A father seeks a divorce in longstanding divorce matter, which was filed a half a decade ago but only now comes to trial. The father, long separated from his children, seeks access to them after a long period of dormancy and his spouse opposes re-opening the door to his children. The Court held a trial on the divorce issues. The mother represented herself. The father had counsel and an attorney represented all of the family’s children. The grounds for divorce pursuant to DRL Section 170(7) are established. The couple have five children under the age of 21. Four live with the mother and, despite some factual disputes resolved by the Court, one lives with the father. The central issue is the father’s access to his children. Unfortunately, the testimony regarding the father is marred by wildly divergent versions from the spouses. The father testified that he left the marital residence in 2012. He served in the military until injured, eventually receiving a military retirement. He testified that a military injury caused memory difficulties for him. He commenced this divorce action initially in 2014. Prior to the commencement of the divorce action, the father testified that he had continual access to his children. In January 2015, the couple with the assistance of counsel entered into a custody stipulation which contains the following provisions: (A) the parties confirmed that a divorce action had been filed in June, 2014 but the parties were “desirous of discontinuing the action:”1 (B) the parties had joint custody and the father had visitation on Tuesday evenings and alternate weekends, two weeks of vacation over the summer, recess periods from school, and a series of alternating holidays; (C) the couple agreed that neither would do anything to estrange the children from the other; (D) the parents would notify each other of addresses, and each would have the right to communicate via technology at reasonable times and neither parent could interfere with that right; (E) the parents agreed to consult with each other on a host of decisions — schools, religious training, camps, health and welfare among others; (F) the parents would each “exert reasonable effort to maintain free access and unhampered contact between the children and each of the parents,” including a requirement that if the parent traveled with the children, the traveling parent would provide an itinerary and contact information; and, (G) neither parent paid child support or any other form of support. In reviewing the proof at trial, this Court acknowledges that the proof establishes that little in the stipulation was followed by these parents at any time. There is no documentary evidence before the Court indicating that the parties “discontinued” the action pending in 2015, when the stipulation was signed. However, the current proceeding carries a 2016 index number, which suggests that a subsequent action was later filed. There is no evidence that the father’s joint custodial rights were accommodated after the stipulation was signed or that he exercised the stipulated range of visitation rights, either at the time of its execution, in the few years thereafter or at the time of trial. There is no evidence that the mother notified the father of her travels with the children or accommodated the father’s right to electronic access to his children. There is no evidence that the parents engaged in any of the joint decisions required by the stipulation. From 2012 until 2017, during the time before and after the stipulation, the father testified that he had regular contact with his children, often by phone, although he testified that he later learned that his wife was monitoring the calls. Apparently, after the 2016 divorced action was commenced, the wife moved for temporary relief, maintenance and child support and other payments in April, 2017. The Court referred most of the requested relief to a trial, denied the mother’s request to impute income to the father but ordered child support in the amount of $1500 per month to be paid directly through the child support enforcement unit As with the stipulation, it is unclear, through the trial testimony, whether either parent followed the 2017 temporary court order. First, the order never mentions or supercedes the signed stipulation, leaving the later’s terms regarding the father’s access to the children and other details intact. Second, there is no evidence of the husband’s compliance with the $1500 per month child support obligation. The order references that the payments would be made through the Child Support Enforcement Unit (CSEU) but there is no evidence that such an account existed then or now. An incident occurred in the Christmas season in 2017, which resulted in the mother terminating all the father’s visitation with his children. The incident was the subject of contested testimony. The daughter — who lives with the father — testified that during a meal at a restaurant, she became upset, walked out and called her mother. The mother’s boyfriend eventually came to the restaurant to pick up the daughter. The mother thereafter claimed the daughter’s experience justified refusing the father further access to the children, even though only one child had been upset and furthermore that the involved daughter testified at trial that she felt she had been “set up” by the mother, who was looking for a reason to curtail the father’s visits with all the children. After the December, 2017 incident, the wife testified that the father had “walked away” from his children, neglected to contact them or make any effort to contact them and, as a consequence, she thereafter disapproved of the father’s interaction with his children after that time and up to an including the day of trial. The father disputed the claim that he had abandoned the children. The father testified that he was further injured in two serious accidents in 2018-19 which further impacted his memory. The father testified that he gave his children cards over the Holiday Seasons in recent years but, as further testimony demonstrated, the mother often intercepted those cards and, she testified, turned them in and gave the children the equivalent cash benefit. However, in a lapse of time that troubles the Court, the father, although the divorce was pending and a temporary order was in effect, took no legal action to enforce the stipulation and restore his visitation with the child for more than three years. He testified that the long delay was a result of the injuries he sustained in accidents in 2018-19 and a lack of funds to complete the divorce action. There was no documentary