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Child Custody Appeal Brief to Change Venue, Vacate Custody Without Due Process Hearing, & Reverse Restraining Order

To be argued by
Susan Chana Lask, Esq.
Time requested: 15 minutes

NEW YORK SUPREME COURT
APPELLATE DIVISION, SECOND DEPARTMENT
____________________________________________________________
DOUGLAS Jones,

Plaintiff-Respondent,

                                                                                                            Appellate Division
-against-                                                                                             Docket No. 2005-23
Celinda Jones,

Defendant-Appellant.
____________________________________________

________________________________________________________________
BRIEF OF DEFENDANT-APPELLANT
Celinda Jones
__________________________________________________________________

 

LAW OFFICES OF
SUSAN CHANA LASK
Attorney for Defendant-
Appellant Celinda Jones
244 Fifth Avenue, Suite 2369
New York, New York 10001
(212) 358-5762

_______________________________________________________________________________
Supreme Court, Westchester County, Index #XXXX/04

 

TABLE OF CONTENTS

Page No.

Questions Presented......................................................................... 1

Nature of the Case .......................................................................... 1-3

ARGUMENT............................................................................................... 3

POINT I: Pursuant to CPLR 503(a) Westchester is Not the Proper Venue for
this Action and it Must Be Transferred to Bronx County as the Lower
Court Never Found Plaintiff Actually Resided for Any Length of Time in
Westchester Prior to His Commencing the Action There ........................ 3

A. Venue is Determined by Actual Residence of (a) Staying in a
County for a Length of Time Prior to the Commencement of
the Action and (b) Intending to Stay there Permanently......................... 3-4

B. The Length of Time Requirement of the Venue Residence Test
Must be a Considerable & Consistent Period of Time Stayed
in the County Before Commencement of the Action................................ 5

C. Plaintiff Alleged He Only Had a "Dual Address", Not a
"Dual Residence" & Then Failed to Establish Any Length of
Time He Resided in Westchester Prior to the Commencement
of this Action........................................................................................ 5-8

D. The Lower Court Never Found That Plaintiff Established
Residence for any Length of Time Prior to the Commencement
of the Action............................................................................................... 8-11

E. The Lower Court Completely Ignored Defendant’s Rebuttal Evidence
That Plaintiff's Only Residence was the Bronx Marital Home Where
They Lived ................................................................................................ 11-12

F. Plaintiff's Own Affidavit & Complaint Prove He had Only One Residence
in the Bronx Being the Marital Home & No Incident Plaintiff Alleges Ever
Occurred Anywhere Else........................................................................... 12-14

POINT II: The Lower Court's Custody Determination Must be Reversed Because It
Never Held a Full & Plenary Hearing Before Determining Custody ......... 14

A. The Appellate Court has Broad Authority in Custody Matters and Should
Not Defer to The Lower Court's Erroneous Custody Determination.......... 14-15

B. A Full and Plenary Custody Hearing Must be Held Before
Determining Custody............................................................................. 15-19

C. The Lower Court Did Not Have Evidence Before It Supporting
Plaintiff's Allegations of Substance and Alcohol Abuse
and Mental Illness Againt Defendant to Substantiate
Taking Custody Away from Defendant.............................................. 19-22

D. The Lower Court Did Not have a Sound and Substantial
Basis to Support its Custody Determination................................... 22-24


E. The Lower Court's Custody Determination is in Error & Must
Be Reversed as it Never Considered the Totality of the
Circumstances............................................................................. 24

POINT III: An Order of Protection Should not be Issued
Without A Hearing & its Issuance Violated DRL 252(8) ................... 24

A. The Order of Protection was Issued in Error & Must be
Reversed......................................................................................... 24-25

 

CONCLUSION................................................................................................... 26

 

TABLE OF AUTHORITIES

CASES CITED PAGE(S)

Alfredo S. v. Nassau County Department of Social Services, 21
172 A.D.2d 528, 568 N.Y.S.2d 123 (2d Dept. 1991)

Bellinger v Bellinger, 15,16,18
109 AD2d 1104 (4th Dept 1985)

Biser v. Biser,
40 A.D.2d 534, 334 N.Y.S.2d 194 (2d Dept, 1972) 15

Buziashvili v. Ryan, 4,12
264 A.D.2d 797, 695 N.Y.S.2d 396 (2d Dept, 1999)

 

Daley v. Daley, 4
257 AD2d 593 (2d Dept, 1999)

Duplesis v.Duplesis, 20
131 A.D.2d 673, 516 N.Y.S.2d 751(2d Dept, 1987)

Eschbach v. Eschbach, 22
56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260

Furth v. Elrac, Inc et al., 4
784 N.Y.S.2d 112(2d Dept, 2004)

Harvey v. Share, 23
119 A.D.2d 823, 501 N.Y.S.2d 448 (2d Dept, 1986)

Jonesledbetter v. Biltmore Auto Sales, Inc., 3,4
229 A.D.2d 518, 645 N.Y.S.2d 542(2d Dept, 1996)

Katz v. Siroty, 5
62 A.D.2d 1011, 403 N.Y.S.2d 770 (2d Dept,1978)

Mandelbaum v. Mandelbaum, 5
151 A.D.2d 727, 542 N.Y.S.2d 791 (2d Dept, 1989).

