T.H. v. G.M.
| Docket Number | XXXXXX/2022 |
| Decision Date | 14 November 2023 |
| Parties | T.H., Plaintiff, v. G.M., Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Attorney for Plaintiff: Firm Name: ISHELLI OLIVER, ESQ
Attorney for Defendant: Firm Name: Law Office of Crystal Beaumont
Attorney for Chile(ren): Melissa Studin Young
The following papers have been read on these motions:
Plaintiff's Order to Show Cause dated September 7, 2023.......... x
Defendant's Notice of Cross-Motion dated October 5, 2023......... x
Plaintiff's Opposition & Reply dated October 24, 2023....... x
Defendant's Reply dated November 2, 2023......... x
Affirmation of Attorney for the Child dated November 7, 2023......... x
The Plaintiff moves by Order to Show Cause dated September 7, 2023 (Motion Sequence No.: 002) seeking an Order: (1) Granting Plaintiff pendente lite residential custody of J.H.M. whose date of birth is XXXX XX, 2008, who is the child of the marriage; (2) An order directing the defendant to pay pendente lite child support for J.H.M. together with the pro rata share of his educational expenses pendente lite; (3) Granting Plaintiff exclusive use, occupancy and possession of the marital residence and its contents during a pendency of this action pursuant to DRL 234; (4) Directing the Defendant to pay the following expenses pendente lite: 100% of the 2021 GLE Mercedes Benz lease in the amount of $1,131.89 per month, 100% of the auto insurance for the 2021 GLE Mercedes Benz in the amount of $403 per month, 100% of the TIAA loan number xxxxx4002 in the amount of $670.45 monthly, 100% of the Citibank personal loan number xxx 7021 in the amount of $412.64 monthly, and 100% of the Citibank Personal loan number xxxxx4409 in the amount of $825.29 on the first day of every calendar month pursuant to DRL 236 and 240; and (5) Granting the plaintiff counsel fees for the filing of this motion pursuant to DRL 237; and (6) For such other and further relief as this Court may deem just and proper.
The Defendant cross-moves by Notice of Cross-Motion dated October 5, 2023 (Motion Sequence No.: 003) seeking an Order: (i) awarding Defendant temporary relief pursuant to Domestic Relations Law 236 and 240; (ii) granting Defendant pendente lite custody of J.H.M., born on XXXX XX, 2008, who is a minor child of the Parties' marriage; (iii) directing the Plaintiff to pay pendente lite basic child support for J.H.M., on the grounds that the Parties share the same residence, spends equal amount of time with the child and that Plaintiff has the higher income and thus should be deemed the noncustodial parent for child support purposes; (iv) further directing the Plaintiff to pay pendente lite spousal maintenance to the Defendant; (v) directing the Plaintiff to pay the following expenses directly to the Defendant pendente lite - 100% of the remaining lease payment in the amount of $1,131.89 per month for the 2021 GLE Mercedes Benz, leased in Plaintiff's name, 100% of the auto insurance for the 2021 GLE Mercedes Benz in the amount of $403.00, 100% of the TIAA loan (ending in xxxx4002), in the amount of $670.45 monthly, 100% of the Citibank personal loan (endiong xxxx7021) in the amount of $412.64 monthly, and 100% of the Citibank personal loan (ending xxxxx4409) in the amount of $825.29 monthly, each due by the first day of every calendar month pursuant to Domestic Relations Law 236 and 240; (vi) awarding attorney fees to the Defendant pursuant to Domestic Relations Law 237; and (vii) for other reliefs that the Court deems just and proper.
The parties were married on XXXX XX, 2001. The parties have one child, to wit: J. (born XXXX XX, 2008). This action was commenced by the filing of a Summons and Verified Complaint with the Nassau County Clerk's Office on or about September 23, 2022. The Defendant interposed a Verified Answer on or about October 21, 2022. The parties appeared before this Court for a Preliminary Conference on December 2, 2022, and a Preliminary Conference Stipulation & Order was so ordered by this Court on December 8, 2022 (Hon. Edmund M. Dane, J.S.C.). On April 17, 2023, this Court issued an Order Appointing Attorney for the Children whereby it appointed Melissa Studin Young, Esq., as attorney for the child (hereinafter referred to as the "AFC"). On April 24, 2023, this Court issued a Decision and Order (with respect to Motion Sequence No.: 001) wherein it, inter alia and in sum and substance, denied the Plaintiff's application for counsel fees without prejudice and with leave to renew upon the submission of proper papers.
