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Procedural Background

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,

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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 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.

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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.

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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.

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