Rosenstock v. Rosenstock
| Decision Date | 06 December 2016 |
| Citation | 50 N.Y.S.3d 28 (Table) |
| Parties | ROSENSTOCK, Plaintiff, v. ROSENSTOCK, Defendant. |
| Court | New York Supreme Court |
Deborah G. Fiss, Esq., for plaintiff.
Peter Lomtevas, Esq., for defendant.
This contested matrimonial action was tried after many years of bitter and acrimonious litigation exclusively concerning the parties' two children, twins. The marriage was of significantly less duration (18 months) than the litigation before this Court which was obligated to conduct several hearings and interim inquiries before a trial on all ancillary issues could be held. Rarely, if ever, has the Court been able to say with such confidence that the delay and level of complexity is to be blamed on one party. These proceedings, discussed in detail below, and caused primarily by the Mother's duplicitous behavior hindered the Court's ability to conclude the underlying divorce action. In the instant action, it is primarily the result of the Mother's conduct as she presented a never-ending supply of stories and explanations which appeared plausible but ultimately proved untrue. What follows below is the relevant trial testimony and recapitulation of the earlier proceedings conducted by the Court that have bearing on the decisions made herein.
The Father commenced this divorce action against the Mother by filing a summons with notice on June 16, 2011. The Father sought a divorce on the grounds of irretrievable breakdown of the marriage (DRL § 170[7] ) and sought joint legal custody of the two children of the marriage, with liberal parenting time for the Father, and equitable distribution of the marital debt. The Father was represented by Deborah G. Fiss, Esq., who remained his counsel throughout, and Chemtob Moss Forman & Talbert, LLP by Jeremy G. Betherl, Esq. filed a notice of appearance as attorney for the Mother on July 11, 2011.1 A Request for Judicial Intervention was filed on July 26, 2011. Both parties engaged in an extraordinary amount of motion practice, some of which was essential while others merely burdened the Court.
The parties appeared on September 13, 2011 for a preliminary conference, the Mother now represented by Boris Nikhman, Esq. In the preliminary conference order, the parties stipulated that the Father would take the divorce on the ground of irretrievable breakdown of the marriage pursuant to DRL § 170(7). The Court also issued an access order, on consent, granting the Father parenting time on Thursday afternoons and alternate weekends and the Court ordered the parties to attend parent education. Regarding the parties' circumstances at the time, the Father represented to the Court that he graduated medical school and was currently in a residency program. The Mother represented that she was a medical student and anticipated starting her residency thereafter. Throughout these early proceedings, the Father disputed the Mother's representation to the Court that she was a matriculated medical student.
On November 21, 2011, the Mother filed an order to show cause requesting, inter alia, pendente lite orders that the Father pay one half of the child-care expenses, and for temporary maintenance, and attorney's fees (mot.seq.No.1). On November 22, 2011, the Court issued an order appointing Brad Nacht, Esq. as attorney for the children and directed that the parties share the costs of same equally and directed that funds be deposited into an attorney escrow account for this purpose.
On December 28, 2011, the Father filed an order to show cause seeking to hold the Mother in contempt for her failure to comply with the September 13, 2011 access order, as the Father alleged that the Mother had not permitted him to see the children from the first week of November 2011 through the time of the filing (mot.seq.# 2).
On the return date of the motion, February 1, 2012, the parties appeared and the Court issued orders that the Father was to have parenting time with the children, supervised by a certified social worker who would provide a report to the Court. The Mother was to provide the children's school and daycare schedules and proof of why childcare was necessary. On February 10, 2012, the Court appointed Eileen Montrose, CSW, to supervise the visits. The supervised visitation was ordered on the Father's consent, the purpose of supervision being to ease the young children (approximately 1.5 years old) into regular contact with the Father, as the Mother had withheld contact between the Father and the children for several months. Several visits were conducted, however some were canceled by the Mother.
The parties next appeared on March 20, 2012, on which date the Court received a written report regarding the supervised visits, and the Court issued an order that the Father resume the unsupervised alternate weekend parenting time schedule and pay bi-weekly child support to the Mother in the amount of $500, calculated based on his income as a medical resident at that time.