proof of either the lack of funds during this time or the impact of any injuries. He further testified that he had attempted phone contact and text messaging with his children during this time but he learned that the childrens’ phones numbers were no longer working and that texts, directed to the children, were not received during most of the last three years. In the father’s absence and with no action to move the divorce action forward, the mother, as the primary residential parent, continued a series of steps that resulted in an expanded influence over her children. She home schooled the children for years. The couple’s daughter, who had left the mother’s residence and testified at trial that she was living with her father, testified that the mother during the years after 2017 often made repeated disparaging statements about the father, claiming that the mother said “he [the father] was not your dad” and “he does not want to see you.” The daughter also testified that the mother would punish a child for talking about their father and reward them for not visiting with their father. The mother took the children away from the marital residence for a significant time and took them on an around-the-country odyssey in 2020. The mother never told the father that the children were traveling and gave him no chance to interact with them during that extended travel. As final evidence of the mother’s substantial influence over the children, the mother bought a small restaurant in late 2020. After she opened the restaurant, the children remaining at home, including the youngest 12-year-old, worked at the restaurant serving food and busing tables. The mother pays the children each week for their work from accumulated tips. In short, the mother serves as the boss of the children and their source of income in addition to running her household. Importantly, this Court issued a temporary order mandating visitation between the father and his youngest child which the child’s counsel advocated at trial. The visitation was minimal: a single evening meal each week. As of the date of trial, the evening meal visitation between a father and his youngest child had not occurred. The father claims he made the arrangement to pick up the child. The mother claims that she left the child at home to allow the visit, while she took the remainder of her children to an amusement park. The failure of the temporary visitation reflects the mother’s animosity to father’s visitation: there is no evidence, credited by the Court, that she encouraged the child to visit. The failure of the mother and other family members to encourage the visitation remains unexplained, even after the Court’s Lincoln hearing with the child. During the trial, the mother introduced a series of witnesses to testify to her parenting skills. These witnesses attested to the mother’s skills and the success of her parenting. Importantly, these witnesses add little to the Court’s consideration. The issue before this Court is not whether the mother is a good parent but whether the father, who will pay support, should have an opportunity to achieve the same role as a quality parent as the stipulation dictated and as the temporary order was designed to achieve. Based on the testimony credited by the Court in this matter, the Court concludes: Primary residence of the four youngest children shall remain with the mother. Consistent with the signed stipulation, the parents shall share joint legal custody including access to all health and school records, telephone contact information, notification in emergencies. But, this Court further finds that the four years that have elapsed since the 2017 order and the six years since the 2015 stipulation and the factual changes involving the children’s lack of access and interaction with their father constitute a change of circumstances and render joint legal custody as no longer practical. Therefore, with respect to decision-making by the parents, the mother shall after consultation with the father, have final decision-making authority, provided that she shall have an obligation to confer with the father prior to making a final decision and any decision shall not interfere with the father’s visitation and must be in the best interests of the child. With respect to visitation, the Court further finds that the expanded delays since the execution of the stipulation and issuance of the Court order also constitute a change in circumstances sufficient to modify the visitation provisions in the stipulation. In that regard, the terms of the temporary order, which provide the father with an evening meal with his youngest daughter once a week shall be incorporated into the judgment of divorce. The meal shall occur from 6pm to 8 pm every Tuesday. The father shall pick the child up from the mother’s home and return her. In resolving the future visitation for the remaining children, the Court is struck by the extensive visitation — alternate weekends and weekday evenings — granted by the mother to the father in the 2015 stipulation. The Court, based on the testimony at trial, finds that both parents share some responsibility for the breakdown of the agreed visitation plan in the stipulation. The father seemingly neglected seeking any enforcement of his visitation rights under the 2015 stipulation for years. The mother obtained a court order in 2017 which established child support to be paid by the father but preserved the visitation plan set forth in the stipulation. The father’s failure to seek any enforcement — despite his testimony that he tried to establish some contact with his children — allowed the mother to assume an even more influential position in her children’s lives and, if the Court credits the daughter’s testimony regarding her mother’s comments about the father, the mother enhanced her influence through demeaning the father and frustrating even his attempts to give his children gifts. Under all these circumstances, the Court seeks to establish a platform to allow the father to rekindle relationships with his children. The Court will mandate two forms of visitation for all the unemancipated children. (A) The remaining children who live with their mother shall have visitation with their father through electronic means, preferably Zoom or Face Time every Wednesday evening from 7 pm to 7:30pm. Either party may tape the electronic contact. The mother and father shall exchange information necessary to establish the contact. The mother shall be responsible, as long the children reside in her home, to ensure that the children participate in the electronic session with their