B. K. v. J. N., * * * * */13.

• Court: United States State Supreme Court (New York)
• Writing for the Court: CATHERINE M. DiDOMENICO, J.
• Citation: 26 N.Y.S.3d 212 (Table)
• Parties: B. K., Plaintiff, v. J. N., Defendant.
• Docket Number: No. * * * * */13.,* * * * */13.
• Decision Date: 30 July 2015

26 N.Y.S.3d 212 (Table)

B. K., Plaintiff,
v.
J. N., Defendant.

No. * * * * */13.

Supreme Court, Richmond County, New York.

July 30, 2015.

Harry Chiu, Staten Island, New York, for Child.

Benjamin Haber, Staten Island, New York, Husband.

Robert Hiatt, Staten Island, New York, for Wife.

CATHERINE M. DiDOMENICO, J.

The parties to this action for divorce were married on October 27, 2012 and only lived together as spouses for a period of months. There is one child of this union, M.N. (d.o.b. June * *, 2012). By Summons with Verified Complaint dated April 10, 2013, Plaintiff Wife, B.K. (hereinafter "Wife" or "Mother") commenced this action for divorce against Defendant Husband, J.N. (hereinafter "Husband" or "Father"). Issue was joined by the service of a Verified Answer with Counterclaims by Husband on or about July 30, 2013. On the parties' first day of trial, an inquest was conducted on the issue of the grounds for divorce pursuant to a prior Order dated January 28, 2015 which resolved that issue. Wife testified that the parties marriage had broken down irretrievably for a period of six months, sufficient to satisfy Domestic Relations Law '170(7). (Tr. 1/28/15, p. 15).

In addition to this resolution of the issue of grounds, the parties agreed, by Short Form Order dated April 16, 2014, to settle the issues of equitable distribution and maintenance by mutual waiver. By Consolidation Order dated June 21, 2013, the parties agreed to consolidate cross family offense and custody petitions that were filed in Family Court. On the first day of trial, both parties withdrew their cross family offense petitions. The temporary orders of protection that were entered on those dockets were vacated (Tr. 1/28/15, p. 93–94). At this trial, both parties argued that they presented as the more suitable custodial parent for the subject child, and requested an award of child support in the event that they were awarded custody. Wife's attorney also made a request for attorney's fees incurred as a result of this action.

By consent Order dated October 3, 2013, Dr. Stephen Herman was appointed as a neutral forensic evaluator to examine the issues of custody and visitation as it pertained to the parties and the subject child. His report, dated March 22, 2014, was admitted into evidence at trial without objection (AFC Ex. No.1). Dr. Herman testified at trial on February 26, 2015. No party objected to his qualification as an expert in the field of forensic psychology (Tr. 2/26/15, p. 26).

The Trial

This matter was tried on January 18, 2015, February 10, 2015, February 11, 2015, February 26, 2015, and February 27, 2015. Plaintiff Wife testified on her own behalf and called (1) Margaret K. (maternal grandmother); (2) Sherry N. (paternal aunt); and (3) S. Florich (subject child's service provider) as witnesses. During trial Wife did not offer any documentary evidence in support of her claims other than a Statement Of Net Worth.¹ Defendant Husband testified on his own behalf and called (1) Dr. Stephen Herman M.D. (forensic evaluator) and (2) Dr. S. Clemente M.D. (subject child's developmental evaluator) as witnesses. Husband offered various documents into evidence (Def.Exs.A–E). Judicial notice was taken of various documents (Jud No. 1–12). Based on the young age of the child and her special needs, all counsel agreed that an in camera examination would not be practicable or particularly useful to the Court in this case. (Tr. 1/28/15, p. 13). Post trial written summations were received from all counsel.

Factual Findings

At trial, both parties attempted to show that they present as the better custodial parent for the subject child M.N. In support of their claims, both parties testified as to a litany of events that occurred during the course of their brief relationship and throughout this litigation. Many of these incidents were not critical to this Court's determination of custody. Rather than dignify each and every incident between the parties, this Court discusses herein only those significant findings of fact that weighed most heavily in this decision.

a. Plaintiff Wife

Plaintiff Wife was born in February of 1981. She is currently 34 years old. Wife attended college and earned a Bachelor's Degree in Business Administration in 2005 from Maywood University located in Scranton, Pennsylvania. She filed for chapter 7 bankruptcy protection in 2007 and discharged about $35,000 of consumer debt at that time.

