C.M. v. E.M.

• Docket Number: Index No. XXXXXX/2023
• Decision Date: 28 November 2023
• Parties: C.M., Plaintiff, v. E.M., Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 23369

C.M., Plaintiff,
v.
E.M., Defendant.

Index No. XXXXXX/2023

Supreme Court, Nassau County

November 28, 2023

Attorney for Plaintiff: Firm Name: Megan E. Woolley, Esq.

Attorney for Defendant: Firm Name: SIMONETTI & ASSOCIATES

Attorney for Chile(ren): Melissa Studin Young

Edmund M. Dane, J.

The following papers have been read on these motions:

Plaintiff's Order to Show Cause dated August 11, 2023 x

Defendant's Order to Show Cause in the Nature of a Cross-Motion dated September 21, 2023 x

Plaintiff's Opposition & Reply dated September 21, 2023 x

Defendant's Reply dated October 19, 2023 x

Affirmation of Attorney for the Children dated November 7, 2023 x

INTRODUCTION

While the Plaintiff's application seeks, among other things, omnibus pendente relief, the principal issue raised on these motions is whether or not the euthanasia of a family companion animal during the pendency of a matrimonial action is violative of the Automatic Orders. There can be no doubt that the loss of a family pet or companion animal can be devastating. But the principal question before the Court is a narrow one. The Court concludes, after examining the text of the Automatic Orders, reviewing the Legislative history and underlying purpose of the enactment of Automatic Orders, considering the evolution of case-law with respect to companion animals and the Legislative history behind DRL § 236(B)(5)(d)(15), and reviewing the purpose of the Defendant's application, that the euthanasia of a companion animal without the consent of the other party is not violative of the Automatic Orders in a matrimonial action. While the Defendant may have other remedies at law - both civilly and criminally - the narrow and drastic remedy of contempt of court the Defendant seeks here is not one of them.

PRELIMINARY STATEMENT

The Plaintiff moves by Order to Show Cause dated August 9, 2023 (Motion Sequence No.: 001) seeking an Order: (a) Granting Plaintiff custody of the two (2) children of the marriage, A.M. (dob XX/XX/2012) and J.M. (dob XX/XX/2008); (b) Granting Plaintiff and the two (2) children of the marriage exclusive use and occupancy of the marital residence; (c) Consolidating the pending Nassau County Order of Protection proceeding Docket O-03751-23 File 628997 before Hon. Darlene Harris with the within action; (d) Appointing EDWARD EMANUEL, ESQ., as Attorney for the Children and directing Defendant to pay the Attorney for the Children attorney's counsel fees, subject to reallocation at trial; (e) Directing the Defendant to pay fifty (50%) percent of the uncovered or advanced payment health care, dental, optical, psychological and pharmaceutical expenses incurred on behalf of the unemancipated children of the marriage; (f) Directing the Defendant to pay fifty (50%) percent of summer camp and extracurricular activity expenses for the unemancipated children of the marriage; (g) Directing the Defendant to pay fifty (50%) percent of the monthly mortgage, taxes and real property insurance and necessary repairs for the marital residence located at XX, Glen Head, New York; (h)Directing the Defendant to pay fifty (50%) percent of the monthly marital consolidated credit card loan with Crossroads Financial Technologies Finxera, Inc.; (i) Directing the Defendant to pay all expenses associated with the 2022 Ford F-150 vehicle operated by Defendant (including but not limited to loan, maintenance, registration, gas and insurance); (j) Directing that Defendant to pay the Plaintiff pendente lite child support in the amount of One Thousand Seven Hundred ($1,700.00) dollars per month for the two (2) children of the marriage if Defendant is Ordered to contribute to the marital mortgage; or in the alternative, pendente lite child support in the amount of Two Thousand Seven Hundred Six & 37/100 ($2,706.37) dollars per month for the two (2) children of the marriage if Plaintiff is solely responsible for the marital mortgage; (k) Awarding to Plaintiff an interim award of counsel fees in the sum of ten thousand ($10,000.00) dollars, with leave to apply to the court for additional fees, if warranted, pursuant to Domestic Relations Law 237; and (l) For such other and further relief as this Court deems reasonable and proper under the circumstances.

