D.D. v. A.D.

• Decision Date: 16 June 2017
• Docket Number: No. 5* * * */* *.,5* * * */* *.
• Citation: 63 N.Y.S.3d 304 (Table)
• Parties: D.D., Plaintiff, v. A.D., Defendant.
• Court: New York Supreme Court

63 N.Y.S.3d 304 (Table)

D.D., Plaintiff,

v.A.D., Defendant.

No. 5* * * */* *.

Supreme Court, Richmond County, New York.

June 16, 2017.

CATHERINE M. DiDOMENICO, J.

Procedural History

Plaintiff D.D. (hereinafter "Wife" or "Mother") commenced this action for divorce against Defendant A.D. (hereinafter "Husband" or "Father") by Summons and Verified Complaint filed on March 21, 2013. Husband filed a Verified Answer with Counterclaims on April 30, 2013. A Preliminary Conference was held on June 11, 2013. By Order dated June 11, 2013, the parties agreed that Plaintiff Wife would be granted a divorce on the grounds that the parties' marriage had broken down irretrievably for a period of at least six months pursuant to Domestic Relations Law § 170(7). The issuance of a Judgment of Divorce was held in abeyance until all ancillary issues were resolved on consent or otherwise adjudicated by this Court.

The parties were unable to settle a single substantive issue causing this case to become one of the most protracted and contentious proceedings ever tried by this Part. No less than forty-six (46) interim pre trial orders were issued in this case. These Orders include a lengthy Pendente Lite Order dated December 2, 2013. Pursuant to the terms of that Order, Husband was ordered to pay $2,837 per month in temporary maintenance and $2,000 per month in temporary child support. The child support award represented a substantial downward deviation from the CSSA guidelines in Husband's favor. The imputation was based on income from "A. D. Electric" an electrical contracting business started and prospered by the parties during the marriage. Wife lost her $75,000 annual salary from the business when Husband fired her at or around the time this action was commenced. By Order dated April 29, 2014, Husband was ordered to pay $12,000 in counsel fees to Wife's attorney because this Court determined he was the more monied spouse. Husband failed to comply with this Order causing the liquidation and distribution of his retirement account in an attempt to avoid a contempt finding against him.

Throughout this litigation, Husband has consistently failed to comply with many court orders. Among other court ordered obligations, Husband has failed to pay maintenance, counsel fees, his share of Dr. Favaro's fee (Forensic Evaluator) and failed to purchase trial transcripts. Husband has paid court ordered child support payments, but has paid nothing toward court ordered support arrears. In short, he has paid what he wants to pay based on his perception of how it will affect his quest for custody of the subject children. Husband refuses to comply with any Orders that he believes will help Wife or sustain this litigation. Husband's selective compliance with court orders has necessitated the filing by Wife of multiple enforcement and contempt motions against (See e.g. Mot Seq. Nos. 005,006, 007 & 008). Many of these applications were disposed of prior to trial (See e.g., SFO's dated 11/19/14; 11/24/14 & 6/16/14).

While current law no longer requires that "alternative remedies" be exhausted before a finding of contempt is made¹ , this was not the law at the time Wife's motions were filed. Accordingly, this Court went to great lengths to find alternative remedies to a finding of contempt against Husband and a potential period of incarceration based on his undisputed refusal to pay spousal maintenance. These Orders included appointing Wife as a limited temporary receiver for the purpose of selling their Amboy Road real property which was sold and the net proceeds placed in attorney escrow (See SFOs 11/24/14 & 12/3/15). In addition to equitable distribution claims, this money is also the subject of a related proceeding "J. D. v. A.D. and D.D. " Index No. * * * * */2014. This breach of contract action seeking repayment of $280,000.00 plus interest, was commenced by Wife's father against both parties. Wife acknowledged the debt to her father but Husband refused to repay any of it unless Wife gave up custody of the subject children in this related divorce case. After a full trial, and for the reasons explained in this Court's Decision dated February 27, 2017, this Court found that the funds used to purchase the Amboy Road property were a loan from Wife's father, rather than a gift, as claimed by Husband. See J.D. v. A.D., 2017 N.Y. Slip Op 50261(U) (Sup.Ct.Rich.Cty.2017). Judicial Notice is taken of that Decision and subsequent Judgment.