In March of 2009, Wife began dating an individual named J. Sanchez who was serving a seventeen years to life sentence in Woodbourne State Correctional facility after being convicted of murder in the second degree. She testified that Sanchez "was a nice guy who was incarcerated as a minor for a mistake". (Tr. 1/28/15, p. 27). She explained that Sanchez had dropped out of high school and was making money as a street drug dealer. Wife testified that Mr. Sanchez sold cocaine, heroin and other "regular" street drugs (Tr. 1/28/15, p. 34). Sanchez had previously been shot five times by another drug dealer. One night, Sanchez opened fire in a public area in Brooklyn and killed an innocent bystander. Wife testified that Mr. Sanchez was attempting to shoot the rival drug dealer who had shot him in the past. (Tr., 1/28/15, pp. 32–33).

After two months of "romantic" letter writing and weekly prison visits, Wife married Mr. Sanchez in a ceremony held at the prison in May of 2009. Wife later filed for an uncontested divorce from Mr. Sanchez in or around December of 2011. The divorce was finalized in January of 2012. When asked why she filed for divorce from Mr. Sanchez, Wife testified that she made a "really terrible mistake" and realized that she "should not be married to a murderer". (Tr. 1/28/15, p. 32; 36–37).

On November 21, 2009, while she was living in Pennsylvania with her parents, Wife was arrested and charged with making terroristic threats, weapon possession, and aggravated assault among other charges. Specifically, Wife claims that she was the victim of a road rage incident in the parking lot of a department store. She claims that she was confronted by the driver and passenger of the other vehicle involved for not stopping at a stop sign. During this confrontation a physical altercation ensued. Wife claims that during the altercation she pulled out a knife in self defense after being punched in the face. When the other driver and passenger saw the knife, they backed away. Following this incident, Wife was arrested, bail was set, and she was released two days later (Tr. 1/28/15, p. 54–55; Def. Ex. A). Almost a year later, on October 25, 2010, Wife pled guilty to the making of terroristic threats and simple assault as defined by Pennsylvania Law. Based on that plea, Wife was sentenced to three months of house arrest and nine months probation (1/28/15, pp. 55–57). At the time she pled guilty, Wife understood that the aggravated assault charge carried a potential sentence of seven years incarceration. She further understood that if she violated the terms of her probation, she would face one year in prison. (Tr.1/28/15, p. 58; 2/10/15 p. 72).

Following her period of house arrest, Wife relocated to New York and resided in Riverdale from January to September 2011. While her divorce from Mr. Sanchez was pending, Wife met Defendant Husband. Wife claims that she told Husband that she had filed for bankruptcy, had a criminal history for which she was on probation, and was married to a convicted murderer and was in the process of divorcing him when they met (Tr. 1/28/15, p. 50, 58–59). While Husband admits that he was aware of much of Wife's history, he testified that he was willing to give Wife a chance as "everyone makes mistakes."

In or around October of 2011, when Wife's Riverdale lease ended, she moved into Husband's home in Staten Island, New York. Shortly thereafter, Wife became pregnant with the subject child. Husband was shocked, but happy at the news of a pregnancy. The subject child was born on June 15, 2012. In or around August of 2012, the parties moved into a private residence on Wardwell Avenue in Staten Island, New York. Wife testified that their relationship immediately began to deteriorate as Husband allegedly reminded her "where she came from" and how he "bettered her life" (Tr., 1/28/15 p. 80). Husband credibly denied making these statements to Wife though he admits that their relationship was not a happy one.

Wife claims that even though she was "extremely unhappy", she married Husband on October 27, 2012 when M.N. was about four months old (Tr. 1/28/15 pp. 66–68). Despite going through an elaborate ceremony with Husband, Wife believed that since the parties did not sign a marriage certificate, the "marriage" would be invalid. Wife claims that she participated in the wedding ceremony not to "embarrass" Husband's family who were paying for an elaborate reception which was held on the Dyker Beach Golf Course in the presence of a clergyman and somewhere between 100 and 200 invited guests (Tr. 1/28/15 pp. 81–86).

Husband admits that he knew Wife's intentions regarding the marriage license on the day of their wedding, but that he proceeded with the ceremony and reception anyway as he wanted to marry Wife. At their reception the parties' jointly received over $32,000 in wedding...