JM v. RM
| Decision Date | 01 November 2022 |
| Docket Number | Index No. XXXXXX/2020 |
| Parties | JM, Plaintiff, v. RM, Defendant. |
| Court | New York Supreme Court |
177 N.Y.S.3d 868
JM, Plaintiff,
v.
RM, Defendant.
Index No. XXXXXX/2020
Supreme Court, Nassau County, New York.
Decided on November 1, 2022
Attorney for Plaintiff: Charles J. Ferzola Address: 520 Franklin Ave Ste L21e, Garden City, NY 11530, Phone: (516) 333-2006
Attorney for Defendant: Simonetti & Associates Address: 575 Underhill Blvd Ste 127, Syosset, NY 11791, Phone: (516) 248-5600
Attorney for the Child: Patricia Miller Latzman Address: 114 Old Country Rd Ste 600, Mineola, NY 11501, Phone: (516) 746-0643
Edmund M. Dane, J.
PRELIMINARY STATEMENT
The Attorney for the Child, Patricia Latzman, Esq., moves by Notice of Motion dated August 31, 2022 (Motion Sequence No.: 010) seeking an Order: directing that a trial retainer of $15,000 be paid to Patricia Latzman, Esq., the attorney for the child by the parties in accordance with the Order of Appointment on or before October 15, 2022 with regard to the pending trial which is being scheduled by the Court at our next court appearance; and granting such other and further relief as this Court deems just and proper.
BACKGROUND
This action for divorce and ancillary relief was commenced by the filing of a Summons with Notice with the Nassau County Clerk's office on June 16, 2020. Inasmuch as this application is one by the AFC seeking a trial retainer, for the purposes of this application, a review of the procedural posture of this case warrants discussion herein as the Court deems same relevant to its determination herein.
The Defendant initially appeared pro se. The Plaintiff appeared through counsel, Philip Lights, Esq. On June 25, 2020, the Defendant, pro se, filed an Order to Show Cause (Motion Sequence No.: 001) seeking, inter alia, temporary legal and physical custody of XX, and an order of the return of the child to the marital residence located
at XXXX, Westbury, New York. On July 5, 2020, the law firm of Manners & Malone, PLLC, was retained by the Defendant as his counsel. On July 6, 2020, this Court appointed Melissa Studin Young, Esq., as attorney for the child, XX. On July 6, 2020, this Court, inter alia, directed that the Plaintiff return the child, XX, to Nassau County on or before July 14, 2020 and directed that neither party relocate outside of Nassau County with the minor child absent an order of this Court or written consent of the parties.
On August 28, 2020, a second Order to Show Cause (Motion Sequence No.: 002) was filed by the Defendant seeking, inter alia, legal custody for educational purposes. On September 1, 2020, this Court issued a Short Form Order which, inter alia, directed both parties to utilize their best efforts to have XX accepted and enrolled at Stonybrook for the 2020-2021 school year, but if the school refused to accept the child, then the Defendant was to have custody for educational purposes only, and solely for the purpose of enrolling the child at Holy Family Middle School.
On October 2, 2020, the Defendant executed a Consent to Change Attorney, substituting Wisselman, Harounian & Associates, P.C., in place and stead of Manners & Malone, PLLC. On October 5, 2020, the Plaintiff filed an Order to Show Cause (Motion Sequence No.: 003) seeking, inter alia, temporary legal and physical custody of the child. On November 24, 2020, the Defendant filed an Order to Show Cause (Motion Sequence No.: 004) seeking, inter alia, pendente lite custody, supervised access between the Plaintiff and XX, and reunification therapy between the Defendant and XX. On November 30, 2020, this Court issued a Short Form Order granting that portion of the Defendant's Order to Show Cause (Motion Sequence No.: 004) which sought reunification therapy and referred all other branches sought therein to a hearing.
On January 20, 2021, Charles Ferzola, Esq., was substituted in place and stead of the Plaintiff's then-counsel, Philip Lights, Esq. On February 22, 2021, the Defendant again filed an Order to Show Cause (Motion Sequence No.; 005) seeking, inter alia, interim educational custody, an order that the child continue to physically attend school at XXX, and an immediate hearing on the issues of pendente lite custody and the request for supervised access. On March 23, 2021, this Court issued an Order Appointing Mental Health Professional, appointing Dr. Nicole Berman, Psy.D. as a forensic evaluator to conduct a comprehensive mental health evaluation.