After the Amboy Road Decision, and as another alternative remedy to contempt, the Court authorized Wife to modify the mortgage related to the former marital home where she has resided with the subject children throughout this proceeding. This home, located at * * * Drumgoole Road West Staten Island, New York, had fallen behind on the mortgage and was in danger of foreclosure due to Husband's failure to pay court ordered maintenance. To ensure the continued housing of the children in the face of Husband's willful marital waste, and after giving Husband numerous opportunities to comply with this Court's Orders, Wife was granted authority to sign a loan modification in both parties' names as attorney in fact for Husband. See Weinstock v. Weinstock, 8 Misc.3d 221, 797 N.Y.S.2d 246 (Sup.Ct. Nassau Ct.2005) ; See also, Rosenshein v. Rosenshien, 211 A.D.2d 456, 620 N.Y.S.2d 383 (1st Dept.1995). Wife modified the loan to a monthly payment not dependent on court ordered maintenance. Her efforts in this regard have warded off foreclosure and stopped the potential eviction of the children from their home.

Similarly, Wife testified at trial that she had received a "turn off notice" from Con Edison that threatened to shut off the electrical service to the former marital home for non-payment. Wife was unable to make the payments because Husband was not making his maintenance payments. Husband was ordered to make an immediate payment, which he did, in the amount of $343. In response to the deteriorating conditions of the case, the Court directed that the next two trial dates, May 8, 2015 and May 28, 2015 be set aside for the purposes of having a hearing on Wife's contempt motions. Both parties submitted post hearing briefs in addition to post-trial summations. This Court's ruling on Wife's contempt application is set forth below.

The Trial

The trial lasted seventeen days and resulted in over 2402 transcript pages.² The issues addressed at trial were custody and parental access, family offense, contempt, equitable distribution, spousal maintenance, child support and counsel fees. Throughout the course of this litigation, Wife was represented by Michael Coscia, Esquire and his associates. The subject children were represented by Rosa Pannitto, Esquire. Defendant Husband was represented by a number of attorneys during this action. Husband was initially represented by Brian Perskin, Esquire until he was relieved with Husband's consent on or about February 10, 2015. Maria Novak, Esquire and Louis Kleiger, Esquire represented Defendant until they were relieved on their motion by Short Form Order dated October 7, 2015. Thereafter, Husband represented himself until on or around December 11, 2015 when his current attorney, Dahlia Zaza, Esq. filed a notice of appearance.

The retention of Ms. Zaza was a point of controversy and media attention. Husband admits that, in an alleged act of desperation, he posted hundreds of flyers seeking to trade his electrical services for legal services on telephone poles surrounding courthouses throughout New York City, including this courthouse. These flyers and an accompanying social media campaign caused Husband to gain immediate notoriety. He was interviewed by main-stream media outlets with his image and statements appearing on radio, television, internet programs, and in newspapers. Husband used these interviews to foster a self serving and inaccurate portrayal of how he was being treated by Wife, her lawyers, his prior lawyers, and the justice system as a whole. He also chose to opine about the reasons this marriage failed including making disparaging statements about Wife and detailing her many alleged "affairs". His salacious account of their relationship led to the media's quick unmasking of Wife and the subject children. This caused additional court appearances and motion practice by the attorney for the children and Wife's lawyers. By Short Form Order dated November 13, 2015, this Court prohibited further interviews by any party with media outlets about any aspect of this case. Ms. Zaza has remained as Husband's attorney in this case and in the related contract action.

At trial, Plaintiff testified on her own behalf and called Dr. Peter Favaro (court appointed forensic evaluator), J.D. (her father), and Defendant Husband as witnesses. She submitted voluminous documentary evidence (Pl.Exs.1–85). Husband testified on his own behalf and called A. D., Sr (his father) and Plaintiff Wife as witnesses. He also submitted voluminous documentary evidence (Def.Exs.A–KKK). Counsel for both parties submitted questions for individual in camera examinations of the two subject children which was held by the Court on September 12, 2016. At the conclusion of the in camera examination, the record was sealed. Summations were received from all counsel on or before February 26, 2017.

General Factual Findings

There are two children of this marriage, N.D. (age 12) and A. D., Jr. (age 10). Neither child presents with any special needs. At trial, both parties attempted to show that they were the more fit custodial parent for the subject children. To this end, both parties testified to a litany of events that occurred during the course of their relationship and throughout this litigation. Many of these incidents were not critical to this Court's determination of custody and parental access. Rather than dignify each and every incident between the parties, this Court discusses herein only those significant findings of fact that weighed most...