David W. v. Julia W.

• Decision Date: 14 June 1990
• Citation: 158 A.D.2d 1,557 N.Y.S.2d 314
• Parties: DAVID W., Plaintiff-Appellant, v. JULIA W., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 314

557 N.Y.S.2d 314

158 A.D.2d 1

DAVID W., Plaintiff-Appellant, v. JULIA W., Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

June 14, 1990.

Frederic J. Siegel, of counsel (Steven J. Schwartzapfel, P.C., New York City, attorney), for plaintiff-appellant.

Charles P. Schiller, of counsel (Stanley Messinger, White Plains, attorney), for defendant-respondent.

Before SULLIVAN, J.P., and MILONAS, KASSAL, WALLACH and SMITH, JJ.

MILONAS, Justice.

Plaintiff-father, an orthopedic surgeon, is seeking a downward modification of his child support obligations and an upward revision of that of defendant-mother, and he also wishes to effect a change in the residential custody of one of their children. The parties herein entered into a separation agreement on June 27, 1985 pursuant to which they were accorded joint custody of the couple's two children with their residence to be with defendant. In addition, plaintiff's support obligations for the children were clearly set forth in the agreement, whose terms were subsequently incorporated by reference into, but not merged with, a judgment of divorce entered on July 19, 1985.

In his affidavit, plaintiff claims that his son Andrew "is suffering emotionally from lack of supervision, guidance and attention from his mother, which has fostered a feeling of lost love and affection." The symptoms of the child's psychological problems are purportedly manifested by "repeated periods of aggressive behavior", "night terrors", bed-wetting, the soiling of underwear and a rash on his buttocks. According to plaintiff, his former wife's work load and professional responsibilities as a psychiatrist "dictate that she be away from Andrew for unconscionably long periods of time, thereby prohibiting her from taking an active parenting role." In contrast, he asserts, "I do have the time to devote to Andrew", and his new wife has established a good relationship with his son. However, while plaintiff makes a series of complaints concerning the care being provided to Andrew, his dissatisfaction about the parenting being received by the parties' daughter Kathryn is limited to allegations that she is being forced to care for Andrew although she is only twelve years of age, that defendant has neglected to provide her with a bathing suit on one weekend visitation in the summer and that Kathryn's dental needs have not been met.

As for plaintiff's request for a downward modification in child support obligations, he contends that the list of payments which he is required to make under the agreement "has absolutely crushed my ability to meet the needs of my children, my own needs, the needs of my new wife and child and any hope that I have to advance in my career." He has, he urges, "lost substantial income due to the demise of my private medical practice; am now involved in personal bankruptcy; and can no longer pay the sums" demanded by the parties' agreement. On the other hand, defendant has, he alleges, "experienced a substantial improvement in her financial condition and can afford to pay a larger share of the expenses of our children." To demonstrate his supposed financial incapacity, plaintiff relies heavily upon the fact that on October 5, 1988, he filed a bankruptcy petition in the Southern District of New York. He states, moreover, that the purported disintegration of his private practice is largely attributable to the high cost of malpractice insurance. Thus, since his "private practice has been lost in bankruptcy, my income has been dramatically reduced." Yet, his annual expenses, he declares, have increased steadily since the separation agreement was executed. Finally, plaintiff argues that while his financial responsibilities have escalated at the same time that his resources to meet them have declined, his former wife's earnings have grown considerably in recent years.

In response, defendant explains that the rash from which Andrew suffered occurred three years ago. Although it was a particularly resistant one which did not initially respond to the pediatrician's treatment, she has done everything possible to undertake its elimination, and, at any rate, the rash had completely disappeared by April of 1986. In that regard, defendant submitted a copy of the dermatologist's report to the pediatrician showing the method of treatment. Further, Andrew has neither wet his bed nor soiled his underwear since he was approximately five and one-half years of age, some three years in the past. Consequently, plaintiff, in asking for a change in residential custody, has been pointing to problems which took place years ago. Plaintiff's accusations that defendant sent the children to him for visitation without proper clothing are characterized as "ridiculous" in that "Katie had previously told me that [her father] had bought sufficient and appropriate ski clothing, including underwear, for her and that it was therefore not necessary for me to include such garments when I packed her clothing for her to take on that visitation which occurred over 3 years ago. Also, Katie frequently has told me specifically not to pack a bathing suit for her since she said that her father had bought one for her and that she therefore did not need to bring a second one with her."

Defendant, further, denies that she had failed to tend to her daughter's orthodontic needs, asserting that the child had simply refused to wear braces and threatened to rip them off if they were inserted prior to the conclusion of her school's gymnastics program. Defendant annexed a report from her daughter's orthodontist confirming this fact. She also points out that plaintiff, notwithstanding that he has claimed that his "door is always open to Katie", is only asking for Andrew's custody. Therefore, she states, "absolutely nowhere in his Affidavit does [the father] even attempt to address the problem of what would occur, not only to Andrew, but Katie as well, should these siblings be separated from each other". Defendant also counters plaintiff's complaints of a lack of adequate supervision of, and attention to, the children by setting forth in detail her daily schedule and submitting an affidavit from her housekeeper, as well as reports by Dr. Donald Marcuse, a child psychiatrist, and Dr. Fred Pine, a child psychologist, attesting to the fact that the bed wetting, nightmares and other such incidents are over. Indeed, Dr. Marcuse describes Andrew as being a healthy child whose emotional difficulties are largely in the past and were caused by the stress of his parents' divorce.

Finally, defendant asserts that her former husband's monetary hardship is entirely self-created in that he is presently living a lavish lifestyle, "far superior in a financial sense from mine," wherein he has managed to save over $90,000 over the past four years. She cites the discrepancies apparent in plaintiff's Net Worth Statement as opposed to the schedule of expenses filed in connection with his bankruptcy petition. To support her allegation, defendant has annexed copies of plaintiff's handwritten notations which, she states, reflects his true income from his referral practice at Westchester County Medical Center rather than the amount claimed by him. In fact, defendant urges, plaintiff's conduct amounts to bankruptcy fraud in that he has continued to deposit funds into a supposedly defunct office account from moneys received from pre-filing receivables. According to defendant, "the only reason he declared bankruptcy, by his lawyer's admission to the Bankruptcy Court, was to allow him to try and discharge his obligation to pay $51,000.00 to me via Equitable Distribution." However, since child support obligations and arrears are not dischargeable in bankruptcy, plaintiff has "seen fit to withhold present payment of child support", and she is now allegedly receiving no child support payments of any kind from him. Plaintiff, it should be noted, disputes many of defendant's claims in his reply affidavit.

In denying in full plaintiff's application, the Supreme Court determined in part:

The Court has read not once, but twice, the movant's massive submission in an attempt to locate any sound predicate justifying even a hearing on the change issue. In light of the medical and other affidavits submitted by defendant, no such predicate is detected and a preliminary conclusion could be reached that the normal post-divorce syndrome of depression, blame and acting out often experienced by children in this age bracket and perhaps even exacerbated by pressures placed on the child (including knowledge...