Decisions of Interest

Mother's and DSS's Actions Not One and the Same

Res judicata did not apply to stop a custody modification hearing because the mother was not a party when the department of social services unsuccessfully brought abuse charges against the father. In the Matter of Krista I. V. Gregory I., 2004 N.Y. App. Div. LEXIS 7540, (3d Dept. 6/3/04) (Cardona, P.J.).

Pursuant to the parties' judgment of divorce, the mother was awarded sole legal and primary physical custody of the children. The father received visitation rights of the children in 1999. In April 2001, the mother commenced this proceeding, pursuant to Family Ct Act article 6, seeking modification of the terms of the father's visitation, alleging child sexual abuse as the requisite change in circumstances. Thereafter, the Madison County Department of Social Services (hereinafter DSS) commenced a Family Ct Act article 10 neglect and/or abuse proceeding against the father. Family Court, however, found that DSS had failed to meet its burden of proof and eventually dismissed the petition.

By stipulation, the transcript of the article 10 hearing was made part of the custody modification record. After the hearing, Family Court found that the mother had met her burden of proof and determined that the children's best interests required suspension of the father's visitation rights until such time as he addressed his deviant behavior issues.

On appeal, the father argued that the doctrine of collateral estoppel barred the mother from alleging the same incidents of abuse that were previously litigated in the Family Ct Act article 10 proceeding. The court, noting that the father had failed to properly preserve this issue for appeal, nevertheless went on to state that the issues of custody and visitation in this proceeding were not identical to those in the abuse and neglect proceeding and that the mother and DSS did not share actual or functional identity as parties. Thus, it could not be said that the mother had a full and fair opportunity to litigate the issue of abuse during the Family Ct Act article 10 proceeding. Furthermore, given that the modification hearing wasn't a second abuse and neglect proceeding under article 10 and didn't cite the same allegations, the court disagreed with the father's contention that the doctrine of res judicata was applicable here.

Novel Burden-Shifting Stance Denied in Initial Custody Proceeding

A father who sought an initial award of custody in order to return with his children to their native Switzerland could not be required by the court to prove the move's benefits as though this were a custody modification proceeding. In addition, the wife had a duty to use her earning power to avoid the need for maintenance. Charpie v. Charpie, N.Y.L.J. 6/1/04, DOI Vol. 101; Pg. 18 (Sup. Ct., New York Cty.) (Drager, J.)

The parties are Swiss nationals who were married in Switzerland in 1984. They entered into a pre-nuptial agreement that resolved distribution of the assets. At the time of the marriage, each party had an established career: The husband was a lawyer in private practice and the wife was a pediatrician. The wife eventually opened her own practice.

The couple has four children, currently ranging in age from 13 to 19 years old. Until 1994, the family lived in Switzerland. Then, they moved to New York for what was intended as a 1-year adventure but turned into a stay of several years. The wife had arranged for another doctor to cover her patients while away for a year. When the U.S. stay was extended, she sold her practice. Initially, she did not work in the United States, but when her husband wanted to return to Switzerland in 1997, she obtained a position with a music conservatory and got her own work visa, which allowed her to stay in the United States. She filed for divorce in 1999.

On the issue of child custody, the wife and the law guardian argued that since the family had resided in New York for such an extended period, the court should consider the father's request for custody as a request to relocate with the children to Switzerland. The effect of such an analysis, they contended, would be to place the burden on the husband to prove by a preponderance of the evidence that relocation was in the best interests of the children. The court declined to take this posture, finding that because this case involved an initial custody determination, it could not be characterized as a relocation case. Nonetheless, the court determined that equal periods of physical custody for each parent were in the children's best interests, but, if the father intended to return to Switzerland, residential custody should go to the wife.

The wife was not, however, awarded the indefinite maintenance she requested because although she was earning very little at her job and had enjoyed a high standard of living during her married life, her current financial situation was of her own making. The wife presented no evidence that she was not immediately capable of supporting herself, nor that she suffered any loss of earning capacity as a result of the marriage. She alone decided to change her career, knowing full well that this change would decrease her earning capacity. From the evidence presented, based on an assessment of the wife's past earnings, educational background, and actual earning capacity, the court found that the wife had the ability to earn on her own sufficient income to achieve a lifestyle similar to that which she enjoyed during the marriage by using her medical degree, either as a practicing doctor or otherwise in the health care field. The court also found that the wife was immediately capable of earning $42,000 per year at the music conservatory.

