A.P. v. F.L., No. 471/2012.

CourtUnited States State Supreme Court (New York)
Writing for the CourtELISA S. KOENDERMAN, J.
Citation72 N.Y.S.3d 516 (Table)
Parties A.P., Plaintiff, v. F.L., Defendant.
Docket NumberNo. 471/2012.
Decision Date15 November 2017

72 N.Y.S.3d 516 (Table)

A.P., Plaintiff,
v.
F.L., Defendant.

No. 471/2012.

Supreme Court, Queens County, New York.

Nov. 15, 2017.


Attorney for Plaintiff: Plaintiff proceeded pro se.

Attorney for Defendant: Patricia Lynch.

ELISA S. KOENDERMAN, J.

After a consolidated matrimonial and family offense trial as well as an inquest on grounds, the court grants Plaintiff a judgment of divorce; awards Defendant an order of protection; awards Defendant sole legal custody and physical custody of the children; denies Plaintiff visitation; awards Defendant maintenance and child support; appoints a receiver to sell the marital residence; and equitably distributes the net proceeds of the sale thereof.

Procedural History

Plaintiff filed the instant action for divorce on January 9, 2012. On July 24, 2012, the court granted Defendant a temporary limited order of protection1 against Plaintiff. On August 30, 2012, Plaintiff was arrested and charged with criminal contempt and related offenses. Both the divorce and criminal actions then were transferred to the Integrated Domestic Violence Part ["IDV"]. Plaintiff subsequently was arrested and charged with criminal contempt and related offenses on three additional occasions in January 2013, February 2013 and April 2013. These cases also were transferred to IDV where the criminal actions were consolidated and the charges were reduced for a bench trial. A different judge acquitted Plaintiff on January 30, 2015.

On February 15, 2015, Defendant filed a family offense petition for the February 2013 incident, which was transferred to IDV to join the divorce action.

On March 13, 2017, Plaintiff filed a note of issue and certificate of readiness in the divorce action.

On March 29, 2017, the court consolidated Defendant's family offense petition with the divorce action.

On July 11, 2017 and July 12, 2017, the court conducted an inquest on grounds and a trial on all other issues in the divorce action as well as on the family offense petition.

On July 14, 2017, the court conducted a Lincoln hearing at which the parties' children testified.

Three different attorneys have appeared on Plaintiff's behalf in the divorce action. On August 20, 2014, the court granted his last attorney's request to be relieved due to a breakdown in communication. Thereafter, Plaintiff represented himself pro se2 . Although four different attorneys also have appeared on Defendant's behalf, counsel has represented her throughout the proceedings.

The Inquest

Plaintiff testified that he and Defendant married on May 23, 1992 in Queens County; that they conceived two children, S.P. [D.O.B. 10/23/99] and N.P. [D.O.B 3/26/05]; that his relationship with Defendant had irretrievably broken down for at least six months before he filed for divorce; and that he was not seeking maintenance or child support.

The Trial

Plaintiff's Case

John P's Testimony

John P is Plaintiff's brother. Before the divorce action began, Plaintiff had a "perfect" relationship with his children as well as "a perfect family life according to what I saw" (30). After the divorce action began, John P only saw S.P. a few times in court and once in the hospital when she was having an appendix operation. When he approached S.P. in court "she was not welcoming" (33). He was "lucky enough to spend time" with N.P. in 2012 and 2013 during Plaintiff's weekend visitations (34–35). After that Plaintiff had no visitation rights and John P had "zero interaction" with the children (36). John P identified some pictures of N.P. taken during Plaintiff's visitation. He said that a picture of N.P. taken just before Plaintiff returned him to his mother shows a change in his expression from happy to "sad," "hesitant," and "scared" (45–46).

Plaintiff's Testimony

Plaintiff filed for divorce in January 2012 because Defendant's behavior became unhealthy for the children. The court initially granted him temporary sole custody of the children, whom he lived with in the marital residence. After seeing "the demise in their face" [sic ] (55) he allowed Defendant to return to the residence. On a Sunday morning on March 11, 2012, after spending the weekend in bed, Defendant became "very agitated" and threw a vase at him (57). S.P. previously had moved out to live "on and off" (60) at her grandparent's apartment and N.P. was the only child present. Defendant called the police, who arrested her when they saw the scratches on Plaintiff's neck. Plaintiff then received an order of protection against Defendant which excluded her from the marital residence.

