| Matter of Dobies v Brefka |
| 2011 NY Slip Op 02761 [83 AD3d 1148] |
| April 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of David Dobies, Respondent, v AleneBrefka, Appellant. Patricia Countryman, as Attorney for the Children, Appellant. (And AnotherRelated Proceeding.) |
—[*1] Patricia Countryman, Schenectady, attorney for the children, appellant. Frank M. Putorti Jr., Schenectady, for respondent.
Egan Jr., J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered April 20, 2010, which, among other things, partially granted petitioner's applications, intwo proceedings pursuant to Family Ct Act article 6, to, among other things, modify a prior orderof custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarriedparents of two children, Jaclyn (born in 1993) and Nikolas (born in 1995). Underlying this case isa history of acrimonious relations between the parties, resulting in more than a decade oflitigation between them and members of the mother's family (see Dobies v Brefka, 45 AD3d 999 [2007]; Dobies vBrefka, 273 AD2d 776 [2000], lv dismissed 95 NY2d 931 [2000]; Matter ofBrefka v Dobies, 271 AD2d 876 [2000], lv denied 95 NY2d 759 [2000]; Dobiesv Brefka, 263 AD2d 721 [1999]). In 1999, the parties entered into a stipulation, which wasincorporated into an order, whereby it was agreed, among other things, that the mother have solecustody of the [*2]children and that the father have certainparenting time. Thereafter, in 2004, the father filed both a violation petition and petition seekingsole custody of the children, alleging that the mother had engaged in an intentional campaign ofparental alienation against him. In November 2004, Family Court granted the father's violationpetition, ordered that the mother continue to have sole custody of the children, but increased thefather's parenting time. In its determination, Family Court expressed its "grave concerns" with themother's behavior, noting that it would reconsider its decision if she continued to interfere withthe father's relationship with the children.[FN1]
In September 2008, the father commenced the first of these proceedings, seeking, amongother things, an order granting him sole custody of the children and terminating his child supportobligations. In October 2008, the father commenced the second of these proceedings alleging thatthe mother had intentionally violated the 2004 and 2008 custody orders. After fact-finding andLincoln hearings, Family Court granted the father sole physical and legal custody ofNikolas, terminated the father's child support obligations for Jaclyn, suspended the father's childsupport obligations for Nikolas and sentenced the mother to 60 days in jail for willfully violatingthe prior orders.[FN2]Family Court denied that part of the father's application seeking custody of Jaclyn, finding thather relationship with the father was irreparable. The mother and the attorney for the children nowboth appeal.[FN3]
Initially, we are not persuaded that Family Court erred in finding that the father establishedthe requisite change in circumstances. To effectuate a modification of a prior custody order, thefather must establish "a change in circumstances reflecting a real need for change in order toinsure the continued best interest of the child" (Matter of Robert SS. v Ashley TT., 75 AD3d 780, 781 [2010][internal quotation marks and citations omitted]; see Matter of Paul T. v Ann-Marie T., 75 AD3d 788, 789 [2010],lv denied 15 NY3d 713 [2010]; Matter of Henderson v MacCarrick, 74 AD3d 1437, 1439 [2010]).The 1999 custody order granted the father parenting time every other weekend, for three weeksduring the summer, from Wednesday through Sunday of Thanksgiving week in odd numberedyears, on Father's Day, on the father's birthday (November 6), and from December 27 throughDecember 29. The 2004 custody order expanded the father's alternate weekend parenting timethrough Monday when there is no school because of a holiday and awarded him additionalparenting time during winter and spring recesses, for one week after Christmas and for fiveweeks during the summer. The father claimed that a sufficient change in circumstance hadoccurred since entry of these prior orders based on, among other things, the mother's deliberateattempts to influence and disrupt the father's parenting time with the children.[*3]
At the hearing of this matter, the father testified that hehas not had any visitation with Jaclyn since March 2007 and has had no weekend parenting timewith Nikolas between August 2008 and March 2009.[FN4]The father recounted multiple examples of alienating behavior engaged in by the mother,including in the spring of 2007 when the mother refused to let Nikolas participate in visitationwith the father because of inclement weather—despite the fact that both parties hadalready driven to the custody exchange point. The father also testified that, in 2007, the mothertold Jaclyn that she did not have to participate in the spring break visit with the father. The fatherfurther testified that on two occasions—in April 2007 and at the commencement ofFather's Day weekend in June 2007—when Jaclyn refused to participate in visitation withthe father, the mother indicated that there was nothing she could do about it and that Jaclyn had amind of her own. The father also testified that during an attempted exchange occurring in thesummer of 2007 at a restaurant parking lot—an exchange that never occurred—themother refused to transfer Nikolas' suitcase to the father's car and then laughed at the father andtook a photograph of him with her cell phone while she walked inside the restaurant with thechildren.