father. (B) These same children shall have a meal with their father once every two weeks. The youngest child shall participate. The meal shall occur from 6pm to 8 pm every other Tuesday. The father shall pick the children up from the mother’s home and return them. The father shall in advance notify the mother and the children of the restaurant where the visit will occur. (C) The mother shall provide the father with the cell phone numbers or email addresses or any social media contacts for the children and shall not block or disturb the father’s contact with the children through these media. (D) The mother shall provide the father with advance notice of any extracurriculars or other events in which the children participate and the father shall be allowed to attend such events without interference from the mother. (E) If any of the children fail to participate in above visitation with their father, the mother may not employ (or otherwise compensate) the non-compliant child in her restaurant — or for that matter permit the children to engage in any other occupation — for the next week or until they participate in the required visitation with their father. The Court is confident that the mother, who has substantial control over her children both as their mother and their employer, can be required and ordered to have her children participate in court-ordered visitation or deny them the opportunity to work in the restaurant or in any other occupation. This provision shall be incorporated into the final judgment of this Court.2 (F) Any additional visitation shall occur as the parents may agree. The Court declines to order therapeutic counseling between the father and his children. The father has had such minimal contact during the last half decade that the Court sees little likelihood that such counseling would be successful at this stage. If visitation, as dictated by this order, proves successful and the children seek further engagement with their father, then he can initiate such counseling.3 Critically, in order for any aspect of this resolution to work, the mother needs to stop disparaging the father in the presence of the children. The mother, during the trial, made it abundantly clear that she opposed the father’s engagement with the children. She harbors a bitterness to the father which, given his long absence from the childrens’ lives and nearly decade-long divorce process, is not without some justification. It is undisputed that the father, during at least the last three years and for a significant time prior to that, did not attend any of the children’s school-related events, games, school conferences and medical appointments.4 But, the stipulation signed by the mother contains language mandating that she would not take any steps to “estrange the children” from their father. The mother, based on trial proof credited by the Court, has repeated comments disparaging the father, including the “he’s not your father” comment which violated the agreement and undermined any attempt by the father to win his way back into a normal relationship with his children.5 The testimony, which the Court credits, establishes that the mother reviewed the children’s phone activity “almost every night” which gave her the opportunity to determine whether the children were communicating with their father. This Court concludes that this conduct and other testimony credited by the Court was designed to instill a fear in the children if they communicated with their father, even though the mother agreed to that communication in the 2015 stipulation. The children’s fear that their mother will punish them for interacting with their father needs to become a thing of the past. Child support and maintenance represent a challenging part of the Court’s decision in this instance. First, the temporary order in 2017 required $1500 per month in child support to be paid by the father. However, the order does not include any description of how the payment was calculated and whether it was consistent with the Child Support Standards Act (CSSA). There is also no indication of how many of the couple’s six children were included in the support payment. There is no evidence of how much or how often, if at all, the father made payments under the order. Under those circumstances, this Court cannot currently enforce that obligation but will reserve to the mother that opportunity to seek further enforcement of the order and any potential arrears after conclusion of the divorce. In deciding current child support, the Court confronts other issues. First, the father contends that one of the children, covered by a child support award, resides with him, a fact that offsets his otherwise significant child support obligation. One of the couple’s children testified that she no longer lived with her mother and instead lived with her father. The Court credits her testimony and therefore, since that child is under age 21, the support calculation must include a recognition that the mother seeks support for four children and the father seeks support for one child. Second, The father’s income — $64,289.16 annually — is derived from social security and military disability benefits. The mother’s income is more nuanced: she filed her 2020 tax return and listed only $346 in annual income. However, she bought a small family restaurant in late 2020. She testified that she now draws a weekly salary of $441 from the business. Her current annual income in 2021 — for a full year of operating the restaurant — via a paycheck will be $22,932. In addition, the tips generated in the restaurant, she testified, total approximately $1,000 weekly. The tips are divided among her children — ages 18 to 12 — who serves as waiters and busers in the restaurant. The tips annually total $52,000, according to the mother. In seeking to justify allocation of both child support and maintenance, the father asks that the entire tip income be imputed to the mother. The Court declines that request: instead the Court imputes half of the tip income to the wife for support purposes, which increases her income to approximately $48,000 annually. In addition, the father seeks to impute, as further income, the adoption subsidy received by the mother annually in the amount of $27,600. The Court notes that both parents adopted these children and, to that extent, the benefit is premised on participation of both parents. The New York courts have refused to credit adoption subsidies as an offset against a parental child support obligation. In Matter of Barbara T. v. Acquinetta M., 164 AD3d 1(1st Dept 2018), the Court, citing A.E. v. J.I.E., 