On September 20, 2021, this Court issued a Short Form Order which directed, inter alia, that visitation between the Defendant and XX was to take place at Kids in Common every Saturday from 11:15 a.m. to 12:15 p.m. On November 24, 2021, this Court issued a Short Form Order directing that the Defendant enjoy unsupervised parenting time with XX on Thanksgiving Day, 2021, and on November 27, 2021. On November 29, 2021, this Court issued a Short Form Order which directed, inter alia, that the Defendant has unsupervised parenting time with XX at the paternal grandparent's home in New Jersey every Saturday from 10:00 a.m. to 6:00 p.m., and that as long as the child is visiting with the Defendant pursuant to that Order, the Order directing visits at Kids in Common was temporarily suspended.
On January 14, 2022, the Defendant filed an Order to Show Cause (Motion Sequence
No.: 006) seeking, inter alia, an adjudication of contempt against the Plaintiff, immediate full temporary legal custody of XX, including immediate temporary residential custody and immediate temporary full decision-making authority, an expedited hearing on the issue of legal custody, to suspend the Plaintiff's contact with XX except for court ordered supervised or therapeutic access, and an order that the prior AFC substitute her judgment at the time of trial due to parental alienation. On January 14, 2022, the Defendant's prior counsel, Wisselman, Harounian & Associates, P.C., sought leave of court for a security interest in the parcel of real property located at 64 Waterbury Lane, Westbury, New York.
On February 18, 2022, the prior AFC, Melissa Studin Young, moved by Notice of Motion (Motion Sequence No.: 008) seeking to be relieved as counsel for XX and sought the immediate appointment of a new AFC. The Defendant opposed this motion. On March 28, 2022, this Court issued a Decision and Order which, inter alia, granted the application of Melissa Studin Young, Esq., to be relieved as counsel for XX. By Separate Order Appointing Attorney for the Child dated March 29, 2022, this Court thereupon appointed Patricia Latzman, Esq., as attorney for XX. On June 8, 2022, the Defendant's prior counsel, Wisselman, Harounian & Associates, P.C., moved by Order to Show Cause (Motion Sequence No.: 009) seeking, inter alia, to be relieved as counsel for the Defendant. On June 9, 2022, the Defendant executed a Consent to Change Attorney form, substituting Simonetti & Associates in place and stead of Wisselman, Harounian & Associates. On September 9, 2022, the Defendant filed with the Court a Note of Issue & Certificate of Readiness. This Court has set this matter down for trial, which is set to commence on January 23, 2023, and is to continue on January 24, 2023, January 25, 2023, January 26, 2023 and January 27, 2023.
On October 25, 2022, the Defendant herein filed, under a separate plenary proceeding entitled In the Matter of the Application of RM, Petitioner, For a Writ of Habeas Corpus with Respect to Custody and Visitation of XX, born on XXX,XX,XXXX, against JM, Respondent, under Index No.: XXXXXX/2022, a Petition for Writ of Habeas Corpus. This Court signed the Writ of Habeas Corpus on October 26, 2022, and directed that the subject child be produced to this Court on November 17, 2022 at 9:30 a.m.
DISCUSSION
The AFC's Contentions:
The AFC sets forth that she was appointed by this Court to represent XX on March 29, 2022. The AFC argues that the Defendant refuses to settle this matter, and it is highly unlikely that this matter will be resolved, with many days of testimony forthcoming. She sets forth that this testimony will include the testimony of the forensic evaluator. She argues that as of the date of her Affidavit, her retainer has not fully been paid, and there is an outstanding balance due to her. She argues that if she does not receive a trial retainer, she will have to spend multiple hours preparing for trial and participating in same without being paid. She argues that the Defendant has retained two attorneys since her appointment, but has failed to pay his full share of her retainer. She argues that the Defendant is the monied spouse. She argues that her currently hourly rate is $350 per hour and a $15,000 trial retainer is appropriate.
Defendant's Opposition:
The Defendant argues that the AFC's request for a trial retainer is "not in the best interest of the child". He argues that the Plaintiff is suffering from mental illness and that she suffered horrific abuse as a child at the hands of her father. He argues that the Plaintiff's unfounded...
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