indeed, on this subject, Father could not even recall the name of the psychiatrist he claims Mother made him consult.

The Court is further troubled by Father’s litigation position that A.L. should not continue attending the private school that she loves, where she is thriving and where she has attended for the past six years. This child has always attended private school.

Notwithstanding Court Order, Father failed to contribute towards her tuition for years 2009 and 2010. However, Father took a vacation to Panama at a time that he was in violation of the Court Order to pay half of A.L.’s tuition. If it was not for Mother’s covering Father’s share of the tuition, A.L. would have had to leave her school and suffer yet another change in her life. Father claims that his parents paid for his Panama trip. He did not explain why he did not ask his parents to loan him this same amount
Page 18

to be better used perhaps for A.L.’s tuition.

As a general matter, it is of course, in a child’s best interest to have a loving relationship with both parents. Andews v. Mouzon, 80 AD3d 761 (2d Dept. 2011). In this case, it appears that A.L. is reluctant to spend additional time with Father other than as mandated by the current Court Order. This Court cannot legislate the quality of a relationship between a parent and a child. Father needs to take responsibility for his role in the traumatic events that caused the deterioration of his relationship with his daughter. Until he makes the choice to do so, he may not experience any improvement in his relationship with A.L. He also needs to learn to be patient and accept that this child needs to “warm up” at the start of the visits. Whether such transition is right or wrong, it is part of the child’s reaction toward him at this time. Father needs to give A.L. the freedom to work through whatever conflict she feels and then engage in the visits. In short, Father needs to be less absorbed with his own emotional needs and more concerned with the child’s needs. This would perhaps address the parental role reversal that Dr. Foubister observed in the relationship between A.L. and Father.

Sadly, however, there does not appear to be any reason to believe the relationship between A.L. and Father will improve unless the Father is actively engaged in therapy. Only after Father has made some significant progress in understanding his own issues and the role he played will this relationship have the possibility of improving. Accordingly, Father is Ordered to attend individual therapy with the therapist of his choice as a component of his parenting time with A.L.. See Landau v. Landau, 214 AD2d 541; Sinnott-Turner v. Kolba, 60 AD3d 774 (2d Dept. 2009); Thompson v. Thompson, 41 AD3d 487 (2d Dept. 2007).

It is the Criminal Court’s hope that with professional assistance Father and child may learn to better communicate and Father might learn to better appreciate the changes that A.L. has been made to experience during the course of this bitter litigation and the events that led up to it. To this end, the Court finds that is in A.L.’s best interest to attend family counseling with Father. See Sinnott-Turner v. Kolba, 60 AD3d 774 (2d Dept. 2009); Thompson v. Thompson, 41 AD3d 487 (2d Dept. 2007). A.L. and Father may attend with any mental health professional agreed upon by Mother and Father in writing. As success in a family counseling setting would likely depend at least in part on progress and insight gained by Father in his own therapy, family counseling with A.L. shall not commence until three months after Father’s first individual therapy session. Upon completion of three months of attending individual therapy, Father shall provide Mother with a letter from his therapist indicating his compliance and his request to begin family therapy sessions with A.L. Mother’s participation in family therapy is not mandated given this Court’s finding of domestic violence and as there has been no proof that Mother is in need of any mental health services.

Last, after considering the in camera, and as Father has failed to prove that is in A.L.’s best interest to be compelled to re-enroll in individual therapy, individual therapy is not ordered for A.L. Unlike Father, A.L. had the benefit of mental health services until such time as Father called her therapist inquiring as to that clinician’s expertise regarding “parental alienation” and “brain washing”. Upon A.L.’s involvement in family counseling, Mother is encouraged to follow any recommendation as may be made respecting individual therapy for A.L.
Page 19

Both parents shall have free access to A.L.’s medical and educational records. Each parent shall be responsible for securing such information. Both parents shall be permitted to attend all school, extracurricular and significant events in A.L.s life. It is the responsibility of each parent to secure tickets or access to such events at his or her own expense.
Parenting Time

Father’s Parenting Time.
While Mother shall be the custodial parent with sole and final decision-making, this does not end the analysis. The Attorney for the Child requests that this Court decrease Father’s parenting time to alternate Saturdays for four hours. While the position of a twelve year old child is entitled to significant weight, the Court finds it is not in A.L.’s best interest to lessen any further the time she spends with Father. Moreover, Mother recognizes the importance of Father’s continued relationship with A.L. and does not join in the application to decrease Father’s parenting time.

