| Ekstra v Ekstra |
| 2008 NY Slip Op 02104 [49 AD3d 594] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Alexander Ekstra, Respondent, v Melissa Ekstra,Appellant. |
—[*1] Most & Kusnetz, LLC, White Plains, N.Y. (Marcia E. Kusnetz of counsel), for respondent. Steven Ranellone, White Plains, N.Y. (Neal D. Futerfas of counsel), Law Guardian.
In an action for a divorce and ancillary relief, the mother appeals, as limited by her brief,from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), enteredOctober 2, 2007, as, upon a decision of the same court dated September 4, 2007, made after ahearing, awarded sole custody of the parties' children to the father. By decision and order onmotion of this Court dated October 10, 2007, enforcement of the order was stayed pendinghearing and determination of the appeal.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, the matter is remitted to the Supreme Court, Westchester County, for a reopenedhearing in accordance herewith and a new determination thereafter on the issue of custody of theparties' children, and, pending such new determination, the mother is awarded temporary custodyand the Supreme Court shall establish a visitation schedule for the father.
After the commencement of this matrimonial action, the Supreme Court held a separate trialon the issue of custody, and appointed psychologist Daniel S. Lobel as a neutral forensic expertto conduct evaluations and submit a written forensic report on the custody issue. Theappointment [*2]order provided that "[t]he neutral forensicevaluator's final report shall be admitted as evidence-in-chief without the necessity forindependent foundation testimony or evidence, pursuant to 22 NYCRR 202.16 (g)." The orderfurther provided that "[a]ny party who wishes to cross-examine the neutral [forensic] evaluator,as permitted by the Uniform Rules, shall bear the cost of the neutral [forensic] evaluator'sservices in preparing such testimony, travel and testifying unless the Court directs otherwise."After Dr. Lobel's report was submitted, the father's counsel expressed an intention tocross-examine him and asked the court whether the father would be required to bear the costs ofhis appearance. The court responded that the father would not be required to bear that expense,but made no other provision for payment. As a consequence of not receiving his fee Lobel didnot appear and the court thereupon granted the father's application to preclude the forensic report.Relying largely on its evaluation of the credibility of the witnesses, the court awarded solecustody of the parties' two children to the father. The mother appeals.
In custody disputes, the value of forensic evaluations of the parents and children has longbeen recognized (see Matter of Womackv Jackson, 30 AD3d 433, 434 [2006]; Stern v Stern, 225 AD2d 540, 541[1996]). Thus, the court properly appointed a neutral expert to conduct forensic evaluations ofthe parties and their two children (see 22 NYCRR 202.18). The court erred, however, inexcluding the forensic report. In light of the sharply conflicting testimony regarding the conductof the parties, and evidence suggesting that the children were exhibiting behavioral problems, thecourt should not have rendered a custody determination without first receiving the report of theneutral forensic expert it had appointed. Moreover, inasmuch as the father had the right tocross-examine the expert (see 22 NYCRR 202.16 [g] [2]), and the expert could not havebeen compelled to testify without appropriate compensation (see Morgan v New York City Tr. Auth., 24 AD3d 639 [2005]; Metropolitan N.Y. Coordinating Councilon Jewish Poverty v FGP Bush Term., 1 AD3d 168 [2003]), the court should have madeprovision for payment to Lobel as it indicated that it would in the order appointing him.
Accordingly, we reverse the order insofar as appealed from and remit the matter to theSupreme Court, Westchester County, to reopen the custody hearing, at which time Lobel's reportshould be received in evidence and, should either party wish to cross-examine him, the courtshould make provision for the payment of his fee and expenses in accordance with the orderappointing him.
The defendant's remaining contentions are without merit.
Motion by the appellant on an appeal from an order of the Supreme Court, WestchesterCounty, entered October 2, 2007, inter alia, to strike the respondent's brief or stated portions ofthe respondent's brief on the ground that it contains or refers to matter dehors the record. Bydecision and order on motion of this Court dated February 7, 2008, that branch of the motionwhich was to strike the respondent's brief or stated portions of the respondent's brief was held inabeyance, and was referred to the Justices hearing the appeal for determination upon theargument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition or relationthereto, and upon the argument of the appeal, it is
Ordered that the branch of the motion which was to strike the respondent's brief or statedportions of the respondent's brief is granted to the extent that the penultimate sentence on page 35of the respondent's brief, commencing with the words "[a]fter the interim," is stricken, thatsentence has not been considered on the appeal, and that branch of the motion is otherwisedenied. Fisher, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.