| Ashmore v Ashmore |
| 2012 NY Slip Op 01419 [92 AD3d 817] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Kelly Ashmore, Respondent, v Benjamin Ashmore,Appellant. |
—[*1] Fersch Petitti, LLC, New York, N.Y. (Danielle R. Petitti of counsel), for respondent. Brad M. Nacht, Brooklyn, N.Y., attorney for the children.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Kings County (Prus, J.), dated June 3,2011, which, upon a decision of the same court dated May 5, 2011, made after an inquest, interalia, awarded custody of the children to the plaintiff and permitted her to relocate with them toMichigan, directed that his visitation with the children be supervised, directed him to pay theplaintiff $125 per week for five years in maintenance and $2,583 per month in child support,directed him to pay the plaintiff $6,914, representing her share of the couple's 2007 tax return,directed him to pay $116,500 of the $118,000 balance on the parties' student loans, directed himto be responsible for 90% of the remaining marital debt, directed him to pay one half of the costof updated court-ordered forensic evaluations, directed him to pay $30,000 of the plaintiff'sattorney's fees, and denied his application requesting the Supreme Court Justice presiding overthe trial to recuse himself.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff (hereinafter the mother) and the defendant (hereinafter the father) were marriedon July 26, 1997, when the mother was 19 years old and the father was 20 years old. They havethree minor children. The mother commenced this action for a divorce and ancillary relief onOctober 19, 2007.
At the inquest, a report prepared by forensic evaluator Wilma Cohen Lewis was submittedinto evidence by the mother. Cohen Lewis interviewed the father, the mother, and the children inthe preparation of the report. Cohen Lewis also conducted interviews with nine collateralwitnesses who did not later testify at trial. Cohen Lewis recommended that the Supreme Courtaward custody to the mother and allow her to relocate with the children to Michigan, and that thefather's visitation be supervised. At trial, Cohen Lewis testified that the father had alienated thechildren from their mother. Her interviews with the children led her to the conclusion that thefather had influenced, if not outright coached, their responses. She testified that the fatherdisplayed signs of severe psychopathology and narcissistic personality disorder. Two otherexperts concurred with her assessment and recommendation. Cohen Lewis testified that shebased her conclusions on her interviews with the parties and the children, and not on theinterviews with the collateral witnesses.[*2]
Although the mother had suffered fromobsessive-compulsive disorder and depression in the past, she received treatment for theseconditions, and has had no symptoms since 2006. She submitted the father's employment recordsinto evidence, demonstrating that he made $126,000 in 2009. The parties submitted evidence thatthe father was responsible for the majority of their student loan debt.
In a judgment dated July 3, 2011, the Supreme Court, inter alia, awarded custody of thechildren to the mother and permitted her to relocate with them to Michigan, directed that thefather's visitation with the children be supervised, directed that the father pay the mother $125per week for five years in maintenance and $2,583 per month in child support, directed the fatherto pay the mother $6,914, representing her share of the couple's 2007 tax refund, directed him topay $116,500 of the $118,000 balance on the couple's student loans, directed him to beresponsible for 90% of the remaining marital debt, directed him to pay one half of the cost ofupdated court-ordered forensic evaluations, and directed him to pay $30,000 of the mother'sattorney's fees. The father appeals.
The father contends that the Supreme Court erred in admitting the report and testimony of theforensic evaluator because it was based, in part, on hearsay. We disagree. Although the collateralwitnesses did not testify at trial, the forensic evaluator testified at trial that her conclusions werebased on her interviews with the parties and the children (see Matter of Mohammad v Mohammad, 23 AD3d 476, 476-477[2005]). Moreover, some of the evidence referred to by the collateral witnesses was eventuallyadmitted at trial through other witnesses. Under these circumstances, and "[i]n light of thesharply conflicting testimony regarding the conduct of the parties, and evidence suggesting thatthe children were exhibiting behavioral problems," the Supreme Court properly admitted theforensic evaluator's testimony and report (Ekstra v Ekstra, 49 AD3d 594, 595-596 [2008]).
The essential consideration in making an award of custody is the best interests of the children(see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Here, based on the totality of thecircumstances, the Supreme Court properly determined that it was in the best interests of thechildren to award custody to the mother and allow her to relocate with them to Michigan (seeMatter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). Moreover, the determination ofwhether visitation should be supervised is a matter left to the discretion of the trial court, and itsfindings will not be disturbed on appeal unless they lack a sound basis in the record (see Matter of Lorraine D. v WidmackC., 79 AD3d 745, 746 [2010]). Here, the Supreme Court properly directed that thefather's visitation be supervised, as the father's actions demonstrated that he was unwilling toallow the children to have a relationship with the mother (see Matter of Carl J.B. v DorothyT., 186 AD2d 736, 737 [1992]).
Contrary to the father's contention, the Supreme Court properly imputed to him an income of$126,000 per year based on his employment records. The Supreme Court properly based its childsupport and maintenance calculations on this imputation (see generally Lilikakis vLilikakis, 308 AD2d 435, 436 [2003]).
"The trial court is vested with broad discretion in making an equitable distribution of maritalproperty, and unless it can be shown that the court improvidently exercised that discretion, itsdetermination should not be disturbed" (Saleh v Saleh, 40 AD3d 617, 617-618 [2007] [internal quotationmarks and citation omitted]). Equitable distribution does not mean equal distribution (see Marcellus-Montrose v Montrose,84 AD3d 752, 754 [2011]). Here, the Supreme Court properly found that the father shouldbe responsible for the majority of the parties' student loans and other debts (see Corless v Corless, 18 AD3d493, 494 [2005]).
The determination of a reasonable attorney's fee is generally left to the discretion of the trialcourt, which is usually in the best position to determine the factors integral to determiningreasonable fees (see Clifford v Pierce, 214 AD2d 697, 698 [1995]). "A court mustconsider the equities and circumstances of each particular case and [the parties'] respectivefinancial positions in determining a counsel fee application" (Palumbo v Palumbo, 10 AD3d 680, 682 [2004]). Here, theSupreme Court providently exercised its discretion in awarding the mother $30,000 of the$77,000 attorney's fee she had requested. The Supreme Court also providently exercised itsdiscretion in its allocation of responsibility for the forensic evaluator's fee (see Bluemer v Bluemer, 47 AD3d652, 653 [2008]).[*3]
Contrary to the father's contention, the Supreme CourtJustice presiding over the trial was under no obligation to recuse himself in this case. "Absent alegal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of recusaland his or her decision in that regard will not be lightly overturned" (Matter of Khan v Dolly, 39 AD3d649, 650 [2007]). "Recusal, as a matter of due process, is required only where there exists adirect, personal, substantial or pecuniary interest in reaching a particular conclusion, or where aclash in judicial roles is seen to exist" (People v Alomar, 93 NY2d 239, 246 [1999][citation omitted]). Here, the father failed to allege a statutory basis to disqualify the Justicepresiding over the trial, and nothing in the record indicates that the trial Justice had any interestin the outcome of this litigation. In addition, although the father commenced a separate CPLRarticle 78 proceeding against the trial justice at one point during this litigation, which wasdismissed, that is not a basis for recusal (see Matter of Khan v Dolly, 39 AD3d at 650).
The father's remaining contentions are without merit. Rivera, J.P., Eng, Hall and Sgroi, JJ.,concur.