The mother did not dispute that the relationship between the father and the children hasdeteriorated to the point that the children have refused visitation with him, but she attributed thisto the actions of the father—claiming he was dishonest, that he called the children namesand that he used physical force to discipline the children. While she testified that it was "veryimportant" for Nikolas to have a relationship with his father and asserted that she has encouragedsuch visitation, the mother could not identify one instance when she disciplined Nikolas forrefusing to visit the father or for misbehaving while visiting. The mother also testified that shefelt that the father was a "pathological liar" and, in essence, that she accepted Nikolas' version ofevents whenever the father accused Nikolas of misbehaving. Family Court found the mother'sexplanations for her conduct insufficient and her "credibility to be seriously impaired and hertestimony contradictory throughout the trial, particularly when she denied actively discouragingthe children from having a relationship with their father." According deference to Family Court'scredibility determinations, we find that there is sufficient evidence in the record supporting thecourt's conclusion that the mother interfered in the father's relationship with the children, suchthat the father established the requisite change in circumstances (see Matter of Arieda v Arieda-Walek,74 AD3d 1432, 1434 [2010]; Matter of Sloand v Sloand, 30 AD3d 784, 786 [2006]; Matter ofKnapp v Knapp, 296 AD2d 604, 605 [2002]).
Having so determined, Family Court was then required to conduct a best interest analysis,considering factors such as "maintaining stability in the child's life, the wishes of the child, thequality of the home environment, each parent's past performance, relative fitness and ability toguide and provide for the child's intellectual and emotional development, and the effect the awardof custody to one parent would have on the child's relationship with the other" (Matter ofTroy SS. v Judy UU., 69 AD3d 1128, 1131 [2010], lv dismissed and denied 14NY3d 912 [2010] [internal quotation marks and citation omitted]; see Matter of Slovak v Slovak, 77AD3d 1089, 1091 [2010]; Matter ofSiler v Wright, 64 AD3d 926, 928 [2009]). While a determination of the children's bestinterests must be based on a totality of the circumstances (see Posporelis v Posporelis, 41 AD3d 986, 990 [2007]),"[e]vidence that the custodial parent intentionally interfered with the noncustodial parent'srelationship with the [children] is so inconsistent with the best interests of the [children] as to,per se, raise a strong probability that [the offending [*4]party] isunfit to act as custodial parent" (Matter of Youngok Lim v Sangbom Lyi, 299 AD2d 763,764 [2002] [internal quotation marks and citations omitted]). Here, we conclude that the recordprovides a sound and substantial basis for Family Court's determination to grant the father solelegal and physical custody of Nikolas. In addition to the mother's alienating behavior, otherfactors support Family Court's conclusion, including that, despite evidence of Nikolas' recentobsessive compulsive tendencies, his falling school grades, his continued bed-wetting and thathis behavior and reactions are at the level of a four or five-year-old, the mother testified thatNikolas' behavior was that of a normal teenager. Furthermore, while the mother testified that shewanted to work with Nikolas' psychologist—Zvi Klopott—to strengthen the child'srelationship with his father, she refused to read Klopott's reports because they painted her in anegative light. Notably, the mother has not actively sought counseling for herself,notwithstanding that Family Court's 2004 order recommended that she do so. The mother alsotestified that she was unaware of that part of Family Court's 2004 order that found that she wasinterfering in the relationship between the father and the children.
