Sullivan v. Sullivan

DECISION AND ORDER RELEVANT FACTUAL AND PROCEDURAL BACKGROUND   The parties in this action were married on December 17, 1997. There are three (3) children of the marriage: Annie (d/o/b: -/-/2002); Michael (d/o/b: -/-/1994) and Leah (d/o/b: -/-/1997). There is also one step-child, Katie Hague, who was born to THERESA during a prior relationship. RICHARD is not the biological father of Katie Hague. In 2012, RICHARD commenced an action for divorce against THERESA. The undersigned Justice presided over the matrimonial action, and took judicial notice of all prior court orders and proceedings in the Putnam County Family and Supreme Courts between these parties. The Court notes that although there are three children of the marriage, the only child that will be the subject of the instant decision is ANNIE, as the other children were emancipated at all relevant times throughout these proceedings. On June 3, 2013, the parties entered into a Stipulation of Settlement regarding custody and access of the children. The Stipulation of Settlement was admitted into evidence as Plaintiff’s Ex. 1. The Stipulation of Settlement was ‘So Ordered’ by the Court on June 3, 2013. The Court shall refer to this document as the “June 2013 Stipulation.” Pursuant to the terms of the June 2013 Stipulation, the parties have joint legal custody of the children. In the event of a dispute, THERESA has final decision making after meaningful consultation with RICHARD. Also, pursuant to the June 2013 Stipulation, THERESA has primary physical custody of the children, subject to RICHARD’s access “each and every weekend for a one-day visit between the hours of 10:00 a.m. and 7:00 p.m., based on the children’s schedules and activities.” Additionally, RICHARD has access “one day during each week, for two hours, if the children are available, and taking into consideration their schedule and homework.” The June 2013 Stipulation also made access provisions for holidays, recess and summer vacations. Subsequent to agreement of the terms of the June 2013 Stipulation, RICHARD filed two Violation/Enforcement Petitions in the Putnam County Family Court on February 11, 2015 and June 16, 2015, alleging that THERESA was not complying with the terms of the June 2013 Stipulation. In the aforementioned Petitions, RICHARD indicated that he had not had any access or visitation with the children since THERESA moved from the marital residence in September of 2014, and that THERESA failed to notify him of the children’s new contact information following the move. The February 11, 2015 Petition was dismissed by the Putnam County Family Court on jurisdictional grounds, as a result of the matrimonial action pending in Supreme Court. The Order of Dismissal was admitted into evidence as Plaintiff’s Ex. 3. There were two short form orders issued by the Putnam County Family Court during the pendency of the family court proceedings. The first short form order dated February 16, 2016, directed supervised therapeutic visitation between RICHARD and ANNIE with Kate Roell, M.A. For reasons discussed herein, the parties were not able to utilize Ms. Roell for purposes of conducting the therapeutic visitation. The second short form order dated March 16, 2016 directed supervised therapeutic visitation between RICHARD and ANNIE with Nikki Huebbe, LCSW-R. On June 23, 2016, Ms. Huebbe sent a letter to the Attorney for Child, Alice Brandon, Esq., memorializing her impressions and findings from the seven visitation sessions that took place before ANNIE opted to end the sessions. This letter was admitted into evidence as AFC Exhibit BB. After no resolution in the Putnam County Family Court with respect to the June 16, 2015 Violation/Enforcement Petition, despite the orders referenced supra, RICHARD filed an Order to Show Cause in the Putnam County Supreme Court on or about February 17, 2016, said Order to Show Cause forming the basis of the instant hearing and decision. The Judgment of Divorce ordered spousal maintenance be paid in the sum of $2,000 per month for a three-year period commencing April 1, 2015. As of April 1, 2018, the sum was reduced to $1,500 per month for a two-year period (through March 1, 2020). Additionally, the Judgment of Divorce ordered child support to be paid on the sum of $1,341 per month commencing April 1, 2015 for the two unemancipated children at the time, ANNIE and LEAH. Upon LEAH’s emancipation on September 1, 2018, child support was readjusted and lowered to the sum of $1,000 per month. The Judgment of Divorce was admitted into evidence as Plaintiff’s Ex. 4. RICHARD’s Order to Show Cause requests that as a result of the purported violations of the June 2013 Stipulation concerning access and visitation with the children, that the Court suspend his obligation to pay both spousal maintenance and child support. RICHARD contends that THERESA’s actions of “deliberately frustrating and actively interfering” with his visitation rights warrants this relief. RICHARD is also requesting an award of counsel fees. On July 12, 2016, the Court issued an Order Appointing Dr. Robert Verno to conduct a forensic evaluation of the parties and ANNIE. Following the forensic evaluations, Dr. Verno submitted his Report dated November 12, 2016 (hereinafter “Verno Report”). The Order of Appointment was admitted into evidence as Plaintiff’s Ex. 9. The Verno Report was admitted into evidence as Plaintiff’s Ex. 10. After receipt of Dr. Verno’s Report, which included his clinical assessment and recommendations, the Court issued an Order dated November 14, 2016 directing weekly individual outpatient therapy for ANNIE with Jennifer Culley, and directing that neither parent have any part of said therapy, and for ANNIE to have no discussions with either parent about the therapy. The Order provided that the therapist shall never be called as a witness to testify in any legal proceeding. This Order was admitted into evidence as Plaintiff’s Ex. 8. After numerous unsuccessful attempts to resolve this matter, a hearing took place. At the conclusion of the hearing which spanned eleven (11) separate court dates, the parties were directed to submit closing briefs. The matter was fully submitted for determination by the Court upon the submission of the parties’ closing briefs on March 22, 2019.¹ FINDINGS OF FACT Testimony of Nikki Huebbe By Order of the Court dated March 16, 2016, supervised therapeutic visitation between RICHARD and ANNIE was to take place with Nikki Huebbe, LCSW. THERESA was ordered therein to make ANNIE available for all appointments with the goal of restoration of access as set forth in the Judgement of Divorce. Plaintiff’s Ex. 7. In accordance with the Order, approximately six (6) therapeutic visitation sessions with Nikki Huebbe took place. Ms. Huebbe testified as a fact witness with respect to what happened during the course of the visitation sessions. The Court finds Ms. Huebbe’s testimony credible and of assistance in that it sheds insight into the visitation sessions from the perspective of a neutral individual who was a participant in said sessions. On March 4, 2016, Ms. Huebbe met with RICHARD alone. On March 8, 2016, she met with THERESA alone. Ms. Huebbe indicated that that although THERESA was cooperative and forthcoming, it was apparent that she was angry and had very negative feelings for RICHARD and that she indicated that she knew ANNIE did not want to participate in