This Court is hopeful that Father and A.L.’s relationship will improve to the extent that she can enjoy overnight parenting time and vacation time with him sometime in the future. However, these were not the circumstances this Criminal Court was presented with at this trial. After considering the testimony at trial and the in camera interview of A.L. the Court finds that it is not in A.L.’s best interest to expand Father’s parenting time to include overnight visits and vacation time. Accordingly, Father’s parenting time will continue as set forth in the existing April 13, 2010 Order with the added holiday time set forth below and that he attend individual therapy as a component of his parenting time. The Court further finds that it is in the child’s best interest that a holiday schedule be set by the Court as it is clear that these two parents have been unable to agree absent great conflict to a schedule in the past. The following schedule shall commence March 3, 2012.

Weekend Parenting Time.
Father shall have parenting time with A.L. (day visits) every other weekend on Saturday from 10 a.m. until 6 p.m. and Sunday from 10 a.m. until 6 p.m. (“Father’s Weekend”). Father shall be responsible for pick up and drop off at A.L.’s residence curbside.
Weekday Parenting Time.

Father shall have parenting time every Wednesday from 5 p.m. until 8:30 p.m (“Weekday Parenting Time”). Father shall be responsible for pick up and drop off at A.L.’s residence curbside.
Page 20

Holiday Time.
The Court finds that it is in A.L.’s best interest to provide Father and Mother with a set schedule to avoid future conflict with regard to parenting time on major holidays. The holiday schedule set forth below shall take precedent over ordinary parenting time. Parenting time shall commence at 10 a.m. on the day of the holiday and shall conclude at 6 p.m on the day of the holiday unless otherwise specified below. Father shall pick the child up from her home curbside at the start and conclusion of holiday time.
Mother’s Day shall always be with mother. Father’s Day shall always be with Father.
The following holidays shall be alternated:
Child’s Birthday:even years: Motherodd years: Father
Thanksgiving:even years: Fatherodd years: Mother
Christmas Eve:even years: Fatherodd years: Mother
Christmas Day:even years: Motherodd years: Father
New Years Eve:even years: Motherodd years: Father
New Years Day:even years: Fatherodd years: Mother
Good Friday:even years: Fatherodd years: Mother
Easter:even years: Motherodd years: Father
4. Vacation Time

The Court finds it is not in A.L.’s best interest to expand Father’s parenting time to include vacation time at this time as Father is not having overnights and failed to prove that his parenting time should be expanded.
5. General Matters

Each parent shall ensure that homework is completed and the child attends her school activities. Father shall continue to be permitted to call the child one time per day from 4:00 p.m. until 8 p.m. and may text the child twice during the same time period. The child shall no longer be compelled to have two cellular telephones. Mother shall designate a cellular phone number for Father to contact A.L.
The Applicable Law

B. Child Support.
Child support is determined by the parent’s ability to provide for their child rather
than their current economic situation. Charap v. Willett, 84 AD3d at 1002 (2d Dept. 2011). The Court is not required to rely upon a party’s account of his finances, and may instead impute income based on the party’s past income or demonstrated earning potential. Siskind v. Siskind, 89 AD3d 832 (2d Dept. 2011). The Court is permitted to impute income to a party where that
Page 21

party’s account of his or her finances is not credible. Kristy Helen T. v. Richard F.G., Jr., 17 AD3d 684 (2d Dept. 2005). When imputing income to a party, the Court must provide a clear record of the source from where the income is imputed and the reasons for the imputation. Matter of Kristy Helen T. v. Richard F.G., 17 AD3d 684 (2d Dept. 2005). A Court has discretion to impute income to a parent where the parent received money, goods or services from a relative or friend. See Domestic Relations Law §240 [1-b][b][5][iv][D]. The Court is not required to find that Father deliberately reduced his income to avoid his child support obligation in order to impute income to that party. See Bittner v. Bittner, 296 AD2d 516 (2d Dept. 2002).

Here, based on Mother’s credible testimony and the documentary evidence received at this trial, the Court imputes an income of $100,000.00 per year to Father based upon his past income and demonstrated earning potential. Siskind v. Siskind, 89 AD3d 832 (2d Dept. 2011). Father is a licensed podiatrist with fifteen years of experience. He has been self employed for over ten years. Father failed to produce any credible evidence of his current income other than his own self serving testimony that in 2010, he earned “a few hundred dollars”. Father’s testimony that he has earned little to nothing since this action was commenced was inconsistent with his own sworn Statement of Proposed Disposition dated February 3, 2010. That sworn document indicates Father’s income of at least $50,000.00 as of February 2010.