Mary M. v. Albert J.M., 20
154 A.D.2d 354, 545 N.Y.S.2d 832 (2d Dept. 1989)
Martinez v. Semicevic 6, 10
178 A.D.2d 228, 576 N.Y.S.2d 874 (1st Dept.,1991)

Matter of Jones v Scaldini, 16
238 AD2d 422, 423 (2d Dept 1997)

Matter of Krebsbach v. Gallagher, 14
181A.D.2d 363, 587 N.Y.S.2d 346 (2nd Dept., 1992)

Matter of Louise E.S. v. W. Stephen S., 14
64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091 (1985)
Matter of Rosiana C. v. Pierre S., 14, 15
91AD.2d 432, 594 N.Y.S.2d 316 (2nd Dept., 1993)

Meyers v. Halladay, 19
242 A.D.2d 887, 662 N.Y.S.2d 877 (4th Dept. 1997)

Miller v. Pipia, 14,24
297 A.D.2d 362 (364), 746 N.Y.S.2d. 729 (2nd Dept., 2002)
Obey v Degling, 15
37 NY2d 768, 770 (1975)
Peters v. Peters,
100 A.D.2d 900, 474 N.Y.S.2d 785 (2nd Dept. 1984) 25

Robert C.R v Victoria R, 15,16,19
143 A.D.2d 262, 532 N.Y.S.2d 176 (2d Dept, 1988)

Santulli v. Santulli, 6
228 A.D.2d 247, 644 N.Y.S.2d 28 (1st Dept, 1996)

Siegfried v. Siegfried 4,6
92 A.D.2d 916, 460 N.Y.S.2d 131(2d Dept, 1983)

Taber v. Herlihy, 21
174 A.D.2d 777, 570 N.Y.S.2d 723 (3d Dept. 1991)
Vinciguerra v. Vinciguerra, 22
294 A.D.2d 565, 743 N.Y.S.2d 139 (2d Dept, 2002)

Zafran v. Zafran, 22
306 A.D.2d 468, 761 N.Y.S.2d 317 (2d Dept, 2003)

STATUTES

CPLR §503(a).......................................................................................... 3,5
CPLR §3121(a)......................................................................................... 5,22
DRL 240(3)(a)(e)(i................................................................................... 25
DRL §252...................................................................................... 5,24

 

Questions Presented

1. Is the lower court in error and must it’s decision be reversed if it did not find a
party proved a specific length of time that he or she resided in a particular
county before commencing an action that county court? Yes.


2. Must the lower court hold a full plenary hearing before changing custody of a
child from one parent to another, including on a temporary basis? Yes.


3. Is the lower court in error and must its decision be reversed if it did not hold a
full plenary hearing before changing custody, including on a temporary basis? Yes.


4. Is the lower court in error and must its decision granting an order of protection be
dismissed if it never held a hearing before issuing that order? Yes.

Nature of the Case
Plaintiff and Defendant resided in the marital home in the Bronx. R.35,66, 107. On June 8, 2004 Plaintiff filed in Westchester Supreme Court (a) a Complaint for Divorce alleging in paragraph 5 "Plaintiff had dual address" in Bronx and Westchester R.40, and (b) an Ex Parte Order to Show Cause requesting (i) temporary sole physical custody of the child and (ii) an order of protection against Defendant. R. 31-52. The Ex Parte Order to Show Cause contained only Plaintiff's Affidavit containing bare allegations against Defendant of alcohol and drug abuse and mental illness and attached four unfounded police reports that existed solely as a result of Plaintiff's calls to the police. R.34-52. There were no supporting documents, expert reports or corroborating affidavits attached to Plaintiff's Ex Parte Order to Show Cause that evidenced any alcohol and drug abuse or mental illness of Defendant. On June 8, 2004 Judge W. Denis Donovan of the Westchester Supreme Court signed the Order to Show Cause ex parte granting (i) interim sole physical custody to Plaintiff and (ii) a temporary order of protection against Defendant, all done without any attempt by the Court nor Plaintiff to contact or notify Defendant before the filing and executing of that order to take custody away from Defendant. R. 31-33, 59. The lower court never held a hearing before granting interim custody or the order of protection. R.59. In the afternoon of June 8, 2004 Plaintiff arrived at the marital home in the Bronx with two police officers and the Ex Parte Order and took their infant son from Defendant and out of their Bronx marital home. R.112.


On June 14, 2004 the parties appeared before Supreme Court Judge Mark C. Dillon. R.55-104. Defendant appeared without counsel and requested counsel several times. R.57,65-67. The lower court proceeded on the Order to Show Cause despite Defendant requesting representation and granted Plaintiff custody of the child and an Order of Protection to Plaintiff and the child against Defendant, holding that "For the time being until you get a lawyer in the case, ma'am, I would like to give custody of the child to your husband..." R.81-83. The lower court never held an evidentiary hearing before granting the Order of Protection on June 8 or the 14th nor did it conduct a full and proper hearing to grant custody to the Plaintiff on an Ex Parte basis. The court put the case over to July 8, 2004 for a decision on the papers, never scheduling a hearing. R.93-94 Defendant filed opposition dated July 1, 2004 to Plaintiff's Order to Show Cause, R.107-121, and Plaintiff filed a Reply dated July 6, 2004. R.122-137. Again, Plaintiff's Reply had absolutely no supporting proof, expert reports or even witness affidavits to corroborate his bare allegations that Defendant was a drug and alcohol abuser and mentally ill.


