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N.M. v. R.G.

Supreme Court, Richmond County

January 2, 2014

N.M., Plaintiff,
R.G., Defendant.

Plaintiff Wife's counsel: Ms. Carolyn Halk, Esquire (One Edgewater Plaza, Staten Island, New York

Defendant Husband's counsel: Siriano & Bernstein, New York

Chid's Lawyer: Children's Law Center Staten island, New York

Catherine M. DiDomenico, J.

Plaintiff, N.M. ("Wife" or "Mother") and Defendant R. G. ("Husband" or "Father") were married on April 27, 2005. There is one child of this union, G. G. (Age 6). The N.M. / R.G. family was transferred into the Integrated Domestic Violence Part (IDV) by Transfer Order dated March 10, 2011. At that time, Husband was the defendant in a criminal case under docket number 40027M2011 in which he was charged with two counts of Criminal Contempt in the Second Degree (PL '215.50), one count of Aggravated Harassment in the Second Degree (PL '240.30), and one count of Harassment in the Second Degree (PL '240.26) for acts allegedly committed against Plaintiff Wife. Subsequent to the transfer into IDV, Husband was arrested a second time and charged with Criminal Contempt in the Second Degree (PL '215.50) under docket number 4077M2011 for allegedly violating the Temporary Order of Protection issued by this Court. At the time the case was transferred into this Part, Wife was the Petitioner in a related Family Court matter under docket number O-00197/11 wherein she sought an Order of Protection against Husband. Husband was also the Petitioner in docket number V-00880/11 wherein he sought visitation with the subject child G.G.

The criminal cases against Husband were consolidated. On January 19, 2012, Husband plead guilty to one count of Penal Law §240.26(1), Harassment in the Second Degree. Husband was sentenced to a one year conditional discharge with a $150 fine, and Wife was granted a two year Final Order of Protection which required Husband to stay away from Wife, subject to Supreme Court or Family Court Orders. Wife's Order of Protection expires on January 18, 2014. Wife's request for an Order of Protection on the Family Offense docket was withdrawn on September 27, 2011.

By Summons and Complaint dated January 14, 2011, Wife commenced this action for divorce against defendant. It appears that Husband never filed an answer to Wife's pleading, however the failure to interpose an Answer in a matrimonial proceeding is not a bar to participation therein, nor has Wife raised an objection on this ground. See Rosen v. Rosen, 308 A.D.2d 482 (2d Dept. 2003). A Preliminary Conference was held on April 11, 2011. The parties resolved the issue of grounds in the Preliminary Conference Order by agreeing that the Wife would take the divorce, after the resolution of all financial issues, on the ground that the marriage had broken down irretrievably for a period of six months. See Domestic Relations Law '170 (7). An inquest was held on this subject and a Judgment of Divorce was granted to Wife during the course of this trial. The Preliminary Conference Order also included a final waiver of maintenance by both parties. By Stipulation and Order dated June 21, 2011 the parties settled all issues of equitable distribution.

On August 9, 2011, the parties entered into a Consent Order wherein Wife was awarded final legal and physical custody of the subject child G. On December 6, 2011, the parties entered into a Temporary Order of Visitation, on consent, which granted Husband visitation with the subject child every Wednesday with pickup at the subject child's school overnight to Thursday morning with drop off at school. Husband was also granted alternate weekend visitation from Friday after school to Monday morning with drop off at school. The Court notes that at the time of this Order Husband still lived close to the subject child. During the course of the proceedings Husband relocated with his paramour to Long Island.

On January 24, 2012, Wife filed an Order to Show Cause (Seq. #002) seeking the immediate suspension of Husband's visitation. Wife alleged that after reviewing her 2011 year end United Federation of Teachers ("UFT") prescription drug health insurance statement she discovered, for the first time, that during the period of January 2011 to December 2011 Husband had been prescribed staggering amounts of prescription medication, including Oxycodone, Opana, Oxycontin, and Xanax. These pills were being prescribed by two physicians, Dr. Christian Nahas and Dr. Mario Manna and were filled by Husband at a number of different pharmacies at a total cost to the UFT of $59, 403.30. This used up a significant portion of the lifetime benefit for Wife and the subject child. Wife alleged that Husband was misusing or abusing the prescription drugs or unlawfully selling some or all of them for profit. No interim relief was granted and the matter was calendared for the following day for Husband's appearance.

After a review of the UFT statement, and after hearing from the parties, this Court temporarily suspended Husband's visitation by Short Form Order dated January 25, 2012. The Court also directed the Administration for Children's Services to conduct an investigation regarding the allegations raised in Wife's motion. On January 30, 2011 Husband was granted visitation with the subject child, once a week, to be supervised by Ms. Eileen Montrose, LSCW. On June 20, 2012 the Court continued Husband's supervised visitation but changed the supervisor to Husband's sister Ms. I. G.-D. on consent of all parties. The June 20th Order contained a prohibition against Husband driving with the child as a passenger. On April 24, 2012 Wife's motion to suspend visitation was scheduled for a hearing as was Husband's motion (Seq. #003) to hold Wife in contempt for not complying with the parties stipulated visitation schedule.

