Trapp v. Trapp

• Decision Date: 24 March 1988
• Citation: 526 N.Y.S.2d 95,136 A.D.2d 178
• Parties: Peter J.R. TRAPP, Plaintiff-Respondent, v. Regina A. TRAPP, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 95

526 N.Y.S.2d 95

136 A.D.2d 178

Peter J.R. TRAPP, Plaintiff-Respondent, v. Regina A. TRAPP, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 24, 1988.

Jeffrey Berke, of counsel (Peter J. Unger, with him on the brief, Alfieri, Frohman, Unger & Primoff, New York City, attorneys), for plaintiff-respondent.

Carlos Ricca, of counsel (Joel S. Sankel, with him on the brief, Sankel & Skurman, attorneys), New York City, for defendant-appellant.

Before SANDLER, J.P., and SULLIVAN, CARRO and SMITH, JJ.

SULLIVAN, Justice.

This appeal is from a modification of a judgment of divorce to provide for joint decision-making over the upbringing of the three infant children of the marriage concerning a host of items such as choice of schools, psychological or psychiatric treatment, counseling, doctors and surgeons, religion and citizenship. Since the parents continue to be severely antagonistic towards each other, such an arrangement is, in our view, fraught with the potential for further and continuing discord and, thus, is inimical to the best interests of the children. Accordingly, we limit the joint decision-making arrangement to religion and citizenship only, and modify accordingly.

Under the original terms of the stipulation of settlement, incorporated by reference into the judgment of divorce, the wife was granted custody of the children, Sophia, age 16, Alexander, age 12, and Olivia, age 9, subject to visitation by the husband, as expressly provided. By their own admission the parties are wealthy and live in relative comfort.

The divorce proceeding has been marked by the inability of the parties, who barely speak to each other, to agree on any issue without resort to the judicial forum. In the almost four years since the commencement of these proceedings, in addition to two Family Court actions, there have been approximately thirty motions and cross-motions which, aside from those relating to the husband's repeated failure to pay maintenance and child support and to comply with discovery demands, have included such issues as the husband's refusal to permit Sophia, as a prelude to preparatory school, to study in Zermatt, Switzerland, where members of the wife's family still reside, as the wife, the child's school authorities and her psychologist had recommended. The issue was ultimately resolved in Sophia's favor, but only after protracted judicial proceedings, which apparently have had an adverse effect on the child. While Sophia's grades had suffered during the pendency of the divorce proceedings, her school work improved in Zermatt. In any event, regardless of the basis of his objection to the Zermatt school, it is alleged, and the husband does not deny, that he never accompanied Sophia to visit any of the preparatory schools in which she expressed an interest, or looked at any school catalogue. He has never inquired as to her preferences, and refuses even to consider any school suggested by the wife.

On other occasions, the husband failed to pay doctor bills and, even after being directed to do so by court order, refused to cooperate in the filing of medical insurance forms. He refused to permit one of the children to be evaluated for camp by the physician who had examined the child annually for six years before the commencement of the divorce proceedings, apparently because he thought the physician was allied with the wife. On another occasion, after stipulating that he would return the children's passports, he refused to do so, thereby jeopardizing the children's vacation plans. Again, judicial intervention was necessary. After one of their visits he refused to return the children's ski equipment and clothing, which the wife had to replace. He advised the children's school officials that any mail concerning them should be sent only to him.

Thirty-six hours before the wife was about to leave on a spring vacation with the children after giving him at least one month's notice, the husband, without any advance warning, obtained a court order allowing him to take the children on a ski vacation. Court intervention was also required when the husband refused to sign a letter required by the authorities in Mexico before the wife would be permitted to take the children to that country on a vacation.

After the wife sold her New York City apartment and purchased a home in Millbrook, New York, near where her husband lived, she decided to enroll the children in the Dutchess Day School, a private school only ten minutes away. The husband insisted that the children attend the Indian Mountain School, which was forty-five minutes away and inaccessible by private or public transportation. The wife believed that attendance at Indian Mountain would also frustrate the children's efforts to make friends locally. As recently as the summer of 1987, on the only weekend on which visits were allowed at the son's summer camp, the husband deliberately thwarted the wife's visit after she had made a four-hour trip, by secreting the child at a neighbor's house.

Joint legal custody, or joint-decision making, as the husband characterizes it, is to be distinguished from joint physical custody, where the children live alternately with both parents. In joint legal custody, which is the case here, although the children actually live with only one parent, both parents continue to share the same rights and responsibilities as they did during the marriage to participate in the decisions affecting their children. In this situation, the day-to-day child reari decisions are made by the parent with whom the children are living, while decisions with respect to the important issues, such as religious training, education and medical care, and sometimes even less significant matters, such as discipline, diet and the choice of a summer camp, are jointly made. (See, "Why Joint Custody Doesn't Always Work," Changing Time, July 1984, p. 59; see, also "Joint Custody: A Jaundiced View," Gary N. Skoloff, Trial, March 1984, pp. 52-53.) In any event, both arrangements constitute a form of joint custody. As the court in Dodd v. Dodd, 93 Misc.2d 641, 644-645, 403 N.Y.S.2d 401, recognized, "[T]here has been no uniform application of the term 'joint custody' and no single arrangement which results when a joint award is made."

The benefits and shortcomings of joint custody have been widely debated. ( See, Dodd v. Dodd, supra, 93 Misc.2d at 645-647, 403 N.Y.S.2d 401 for a collection of authorities; see, also, Foster and Freed, Law and the Family--New York, Vol. 2, Cumulative Supplement, February 1987, sec. 29: 6A, pp. 674-694; Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modification, 65 Cal L Rev 978, pp. 1009-1010; see, generally, "Split", "Divided", or "Alternate" Custody of Children, Ann., 92 ALR2d 695.)...