Nonetheless, the court was satisfied that the husband was in a position to provide some maintenance to the wife for a short duration. Therefore, the wife was awarded maintenance of $1500 per month for a period of 4 years.

In Custody Dispute, Disregard of Recommendations Upheld

The Appellate Division, Third Department, declined to second-guess the determination of Supreme Court, Saratoga County, regarding award of sole custody to the father of a teen, although the boy wanted his mother to have sole custody and the Law Guardian and court-appointed psychologist recommended continued joint custody. Grandin v. Grandin, 2004 N.Y. App. Div. LEXIS 7543 (App. Div. 3d Dept. 6/3/04) (Cardona, P.J., Mercure, Crew III, Peters and Kane, JJ.).

Pursuant to a stipulation of settlement the parties had since 1999 shared joint legal and physical custody of their teenaged son on an alternating week basis. In August 2002, the child requested a change in his physical custody. Thereafter, defendant moved for an order modifying the judgment of divorce to grant her sole custody; the plaintiff father cross-moved for the same relief.

Supreme Court issued a temporary order awarding sole custody to defendant with alternate weekend and midweek overnight visitation to plaintiff. At trial, numerous witnesses testified, including the court-appointed psychologist; the child testified in a Lincoln hearing. The psychologist recommended that the existing joint custody arrangement be continued and the Law Guardian agreed, notwithstanding the child's wishes that his mother have sole custody. Supreme Court found a sufficient change in circumstances in the fact that the child's parents were hostile to one another, making joint custody unworkable. Therefore, despite the psychologist's and Law Guardian's recommendations, and in spite of the child's wishes, the court granted sole custody to the father.

On appeal, although the court noted that there were “glaring deficiencies in plaintiff's relationship with” his son — for example, he condoned the controlling household environment created by his new wife in which the rules set for the youngest child of seven years were the same as for the subject child, who was 16 years old — the court chose to defer to the findings and credibility assessments of Supreme Court. “While significant evidence supports the relief requested by defendant and the child,” the court concluded, Supreme Court's “determination is grounded upon adequate record support. Therefore, there is no viable basis upon which we can disturb the determination rendered.”

Mother's and DSS's Actions Not One and the Same

Res judicata did not apply to stop a custody modification hearing because the mother was not a party when the department of social services unsuccessfully brought abuse charges against the father. In the Matter of Krista I. V. Gregory I. , 2004 N.Y. App. Div. LEXIS 7540, (3d Dept. 6/3/04) (Cardona, P.J.).

Pursuant to the parties' judgment of divorce, the mother was awarded sole legal and primary physical custody of the children. The father received visitation rights of the children in 1999. In April 2001, the mother commenced this proceeding, pursuant to Family Ct Act article 6, seeking modification of the terms of the father's visitation, alleging child sexual abuse as the requisite change in circumstances. Thereafter, the Madison County Department of Social Services (hereinafter DSS) commenced a Family Ct Act article 10 neglect and/or abuse proceeding against the father. Family Court, however, found that DSS had failed to meet its burden of proof and eventually dismissed the petition.

By stipulation, the transcript of the article 10 hearing was made part of the custody modification record. After the hearing, Family Court found that the mother had met her burden of proof and determined that the children's best interests required suspension of the father's visitation rights until such time as he addressed his deviant behavior issues.

On appeal, the father argued that the doctrine of collateral estoppel barred the mother from alleging the same incidents of abuse that were previously litigated in the Family Ct Act article 10 proceeding. The court, noting that the father had failed to properly preserve this issue for appeal, nevertheless went on to state that the issues of custody and visitation in this proceeding were not identical to those in the abuse and neglect proceeding and that the mother and DSS did not share actual or functional identity as parties. Thus, it could not be said that the mother had a full and fair opportunity to litigate the issue of abuse during the Family Ct Act article 10 proceeding. Furthermore, given that the modification hearing wasn't a second abuse and neglect proceeding under article 10 and didn't cite the same allegations, the court disagreed with the father's contention that the doctrine of res judicata was applicable here.

Novel Burden-Shifting Stance Denied in Initial Custody Proceeding

A father who sought an initial award of custody in order to return with his children to their native Switzerland could not be required by the court to prove the move's benefits as though this were a custody modification proceeding. In addition, the wife had a duty to use her earning power to avoid the need for maintenance. Charpie v. Charpie, N.Y.L.J. 6/1/04, DOI Vol. 101; Pg. 18 (Sup. Ct., New York Cty.) (Drager, J.)