After Defendant's arrest, S.P. went to live with her mother at her grandparents' apartment "full-time" and "slowly [N.P.] was taken away as well" (61). Plaintiff claimed that "some degree of alienation was happening" (61). As of the May 31, 2012 court date, he had not seen N.P. for five weeks.

Plaintiff stayed at the marital residence through the end of July 2012. On the July 24, 2012 court date, Plaintiff "kind of voiced myself [sic ] that the kids are sleeping on the floor in one-bedroom apartment [sic ] at her parents, and I voiced myself to the Judge and I agreed that, you know, best they take the house, and I move out for the sake of the kids until we can sell the house and there is a trial" (62). Afterwards, "everything went to hell" (62). On August 26, 2012, after he had dropped off N.P. at the marital residence, Defendant made a complaint at the 109 Precinct that he "hit her hard against the fence" (64). Plaintiff was "cleared of any charges" (64) after a trial two-and-a-half years later.

In September 2012, at a precinct exchange of N.P., Defendant prevented N.P. from coming to Plaintiff by holding him with her arms around him. N.P. "was crying" and was "terrified" (74). By September 2012, Plaintiff was no longer speaking to S.P., who was like a "stranger" (67) to him. His relationship with N.P. also "was worsening" (67). On the October 23, 2012 court date, he agreed to buy N.P. a cell phone so that he could speak to him every day. Nevertheless, "communication got dimmer and dimmer" so that by the January 28, 2013 court appearance he had not spoken to N.P. "75 percent of the time" (70).

In December 2012, when he went to N.P.'s Christmas recital, Defendant "came right behind me on the mezzanine flashing a cell phone in my face" and then called the police (78). In January 2013, at a precinct exchange of N.P., Plaintiff was arrested after Defendant complained that he pointed his finger and threatened her. The case also "was dismissed two-and-a-half years later" after trial.

On January 26, 2013, when he was at Toys R Us with N.P. during a visit, Plaintiff removed N.P.'s hat and saw that his ears were bruised. He took pictures and sent them to his lawyer. On the January 28, 2013 court date, Plaintiff "received [N.P.'s] cell phone in pieces in this courtroom" (79). He said that the judge "at the time decided not to allow another phone. So that cut me off communication [sic ] with [N.P.] completely" (79).

On February 8, 2013, a Friday night, N.P. called Plaintiff and told him not to pick him up for visitation the next day because of a blizzard forecast. On February 9, 2013, Plaintiff was arrested for "an accident" which occurred at the marital residence where Plaintiff was "being very hurtful" to Defendant (83). "Again, [Plaintiff] was cleared of that charge two years later" (83).

Plaintiff requested a forensic evaluation by Dr. Steinberg because he was "overly concerned of what was happening at the time ending 2012," he "was totally alienated from the kids" and "wasn't seeing neither [sic ] kid" (84). He last saw N.P. on March 9, 2013 during a precinct exchange and he last saw S.P. on November 29, 2012 or November 30, 2012 when he went to visit her at the hospital after she had her appendix removed.

Plaintiff is in debt which is why "at some point I stopped having a lawyer and I'm pro se" (87). He explained that "there is a lawyer that supports as consultant [sic ], a lawyer that supports my efforts here ... but it doesn't cost me as much as it did before" (87). He pays $2,200 a month in credit card bills. He understands that the marital residence is in foreclosure. He paid his two-thirds share of the monthly mortgage payments for the first two years after the divorce action began but he "was drained between the legal and paying $4,000 plus child support plus trying to have an apartment" (88).

Plaintiff has "a very good job," however (88). His "ballpark" salary is $207,000 per year and he receives a yearly bonus of "a third" of his salary (90). He pays $1,600 per month rent, and has been paying $1800 per month child support for the past five years.

Dr. Neil Edgar Busuttil's Testimony

Dr. Busuttil is a Unit Chief at Kings County Hospital as well as a professor of psychology at Manhattan College. He received a PhD in psychology from Yeshiva University, Albert Einstein School of...

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