The hearing commenced on April 26, 2012. Wife was represented by Carolyn Halk Esq., Husband was represented by Mark Bernstein Esq., and the subject child was represented by Rita Kaufman Esq., from the Children's Law Center. On consent, the hearing was expanded into a trial to cover all of the issues present in the divorce action. This trial continued on May 16, 2012, June 6, 2012, June 20, 2012, July 10, 2012, July 30, 2012, August 30, 2012, October 15, 2012, November 19, 2012, December 5, 2010 and November 19, 2012.

At trial, Wife testified on her own behalf and introduced several documents into evidence (Plaintiff's 1-15). Wife also called Dr. Christian Nahas D.O., one of Husband's doctors, and Dr. Jane Stillman, an expert in pain management, as her witnesses. Husband testified on his own behalf and called his supervisor Hansen Wong, his co-worker Ranford Gayle and Dr. Peter Zenetos, another doctor, as witnesses.

The trial concluded on November 19, 2012. However, on February 15, 2013 Husband made a post trial application to reopen the record to testify that he stopped taking prescription drugs. Husband's application was supported by the Attorney for the Child and opposed by Wife. On April 8, 2013, Husband's application was granted by this Court in a written decision. In accordance with the Court's decision, the trial was reopened and additional testimony was taken from Husband on April 8, 2013. Husband's testimony was limited to events that occurred after the conclusion of trial. Husband testified on direct and cross that since the conclusion of trial on November 19, 2012 he attempted to wean himself off the use of prescription drugs, but was unable to do so due to intense pain. Husband further testified that in an attempt to lessen his dependency on prescription drugs, he ceased using Oxycodone, Oxycontin and Xanax and instead switched to a single pain medication, Nucynta. Husband currently takes Nucynta, 75 mg between two and four pills a day under the care of a new physician, Dr. Leonid Reyfman. The Court takes judicial notice that Nucynta, an opiate generically known as Tapentadol, is a Schedule II controlled substance. See 21 USC '812

An in camera examination of the subject child was held on June 4, 2013. Both parties were permitted to submit written questions to the Court and to the child's attorney for consideration. The child's testimony has been sealed by Order of this Court and preserved for appellate review.

On or about June 24, 2013, Husband's attorney Mark Bernstein Esq., filed an Order to Show Cause (Sequence #005) to withdraw as counsel and for a money judgment regarding his outstanding counsel fees. This application was granted on default and without written opposition on July 1, 2013. Mr. Bernstein was relieved as counsel by Short Form Order and instructed to settle an order on notice to Husband regarding his outstanding counsel fees. Due to Mr. Bernstein's withdrawal, a thirty day stay was implemented and the submission date of the parties' written summations was adjourned to September 16, 2013. Written summations were actually received from Plaintiff Wife on September 13, 2013; The Children's Law Center on September 16, 2013, and Defendant Husband on September 17, 2013. Husband prepared his own written summation.

On June 5, 2013, Wife filed a motion (Seq. #004) for pendente lite child support. On September 17, 2013, the return date for Wife's motion, Husband indicated that he had not visited with the subject child in over five months and made an oral application for the resumption of unsupervised visitation. Husband claimed that he could not visit with his son because the court appointed supervisor, Husband's sister I. G.-D., was no longer willing to be a resource. Wife, aware that this Court was in the process of determining the propriety of Husband's parental access, nevertheless agreed that Husband should have unsupervised visitation with G. for four hours in a public place on Staten Island every Sunday. This stipulation was supported by the Attorney for the Child. Upon application of all parties, this Court So Ordered the visitation stipulation with the restriction that Husband not avail himself of the visitation if visibly impaired by prescription drugs, and moreover, that he not drive with the subject child as a passenger. The submission of the trial for decision was adjourned to determine the outcome of the new Visitation Order and to allow Husband to submit opposition to Wife's motion for child support.

On October 15, 2013, the parties returned for a conference regarding the status of unsupervised visitation between Husband and the subject child. All parties reported that the visitation went well and without incident. Based upon this positive report, Husband made yet another oral application for extended time with the child and for permission to resume taking the child to Husband's home in Long Island for visits. Husband's application was granted by Short Form Order dated October 15, 2013 wherein he was granted six hours of visitation with G. every Sunday and permitted to return to his home with the child. This visitation schedule is currently in effect. No incidences have been reported to this Court. The restriction on Husband's driving with the child remains in effect. On October 15, 2013 a further briefing schedule was issued and Wife's pending child support motion was merged into the trial on consent. Final submissions in relation to the motion were scheduled for October 29, 2013. The motion and the trial were fully submitted for decision on October 31, 2013.

Husband's Parental Access

In determining a parent's visitation rights, the most important factor to be considered is the best interests of the child. See Jacobs v. Young, 107 A.D.3d 896 (2d Dept. 2013); see also Eschbach v. Eschbach, 56 N.Y.2d 167 (1982). Visitation is a joint right of the noncustodial ...

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