visitation with RICHARD. On or about March 14, 2016, Ms. Huebbe met with ANNIE alone. ANNIE was about thirteen years old at the time. ANNIE clearly expressed that she did not want to engage in this process or have a relationship with RICHARD. ANNIE was able to support her feelings by talking about incidents where she perceived RICHARD to have not been acting in her best interests and these incidents caused her to feel hurt and angered. On March 22, 2016 the first court ordered therapeutic visitation session took place. This session included RICHARD and ANNIE. As recounted by Ms. Huebbe, the session seemed very painful and strained for the parties. ANNIE expressed she did not want to participate, however in response RICHARD was appropriate and thoughtful towards ANNIE and the process. Ms. Huebbe worked with RICHARD and ANNIE to set goals for the visits. The second visit took place on April 6, 2016. ANNIE and RICHARD were both present. ANNIE consistently expressed her objection to being present, and was angry, appeared fearful and was not particularly communicative. In response, RICHARD was patient and tried to be thoughtful and supportive of ANNIE’s feelings. Ms. Huebbe testified that she was able to see progress when she engaged RICHARD and ANNIE in a game she referred to as “block case.” At that time, Ms. Huebbe felt the session went well. The third session took place on May 5, 2016, and according to Ms. Huebbe, it started off with a setback. ANNIE had been more upset than in previous sessions and expressed consistently that she did not want to participate in the session. In response, RICHARD was supportive and told ANNIE that he would take responsibility for his actions in order to be able to have a relationship with ANNIE. On May 12, 2016, ANNIE came to the session with her homework, and refused to participate. It appeared to Ms. Huebbe that this was done in attempt to avoid any interaction with RICHARD. Nikki Huebbe testified that in response to telling ANNIE that this was not productive, ANNIE cried and expressed anger and frustration. On May 19, 2016, Nikki Huebbe testified that she received an e-mail purportedly from ANNIE shortly before the start of the session cancelling it based on ANNIE’s assertion that she had too much homework. In response, Ms. Huebbe indicated that her policy requires 24 hours’ notice for a cancellation. Subsequently, ANNIE sent an e-mail to Ms. Huebbe that was “vehement” and out of proportion to Ms. Huebbe’s prior e-mail. In Ms. Huebbe’s opinion, the e-mail sent by ANNIE in response did not come from ANNIE, though there was no proof offered that anyone else wrote the e-mail. The chain of emails memorializing this incident were admitted into evidence as Defendant’s Exhibit A. The final visitation session took place on May 25, 2016. At this point. Ms. Huebbe felt that nothing was going to improve with additional sessions. She felt that based on her experience and their prior sessions, ANNIE’s opinion of RICHARD mirrored THERESA’s opinion, and that ANNIE could not afford to “break rank” with the rest of her family. Ms. Huebbe testified that from what she had witnessed, RICHARD had done everything in his power to make this process meaningful, to no avail. At this juncture, Ms. Huebbe did not feel that additional sessions would achieve any goals, as ANNIE was not participative and consistently made it clear she was only there because she was forced. RICHARD gave ANNIE the option of terminating the sessions, to which ANNIE graciously agreed. RICHARD told ANNIE that the door of communication would always be open as far as he was concerned if she ever were to change her mind. These sessions were summarized in AFC’s Exhibit BB. Nikki Huebbe testified that ANNIE’s perceived version of events that took place with RICHARD did not seem to justify her complete unwillingness to participate in visitation. Additionally, Nikki Huebbe noted that ANNIE clearly did not want to give anything to the relationship with RICHARD, but she would express frustration when she would not get things from RICHARD such as cards, holiday presents, etc. Nikki Huebbe readily acknowledged that none of the events that led to this situation were ANNIE’s fault, and that she consistently tried to get ANNIE to “consider other interpretations” of past events but that ANNIE’s take on her father was that he could do nothing right, and that he had no “redeeming qualities.” ANNIE appeared to identify very strongly with THERESA and there clearly was a long history of resentment between THERESA and RICHARD. Nikki Huebbe noted that everything about their sessions made ANNIE angry, and appeared to further entrench her in her anger and resentment. It appeared to Ms. Huebbe that RICHARD did the best that he could under these difficult circumstances, and that any efforts to be involved in any way in ANNIE’s life had generally been “thwarted.” Testimony of Andrea Labis Andrea Labis is RICHARD’s long term therapist. It was apparent through her testimony that RICHARD spent a great deal of time in therapy in order to address how he could make himself available for ANNIE in any way possible, and that he had personally experienced a great deal of hurt over the situation. Andrea Labis testified that RICHARD has insight into what he has done wrong over the years and that he does not blame ANNIE for the demise of the relationship. Andrea Labis indicated that notwithstanding, RICHARD participated hopefully with the therapeutic sessions with Nikki Huebbe, to no avail. The Court notes that Andrea Labis was not a witness to the therapeutic visitation sessions, nor did she ever witness the events in this family that led to the parties’ divorce and the state of their respective relationships with one another. Testimony and Report of Dr. Robert J. Verno The Court ordered the parties to undergo a forensic evaluation with Dr. Richard J. Verno, Ph.D. to aid in the rendering of this Decision. Specifically, the Court ordered that Dr. Verno address the following issues: interference with parental rights or access, parental alienation, and fostering relationships (each party’s ability to foster a relationship between the child and the other parent). The Verno Report dated November 12, 2016 was admitted into evidence as Plaintiff’s Ex. 10. The Court notes that Dr. Verno testified that he completes approximately 40-50 forensic reports a year, and that he has worked in this field for over 28 years. Dr. Verno’s Curriculum Vitae was admitted into evidence as Plaintiff’s Ex. 12. The Court places a great deal of weight on the forensic report prepared by Dr. Verno, as well as on his testimony in Court. The Verno Report indicated that THERESA is guarded but pleasant, and that she paints an exemplary picture of herself, while focusing tirelessly on the negatives of RICHARD. THERESA made it clear to Dr. Verno that she is angry at RICHARD, and she was adamant that her children shared her feelings with respect to RICHARD. The Verno Report indicates that THERESA has little insight into her own behaviors. Similarly, Dr. Verno noted that RICHARD had his own blind spots with respect to his role in the demise of his marriage to THERESA. Dr. Verno reported that RICHARD presents as sad, depressed and feels angered and heartbroken over the status of his relationship with his children. Dr. Verno described ANNIE as being bright and talented. Dr. Verno noted that she was uncomfortable discussing RICHARD