The parties are Swiss nationals who were married in Switzerland in 1984. They entered into a pre-nuptial agreement that resolved distribution of the assets. At the time of the marriage, each party had an established career: The husband was a lawyer in private practice and the wife was a pediatrician. The wife eventually opened her own practice.

The couple has four children, currently ranging in age from 13 to 19 years old. Until 1994, the family lived in Switzerland. Then, they moved to New York for what was intended as a 1-year adventure but turned into a stay of several years. The wife had arranged for another doctor to cover her patients while away for a year. When the U.S. stay was extended, she sold her practice. Initially, she did not work in the United States, but when her husband wanted to return to Switzerland in 1997, she obtained a position with a music conservatory and got her own work visa, which allowed her to stay in the United States. She filed for divorce in 1999.

On the issue of child custody, the wife and the law guardian argued that since the family had resided in New York for such an extended period, the court should consider the father's request for custody as a request to relocate with the children to Switzerland. The effect of such an analysis, they contended, would be to place the burden on the husband to prove by a preponderance of the evidence that relocation was in the best interests of the children. The court declined to take this posture, finding that because this case involved an initial custody determination, it could not be characterized as a relocation case. Nonetheless, the court determined that equal periods of physical custody for each parent were in the children's best interests, but, if the father intended to return to Switzerland, residential custody should go to the wife.

The wife was not, however, awarded the indefinite maintenance she requested because although she was earning very little at her job and had enjoyed a high standard of living during her married life, her current financial situation was of her own making. The wife presented no evidence that she was not immediately capable of supporting herself, nor that she suffered any loss of earning capacity as a result of the marriage. She alone decided to change her career, knowing full well that this change would decrease her earning capacity. From the evidence presented, based on an assessment of the wife's past earnings, educational background, and actual earning capacity, the court found that the wife had the ability to earn on her own sufficient income to achieve a lifestyle similar to that which she enjoyed during the marriage by using her medical degree, either as a practicing doctor or otherwise in the health care field. The court also found that the wife was immediately capable of earning $42,000 per year at the music conservatory.

Nonetheless, the court was satisfied that the husband was in a position to provide some maintenance to the wife for a short duration. Therefore, the wife was awarded maintenance of $1500 per month for a period of 4 years.

In Custody Dispute, Disregard of Recommendations Upheld

The Appellate Division, Third Department, declined to second-guess the determination of Supreme Court, Saratoga County, regarding award of sole custody to the father of a teen, although the boy wanted his mother to have sole custody and the Law Guardian and court-appointed psychologist recommended continued joint custody. Grandin v. Grandin , 2004 N.Y. App. Div. LEXIS 7543 (App. Div. 3d Dept. 6/3/04) (Cardona, P.J., Mercure, Crew III, Peters and Kane, JJ.).

Pursuant to a stipulation of settlement the parties had since 1999 shared joint legal and physical custody of their teenaged son on an alternating week basis. In August 2002, the child requested a change in his physical custody. Thereafter, defendant moved for an order modifying the judgment of divorce to grant her sole custody; the plaintiff father cross-moved for the same relief.

Supreme Court issued a temporary order awarding sole custody to defendant with alternate weekend and midweek overnight visitation to plaintiff. At trial, numerous witnesses testified, including the court-appointed psychologist; the child testified in a Lincoln hearing. The psychologist recommended that the existing joint custody arrangement be continued and the Law Guardian agreed, notwithstanding the child's wishes that his mother have sole custody. Supreme Court found a sufficient change in circumstances in the fact that the child's parents were hostile to one another, making joint custody unworkable. Therefore, despite the psychologist's and Law Guardian's recommendations, and in spite of the child's wishes, the court granted sole custody to the father.

On appeal, although the court noted that there were “glaring deficiencies in plaintiff's relationship with” his son — for example, he condoned the controlling household environment created by his new wife in which the rules set for the youngest child of seven years were the same as for the subject child, who was 16 years old — the court chose to defer to the findings and credibility assessments of Supreme Court. “While significant evidence supports the relief requested by defendant and the child,” the court concluded, Supreme Court's “determination is grounded upon adequate record support. Therefore, there is no viable basis upon which we can disturb the determination rendered.”