Plaintiff's Contentions:
The Plaintiff argues that prior to the commencement of this action, she lived at her mother's home at XXXX (hereinafter referred to as the "Freeport Premises") with the child, her mother, and the Defendant. She argues that the Defendant demonstrated aggressive behavior towards her and the child, who is almost fifteen (15) years old. She sets forth that she is employed in an administrative position and the Defendant is employed as a financial advisor. She argues that the Defendant's presence in the Freeport Premises creates acrimony and makes her and the child feel unsafe. She argues that after serving the Defendant with the Summons in this action, he became belligerent. She argues that the Defendants' tax returns reflect that he is residing at another residence in Rockville Centre, New York, that he has sufficient resources available to himself to secure another residence, and he frequently leaves the Freeport Premises, only to return late at night. She argues that when he returns late at night, he disturbs her rest and the child's rest and causes the security alarm to go off. She argues that the Defendant has ripped the covers off of her when she lays in bed. She argues, in effect, that the Defendant never assisted the child with his homework, never prepared meals for the child, never took the child to his activities, and often goes days without seeing the child. She argues that the Defendant talks to the child about this divorce action. She argues that the Defendant was stalking her on January 29, 2023. She argues that the Defendant enters the child's personal space by entering his room without knocking, and forces the child to wake up at 11:00 p.m. to "anoint" him. She argues that the Defendant's text messages demonstrate the toxic and unsafe environment in the home. She argues that various loans were taken out during the parties' marriage and the Defendant, in effect, is not contributing thereto. She sets forth that the child attends XXXX which is a private high school costing $36,500 per annum and the Defendant does not contribute thereto.
Defendant's Contentions:
The Defendant concedes that the child attends private high school XXXX and concedes that the child is involved in basketball, soccer, baseball, stage crew, tutoring, ELA and math. He argues that for years, he was the sole parent who took the child to and from school. He argues that during their marriage, the parties lived at the Freeport Premises, and he was invited to live in that home by the Plaintiff's mother. He argues that the Plaintiff's real "goal" is to have him removed from the Freeport Premises. He argues that the Plaintiff and her mother have spread false rumors and lies about him and that they are disparaging him. He argues that the Plaintiff has disrupted his relationship with the child by encouraging him to place a lock on his door. He argues that he wants the child to have the mental, spiritual and physical capacity to be an upright citizen in society. He sets forth that he has been a member of the Church for eight years and was appointed a Deacon. He argues that he used to have a routine prayer at night with the child, but this has ceased since the lock was put on the child's door. He denies making any threats, and denies engaging in harassing behavior. He sets forth that he is not a financial advisor; rather, he is a financial sales consultant. With respect to his income, he sets forth that in 2020, his profit and loss statement showed $60,602 before business expenses. He sets forth that in 2021, he had income of $91,696.00 with actual income of only $56,896 before business expenses. He sets forth that in 2022, he had business income of $22,329, before business expenses.
Plaintiff's Opposition & Reply:
The Plaintiff disputes that the Defendant solely took the child to school. She denies disparaging the Defendant. She argues that the Defendant has not contributed to the child's well-being. She argues that the Defendant offers no viable explanation for his lack of income. She argues, in effect, that the Defendant seeks to live rent free and not contribute to any financial obligations of the parties. She argues that the Defendant is overbearing. She argues that the Defendant walks into the bathroom when the child is undressed, enters the child's room after 11:00 p.m. and tries to "anoint" the child. She argues the child dislikes this. She argues that she placed a lock on the door to give the child the option of having privacy.
Defendant's Reply:
The Defendant argues that the Plaintiff is the monied spouse and earns more than he does. He reiterates many of the allegations regarding his income and expenses. He reiterates that he denies creating discord in the Freeport Premises. He argues that there is a psychological impact of placing a lock on a child's door, and that she has encouraged the child not to speak with him in Church. He argues, in effect, that the Plaintiff's actions have driven a wedge between his relationship with the child and that he is the more fit parent to serve as the child's primary caregiver. He sets...
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