and that she admitted she did not want to have a relationship with RICHARD and was angry with him for pushing the issue. The Verno Report indicated, as Nikki Huebbe also testified, that ANNIE’s emotions with respect to RICHARD were disproportionate to the actual acts she described RICHARD as having committed. In other words, as Dr. Verno testified, “the punishment [of not wanting any contact with RICHARD ever again] did not fit the crimes.” Dr. Verno relayed that ANNIE admitted RICHARD was never mean to her, however, he would frequently argue with THERESA. Dr. Verno noted that ANNIE openly admitted she did not like Nikki Huebbe or her own attorney, Ms. Brandon. ANNIE perceived them as taking RICHARD’s side and not really trying to help her. This in fact mirrored THERESA’s relationship with the professionals involved with this case, for, as Dr. Verno testified. THERESA had a pattern of not getting along with any professionals involved in this case that did not share her opinion or tell her what she wanted to hear. ANNIE was clear with Dr. Verno that she has a very close relationship with THERESA and that she never wants to have a relationship with her father, RICHARD. Dr. Verno held a joint session with RICHARD and ANNIE. Dr. Verno indicated that during this session. ANNIE was overly emotional; she cried hysterically before RICHARD could even speak. Dr. Verno’s impression, as set forth in his report, was that ANNIE came into the session with an agenda. Dr. Verno testified that ANNIE seemed to have a case to prove. The session was very short, as a result. Dr. Verno’s clinical assessment is that ANNIE’s ill-feelings towards RICHARD are overly dramatized and appear to be strongly encouraged by THERESA. THERESA has “corralled her children emotionally” in order to share her negative feelings. Dr. Verno opines that ANNIE is absolutely empowered by THERESA to have nothing to do with RICHARD, including addressing and dealing with ANNIE’s own feelings towards him. Dr. Verno concluded that ANNIE is suffering emotionally as a result of the lack of a relationship with RICHARD and that at this point, any further family therapy is pointless, as ANNIE is too entrenched in her negative feelings to see any benefit. Dr. Verno opined that ANNIE should really have weekly therapy on her own to explore her own feelings about RICHARD. Dr. Verno testified that in his professional opinion, THERESA’s feelings towards RICHARD were transmitted to ANNIE and that ANNIE’s behavior seemed like “a performance.” Dr. Verno noted that ANNIE described the same incidents as THERESA, and used the same vocabulary as THERESA, in describing her relationship with RICHARD, and thus it was clear to him that ANNIE and THERESA discussed the situation. Further, it was Dr. Verno’s observation that ANNIE wanted to please her mother. Dr. Verno testified that THERESA indicated she wanted to give her children “space” to make their own decisions with respect to RICHARD, as opposed to openly encouraging a relationship with him. Dr. Verno concluded that if THERESA had openly encouraged communication between ANNIE and RICHARD, the relationship may have, in fact, been capable of being repaired. Dr. Verno’s conclusion with respect to RICHARD was that his feelings of depression over the demise of his relationship with ANNIE were genuine. In fact, Dr. Verno recommended RICHARD remain in therapy to address his feelings of depression over this situation. Dr. Verno acknowledged that it was probably very difficult for ANNIE to always have to rehash her feelings for RICHARD in front of the therapists, and that ANNIE should not be held responsible for the dysfunction and the bitterness between RICHARD and THERESA. However, Dr. Verno’s impression is that ANNIE feels like she has to say she wants no relationship with RICHARD, as it would be an act of perceived disloyalty [by THERESA] to forgive or reach out to RICHARD at this point. The Court notes that Dr. Verno and Nikki Huebbe described the same observations and conclusions with respect to ANNIE’s behavior and opinions towards RICHARD, and THERESA’s role in ANNIE’s behavior and opinions. Testimony of Richard Sullivan Richard Sullivan testified that he has not received any visitation in accordance with the June 2013 Stipulation and that THERESA has not involved him in any decision making in LEAH’s life or ANNIE’s life since the time the Stipulation was put into effect. RICHARD was in fact unable to state whether LEAH was definitively going to college, as he was not included in those discussions. As previously discussed herein, the child that is the subject of the instant proceeding is ANNIE, as the other children are all emancipated as of the date of the hearing which took place with respect to the instant application. RICHARD testified that THERESA does not afford him any regular contact with respect to ANNIE’s life and that she has failed to share any information with him about ANNIE’s education and her extracurricular activities at school. Though he admitted he could access ANNIE’s school records from the school directly, RICHARD stated that this was awkward for him, as THERESA works for the school. However, RICHARD admitted on cross-examination that he did in fact have access to school records and information with respect to performance schedules, parent teacher conferences, etc. However, RICHARD testified that notwithstanding, there was no communication about these events, or any mutual decision-making concerning ANNIE, with THERESA. RICHARD testified that he has had no regular access with the children that was not in a supervised setting since October of 2013. RICHARD testified that, aside from the “Brewster’s Got Talent” situation addressed in more detail, infra, he has never been asked to attend one of ANNIE’s functions since 2013. RICHARD testified that sometime in 2013 or 2014 he went to one of LEAH’s volleyball games. He testified that he attempted to sit near ANNIE to say hello, and was asked by THERESA why he was there. He alleges that THERESA then stated to him that nobody wanted him there. RICHARD testified that he felt he had no other choice but to commence this action in order to enforce his rights as set forth in the June 2013 Stipulation. RICHARD testified that initially, supervised therapeutic visitation was to take place with Kate Roell, M.A. Plaintiff’s Ex. 6. However, RICHARD testified that he met with Ms. Roell for an initial session, and pre-paid for additional sessions. Yet, RICHARD recounted that ANNIE did not attend any sessions. According to RICHARD, THERESA was uncomfortable using Ms. Roell because she lived nearby, so they agreed to use Nikki Huebbe instead. The visitation with Nikki Huebbe started in March of 2016. RICHARD recalled that ANNIE was adamant she did not want to participate in the visitation sessions, but that after the first session he felt hopeful. There was a moment when Nikki Huebbe had them playing a game together that lightened the mood. However, RICHARD recalls ANNIE stating at the beginning of the next session that she had more important things to do than to be there. RICHARD also testified that ANNIE did not speak directly to him during the sessions and made little to no eye contact. RICHARD recounted the one session where ANNIE actually brought homework into the session and said she had no other time to complete it. RICHARD indicated that this was a very painful and awkward situation. Despite RICHARD attempting to apologize to ANNIE and listening to her during each session, ANNIE maintained her position that she wanted nothing to do with him. It was for this reason, according to RICHARD, that he agreed to offer ANNIE the opportunity to end the sessions. This decision was made with the input of Nikki Huebbe. ANNIE decided to take RICHARD up on his offer to end the sessions, as she indicated they were a waste of time. RICHARD testified that he could see how painful the sessions were for ANNIE.