On July 8, 2004, Defendant filed a Motion to Change Venue based upon the residence of the parties being Bronx County. R.138-140. Plaintiff filed Opposition dated July 13, 2004, R.141-173, and Defendant filed a Reply dated July 22, 2004. R.184-186. On September 8, 2004 the lower court’s Decision and Order denied Defendant's request to change venue to the Bronx, without finding that Plaintiff resided in Westchester for any length of time prior to commencing the action there. R.25-30.

 


ARGUMENT


POINT I: Pursuant to CPLR 503(a) Westchester is Not the Proper Venue for
this Action and it Must Be Transferred to Bronx County as the Lower
Court Never Found Plaintiff Actually Resided for Any Length of Time in
Westchester Prior to His Commencing the Action There

A. Venue is Determined by Actual Residence of (a) Staying in a
County for a Length of Time Prior to the Commencement of
the Action and (b) Intending to Stay there Permanently

CPLR 503(a) provides, in pertinent part:
"Except where otherwise prescribed by law, the place of trial shall be
in the county in which one of the parties resided when it was commenced...."

Venue is determined by residence. Residence requires a physical presence for a period of time in a particular county prior to commencing the action, not the day of the action as Plaintiff did in this case. This court held in Jonesledbetter v. Biltmore Auto Sales, Inc., 229 A.D.2d 518, 645 N.Y.S.2d 542(2d Dept, 1996) that:
"To consider a place as a residence for venue purposes, one " 'must stay there for some time (emphasis added) and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency' " (at 519)

and the recent case of Furth v. Elrac, Inc et al., 784 N.Y.S.2d 112 (2d Dept, 2004) held:


"A residence is a place where a party stays for some period of time
(emphasis added) with " 'the bona fide intent to retain the place as a
residence for some length of time and with some degree of
permanency' " (at 113)

Length of time prior to commencing the action is important and the first part of the venue test to be determined by a court when venue is in issue. It has been long established in this Department that in order for a party to obtain venue in a certain county then that party must actually reside there for some length of time before the commencement of the action. Siegfried v. Siegfried 92 A.D.2d 916, 460 N.Y.S.2d 131(2d Dept, 1983); Jonesledbetter, supra; Daley v. Daley, 257 AD2d 593 (2d Dept, 1999); Buziashvili v. Ryan, 264 A.D.2d 797, 695 N.Y.S.2d 396 (2d Dept, 1999); Furth, supra. To establish residence then, the court must find both (a) a stay at a place for a length of time prior to commencement of the action and then (b) the intent to stay there with some degree of permanency.


Clearly the rationale for the venue residence test is that a court must find stability by finding an actual physical presence at a residence for a period of time prior to the commencement of the action. This prevents litigants from forum shopping a venue, such as a party claiming he lived in a county simply by providing an address to the court, as Plaintiff did in this case. The lower court took Plaintiff's word that he had a Westchester residence when he filed the action, but wholly failed to consider the length of time or any length of time that he actually resided in Westchester prior to the commencement of the action. The lower court only considered Plaintiff's allegation that he intended to stay there, as addressed further herein below, which is an error.

B. The Length of Time Requirement of the Venue Residence Test
Must be a Considerable & Consistent Period of Time Stayed
in the County Before Commencement of the Action

The length of time prior to the action is considered to be more than a day, a week, a month or even more than numerous sojourns at the alleged place of residence. A party can not claim residence in a certain county based upon a move there one day prior to commencement of the action. Mandelbaum v. Mandelbaum, 151 A.D.2d 727, 542 N.Y.S.2d 791 (2d Dept, 1989). Residence can not be established if a person occasionally uses the place as a stopover throughout the year for business, recreational or social activities. Katz v. Siroty, 62 A.D.2d 1011, 403 N.Y.S.2d 770 (2d Dept,1978). Renting a room for one month prior to the commencement of the action will not establish residency. Seigfried, supra. In Seigfried a plaintiff who travelled back and forth from Colorado to New York and rented a room in Nassau County one month before commencing an action in there was found not to have established residence in Nassau County. This Department held that it was insufficient for venue purposes that plaintiff rented a room a month before commencement of the action, stating that although a person may have dual residences, "to consider a place as such, he must stay there for some time and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency." Katz v. Siroty, 62 A.D.2d 1011, 1012, 403 N.Y.S.2d 770)."