Father did not introduce any of his tax returns into evidence. Mother has proven with the parties’ joint tax returns that for years 2004 through 2006, the gross receipts from Father’s business were at least $150,000.00 per year. The gross receipts were as follows: $152,093.00 (2004); $184,588.00 (2005); and $150,219.00 (2006) (Plaintiff’s 2-4). While the Court recognizes that after expenses the parties’ did not claim any more than $72,490.00 in business income after various deductions for expenses, their monthly household expenses exceeded their claimed income by approximately thirty thousand dollars. Specifically, at time of commencement Father claimed total monthly expenses in the amount of $9,101.02 or $109,212.24 per year. (Plaintiff’s 1). Kristy Helen T. v. Richard F.G., Jr., 17 AD3d 684 (2d Dept. 2005).

The Court finds not credible Father’s testimony that his office in Brooklyn had to close because “Russians” opened competing offices and “stole all of his patients”. The Court finds it convenient that at a time that Mother is seeking child support Father claims his podiatry practice earns “little to no income”. See Bittner v. Bittner, 296 AD2d 516 (2d Dept. 2002). Father’s testimony that he does not have any employees was contradicted when he was confronted with a help wanted ad he recently placed at Wagner College. Father admits that he was looking to hire employees at $10.00 an hour to accompany him on house calls. Father’s claim that he earns little to no income is further inconsistent with his admitted work hours. Father testified that he works at least six days per week and occasionally on Sundays. In addition, to his office hours Father testified that he does house calls.

Father claims no living or business expenses. The Court credits his testimony that his father is paying his office rent in the amount of $9,600.00 per year. The Court credits his testimony that his father pays for the utilities and supplies for his office. Father resides in his parents home rent free and they provide him with a car. Father failed to prove any of the money

Page 22
his father has given him were loans. See Koeth v. Koeth, 309 AD2d 786 (2d Dept. 2003). Furthermore, Father did not pay for any of his legal fees. Husband’s father (G.L.) credibly testified that he has paid at least $200,000.00 for Father’s legal fees since this action was commenced.

The award of child support in the amount of $1,215.50 per month is made in accordance with Domestic Relations Law §240(1-b) and is based upon the following findings. Child support shall be set in an amount based upon the combined incomes of the parties at least up to $130,000.00 a year. Although the parties’ combined parental income exceeds the statutory cap of $130,000.00 there was no evidence presented that this amount would not meet A.L.’s needs and the pre-separation standard of living. Levesque v. Levesque, 73 AD3d 990 (2d Dept. 2010).

(a)The child of the marriage entitled to receive parental support is A.L. Libertella (DOB 7/22/99).
(b)Father’s imputed income is $100,000.00.
(c)Mother’s gross income is $57,602.003 .
(d)Mother’s income after statutory deductions: $3,171.23 (social security); $741.66 (medicare) and $1,516.92 (NYC tax) is $52,172.19.
(e)The applicable child support percentage is 17%.
(f)The combined parental income is $152,172.19 Child support is capped at the statutory maximum of $130,000.00.
(g)The total child support obligation is $22,100.00 per year.
(h)The non custodial parent’s pro rata share of the basic child support obligation is neither unjust or inappropriate. Father’s pro rata share is 66%. The basic child support obligation attributable to Father is $1,215.50 per month or $14,586.00 per year.
(h)The non-custodial parent’s pro rata share of the un-reimbursed medical, dental, child care, and educational expenses is 66%.
(I)Retroactive arrears due pursuant to this Order shall be retroactive to May 6, 2008, the filing of Mother’s complaint. See Groesbeck v. Groesbeck, 51 AD3d 722 (2d Dept. 2008).
(j)Mother is Order to continue to provide A.L. with health coverage through her employer for as long as it is available to her.
(k)Father is Ordered to pay his 66% percent obligation for A.L.’s health coverage premium in the amount of $148.50 per month.
Father is Ordered to reimburse Mother for his 65% percent obligation (pursuant to Pendente Lite Order) of A.L. braces in the amount of $2,973.75.
A. Private School Tuition

Page 23
Pursuant to the Child Support Standards Act the Court may award educational expenses if it determines that a private school education is appropriate for the child, “having regard for the circumstances of the case and of the respective parties and in the best interest of the child, and as justice requires”. Domestic Relations Law §240[1-b][c][7]; Durso v. Durso, 68 AD3d 1107 (2d Dept. 2009). The Court may further in its discretion, direct a parent to pay educational expenses of a child in absence of special circumstances or voluntary agreement. Matter of Poznik v. Froebel, 1 AD3d 366 (2d Dept. 2003).