While Marvin Fine, a psychologist who treated the children from 2003 to 2008, testified thatit would be "devastating" to remove Nikolas from the mother's custody, Family Court found thathis testimony was of "limited utility" because, among other things, he was unaware of a priorpsychologist's report opining that the mother had alienated the children from the father andbecause he failed to focus on the issue of parental alienation in therapy. Klopott, who treatedNikolas commencing in 2008, testified that removing Nikolas from his mother's custody mightbe necessary to preserve his relationship with the father, and that although Nikolas would beinitially "devastated," he would slowly accept the change. While Klopott did not recommend achange in custody, we note that his recommendation, while relevant, is not determinative (seeMatter of Bates v Bates, 290 AD2d 732, 733 [2002]). Family Court acknowledged thefather's own shortcomings, including, among others, his use of physical discipline, his exercise ofpoor judgment in 2007 when, while driving with Nikolas, the father picked up a hitchhiker, andincidents when the father has engaged in name-calling and has ridiculed Nikolas in the presenceof strangers. However, Family Court found that these deficiencies may be addressed withcontinued therapy. Viewing the totality of the circumstances and according deference to FamilyCourt's credibility assessments, we find ample support in the record for Family Court'sdetermination that it is in Nikolas' best interests for the father to have sole legal and physicalcustody of him (see Matter of Opalka vSkinner, 81 AD3d 1005, 1007-1008 [2011]).
We next address the mother's argument that Family Court erred in terminating the father'schild support obligation for Jaclyn and suspending the father's child support obligation forNikolas. "Under firmly established principles, parents have a statutory duty to continuallysupport their children until they reach 21 years of age" (Foster v Daigle, 25 AD3d 1002, 1004 [2006], lv dismissed6 NY3d 890 [2006] [citations omitted]; see Family Ct Act § 413 [1] [a]). However,child support payments may be suspended " '[w]here it can be established by the noncustodialparent that the custodial parent has unjustifiably frustrated the noncustodial parent's right ofreasonable access' " (Usack vUsack, 17 AD3d 736, 737-738 [2005], quoting Matter of Smith v Bombard, 294AD2d 673, 675 [2002], lv denied 98 NY2d 609 [2002]). In addition, child supportpayments may be deemed forfeited when "a child of employable age . . . activelyabandons the noncustodial parent by refusing all contact and visitation, without cause,. . . a concept sometimes referred to as the doctrine of self-emancipation" (Labanowski v Labanowski, 49 AD3d1051, 1053 [2008] [internal quotation marks and citation omitted]; see Matter of Ogbornv Hilts, 269 AD2d 679, 680 [2000]). However, abandonment by a child who is not "ofemployable age" cannot be deemed to constitute constructive emancipation (Foster vDaigle, 25 [*5]AD3d at 1004 [internal quotation marksomitted]).
Family Court's determination that the mother deliberately frustrated the father's relationshipwith Nikolas has a sound and substantial basis in the record. Accordingly, we decline to disturbFamily Court's determination to suspend the father's child support obligation for Nikolas. Next,while we agree with the mother that Jaclyn, who was only 16 years of age at the time of thecourt's order, was unable to abandon the father so as to forfeit his support obligation and, thus,Family Court erred in terminating the father's child support obligation as to her (see id. at1005; Matter of Kershaw v Kershaw, 268 AD2d 829, 830 [2000]; but see Matter ofJoseph M.M. v Mary Ellen C.M., 227 AD2d 561, 562 [1996], appeal dismissed and lvdenied 88 NY2d 1014 [1996]), the facts clearly support a finding that the father's supportobligation should also be suspended with respect to Jaclyn based on the mother's conduct indeliberately frustrating his relationship with Jaclyn (see Matter of Kershaw v Kershaw,268 AD2d at 830). Accordingly, the father's support obligations with respect to Jaclyn are alsosuspended pending further court order upon a showing that the mother has made good faithefforts to actively encourage and restore the father's relationship with the children (see Usackv Usack, 17 AD3d at 740).