² After the Court ordered the forensic evaluations to take place, RICHARD testified that ANNIE called him to yell at him for putting her through this, and then she hung up on him. RICHARD recalled that the session he had with ANNIE and Dr. Verno was terrible, and ANNIE had a “meltdown” during the session. ANNIE told Dr. Verno she had more important things to do than to be there. RICHARD testified that during the course of the marriage, THERESA would frequently make negative comments about the biological father of his stepdaughter Katie, in front of Katie. RICHARD also indicated that THERESA had no real relationship with her own father, who was abusive and an alcoholic. RICHARD testified that THERESA’s father was not present at any family gatherings, however THERESA’s mother was in attendance at all the family functions. RICHARD stated that during the course of the marriage, THERESA made the decisions as to who was invited to family gatherings and holidays, and that those who were not invited were “outcasts.” RICHARD testified that he now is the outcast. RICHARD testified that in the fall of 2016 he went to see ANNIE in a chorus concert, and that she informed him after the show (in public) that she wanted him to leave and never return to see any of her future performances. RICHARD stated that he did not want to cause a scene, and so he left. RICHARD also testified that he went to see ANNIE perform in Mary Poppins in March of 2017. At the end of the show, he stated she told him she did not want him to attend any more of her performances. RICHARD testified that this hurt him, but he did not want to make a scene in the auditorium, so he turned and walked away. He testified that once he was in his car, another vehicle pulled up in front of him, nearly blocking him from leaving. The vehicle belonged to his step-daughter Katie Hague. Katie was driving the vehicle and ANNIE was riding in the passenger seat. RICHARD testified that ANNIE got out of the vehicle, and approached him in his car, visibly upset. ANNIE stated that she never wanted to see him again and that if he really loved her, he would pay for her braces and glasses. RICHARD testified he responded by telling her he does contribute towards those things. RICHARD testified that Katie then got out of her vehicle, and approached RICHARD telling him he was a horrible father. RICHARD admittedly told KATIE to get back into her vehicle and that this has nothing to do with her. Katie’s testimony with respect to this incident will be described, infra, however it was obvious to the Court that this incident was not a positive interaction between RICHARD, ANNIE, and Katie. This interaction took place nearly one year after the supervised visitation sessions with Nikki Huebbe had ended, and after the Court-ordered forensic evaluations. RICHARD testified that in January 2017, he received a text message from ANNIE regarding her upcoming performance in Brewster’s Got Talent. The text message chain was admitted into evidence as Defendant’s Ex. L. ANNIE’s text to RICHARD sets forth that “I am sure you’re planning on going to Brewster’s Got Talent on Friday. If so, I’m required to sell 6 tickets, so if you could at least buy 1 from me that would really help me out. If you know anyone else that’s planning on going, it would be great if you could sell them to them too so I can get rid of these tickets.” In response to this text, RICHARD testified that he purchased a ticket. He also responded to ANNIE via text stating that her text “was the best part of [his] day.” RICHARD did text ANNIE before the show to say “[she] was going to be great. Good luck.” However, RICHARD testified that although he purchased a ticket through ANNIE, he did not attend the show, as he had previously made plans a month beforehand to go to Florida on a trip with friends. About a month later, RICHARD texted ANNIE to say he was thinking about her. In response, he was met with a very accusatory text message wherein ANNIE indicated that she felt “stood up” when RICHARD did not attend the show, and reiterated that this was why she does not want a relationship with him and does not trust him. In September of 2017, RICHARD ended up in the hospital after a court appearance in this matter. Apparently, the AFC notified ANNIE that her father was in the hospital. ANNIE did reach out to RICHARD by text message to check on him. RICHARD responded that he was okay, and would keep her informed as to his condition. RICHARD testified that he sent her a follow up message after being released from the hospital, but he has not heard from her since. On cross-examination, RICHARD testified that THERESA and the children moved out of the marital residence at some point during the divorce proceedings. RICHARD testified that he had no idea that they would be moving out when they did. RICHARD admitted that the tensions in the home were very high at this point, however RICHARD was not aware the move was forthcoming. RICHARD admitted he did not immediately reach out to THERESA to find out where the family was moving. RICHARD testified that he changed the locks to the house for his own security immediately after THERESA moved out with the children since it was apparent to him that she had no intention of returning. RICHARD testified he had no idea that THERESA and the children would try to return later to get more of their belongings. ANNIE had indicated to the professionals in this case this was a very difficult experience for her – as apparently when she and THERESA returned for belongings they were locked out. ANNIE recounted that there was a smiley face drawn on the window, allegedly by RICHARD. RICHARD testified that the children would lock their bedroom doors when he was in the house. RICHARD testified that on one occasion when he was home, he noticed one of the doors was locked. He stated that he knocked on the door and no one answered. He testified that he felt there was no reason the door should be locked with no one home, so he picked the lock to open the door, and it turned out one or more of the children were in the room. The Court can understand this might be a scary experience for a child, however there was no evidence presented RICHARD did anything to intentionally harm or frighten them. There was testimony from RICHARD on cross-examination as to his visits with the children during the time period before the divorce was finalized, after THERESA and the children moved out of the house. RICHARD admitted that he did not utilize all of his agreed upon scheduled visits with the children. He explained that this was because the kids always found excuses to end the visits early or they would ask him to finish the visits at their house with THERESA, which RICHARD testified was uncomfortable and awkward for him under the circumstances. Apparently, an incident took place in 2013 where RICHARD wanted to take LEAH and ANNIE to Bear Mountain State Park for his scheduled visit. ANNIE and LEAH had expressed that they did not want to go there. Once RICHARD picked them up, he decided to take them there, regardless of their previously expressed wishes. RICHARD testified that once LEAH and ANNIE realized that they were headed to Bear Mountain, they became extremely upset so RICHARD turned around and drove them home. Whether it was the appropriate thing to do at the time or not, RICHARD testified he did not find this to be deceitful, because he hoped that once at the park the children would enjoy it there. In fact, RICHARD admitted he could now see how this may have in fact frightened ANNIE. RICHARD admitted that THERESA was the primary caregiver for the children during the marriage and that he worked long hours. RICHARD also concedes that ANNIE grew up in a very difficult environment during the parties’ contemptuous divorce proceedings. RICHARD testified that in his opinion it would be dangerous for ANNIE at this point to break rank with the rest of her family by resolving her relationship with him.