C. Plaintiff Alleged He Only Had a "Dual Address", Not a
"Dual Residence" & Then Failed to Establish Any Length of
Time He Resided in Westchester Prior to the Commencement
of this Action

In the present case, Plaintiff attempts to obtain venue in Westchester based on having a "dual address", not even "dual residence". He alleges in his Complaint paragraph 5 "the Plaintiff has dual address (sic) XXX XXXXX Avenue, Yonkers, New York 10710 and xxx East 238th Street, Bronx, New York 10470." R.40, but never states his length of residence in Yonkers. He never alleges a dual residence for the very reason that he never had a residence in Yonkers; he just had an address there that he used for job related purposes, explained further herein below. The first time he ever claims he had a dual residence (as opposed to his original statement that he had “dual addresses”) was in response to Defendant's Motion to Change Venue; however, his Affidavit in Opposition, R.141-142, wholly failed to explain how long he resided at the Westchester address, or how he divided his time between the alleged residences. Martinez v. Semicevic 178 A.D.2d 228, 576 N.Y.S.2d 874 (1st Dept.,1991). In Santulli v. Santulli, 228 A.D.2d 247, 644 N.Y.S.2d 28 (1st Dept, 1996), the Appellate Division there cited this Department's holdings and held that a party could not establish residence in New York county by renting an apartment there 16 days prior to the commencement of a matrimonial action. Despite other indicia of residence such as a banking accounts and a lease agreement in that county, the Santulli court relied upon plaintiff’s length of stay prior to the commencement of the action, holding that:


"In the matter before us, plaintiff's renting of a room in New York
County immediately before commencement of this action, without
having so much as spent a night in it, is simply insufficient to
establish residence at the time the action was commenced, much less residence with any degree of permanence (see Siegfried v. Siegfried, 92 A.D.2d 916, 460 N.Y.S.2d 131; Martinez v. Semicevic, 178 A.D.2d 228, 576 N.Y.S.2d 874)." at 248

Contrary to what the court’s have established as sufficient proof of residency, Plaintiff in this case never established that he actually resided in Westchester County at the time he commenced the action, much less that he lived there with any degree of permanence. Plaintiff in fact glossed over his obligation to prove a length of time residing in Westchester County by vaguely alleging in his papers that “I live ...in the City of Yonkers”, R.141, para. 2, “I receive my mail” there, R.141, para.2, and “I currently live in the City of Yonkers and had been a resident of the City of Yonkers at the time I commenced this divorce action.” R.141-142, para. 4.
But all such allegations notably never state how long he actually resided in Yonkers for the very reason that he never resided there for any length of time prior to the commencement of the action. Defendant provided a few envelopes, a bill, his 2003 taxes and a drivers license for work purposes containing his name and the Westchester address on it. R. 143-170. But that does not satisfy the length of time requirement; if anything, those documents proved just what Plaintiff alleged in his Complaint, that he only had an address in Westchester, R.40, which happened to be his mother's house, R.57, 175, and obviously he used that address as a feigned address to satisfy his job requirements. R.107,174-175.

Most telling of Plaintiff’s falsehoods to the court that he resided in Yonker’s are his own allegations and testimony that are contradictions and continually change in his effort to make his statements fit the law as the case proceeded. It has to be remembered that at no time was Plaintiff definite about his length of time that he supposedly maintained a residence at the Westchester address he provided, but at all times he was vague. For instance, he first admits in his pleadings and testified before the lower court that he only intended to reside at his Mother’s Yonker’s address if the lower court granted him custody. R.37,para.11. He states at paragraph 11 of his Affidavit:
“11. If I am granted an interim order of temporary physical custody of our
son, I shall temporarily reside with my mother at her Yonker’s residence.” R.37

and later states before the court that address is his mother’s house:

“THE COURT:...”You are now residing with your mother In Yonkers?

MR. JONES: Yes, sir.” R. 57, lines 19-21.

But Plaintiff never gives a period of time in any of his papers of actual residence; he only provides an address that he used. The truth of the matter is that Plaintiff simply had an address he used in Yonkers, which is consistent with his alleging he had “dual addresses”, never alleging he had a dual residence. That address is his Mother’s house, not Plaintiff’s residence. He never resided there nor intended to reside there unless he was given custody of the child, as he alleged in his pleadings and testimony to the lower court.


Additionally, Plaintiff’s Complaint in itself proves he did not have an actual residence as he alleges that he had an address; to wit "Plaintiff has dual address...",R.40, not a residence; meaning venue was never pled in the first place. This failure to properly plead venue demands a change of venue in itself, along with the fact that Plaintiff never proved nor did the lower court find that he resided in Westchester for any length of time prior to commencing the action there.


D. The Lower Court Never Found That Plaintiff Established
Residence for any Length of Time Prior to the Commencement
of the Action

Consistent with Plaintiff's failure to establish residence in Westchester for a
length of time prior to the commencement of the action is the fact that the lower court's decision nowhere finds that he established residence there for any length of time before the commencement of the action. R.25-29. The lower court's decision to deny change of venue relies solely on Plaintiff offering “indicia” of residence, R.27, but that is not determinative of residence for venue purposes..