The Court further finds that the parties’ made a joint decision to send A.L. to private school when she started at Notre Dame in kindergarten. A.L. has attended St. Joseph Hill Academy for the past six years and she has less than two years left until she graduates. Father willingly paid for A.L.’s tuition with marital funds up until the time of the parties’ separation in 2008. Accordingly, the Court finds that it is in A.L.’s best interest that she continue to attend St. Joseph Hill Academy until graduation and that Father shall be responsible for 66% percent of her future tuition and fees. Father is Ordered to pay school tuition arrears for 2009 ($6,075.00) and 2010 ($6,225.00) in the amount of $6,150.00 representing his fifty percent share pursuant to the Pendente Lite Order. For 2011, Father shall reimburse Mother for his 66% percent share of the total tuition in the amount of 4,108.83.

B. Life Insurance
Mother’s Verified Complaint seeks life insurance coverage on Father’s life to secure his child support obligation. No evidence was presented that Father currently has a life insurance policy. Father is Ordered to obtain and maintain life insurance in the amount of $200,000.00 to secure his child support obligation until A.L.’s twenty first birthday. See Moran v. Grillo, 44 AD3d 859 (2d Dept. 2007); DRL § 236(B)(8)(a). A.L. shall be named as the beneficiary with the Mother as trustee until the child is twenty one years old. In the event that Father currently has at least $200,000.00 of life insurance coverage then he shall not be required to purchase same. Father shall submit proof of his life insurance to Mother within thirty days.

C. Retroactive Arrears
Mother’s first demand for child support was contained in her Verified Complaint filed with this Court on May 6, 2008. Accordingly, Father’s child support obligation shall be retroactive to May 6, 2008. Father shall be given a credit for the payments he made pursuant to the Pendente Lite Order dated January 9, 2009. 4 Pursuant to that Order, Father was required to pay $453.00 per month for temporary child support retroactive to date of service of the application.5 Father’s first payment pursuant to the Pendente Lite Order was to be made on January 1, 2009 and monthly thereafter. Father shall be given a credit for payments pursuant to
Page 24

the Pendente Lite Order ($453.00 per month) from July 2008 (retroactive date of Pendete Lite Order) through February 1, 2012 (43 months) in the amount of $19,479.00. The total amount of retroactive arrears due pursuant to this Decision and Order, after the credit to Father is $35,218.50. Accordingly, Father is Ordered to pay $35,218.50 in arrears for retroactivity pursuant to this decision from May 2008 through February 2012.

Conclusion

For the detailed reasons set forth above, Mother is granted a Final Order of Sole Legal and Physical Custody of A.L. Father is granted parenting time as set forth herein. Father is Ordered to attend individual therapy as a component of his parenting time. Father shall attend family counseling with A.L. upon completion of three months of individual therapy as set forth above. Father is Ordered to pay $1,215.50 per month in child support. The first payment shall be made on or before March 1, 2012 and monthly thereafter. Father shall be responsible for 66% of any un-reimbursed medical and dental expenses. Father is Ordered to reimburse Mother for A.L.’s braces in the amount of $2,973.75 within thirty days. Father is Ordered to pay his 66% percent obligation for A.L.’s health coverage premium in the amount of $148.50 per month. The first payment shall be made on or before March 1, 2012 and monthly thereafter. Father is Ordered to pay school tuition arrears for years 2009-2011 in the total amount of $10,0258.83 within ninety days. Father is required to purchase or maintain life insurance in the amount of $200,000.00 to secure his child support obligation until the child’s emancipation. Father shall submit proof of life insurance to Mother within thirty days. Father is Ordered to pay $35,218.50 in retroactive child support arrears in twelve equal monthly installments of $2,934.87 commencing on May 1, 2012. Plaintiff is Ordered to settle a Judgment of Divorce and Findings of Fact and Conclusions of Law in conformity with this Decision within sixty days of the date of this decision.

ORDERED that if this award of child support, school tuition, and un-reimbursed medical arrears is not paid within sixty (60) days of that date, the clerk is directed to enter a money judgment in favor of counsel upon written affirmation of Wife or her counsel and no further notice to the Husband is required.
ENTER:

CATHERINE M. DIDOMENICO
Acting Justice Supreme Court
Dated: February 22, 2012

——–
Notes:
1. Filing of the Judgment was held in abeyance pending final adjudication of this custody/child support trial.
2. On October 19, 2011, after the trial testimony had concluded, Husband discharged his attorney prior to her submission of a written summation on his behalf. Husband signed a consent to change attorney indicating that he would be responsible for obtaining the remaining trial transcript and submitting his summation pro se.
3.The Court was not provided with a 2010 tax return for Mother. These numbers are based on Mother’s 2009 tax return and W-2 statement attached to her Updated Statement of Net Worth dated May 1, 2010.
4.That Order was retroactive “to date of service of the application” (Plaintiff’s 1). The Affidavit of Service contained in the Court file indicates service on Father on July 29, 2008.
5.There was no evidence presented that Father did not pay the retroactive arrears pursuant to the Pendente Lite Order.