³ RICHARD also openly admitted that he since he has no relationship with the children, he never voluntarily offered them money above and beyond the child support payments and expenses he was ordered pay. RICHARD testified that although he does not believe that anything can heal this relationship at this point, he still harbors some hope. The AFC pointedly asked RICHARD if he feels he did enough to restore the relationship with ANNIE. His response was that his attempts to reach out are met with no response and that he does not know what else he can do, in addition to all that he testified he has already tried. All of his attempts to connect with ANNIE have admittedly failed. The Court finds RICHARD’s testimony extremely credible. RICHARD came across as truly and genuinely hurt that his children want absolutely no contact with him. RICHARD has acknowledged his contribution to the breakdown of the marital relationship and how some of his actions over the years have affected ANNIE. The Court accepts that RICHARD has done everything within his control to make supervised therapeutic visitation with ANNIE succeed, to no avail. RICHARD testified that whenever he did show up to school functions and events, he felt he was unwanted, and was even told this by the children and/or THERESA. This is apparent from the incidents testified to, supra. The Court notes that although THERESA did not testify at this hearing, THERESA’s animosity towards RICHARD was present throughout these proceedings, and in her questioning of him. The Court frequently had to intervene to remind THERESA that she was not here to relitigate the parties’ divorce. Many of THERESA’s questions were argumentative in nature and led to heated exchanges in the courtroom. To the extent that THERESA exhibited this level of hatred towards RICHARD in the courtroom, the Court finds that there is no way these feelings did not permeate into the home. Testimony of Sarah Barnes THERESA called this individual who purportedly witnessed the volleyball game incident testified to by RICHARD. Ms. Barnes is a 30-year teacher at Brewster High School who was present the night of the volleyball game. Ms. Barnes testified that this incident took place in the fall of 2014. Ms. Barnes was present at the volleyball game, and witnessed RICHARD approach ANNIE in the bleachers. Ms. Barnes testified she saw ANNIE start to cry, and overheard her state something to RICHARD about being upset at being locked out of her home and being unable to get her belongings. Ms. Barnes testified she attempted to help console ANNIE after RICHARD had left. Although Ms. Barnes did not hear RICHARD apologize to ANNIE or in her opinion exhibit sympathy towards ANNIE, Ms. Barnes admitted she could not overhear the entire conversation. In fact, Ms. Barnes admitted that she did not want to hear the conversation and that she did not think RICHARD acted inappropriately at any time during the exchange. The Court does not find this witness’ testimony of particular use here as she admittedly did not hear the entire conversation. Testimony of Katie Hague Katie Hague is RICHARD’s step-daughter. THERESA called her as a witness in these proceedings. Katie testified that she has known RICHARD since she was three years old, and that she lived with him for approximately twenty years. Katie testified as to the events that transpired after ANNIE’s appearance in Mary Poppins much differently than RICHARD. Katie indicated that after the show she stood back when RICHARD approached ANNIE to talk inside of the school. She was able to perceive that this was not a positive interaction, although Katie testified that she was standing too far aware to actually hear the entire conversation. After this conversation took place, RICHARD left the building. Katie was apparently ANNIE’s ride home from the play that evening. As they were leaving the parking lot, Katie recounted that ANNIE asked her to pull over near RICHARD so that she could speak to him. Katie denies having pulled her car out in a manner that blocked RICHARD from leaving. Katie remained in her vehicle when ANNIE approached RICHARD. However, Katie stated that she could overhear ANNIE becoming extremely upset and RICHARD responding in an “aggressive” and unapologetic manner, and telling ANNIE she could blame her mother for moving out of the house, etc. At that point, Katie testified she felt the need to exit her vehicle and get ANNIE. Katie testified that when she approached RICHARD’s vehicle, he became verbally aggressive with her and yelled inappropriate comments as he drove away. Katie gave a great deal of testimony of the dynamics in the house before and during the breakup of the marriage. Katie testified that ANNIE had a relatively normal upbringing and that until around 2012, the family regularly spent time together. Once the divorce proceedings started, Katie recalled lots of yelling in the house, including RICHARD yelling at her if she would interject in fights between the parents, sometimes using profanity or getting in Katie’s face. In stark contradiction to RICHARD, Katie initially testified that THERESA’s father was involved in their family and that he was in no way an outcast in their lives. KATIE stated the opposite, however, on cross-examination. Additionally, Katie stated that THERESA never talked badly about her biological father to her, but rather, that RICHARD would refer to him as a deadbeat. She stated that during the divorce proceedings, it was RICHARD who shut out the family, and not the other way around. She testified that during this time period, RICHARD stopped taking care of the house, and used to park his vehicle underneath their basketball hoop, and that these actions, or inactions, negatively affected the children. Katie testified that when they ultimately moved out of the marital residence, RICHARD laughed about it and videotaped them leaving. Katie indicated that the children were not comfortable in the house when RICHARD was home, thus causing them to lock their doors. Not surprisingly, Katie painted a picture of a very unhappy home during the time these contentious divorce proceedings were pending. On cross-examination, Katie admitted that she was not in the dark with respect to the divorce proceedings, and that THERESA would tell her what was going on. After this proceeding was initiated, Katie recounted a meeting with the AFC