The lower court reached its erroneous decision of denying the change of venue based on its misunderstanding of the law. The lower court does not place credence on the fact that a party must prove residency by a considerable length of time by physical presence in a county prior to the commencement of an action. The lower court's misunderstanding is evidenced by its limited inquiry at the June 14, 2004 proceeding. R. 55-58. There the lower court admittedly had issues with venue.R.57-58. It attempted to grasp the issue of venue but only inquired and considered whether Plaintiff intended to reside in Westchester, never inquiring or considering whether Plaintiff lived there for any length of time prior to the commencement of the action as required by the law:


"THE COURT: You are now residing with your mother in Yonkers?
MR. JONES" Yes, sir.
THE COURT: You intend to be staying there indefinitely?
MR. JONES: Yes, sir." R. 57,lines 19-24.
The lower court ended its inquiry there just as its September 8, 2004 Decision does not address the length of stay requirement of just how long Plaintiff allegedly resided at the Yonkers address, if at all.R.25-29. Certainly if the lower court was making its decision regarding venue based on the law as it stands then it would have inquired as to just when Plaintiff commenced residence at the alleged Westchester address and how long he resided there and divided his time between that alleged Westchester residence and his admitted marital residence in the Bronx. The lower court completely ignored any inquiry into length of time. Naturally, by ignoring this pertinent information, the lower court made an erroneous decision. The resulting error in the lower court's decision is obvious and bound to occur when it consistently ignored any inquiry and finding regarding the actual length of time Plaintiff resided at his alleged Westchester residence before commencement of the action, but instead relied solely on "plaintiff's affidavit, plus the aforesaid documentation, sufficiently establish all of the necessary indicia of residency." R.27.


First, the lower court can not rely on Plaintiff's affidavit to satisfy residence because nowhere in that affidavit does Plaintiff satisfy the residence test as he fails to state anywhere and prove anywhere that he resided in Westchester for a length of time prior to the commencement of the action.
Next, for the lower court to rely then solely on the documents as "indicia of residency" is clear error as they prove nothing more than Plaintiff's own allegations that he was using an address in Westchester, not that he resided there. Those two documents alone do not prove that he lived there with any degree of permanency, or how he divided his time between his alleged "dual residences" of Westchester and the Bronx. Martinez, supra. The documents the court relied upon were health insurance statements, a New York Drivers license, a credit card statement, a 2003 income tax returns with a Yonkers address. R.143-170. But the dates on the health insurance and credit card statements were May, 2004, R.144-146, just one month before the commencement of the action, which by law does not serve to establish residency. Seigfried, supra. That leaves the other two documents being the commercial drivers license for employment purposes issued in 2003 and the 2003 tax statements. R.143,147-170. Thus, nothing exists except the fact that an address was used, not how long a residence was made before the commencement of the action, which Plaintiff never once states any period of time because he feigned an address solely for employment purposes then spilled that over to forum shop his case in Westchester.

E. The Lower Court Completely Ignored Defendant's
Rebuttal Evidence That Plaintiff's Only Residence was
the Bronx Marital Home Where They Lived

Defendant adequately rebutted those documents by explaining that Plaintiff only used the Westchester address to defraud his employer to gain employment with the Westchester Fire Department in 2003.R.174-186. The lower court acknowledged the fraud explanation in its decision but instead of acknowledging it as credible rebuttal evidence to the venue issue the lower court dismissed it completely based on its position that it would not get involved in allegations of "employment fraud"; to wit:
“It is not the function of this court, on a change of venue application, to
determine issues of alleged employment fraud.” R.28.

and then refused anywhere in its decision to put Plaintiff to the test to prove a continuous or even steady basis of residency in Westchester before he commenced the action. By all means, this was pertinent evidence to the venue issue as to just what the Yonker’s address was used for and certainly the lower court should not have dismissed it on the lines of an ‘employment” issue. The lower court struggled to support its erroneous decision rather than address pertinent rebuttal evidence directly affecting venue. This Department in Buziashvili v. Ryan, 264 A.D.2d 797, 695 N.Y.S.2d 396 (2d Dept, 1999) has taken seriously allegations of "feigned addressees" as direct evidence to the venue issue. This court in Buziashvili transferred venue because plaintiff's self serving affidavit that he lived in the county for venue purposes was determined to be feigned and among some of the letters he submitted as evidence of his residence address were letters dated after the commencement of the action.


The lower court also completely ignored Defendant's proof that clearly the marital residence was in the Bronx where Defendant leased his Bronx residence since 2001 and since their marriage in 2003 lived permanently with Defendant in the Bronx as their marital residence, R.174-175, not in Westchester. That rebuttal evidence was consistent with the fact that nowhere in Plaintiff's pleadings and affidavits did he ever allege or prove when and for how long he allegedly resided in Westchester prior to the commencement of the action and in fact he consistently alleges he only lived at the marital home in the Bronx with his wife and child. It was error for the lower court to ignore the weight of the credible evidence, dismiss the feigned address issue as an "employment fraud" it would not hear and then never note the clear fact that Plaintiff at no time alleged his length of time he resided in Westchester prior to commencement of the action.


