C.B-C. v. W.C.
| Decision Date | 14 September 2022 |
| Docket Number | Index No. XXXXX |
| Citation | 77 Misc.3d 342,178 N.Y.S.3d 386 |
| Parties | C.B-C., Plaintiff, v. W.C., Defendant. |
| Court | New York Supreme Court |
Stempel Catterson LoFrumento Carlson Biondo, LLP, Garden City (Vincent Stempel Jr. of counsel), for plaintiff.
Sperber, Hoffman, Stein & Scampoli, LLP, Garden City (Leonard Sperber of counsel), for defendant.
Michael Cancellare, P.C., Muttontown (Michael Cancellare of counsel), Attorney for the Child.
These parties were the "poster children" for co-parenting post divorce. They continuously worked together in all aspects of their child's ("A") (age 16) best interest. Then, this family became a microcosm of the many litigations before this Court in the post COVID era.
The parties were divorced pursuant to a Judgment of Divorce dated December 12, 2014 ("Judgment"). They executed a Separation Agreement dated November 17, 2011 ("Agreement") which provided the parties with joint legal custody of A, including joint decision-making. It also set forth that the Plaintiff ("Ex-Wife") was the residential custodial parent and the Defendant ("Ex-Husband") enjoyed liberal parental access.
The parties worked together again and executed an Amendment to their Agreement dated June 19, 2014 ("Amendment") which modified certain aspects of parental access (Collectively "Stipulations"). The parties successfully co-parented A for 10 years and despite being divorced, remained a presence in each other's lives. For example, when the Ex-Wife was diagnosed with COVID-19 during 2021 and entered the hospital, the Ex-Husband cared for A 100% of the time, visited the Ex-Wife in the hospital and assisted her upon her return to her residence. Further, despite not reducing it to a writing, the parties verbally agreed and practiced a 50/50 parental access schedule based upon A's request. A enjoyed this arrangement for a number of years, all without incident. The co-parenting and the working relationship ended in September 2021 when the Ex-Husband allegedly obtained a falsified vaccine card for the COVID-19 vaccine for A despite A never receiving the vaccine. Once the Ex-Wife learned of this, her requests for the Ex-Husband to rectify the situation fell on deaf ears. Based upon these initial actions, A was thrust into the middle of this moral dilemma.
As is more fully set forth below, this is not one of the typical "COVID-19" cases before the Court where one parent is pro COVID-19 vaccine and the other is anti COVID-19 vaccine. The evidence showed that both of the parties, as well as A, were comfortable waiting and not having A be vaccinated for COVID-19. It was alleged that when the Ex-Husband told the Ex-Wife what he had done, he offered to obtain a falsified vaccine card for her as well. The Ex-Wife's greater concern is the continual lie A is now forced to maintain as his medical records indicate that he received both vaccination
injections, which he in fact, never received.
Once the Ex-Wife commenced this post judgment litigation, A was forced to choose between his parents. The relationship between A and the Ex-Wife quickly started its downward spiral.
The Ex-Wife filed her post judgment Order to Show Cause seeking an order adjudging the Ex-Husband in contempt for his violation of the joint decision-making provision of the Judgment as well as an award of sole medical decision-making authority on A's behalf. She further sought a temporary restraining order granting her sole decision making with regard to mental health therapy for A which was granted on an emergency basis. Ex-Wife then filed a second order to show cause alleging that the Ex-Husband violated the parental access provisions of the Judgment by alienating A from her. In response to these applications, the Ex-Husband filed a cross motion seeking sole legal and residential custody of A based on a substantial change in circumstances.
The hearing of this post judgment matter was conducted on June 29 and June 30, 2022. Thereafter, the Court conducted an In Camera with A. The parties, who were both represented during this entire post judgment application submitted their Post Trial Memorandums on August 19, 2022.
The Ex-Wife testified that in September 2021, the Ex-Husband told her that he got A vaccinated, but then admitted that they did not actually receive the vaccine, but just a fake vaccination
card and offered to get her one as well. She further explained that the Ex-Husband told her that he watched as the provider poured the vaccine liquid out. He allegedly told her that he went to Wild Child Pediatric Healthcare in Amityville to obtain this fake card1 . Ex-Wife further testified, and provided evidence that, A's official medical records now show that he was vaccinated with both the first and second dose of the COVID-19 vaccine. She also testified that A admitted to her that he in fact did not receive the actual vaccine. The Ex-Wife further testified that the Ex-Husband did not consult with her regarding the COVID-19 vaccine. She explained that her biggest concern was the issue of A perpetuating a fraud and being forced into a lie.