and other children present wherein she expressed in front of ANNIE that she feels RICHARD is a liar and “full of it.” Katie admitted to telling RICHARD in front of ANNIE that he was a horrible father to ANNIE. Katie shares her mother’s opinion that this proceeding is a “money driven charade.” Katie admitted that she and her family moved out of the marital residence without any prior notice to RICHARD, and without having involved the lawyers in the matrimonial proceeding. The Court has no doubt that the household dynamics were strained, at best, during the divorce proceedings. The Court is also cognizant that RICHARD is not Katie’s biological father, and that as the oldest of the siblings, she had a much different perspective of these proceedings while they were taking place, and that their effect on her was undoubtedly different than it would have been on her much younger half sibling, ANNIE. The Court determines that Katie’s credibility is somewhat tainted by the fact that she indicated she was testifying because “we did not want Mikey, Leah, or Annie to testify against their own father, so” Katie testified instead. It is very clear to the Court that Katie shares THERESA’s opinion of RICHARD, which she in fact admitted, and the Court feels her testimony is indicative of same. Katie’s disdain for RICHARD was clear to the Court throughout the course of her testimony. The Court observed that much of Katie’s testimony. The Court observed that much of Katie’s testimony appeared to be a reflection of THERESA’s opinions and observations. Katie Hague was the last witness to testify in this hearing. As previously indicated herein, THERESA did not take the stand. The December 16, 2015 Correspondence Correspondence was sent on December 16, 2015 via e-mail from THERESA to the AFC, counsel for Defendant. Keith Labis, and THERESA’s attorney at the time, Kristin Finan of the Legal Aid Society of Putnam County. The parties stipulated these facts in open court on September 8, 2017. The correspondence was admitted into evidence as Defendant’s Ex. C. The Court finds this correspondence an extremely significant piece of evidence as to THERESA’s role in the deterioration of the relationship between ANNIE and RICHARD. With respect to ANNIE having access with RICHARD, the correspondence sets forth in relevant part statements such as: – “Leave [Annie] be.” – “By trying to convince [Annie] to ignore her inner voice and follow “your” ideas, you are teaching her to become dependent and insecure.” – “I will not promote insecurity by making Annie undermine her own inner voice and follow others.” – “I will not, in good conscious, force Annie into an unpleasant, unhealthy situation to appease anyone.” – “I would appreciate if it you all would have the decency to take Annie’s thoughts and feelings seriously and respect her wishes at this time. She should not be bullied or threatened or persuaded in any way to make others happy…” – “Rich needs to accept the fact that the way his three children and step-daughter feel toward him at this point are a direct ‘consequence of his own behavior and actions’ (or lack thereof).” – “That being said, I will no longer continue to debate this issue by receiving e-mails or phone calls that are made in an attempt to manipulate and persuade Annie into therapy.” – “The next steps to be taken should be determined by the Judge.” While on the stand, Katie testified that she agrees with the contents of this correspondence. Although THERESA did not testify in these proceedings, her position with respect to ANNIE and RICHARD having visitation is made very clear in this correspondence, which THERESA stipulated on the record that she sent. The Position of the AFC ANNIE was not called as a witness to testify by either party in this matter. However, her position was presented and advocated by the AFC, Alice Brandon. Esq. Ms. Brandon has made very clear ANNIE’s position that she wants no contact or relationship with RICHARD from the outset. The Court knows that Ms. Brandon made her absolute best efforts to work with ANNIE on changing her mind with respect to this rigid position, however, ANNIE is not an infant, and the Court recognizes that she is able to assert her own opinions and positions, whether they are rooted in reality, or have been created and shaped by the environment in which she lives. That being said, Ms. Brandon requests that this Court deny RICHARD’s application to suspend RICHARD’s child support and maintenance. Her view of the evidence is that RICHARD’s behaviors belie his position that he truly wants a relationship with ANNIE and that RICHARD was unable to come forth with sufficient evidence that THERESA alienated him from ANNIE’s life or deliberately frustrated his right to visitation and access with ANNIE. Ms. Brandon’s contends that the evidence shows RICHARD has failed to keep communication consistent and that there was no evidence ANNIE has permanently elected to sever her relationship with her father. For the reasons discussed, infra, the Court disagrees. APPLICABLE LAW AND ANALYSIS It is well established that generally, parents have a statutory duty to continually support their children until they reach 21 years of age. N.Y. FAMILY CT. ACT (“FCA”) §413(1)(a). Child support payments may be suspended, however, when a non-custodial parent can establish “that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent” Thompson v. Thompson, 78 A.D.3d 845, 846, 910 N.Y.S.2d 536 (2d Dep’t 2010) (internal citations omitted). Such a suspension will be warranted in cases where the custodial parent’s actions are deemed to have risen to the level of “deliberate frustration” or “active interference” with the noncustodial parent’s visitation rights. Id. Interference with visitation can also lead to the suspension of spousal maintenance payments. Ledgin v. Ledgin, 36 A.D.3d 669, 828 N.Y.S.2d 202 (2d Dep’t 2007) (interference with visitation rights can be the basis for the prospective suspension of both maintenance and child support). In an application of this nature, determinations turn in large part on “assessments of the credibility, character, temperament, and sincerity of the parties, and where a full evidentiary hearing has been held on the child’s best interests, the resultant findings will not be lightly set aside on appeal.” Thompson, supra, at 846. This body of case law stems from the concept that it is generally in the best interests of the child to have a healthy relationship with both parents following marital dissolution. See generally, Barbato v. Barbato, 264 A.D.2d 792, 695 N.Y.S.2d 580 (2d Dep’t 1999) (interference in a relationship between a child and the non-custodial parent is inconsistent with the best interests of the child and raises the probability that the offending parent is actually not fit to act as the custodial parent); see also, Spurck v. Spurck, 254 A.D.2d 546, 678 N.Y.S.2d 796 (3d Dep’t 1998) (a critical factor in determining custody was one parent’s failure to appreciate the importance of the child’s relationship with the other parent, as evidenced by the offending parent’s own conduct/actions, as well as her articulated belief the child should not have to spend any time with the other parent). In determining what constitutes “deliberate frustration,” courts have determined that where a parent fails to make an effort to affirmatively encourage the children to have contact and a relationship with the