F. Plaintiff's Own Affidavit & Complaint Prove He had Only One
Residence in the Bronx Being the Marital Home &
No Incident Plaintiff Alleges Ever Occurred Anywhere Else

Plaintiff never proved he lived in Westchester with any degree of continuous residency as required by law, and for good reason-because he would be hard pressed to prove that he resided in Westchester when his marital residence for over a year prior to commencing the action was in the Bronx with his wife and child as Plaintiff repeatedly admits in his own pleadings that he resided in the Bronx, in his marital home. Plaintiff's actual residence is clear by the fact that his pleadings undermine his alleged dual residency when everything he alleges occurred in the Bronx marital home as his residence, never at his alleged Westchester "address".
Plaintiff references every incident during his more than one year marriage prior to the commencement of this action as occurring in their "home", "house" or "residence" in the Bronx. Plaintiff's Order to Show Cause, R.31-33, states at paragraph 4 that "on virtually a daily basis, while in our home", and "Celinda also drinks wine in the house..."; at paragraph 5 "The following day she left the house with our son and did not return home until the following day."; at paragraph 6, "...in fear of leaving our son home alone..," and continuing to page 7 "...and did not return home the following day...I had no alternative but to miss work and stay at home..." and ",,,Celinda went out and returned to our residence..." and "She left the house...", continuing with multiple statements about their home and residence in the Bronx, to the point Plaintiff annexes pictures of their Bronx residence to his Affidavit to prove what he alleged occurred at their home and residence in the Bronx. R.52.

Indeed nowhere does Plaintiff ever allege he left the marital residence in the Bronx at anytime prior to filing of this action and his counsel further undermines any length of residency in Westchester when she interjects during his testimony, explaining that Plaintiff never left the marital residence until right before the day of filing the action. Plaintiff’s counsel explains that Plaintiff asked her what he should if a dispute arose between he and Defendant and she told him "he should leave with the child, and the
Friday night before I filed these papers, he told me that is indeed what did happen...". R.75, lines,19--22. Plaintiff’s counsel filed the “papers” on June 8, 2004; the “Friday night before” was June 4, 2004. At the most then, according to Plaintiff and his counsel, he left the marital residence just a few days before the commencement of this action, which by law does not establish venue anywhere else but the Bronx. Seigfried, supra. Moving somewhere three days before filing the “papers” does not constitute venue.
This case must be transferred to Bronx County based on the facts that Bronx was the county of the marital residence, everything occurred there as alleged in Plaintiff's pleadings and Plaintiff never properly proved nor alleged that he lived in Westchester for a sufficient period of time prior to the commencement of the action.


POINT II: The Lower Court's Custody Determination
Must be Reversed Because It Never Held a Full & Plenary
Hearing Before Determining Custody

A. The Appellate Court has Broad Authority in Custody Matters
and Should Not Defer to The Lower Court's Erroneous
Custody Determination

The authority of the Appellate Division in matters concerning custody is "as broad as that of the trial court." Miller v. Pipia, 297 A.D.2d 362 (364), 746 N.Y.S.2d. 729 (2nd Dept., 2002); Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091 (1985); Matter of Rosiana C. v. Pierre S., 191AD.2d 432, 594 N.Y.S.2d 316 (2nd Dept., 1993); Matter of Krebsbach v. Gallagher, 181A.D.2d 363, 587 N.Y.S.2d 346 (2nd Dept., 1992). Deference should not be afforded to the trial court's decision where "it lacks a sound and substantial basis in the record." Krebsbach at 364, Matter of Rosiana C., supra. In the present case, deference should not be afforded to the lower court's custody determination when it did not hold a full plenary hearing. The lower court’s failure to hold a plenary hearing naturally resulted in it failing to be based on a sound and substantial basis with no findings of fact and conclusions of law as required under the law.


B. A Full and Plenary Custody Hearing Must be Held
Before Determining Custody

Before a court can order custody, it must hold a full hearing and its order must contain specific findings of fact. Robert C.R. v. Victoria C.R., 143 A.D.2d 262, 532 N.Y.S.2d 176, (2d Dept., 1988); Biser v. Biser, 40 A.D.2d 534, 334 N.Y.S.2d 194 (2d Dept, 1972); Obey v Degling, 37 NY2d 768, 770 (1975). An inadequate hearing is grounds for reversal. Id. at 771. Robert C.R., supra, was very similar to this case wherein the plaintiff husband there alleged the defendant mother was a drug and alcohol abuser and drove drunk with the child in the car, as well as alleged she was mentally unfit. This Department in Robert C.R. found that it "has heretofore held that "[a]s a general rule, it is error as a matter of law to make an order respecting custody based on controverted allegations without having had the benefit of a full hearing in order to resolve those factual issues which develop from conflicting affidavits" (Biagi v. Biagi, 124 A.D.2d 770, 771, 508 N.Y.S.2d 488; see also, Bellinger v. Bellinger, 109 A.D.2d 1104, 487 N.Y.S.2d 232; Richman v. Richman, 104 A.D.2d 934, 480 N.Y.S.2d 551)." at 264.