179 Misc 2d 663 (Sup. Ct Bronx County 1999) held that an adoption subsidy cannot be considered as income to a parent for the purposes of crediting it against, and thus decreasing, the noncustodial parent’s child support obligation. See also Matter of Graby v. Graby, 87 NY2d 605 (1996)(Social Security payments received by the child of a disabled noncustodial parent cannot be included as income to that parent and credited against her support obligation); Matter of Commissioner of Social Servs. v. Segarra (78 NY2d 220 (1991)(parent’s duty to support child is not abrogated by child’s receipt of public assistance). The First Department, following A.E.v. J.I.E., held that if the parents had not separated, the child would have received the benefit of both parents’ income, in addition to the adoption subsidy. The court found that the subsidy may, however, be considered in determining whether the noncustodial parent’s statutory child support obligation is “unjust or inappropriate.” Family Ct Act §413 [1] [f]. Therefore, in calculating child support, the Court ignores the adoption subsidy. The father’s income is a net, as he pays no social security taxes. The mother’s imputed income of $48,000 annually is subject to social security which reduces the net income for child support calculations to $44,328 annually. Based on these calculations, the father pays support for four children at the rate of 31 per cent on his $64,289.16 annual income or $19,929 annually. The mother would pay support at the rate of 17 per cent for one child or $7,535, which when netted equals a payment of $12,394 annually or $1,033 monthly from the husband to his wife. The mere calculation of the net child support does not end the Court’s consideration. As the First Department suggested, because after the calculation of support, the Court can modify the obligation if it determines that the father’s payments are unjust or inappropriate. Family Ct Act §413 [1] [f]. In considering those factors, the question arises whether the adoption subsidy, while not imputed as income to the mother, can be a “financial resource” of the mother. Id. §(f)(1). The Court declines to consider it as such, as doing so would be a backdoor form of imputing the subsidy as income to the wife. On the other factors, the proof before this Court is lacking. There is no evidence of special needs for the children or the standard of living in the mother’s household, the tax consequences are unexplained, there is no evidence that either parents needs additional education and the actual gross incomes — if the tips are half apportioned to the mother — are not substantially dissimilar. The Family Court Act permits this Court to consider “any other factors” in resolving whether the child support payments from the father to the mother are unjust. Id. While the statute grants broad discretion on awarding the final support, this Court declines to adjust the otherwise payable support under the facts of this case. As noted earlier, the father commenced the original divorce action in 2014. After the 2015 stipulation, that action was discontinued and restarted in 2016. The disputes between this couple sat, without attention or progress, for more than half a decade after the 2015 stipulation and for almost a half decade after the 2017 temporary order. If the father had pushed for access or taken other actions in the pending divorce, this Court might weigh the equities for paying child support in this matter differently. Under these circumstances and those described at length above, the Court declines to utilize the “other factors” to modify the father’s child support obligation. The child support payments shall commence upon the first day of the first month after the issuance of this decision and shall be paid no later than the fifth day of each month when due. The child support shall continue until each child turns 21 and, upon emancipation, the child support shall be recalculated in accordance with the Child Support Standards Act for the remaining children. The Court will require the parents to jointly determine the best medical coverage at the most reasonable cost and they shall share the future cost of that insurance and any unreimbursed health expenses equally. There is no evidence of any unpaid health insurance costs and any claims are denied. There is no proof of any college costs or any request to apportion those costs and hence, any claims in that regard are waived. This Court above addressed the issue of arrears in child support. At this point and in the absence of any proof, the Court declines to award any payment of arrears in child support but leaves that issue for further resolution in a post judgment application. While the adoption subsidy cannot be considered as part of the mother’s income for child support, it can, under a formula frequently used by this Court, be considered part of the “net resources available” for a calculation of maintenance. See Rapp v. Rapp, 130 NYS 3d 599 (Sup.Ct. Monroe Cty 2020); Cooper v. Cooper, 37 NYS 3d 206 (Sup.Ct. Monroe Cty 2016). In this instance, the father’s net income is $64,289.16 and that amount is not subject to income tax. If the father pays $12,394 in child support annually, his net available resources totals $51,895 annually. The mother’s income is imputed at $48,00, minus FICA or $44,328. However, with the large number of exemptions and other credits, it is unlikely that the mother would pay any taxes to either the state or federal governments. If the adoption subsidy is considered part of the mother’s “net available resources,” then the mother has the benefit of the subsidy — $27,600 — and the receipt of the child support — $12,394 — added to her income — $44,328 and she had a total of $87,994 in available resources. The effect of these additional sources of support suggests that the mother had greater net resources available than the father and moots the claim for maintenance paid by the father to the mother. The father waived any claim for maintenance and hence, that issue is resolved. There are no issues of equitable distribution before the Court and no demands for any distribution of any marital assets. The father testified that all the assets had been previously divided. Both parties will keep all assets currently in their names. This decision resolves all the issues necessary for issuance of a divorce under Section 170(7) of the Domestic Relations Law. Upon submission of a judgment roll incorporating this decision, the Court will execute it and this marriage will be dissolved. SUBMIT JUDGMENT ROLL ON NOTICE 22 NYCRR 202.48 Dated: September 21, 2021