non-custodial parent, it is appropriate to suspend the non-custodial parent’s payment of child support. See, Usack v. Usack, 17 A.D.3d 736, 793 N.Y.S.2d 223 (3d Dep’t 2005). Essentially, “deliberate frustration” can exist in situations other than where there is evidence of physically preventing or interfering with scheduled access time. The Court, in Usack, determined that the custodial parent, by “his example, his actions and his inaction…orchestrated and encouraged the estrangement” between the children and the non-custodial parent, and that there existed sufficient evidence to determine that the custodial parent failed in their “responsibility ‘to assure meaningful contact between the children and the other parent”‘. Id. at 739 (internal citation omitted). Additionally, the Court noted that the custodial parent “utterly failed in his duty to rise above his anger at [the non-custodial parent]” and instead “ chose to foster their aversion to and exclusion of [the non-custodial parent] at a time when they were hurt and vulnerable and to deprive them of the undeniable benefit and right of having two loving, supportive parents[.]” Id. Accordingly, the Court in Usack suspended the non-custodial parent’s child support obligation. Similarly, in Thompson v. Thompson, the Second Department affirmed the lower court’s determination that child support payments should be suspended where there was evidence that the custodial parent “supported the child’s decision to refuse visitation” and “failed to encourage and facilitate regular visitation[.]” Thompson v. Thompson, 78 A.D.3d 845, 846-47, 910 N.Y.S.2d 536 (2d Dep’t 2010). As was the case in Usack, the Court in Thompson determined that the custodial parent, “ by her example, her actions, and her inaction, deliberately frustrated visitation by manipulating the child’s loyalty and orchestrating and encouraging the estrangement”. Id. at 847. In Cornell v. Cornell, the Court determined that the non-custodial parent was entitled to recoup an overpayment of child support dating back to when the child first stopped attending visitation. Cornell v. Cornell, 47 Misc.3d 605, 3 N.Y.S.3d 881 (Sup. Ct., Monroe Cnty., 2015). In so deciding, the Court noted that the custodial parent never took the stand to refute their child’s comments and behavior concerning the non-custodial parent, and determined that the custodial parent’s “apparent indifference…reflects a moral ambivalence that seems unworthy of a parent with an obligation to foster a relationship between the child” and the non-custodial parent. Id. at 610 (emphasis supplied). The Second Department in Sullivan v. Plotnick also affirmed the lower court’s determination to suspend the non-custodial parent’s future child support obligations. Sullivan v. Plotnick, 145 A.D.3d 1018, 47 N.Y.S.3d 329 (2d Dep’t 2016). In Sullivan, there was evidence that the mother, as the custodial parent, told a child it was up to him whether to participate in the therapeutic visits, and that the mother “failed to make an effort to have a therapist address the children’s negative feelings towards their father and made no effort to assist the children in restoring their relationship with the father.” Id. at 1021. The Court found that the evidence supported a finding that “the mother, by her example, her actions, and her inaction, manipulated the children’s loyalty, encouraged the estrangement of the father and children, and deliberately frustrated visitation.” Id. The Court must acknowledge that the facts currently before it are bleak. ANNIE admittedly has absolutely no desire to maintain any type of relationship with RICHARD. In fact, the forensic evaluator and Nikki Huebbe are of the unanimous opinion that to force the relationship at this point in ANNIE’s life would be of further detriment to her mental health and well-being. The Court is left with the only other alternative to requiring enforcement with the terms of the July 2013 Stipulation, which is to decide whether it should terminate RICHARD’s support payments. For all of the reasons set forth herein, the Court determines that it should terminate RICHARD’s continued support obligation. The evidence establishes that RICHARD has not had any regular access with his children since approximately 2014 when THERESA left the marital residence with the children. At this time, the divorce proceeding was underway. Instead of coordinating a move through their attorneys, THERESA and the children decided to pack up and leave. There is no question that the marital home was not a happy home during the pendency of the divorce, and there are a myriad of reasons that physical separation of RICHARD and THERESA was for the best under the circumstances. However, by leaving in this fashion, THERESA sent a message that RICHARD was, as he stated, the “outcast.” THERESA was very quick to try and point out through her questioning of RICHARD that he could have done more to be involved in ANNIE’s life, however, THERESA’s questions are not evidence of anything. THERESA did not take the witness stand, and produced no real evidence to controvert RICHARD’s testimony, which this Court found to be credible after having the opportunity to observe his demeanor and character. RICHARD had to file two petitions in the Putnam County Family Court, and ultimately, an Order to Show Cause in Supreme Court, before therapeutic visitation was able to take place. During this time period, the evidence established that THERESA did absolutely nothing to assist in fostering a relationship between the children, specifically ANNIE, and RICHARD. RICHARD testified he was kept out of every decision that needed to be made in the children’s lives. RICHARD admitted he made mistakes during the marriage and divorce, however, both Nikki Huebbe and Dr. Verno have credibly testified that RICHARD has done all he can possibly do to restore his relationship with ANNIE during the court ordered therapeutic visitation sessions. However, the resistance with which RICHARD was met in response was too much for anyone to overcome. RICHARD testified that when he attended school events for ANNIE, he was met with contempt. Although THERESA and the AFC pointed out that RICHARD did not attend every single event, and that there were in fact events RICHARD may have missed, the Court finds it very credible that RICHARD would feel unwanted and unwelcome based on the actions of everyone around him, thus interfering with his ability to attend all of ANNIE’s events. The Court witnessed THERESA’s contempt for RICHARD in her questioning of him during this trial. As previously set forth, supra, Nikkie Huebbe, who participated in the therapeutic visitation schedule, determined that ANNIE’s perceived version of events that took place with RICHARD did not seem to justify her complete unwillingness to participate in visitation. Additionally, Nikki Huebbe noted that ANNIE clearly did not want to give anything to the relationship with RICHARD, but she would express frustration when she would not get things from RICHARD such as cards, holiday presents, etc. Nikki Huebbe readily acknowledged that none of the events that led to this situation were ANNIE’s fault, and that she consistently tried to get ANNIE to “consider other interpretations” of past events but that ANNIE’s take on her father was the exact same as THERESA’s: RICHARD could do nothing right, and he had no “redeeming qualities.” ANNIE appeared to identify