The Defendant cross-moves by Order to Show Cause in the Nature of a Cross-Motion for Contempt and in Opposition to the Plaintiff's Order to Show Cause dated September 21, 2023 (Motion Sequence No.: 002) for an Order: (1) Adjudging the Plaintiff in Contempt of Court for violating the Automatic Orders of the Court by unilaterally destroying a valuable marital asset without knowledge or consent of the Defendant or Court; (2) Fining Plaintiff, C.M., for such contempt; (3) Modifying the parties Order of Protection, filed under O-03751-23, File 628997 entered on May 22, 2023, consolidated with this Court, so as to grant Defendant, E.M., unsupervised visitation with his children on alternating weekends and two mid-week visits after school, as a carve-out for the Order of Protection granted against him; (4) Granting to the Defendant's counsel, SIMONETTI & ASSOCIATES, an award of counsel fees in the sum of $5,000.00, plus additional sums as may accrue during the pendency of this action for additional services rendered in connection with the within application; (5) Dismissing, in all respects, the relief sought in the Plaintiff's application herein brought by Order to Show Cause on August 11, 2023; (6) Denying, in all respects, the relief sought in the Plaintiff's application herein brought by Order to Show Cause on August 11, 2023; and (7) Together with such other and further relief as to this Court may seem just, proper and equitable under the circumstances.

BACKGROUND

The parties were married on xxxx xx, 2002. The parties have two children in common, to wit: J., born xxxx, 2008 and A., born xxxx, 2012. This action was commenced by the filing of a Summons with Notice with the Nassau County Clerk's Office on or about May 31, 2023. On August 10, 2023, the Plaintiff filed an Order to Show Cause seeking, among other things, omnibus pendente lite relief with a request for certain interim relief. This Court heard that application on August 11, 2023, when it signed the Order to Show Cause and issued the following temporary Orders:

ORDERED, that Plaintiff shall have sole medical decision making with respect to the child, J.M. (DOB xx/xx/2008) and the surgery scheduled for Monday for J.'s tonsils adnoids and tubes, and any emergencies relating thereto which the Plaintiff shall keep the Defendant fully informed with respect thereto; and it is further

ORDERED, that Plaintiff and the two (2) children of the marriage have interim exclusive use and occupancy of the marital residence; and it is further

ORDERED, that the Nassau County Family Court case, Docket O-xxxx-23 File xxxx, before Hon. Darlene Harris is hereby consolidated with the within action by separate Order issued simultaneously herewith; and it is further

ORDERED, that an Attorney for the Children shall be appointed by separate Order issued simultaneously herewith; and it is further

ORDERED, that the parties shall equally share the attorney for the children's fees subject to reallocation at trial; and it is further

ORDERED, that Defendant to pay the Plaintiff interim basic child support in the amount of Two Thousand Seven Hundred Six & 37/100 ($2,706.37) dollars per month for the two (2) children of the marriage commencing on the first day of the first full month following the execution herein.

On August 11, 2023, this Court issued an Order Appointing Attorney for the Children whereby it appointed Melissa S. Young, Esq., as attorney for the children (hereinafter referred to as the "AFC"). The parties and counsel and the AFC appeared before this Court for a Preliminary Conference on August 16, 2023, when the parties executed, and this Court so ordered, the Preliminary Conference Stipulation and Order. On October 2, 2023, this Court issued a Short Form Order, on consent, that the proceedings pending in the Nassau County Family Court under Docket No.: O-03751-23 be transferred to this Court and consolidated into the within matrimonial action. A Temporary Order of Protection was thereupon issued by this Court.

THE PARTIES' CONTENTIONS

Plaintiff's Contentions:

The Plaintiff argues that she lives in the marital residence xxxx, Glen Head, New York (hereinafter referred to as the "Glen Head Residence") with the children and the Defendant voluntarily vacated same in May 11, 2023 to live in Brooklyn with a significant other. The Plaintiff argues that this vacatur was one week before the Defendant assaulted the parties' ten (10) year old child. The Plaintiff sets forth that she earned $140,347.82 in 2022 from her employment as a school teacher and took extra work at a summer camp and earned an additional $2,734.23. The Plaintiff argues that the Defendant earned $140,666.59 in 2022 from employment as a teacher and earned an additional $9,000 from private tutoring. The Plaintiff argues that on May 19, 2023, the Defendant pinned A. under the Defendant's body and slapped A.'s face so hard resulting in a bruise and red marking. The Plaintiff argues that this incident was observed by J.. The Plaintiff argues that the Defendant has not had contact with the children since May 19, 2023, and the Defendant has not requested parenting time. The Plaintiff argues that J. was to have surgery on August 14, 2023, the Defendant found the surgeon, a surgery was scheduled, but the Defendant then, in effect, withdrew his consent to the surgery. The Plaintiff sets forth that both children are in therapy and attend weekly counseling sessions, and that both providers concur about the need for therapeutic intervention to repair the children's relationship with the Defendant. The Plaintiff...