The Mother's pendente lite application (mot.seq.# 1) was withdrawn without prejudice by order dated July 20, 2012, and the Mother was directed to submit a financial disclosure statement. On the same date, the Court issued a temporary parenting access order for the Father to have visitation on July 21, 2012, and for the previous parenting time order to continue the following week. Thereafter, on July 23, 2012, the Mother filed three pro se orders to show cause requesting a money judgment for child support arrears, an order for the Father to pay the Mother's counsel fees and for the Court to appoint her an attorney, and an order for temporary relief, including custody, maintenance, and child support (mot. seqs. # 4, 5, and 6 respectively) and an application for a poor person's order. The Court issued an order on July 24, 2012 declining to sign the Mother's pro se orders to show cause and poor person's request in light of the Mother's failure to file a consent to change attorney (from Boris Nikhman, Esq. to herself pro se ). The Court received a signed substitution of counsel from the Mother on July 25, 2012, however the Mother did not refile her motions.
As facilitation of the Father's access to the children remained problematic, the Court scheduled a hearing on the Father's contempt application for August 9, 2012 (mot.seq.# 2). On that date, the Father appeared with counsel, Mr. Nacht, Esq. appeared on behalf of the children, and the Mother failed to appear. She called to notify the Court that she was in Wisconsin for her grandfather's funeral and requested an adjournment. The Mother was given an opportunity to provide documentation of the death and funeral but failed to do so, and therefore her request was denied. The hearing proceeded in the Mother's absence with the testimony of the Father, the substance of which is addressed in detail in below. The Court issued an order adjourning the matter for a decision on the contempt motion to September 10, 2012, and permitting the Father to resume the March 20, 2012 access schedule for alternate weekend unsupervised parenting time. The order was directed to be served on the Mother by certified and regular mail to both a New York and Wisconsin address provided to the Court by the Mother (see August 9, 2012 order on contempt hearing).
On the adjourn date of the contempt hearing, September 10, 2012, the Father appeared with counsel, Mr. Nacht, Esq. appeared on behalf of the children, and Maria Novak, Esq., appeared for the Mother, and submitted a notice of appearance for the Mother on that day. The Court issued a written decision and order finding that the Mother was in contempt of the Court's September 13, 2011 order for parenting time. In the decision, the Court directed the Mother to forthwith return to New York with the children and to provide the Court with a verifiable address. The order stated that the Mother could purge the contempt by returning to New York and complying with the access order. The Court further granted the Father's parenting time supervised by a certified social worker two times per week, as the Father had not seen the children for an extended period of time and he requested supervision to ease the adjustment for the children. The Court issued an order appointing Dr. Bernice Schaul to conduct a forensic evaluation (see September 28, 2012 order).
On December 13, 2012, upon the Mother's continued failure to produce the children to the Father or the Attorney for the Children, the Court found that the Mother failed to purge the contempt of the Court's September 10, 2012 order. The Court issued an order granting temporary physical and legal custody of the children to the Father, and permitting the children to reside at the Father's residence. The Court further ordered a warrant for the arrest of the Mother, and ordered that the appropriate law enforcement agencies assist the Father in effectuating the change in custody.2
On January 11, 2013 the Court was informed by the New Jersey Court that the children were in the care of the maternal grandmother and were currently located in Brooklyn, New York. The Court directed the Father to retrieve the children and appear before the Court with the children. Upon the successful retrieval of the children, the Court then issued an order granting temporary physical and legal custody of the children to the Father, and permitting only video conferencing access to the Mother twice daily. Thereafter, the warrant for the Mother's arrest was vacated. The Court issued a separate order on this date, pursuant to Judiciary Law § 35 Subdivision 8 and Family Court Act § 262, appointing Cheryl Solomon, Esq., to represent the Mother in this matter regarding all issues of custody, visitation and contempt, as the Mother submitted a signed consent to change attorney from Maria Novak, Esq. and was proceeding pro se.
The parties and counsel appeared on January 17, 2013, and the Court directed the Mother to provide the Father with information...
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