very strongly with THERESA and there clearly was a long history of resentment between THERESA and RICHARD. Nikki Huebbe noted that everything about their sessions made ANNIE angry, and appeared to further entrench her in her anger and resentment. It appeared to Ms. Huebbe that RICHARD did the best that he could under these difficult circumstances, and that any efforts to be involved in any way in ANNIE’s life had generally been “thwarted.” This is very consistent with Dr. Verno’s opinion after completing the forensic evaluation of THERESA, RICHARD, and ANNIE. The Verno Report indicated that THERESA paints an exemplary picture of herself, while focusing tirelessly on the negatives of RICHARD. Dr. Verno noted that this position has been adopted by ANNIE, and that ANNIE’s ill-feelings towards RICHARD are overly dramatized and appear to be strongly encouraged by THERESA. As per Dr. Verno, THERESA has “corralled her children emotionally” in order to share her negative feelings. Dr. Verno opines that ANNIE is absolutely empowered by THERESA to have nothing to do with RICHARD, including addressing and dealing with ANNIE’s own feelings towards him. Dr. Verno concluded that ANNIE is suffering emotionally as a result of the lack of a relationship with RICHARD and that at this point, any further family therapy is pointless, as ANNIE is too entrenched in her negative feelings to see any benefit. Dr. Verno opined that ANNIE should really have weekly therapy on her own to explore her own feelings about RICHARD. The Court places a great deal of weight on Dr. Verno’s testimony and opinions in this matter. Dr. Verno testified that in his professional opinion, THERESA’s feelings towards RICHARD were transmitted to ANNIE and that ANNIE’s behavior seemed like “a performance.” Dr. Verno noted that ANNIE described the same incidents as THERESA, and used the same vocabulary as THERESA, in describing her relationship with RICHARD, and thus it was clear to him that ANNIE and THERESA discussed the situation. Further, it was Dr. Verno’s observation that ANNIE wanted to please her mother. Dr. Verno testified that THERESA indicated she wanted to give her children “space” to make their own decisions with respect to RICHARD, as opposed to openly encouraging a relationship with him. Dr. Verno concluded that if THERESA had openly encouraged communication between ANNIE and RICHARD, the relationship may have been capable of being repaired. Dr. Verno and Nikki Huebbe both testified consistently and unanimously with one another in every respect, and the Court places great weight on this testimony. As Courts have held, “frustration” can go beyond the premise of physically blocking two people from accessing one another, and in fact take other forms. The Court determines THERESA has “deliberately frustrated” RICHARD’s access with ANNIE. Just as in Usack, THERESA, by “h[er] example, h[er] actions and h[er] inaction…orchestrated and encouraged the estrangement” between ANNIE and RICHARD, and she has failed in her important “responsibility” as the custodial parent to “‘to assure meaningful contact between the children and the other parent[.]‘” See, Usack, supra (internal citation omitted). Nothing evidences this more than Defendant’s Ex. C, the December 16, 2015 correspondence THERESA stipulated that she sent to the lawyers in this case. Although THERESA did not testify in these proceedings, her position with respect to ANNIE and RICHARD having visitation is made very clear in this correspondence, which THERESA stipulated on the record that she sent. THERESA openly admits in this correspondence that ANNIE’s position with respect to RICHARD is justified in her opinion, and that she will not engage in any attempts to encourage a relationship between them. In fact, THERESA specifically sets forth that she will no longer accept calls or emails that would facilitate therapy. FINDINGS AND DECISION The Court acknowledges that it cannot, at this point, force visitation or therapy upon ANNIE as an option to resolve this situation. In fact, the Court’s attempts to settle this matter were futile, based on the AFC’s relating of ANNIE’s position that she wants no contact with RICHARD. The Court has no reason to believe that this opinion will change. Further, this Court recognizes, sadly, that no financial benefit can begin to make up for the loss of the love and affection of a child due to deliberate alienation. The results of the deliberate frustration with a parent-child relationship are cruel and crushing. The magnitude of its effects may not, at this point, be realized or understood fully. However, the Court is certain that THERESA, as the adult and custodial parent, fully appreciated the destruction that was caused. This application was described as a last resort by RICHARD. This Decision, likewise, is also issued as a last resort by the Court. At this juncture, there is no other recourse available to RICHARD and no other realistic manner of redress by the Court. Thus, this Court, after a full review of all the evidence, and being in the unique position to observe the demeanor and credibility of the witnesses, determines that RICHARD’s support obligation is hereby terminated, effective immediately. This determination includes RICHARD’s obligations with respect to both child support and maintenance. This determination also includes the payment of any statutory add-ons or college expenses that RICHARD would have otherwise been required to pay pursuant to the Judgment of Divorce. The Court declines to make this determination retroactive, as there is a recognized and long standing “strong public policy against restitution or recoupment of support overpayments[,]‘” See, Whitaker v. Case, 122 A.D.3d 1015, 1021, 996 N.Y.S.2d 752 (3d Dep’t 2014) (internal citation omitted) (emphasis supplied); see also, Rader v. Rader. 54 A.D.3d 919, 865 N.Y.S.2d 235 (2d Dep’t 2008) (maintenance and child support payments are presumed to have been devoted for the purposes for which they were paid, and that no funds thus exist from which one may recoup moneys so expended if an agreement is or order is subsequently modified); see also, Hart v. Rosenthal, 173 A.D.3d 695, 103 N.Y.S.3d 107 (2d Dep’t 2019). Additionally, in his Order to Show Cause and his closing brief, RICHARD requested that, should the Court grant his application, he be awarded counsel fees. The Court is cognizant that generally, evidentiary hearings are held before a determination on legal fees is rendered, unless the hearing is waived by the parties. Krutyansky v. Krutyanski, 289 A.D.2d 299, 733 N.Y.S.2d 920 (2d Dep’t 2001). However, in certain situations, the issue of counsel fees can be determined without an evidentiary hearing. See, e.g., Williams v. Williams, 99 A.D.3d 1094, 952 N.Y.S.2d 662 (3d Dep’t 2012) (in light of the existence of a sufficient evidentiary basis for the court to weigh the parties’ respective financial positions and based on its consideration of the totality of the circumstances, the court did not err in its decision on counsel fees, said decision having been rendered without a hearing). The Court, after careful consideration, and due deliberation, declines to award counsel fees in this case, given the significant financial impact of the termination of support payments, including spousal maintenance, upon THERESA. This shall constitute the Decision and Order of this Court. Dated: November 13, 2019 Carmel, New York