Turning to the mother's argument that Family Court erred in finding that she had willfullyviolated the terms of the 2004 and 2008 orders,[FN5]"[t]o sustain a finding of civil contempt based upon a violation of a court order, it is necessary toestablish [by clear and convincing evidence] that a lawful court order clearly expressing anunequivocal mandate was in effect and that the person alleged to have violated that order hadactual knowledge of its terms" (Matterof Seacord v Seacord, 81 AD3d 1101, 1102 [2011] [internal quotation marks andcitations omitted]; see Matter of JosephYY. v Terri YY., 75 AD3d 863, 867 [2010]). The 1999 order, based on the parties'stipulation and continued by the 2004 order, provides that "neither the [m]other nor the [f]athershall do anything which may estrange the other from the children." The 2008 order provides thatthe parties shall make every reasonable effort "to facilitate and encourage parentingtime-visitations between NIKOLAS and his father." The father's violation petition is based ontwo incidents occurring in October 2008—the first when the mother is alleged to havepicked up Nikolas early from his visitation with the father at a bowling alley, and the secondwhen, during a church service, the mother is alleged to have "ripped" the father's camera from hishands and removed the memory card after he took a photograph of Jaclyn, who was participatingin the Mass. The father testified that the mother then ran out of the church and into the parkinglot, where, among other things, she complained to a nun that the father was harassing her. Wefind that these incidents do not allege acts that are clearly proscribed by the 2004 and 2008custody orders (see Aison v HudsonRiv. Black Riv. Regulating Dist., 54 AD3d 457, 459 [2008]; Matter of Hoglund vHoglund, 234 AD2d 794, 795-796 [1996]; compare Matter of Cobane v Cobane, 57 AD3d 1320, 1323 [2008],lv denied 12 NY3d 706 [2009]) and that Family Court erred in finding that the motherwillfully violated those orders.
Finally, based on Klopott's testimony that the best chance for an orderly change in custodyrequired that Nikolas have an initial period of no contact with the mother in order to break herinfluence over him, we are unpersuaded that Family Court abused its discretion by ordering thatshe have no contact with Nikolas for the first month after custody is transferred to [*6]the father (see Matter of Williams v Tillman, 289 AD2d885, 885 [2001]). The mother's remaining contentions, including that Family Court failed toconduct a Lincoln hearing with Jaclyn prior to terminating the father's child supportobligations and challenging the sentence imposed, have been rendered academic.
Mercure, J.P., Rose and McCarthy, JJ., concur. Ordered that the order is modified, on the lawand facts, without costs, by reversing so much thereof as (1) terminated petitioner's child supportobligations with respect to Jaclyn, and (2) found respondent in willful violation of the 2004 and2008 custody orders; said child support obligations are suspended pending further order of theFamily Court of Schenectady County not inconsistent with this Court's decision and petitioner'sviolation petition dismissed; and, as so modified, affirmed.
Footnote 1: In 2007, the father soughtmodification of the 1999 and 2004 orders and alleged that the mother had willfully violated thosecourt orders. As a result, in March 2008, the parties stipulated to an order continuing theprovisions of the 2004 order, but which slightly modified the father's March and April 2008parenting time.
Footnote 2: The 60-day sentence was stayedpending the transfer of physical custody of Nikolas to the father.
Footnote 3: In June 2010, this Court granteda stay of Family Court's order.
Footnote 4: During the fact-finding hearing,the father had several overnight visitations with Nikolas.
Footnote 5: The father's violation petitionalso references a September 2008 letter order, but that document is not contained in the record.