In the present case there was insufficient evidence before the lower court to have granted custody to the Plaintiff on an ex parte basis in the first place, and then to continue that order without holding a hearing when conflicting affidavits existed just compounded the error. The lower court simply relied on bare allegations of Plaintiff's Affidavit which is insufficient to make any custody determination. Accordingly, this Department held in Robert C.R., supra. that a court "should not have transferred custody of the infant child from the wife to the husband on the basis of the husband's recriminating and unsubstantiated allegations of the wife's unfitness". at 264. In Bellinger v Bellinger, 109 AD2d 1104 (4th Dept 1985) it was held that courts "should not determine the custody of children on the basis of recriminating and controverted allegations, but only after an evidentiary hearing". That rule applies to even temporary changes in custody. Matter of Jones v Scaldini, 238 AD2d 422, 423 (2d Dept, 1997).
The lower court in this case completely ignored holding an evidentiary hearing three times. First on June 8, 2004 when it executed an ex parte order to remove the child from Defendant based solely on Plaintiff's recriminating and unsubstantiated allegations in his Order to Show Cause. R.31-47, and adding to the prejudice and unfairness of the “proceeding”, the ex parte order was based upon Plaintiff's attorney being present that day arguing such a serious matter on an ex parte basis (R.91,lines17-19-plaintiff's counsel admits being before Judge Donovan and arguing the ex parte custody order and obtaining it). Clearly, and as Plaintiff's counsel admits (R.75,lines 10-12,20-21), Plaintiff's counsel had the Order to Show Cause drafted and prepared in advance of the June 8, 2004 ex parte hearing. There was no reason for Plaintiff and his counsel to make a surprise ex parte visit to the lower court except to gain the advantage of preventing Defendant a fair hearing to defend herself that day while Plaintiff appeared with the benefit of counsel to argue ex parte. This type of prejudicial ex parte legal maneuvering is just what the hearing requirement in this Department's decisions seeks to avoid when custody of children is involved.
The problem compounded a second time the lower court ignored holding an evidentiary hearing. On June 14, 2004, the parties appeared before the court and it decided to continue the ex parte custody order, again without a hearing, based on its opinion that "we have in a more general sense allegations of alcohol and drug use and/or abuse.", R. 80, lines5-7. Thus the lower court's statement shows it was basing its decision to change custody solely on Plaintiff's "general allegations", which is error as more than recriminating statements of one party is required by law. And a third time on July 8, 2004, the lower court simply made its decision based upon the submitted papers of the parties without ever holding a hearing, stating "The Court has closely examined all of the submissions here.", R.17,lines17,4-5, and concluding "...it is the opinion of the Court that we should leave the custody circumstances as they are, as they were directed and described during the parties' last court appearance...", R.18, lines 17-19. The lower court made its determination without ever conducting a full evidentiary hearing.

Plaintiff's Affidavit in support of his ex parte Order to Show Cause to remove custody of the child from the Defendant mother to him was premised solely on three highly charged allegations: that Defendant was (a) an alcohol abuser, (b) a drug abuser and (c) mentally ill. R.34-38. Plaintiff's allegations were unsubstantiated as his papers at no time contained one medical report nor any corroborating expert reports or witness affidavits proving alcohol and drug abuse and mental illness of the Defendant. Not only did Defendant deny those allegations as false,R.107-113, but once those denials were made a hearing was mandated (Rober, C.R.;Bellinger, supra), especially when Plaintiff's own admissions proved there was no danger to the child demanding the child be removed from Defendant's custody:
THE COURT: Has your wife--and this wasn't specifically
addressed in any of the papers, has your wife ever hurt the child?

MR. JONES: No, sir. R.60-61,lines 25-4.

And he admitted that no driving while impaired arrests or convictions existed against Defendant , R.63, lines 10-14, despite his highly charged allegations that she was a drunk and would drive drunk with the child. R.35 . Plaintiff also admits that he never had to seek medical attention despite his highly charged allegations that Defendant assaulted. R.62, lines 6-10. Plaintiff's admissions belie his allegations requesting to remove the child from Defendant's custody. Namely, he admits she never hurt the child nor him so all that was left were his highly-charged unsubstantiated allegations which are clearly the work of his counsel’s creative writing, which once read shows this is just a case of two incompatible parties, and nothing to do with harming a child the mandated taking the child away from the mother.


It is most notable that there is not one supporting affidavit or documentation to show that Defendant was a danger to the child and this lack of corroboration, in addition to Plaintiff’s later admissions of no immediate danger, is proof in fact that Plaintiff’s allegations were just false as clearly one would think in the least a neighbor, family member or even a doctor’s affidavit would have been attached to Plaintiff’s bizarre Order to Show Cause alleging substance abuse and mental illness against Defendant. The fact that Plaintiff's serious allegations were unsupported and unsubstantiated speaks volumes to their incredibility and leaves us with only Plaintiff’s recriminating allegations, and he is not being a psychiatrist nor expert in mental illness or substance abuse, but actually a very irate party involved in a contentious divorce making uncorroborated allegations.
This Department has held that "...in view of the serious nature of the unsubstantiated allegations of drug and alcohol abuse on the part of the wife, the court had a duty to make "an enlightened, objective, and independent evaluation of the circumstances" after conducting a full and fair hearing (Matter of Ehrlich v. Ressner, 55 A.D.2d 953, 954, 391 N.Y.S.2d 152; see also, Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 226, 506 N.Y.S.2d **178 198)." Robert C.R.,supra, at 265. The lower court in this case never held such a hearing at anytime in light of Plaintiff's serious allegations and thus its custody determination is in error and must be reversed.