She also testified that on or about December 2021, A began residing with the Ex-Husband 100% of the time. She explained that an incident occurred when A tried to enter her home where his belongings remained on December 23, 2021, when she was not home and again on December 25, 2021. She admitted that she changed the locks on the residence and changed the code for entrance through the garage. She complained that A did not spend the weekend of December 18th and 19th with her and blames the Ex-Husband for not bringing A to her. She admitted that A told her that he would not see her unless she discontinued this case. She further explained that A and the Ex-Husband ignored her when she attended A's track meets. She blames the Ex-Husband and his older sons for influencing A's recent behavior.
She also testified that she has a dog, ("B"), which lives with her and did not go back and forth regularly to the Ex-Husband's residence when the parties shared 50/50 parenting time of A. She explained that there was no regularity with regard to B going to the Ex-Husband's house. She contends that she changed the locks on her home to protect the house. She further testified that she does not believe A's full relocation to the Ex-Husband's residence is in his best interest.
During cross examination, she admitted that she changed the locks because she felt A was hostile towards her and she felt threatened. The parties were exercising a schedule where A spent half the week with one parent, half the week with the other parent, and then alternated the weekends. She further admitted that A is a stellar student. She acknowledged that the Ex-Husband assisted in getting A into a leadership program, on the Principal Scholar List and always helps with homework. She further admits that A is drug and alcohol free with no emotional issues. She also admits that A loves B who sleeps in A's bed with him. She further testified that the Ex-Husband would sometimes watch B if she traveled, and even did so when she was in the hospital with COVID-19. She also admitted that the Ex-Husband has taken A to all meetings with the Attorney for the Child and to the meetings with the Ex-Wife at the visitation coordinator, Kids in Common which was proposed by this Court during this litigation to help rebuild the relationship between A and the Ex-Wife. She admitted that since December 2021, she has not attempted to see A at Ex-Husband's residence and A has not spent any time at her home.
Ex-Wife further explained that she supported A's position to not be vaccinated. She further admitted that she told A that she might consider seeking a religious exemption to the COVID-19 vaccine, notwithstanding the fact that no one in the family practices any religion. This calls into question the Ex-Wife's credibility as she argued that her most important issue was A being forced to perpetuate a lie. However, the Court does note that the Ex-Wife never followed through on this type of action. She admitted that with regard to the December 23, 2021, incident, she did not advise A or the Ex-Husband that she changed the locks or the garage code. She further admitted that in November 2021 she called A a punk and "may have conveyed" that he should live with the Ex-Husband.
Ex-Husband testified that he agreed with the Ex-Wife's assessment of A as a stellar student and a "good kid". He explained how he helped the Ex-Wife with her recovery, and with A and B during her battle with COVID in February 2021. He testified that he always encourages A to call the Ex-Wife. He explained that A was upset when he could not get into the house in December 2021 and was disheartened. He further testified about A's reaction to not being able to see B. Ex-Husband further testified that he has no problem with A going back with the Ex-Wife. He further testified that there has not been any collaboration about medical issues since January 2022. He contends that he has not stopped A from seeing Ex-Wife since October 2021 and in fact encourages their relationship.
During cross examination, when he was questioned about the fraudulent vaccination
card, the Ex-Husband plead the 5th Amendment over 20 times. This Court draws a negative inference against the Ex-Husband and assumes the Ex-Wife's factual allegations as true (Prince, Richardson on Evidence 11th Edition § 5-710; Andrew Carothers, M.D., P.C. v. Progressive Ins. Co., 33 N.Y.3d 389, 104 N.Y.S.3d 26, 128 N.E.3d 153 (2019) ). The right against self-incrimination does not automatically insulate a party to a civil action from potential liability, and it is well-established that ‘a negative inference may be drawn in the civil context when a party invokes the right against self-incrimination ( DeBonis v. Corbisiero , 155 A.D.2d 299, 547 N.Y.S.2d 274 (1st Dept. 1989) ). Ex-Husband admitted that the track meets which...
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