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Divorce Brought to Court on the Grounds of Constructive Abandonment


In this family case, the parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter, remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at a university.

The husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from November 10, 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The husband was granted a divorce, on consent, after proof, on June 10, 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce. A law guardian, was appointed for the youngest daughter, and a neutral forensic evaluator was appointed by the court.

Thereafter, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

The issues before this court which were tried are: equitable distribution, maintenance, child support, and counsel and expert fees. The gravamen of the parties’ dispute is as a result of the bifurcated custody agreement entered into by the parties on November 29, 2005, and the adamant refusal of the child to visit with the father. The wife requests that the court grant her a disproportionate share of equitable distribution based upon egregious conduct by the husband. The father requests that the court take into account, in its financial decision including the maintenance, child support and equitable distribution, the child’s refusal to see him and the mother’s support, encouragement and manipulation of events. The father alleges that the mother’s acts of encouraging alienation constitute egregious conduct.

The mother seeks to have this court believe that her husband paints her as, in her words, ” crazy” and that it is he who caused her mental stress. Yet this court had the opportunity over a long period of time to adjudge credibility of the mother and the father from the witness stand, in the courtroom and based upon her actions and tactics.

Uniquely, the court has not only had the opportunity to see the mother as a witness, but also had an opportunity to view her mother (the maternal grandmother) who plays a major (if not too major) role in this child’s life, as well as the child on three separate occasions in camera. During the course of the proceedings as the maternal grandmother faced cross examination, her testimony was halted and the grandmother was hospitalized for allegedly extremely high blood pressure.

As the husband continued to expend time and efforts in the development of these business enterprises, it appears that the wife became more involved in raising the children and taking care of the home, obtaining two degrees, and nurturing what she described as “her organization”.

Although the wife claims that the husband was the individual in control throughout the marriage, her own testimony, behavior and written documentation lead this court to find that claim without merit. In fact, it is clear to the court that while describing a multitude of “wonderful”, “fabulous” people who she has found along the way to assist in the husband’s practice, the selection, purchase and location of the marital residence, keeping him in dental school, all the while the wife claims throughout she was at the economic peril and power of the husband.

It appears that throughout the marriage the husband, wife and children enjoyed what could be described as a close family relationship with the maternal grandparents and the paternal grandparents. The husband’s sister described the wife in the terms of how helpful she was to her during her own divorce and that she felt like “sisters” with her although she described her as a “tough cookie” with whom you would be afraid to disagree. Involvement and contact with grandparents from both sides have been described as warm with a common theme of the maternal grandmother being a strong overwhelming influence in the family. His relationship, subsequent to the execution of the custody and visitation agreement, has deteriorated substantially.

The court heard credible compelling testimony from the parties long-time rabbi and spiritual leader who not only was involved for many years with the wife’s organization as an advisor, but whose young daughter was a close friend of the youngest child; the parents entertaining each other at respective homes. Once the marital discord started, though, the couples’ relationship soured. The rabbi clearly disturbed and still bewildered by not only the wife’s distancing and resignation from the synagogue which they belonged for many years, but the denial of access to the youngest daughter by not only to him but more painfully from her best friend, his own daughter.

This court has grave concerns regarding letters signed by the husband, apologizing for acts of domestic violence. Some of these letters, the husband claims, were signed in the presence of the maternal grandmother and all of the letters were dictated by the wife.

It appears that the crux of the last marital dispute erupted with the parties’ decision in the year 2004 to emigrate to the State of Israel. The wife posits at trial that the decision to go to Israel was an experimental decision, one couched in terms of a series of fraught plans to return which included but were not limited to the health of the wife and the need for her medical treatment in the United States. The wife puts forth the proposition that is why the house in Brooklyn was not sold and that the move was temporary in nature (even though the eldest child and her family were residing in the home).

The pendente lite order provides that the husband pays certain expenses together with weekly maintenance and child support. It is clear to the court that from the time the action was instituted, the wife has taken the position that she will protect the child at all costs and that she has repeatedly assured the child and promised the child that she would protect the child. From the very first visitation which was supervised in nature by the mother’s sister, all relatives of the father were excluded and labeled unsuitable. Visitation times were agreed upon only to be interfered with almost immediately by the actions of the mother in arranging for various lessons for the child during the visitation on Long Island with the wife’s sister’s supervision. The insistence that the visitation occur in Nassau County with the mother’s sister when all the parties lived in Kings County was a questionable act of judgment. When faced almost immediately with the child having a dance lesson scheduled that interfered with his visitation, the visits were re-arranged for 9:00 a.m. and the father complied.6 The mother never once refuted the husband’s claims that prior to 2004 he had a close father — child relationship with the child and was actively involved in her development, maturation and related issues. Through the course of this litigation, although Dr. Weintrob describes visits between the father and child in his office as pleasant and open, the relationship between the child and the father has deteriorated to the point where the child has totally cut off all access with her father. Any attempts even through the stipulation of settlement which was entered into by the parties after the parties charted their own course which had extremely onerous terms of visitation, have not been successful. This court believes that based upon the mother’s testimony and acts, she clearly never intended to abide by the terms of their stipulation.

In recognizing a marriage as an economic partnership, the Domestic Relations Law (DRL) mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the trial court to consider a number of statutory factors listed in DRL 236 (B) (5) (d).

“Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible, there is no requirement that the distribution of each item of marital property be made on an equal basis” Further, it is proper for the court to consider the parties’ relative economic contributions to the marriage in arriving at a formula for the distribution of the marital property. In this regard, the fact that one party may have made greater economic contributions to the marriage than the other does not necessarily mean that the former is entitled to a greater percentage of the marital property.

DRL 236 (B) (4) (b) provides that “[a]s soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset.” In so doing, it is well settled that “[a] trial court possesses discretion to select valuation dates for marital assets which are appropriate and fair under the circumstances, limited only by the requirement that the date be set sometime between the commencement of the action and the date of the trial”.

In this particular case all of the documentation introduced by both parties provided date of commencement data as it relates to bank accounts. This is appropriate because of the wife’s invasion of these accounts and division or expenditures paid the week the first action was commenced.

The court, in refusing to grant the father economic relief because of the refusal of the child to visit with him, does so at this juncture in the hope that the mother will immediately take the steps to realize that her actions can and will have serious consequences. This court does not believe that there is a generally accepted diagnostic determination or syndrome known as “parental alienation syndrome”.20 Each case must be reviewed on its own merits.

After careful consideration, the court has not economically penalized the mother or the child because it appears to the court that she was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis.

This court believes, though, that the true amount of child support and maintenance should be set before a suspension is considered so that the party that would be economically penalized will fully know and understand that which is at risk. The court also believes it would be unfair to make such a determination without both parties having had the benefit of knowing the court’s findings and decisions which will now be law of the case.

The mother has absolutely no right to attempt to limit access to the parent coordinator that both parties agreed to in the stipulation. This methodology was adopted by the parties in this agreement. In order for the parent coordinator to understand the nature of the parties’ relationship with the child, he must be granted unfettered access to the parents and the child forthwith.

Plaintiff must also recognize that this court does believe there has been some level of domestic violence in this marriage. While not finding it was egregious nor did it occur in front of the unemanicipated children or upon them, based upon the testimony it did happen and is acknowledged.


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