C. The Lower Court Did Not Have Evidence Before It Supporting
Plaintiff's Allegations of Substance and Alcohol Abuse
and Mental Illness Against Defendant to Substantiate
Taking Custody Away from Defendant

Abuse of alcohol by a parent is a significant factor to consider in making child custody determinations, but the weight of the evidence must prove actual abuse and can not be based on bare allegations of a party. Abuse means "To make excessive or improper use of a thing". Black's Law Dictionary, 5th edition. Excess is key to abuse and there must be some overwhelming evidence in the least to support such serious allegations of substance abuse. In Meyers v. Halladay, 242 A.D.2d 887, 662 N.Y.S.2d 877 (4th Dept. 1997) an award of custody to the mother was reversed because the court failed to consider the overwhelming evidence that she regularly drove with the child while intoxicated, consumed excessive amounts of alcohol, was living with a man who appeared to have an alcohol problem, and often left the child in the care of her mother, who also had a history of alcohol abuse. In Mary M. v. Albert J.M., 154 A.D.2d 354, 545 N.Y.S.2d 832 (2d Dept. 1989) this Department found that alcohol dependency of one parent mandated physical custody be given to the other parent. The testimony of numerous credible witnesses is required before a parent can be deemed an alcohol abuser and lose custody of the child. Duplesis v.Duplesis, 131 A.D.2d 673, 516 N.Y.S.2d 751(2d Dept, 1987). In the present case, the self-serving affidavit of Plaintiff alone should not have determined custody. At the time of filing his ex parte Order to Show Cause and thereafter, Plaintiff proffered no evidence that the Defendant was then or ever had been addicted to drugs or alcohol, was a regular or habitual user of drugs or alcohol, or was otherwise chemically impaired.


Thus, a showing of evidence more than just a party's bare allegations is necessary, and then a finding of dependency or abuse must be made. The lower court at the third appearance of the parties on July 8, 2004 concluded that the only corroboration to Defendant's allegations of substance abuse was a June 10, 2004 drug test result of Defendant showing "the presence of marijuana in the Defendant's system on June 10th..." R17, lines12-13. The court then explained the problem with accepting that particular drug test report, stating that marijuana "...will stay in a person's metabolic system for some period of time, so it doesn't necessarily indicate whether marijuana was consumed before or after service of the order to show cause." ,R.17, lines17-22, but nevertheless concluded that the same report the lower court could not fairly assess would be used to corroborate Plaintiff's allegations. The first problem is
that the lower court used a report it could not accurately assess then compounded the error by using the report to substantiate "drug use", not drug abuse, stating:
"But in any event, it does suggest to me that at least to some degree,
the Plaintiff's allegations against the Defendant as to drug use
(emphasis added) are corroborated." R.17, lines 22-25.

The report the lower court relied on to substantiate drug abuse could only evidence use, and the use could not even have been determined as excessive or abusive when the lower court itself concluded that the report could not necessarily determine just when the marijuana was used as it stays in the system for different periods of time. The lower court's reliance on the drug test report and then its conclusion evidences its misunderstanding with the law and Plaintiff's allegation. Abuse was the allegation and abuse must be proven, not use. Certainly there is a big difference between social drinking and abuse, which was never proven here nor found by the lower court; thus leaving only Plaintiff's drug abuse allegation against Defendant. There is also a big difference between recreational marijuana use and marijuana abuse that is recognized by this Department. Again, abuse must be excessive and impairing. In Alfredo S. v. Nassau County Department of Social Services, 172 A.D.2d 528, 568 N.Y.S.2d 123 (2d Dept. 1991) this Department concluded that it looks for evidence of repeated excessive use to substantiate a substance abuse allegation, finding in favor of an alleged substance abuser in a custody case that there was no evidence "...proffered that the petitioner was then or ever had been addicted to drugs, was a regular or habitual user of drugs, or was otherwise chemically impaired." at 531. And even continued use does not hold a parent unfit when the parent works on controlling an addiction. Taber v. Herlihy, 174 A.D.2d 777, 570 N.Y.S.2d 723 (3d Dept. 1991).
Also demanding a hearing were Plaintiff's allegations of mental illness which as well were never substantiated nor proven in any way by expert or other reports or affidavits. Certainly if mental illness was at issue then this case demanded a hearing even more, as well as under CPLR 3121(a) the court could have ordered or the Plaintiff could have requested to conduct a mental examination since Defendant's mental condition was put in issue. That never occurred despite such serious allegations and obviously that issue was never pressed because clearly there was no mental illness. Never was a history of mental illness proven against Defendant and the lower court never found nor concluded that Defendant was mentally ill, nor could it when there was no evidence before it. Thus, the lower court's determination of custody is in error and must be reversed when it was solely based on Plaintiff's bare and unsubstantiated allegations of substance abuse and a drug report that could not be adequately assessed to prove abuse.
D. The Lower Court Did Not have a Sound and Substantial
Basis to Support its Custody Determination

 

If the court's determination lacks sound and substantial basis then it can be set aside. Vinciguerra v. Vinciguerra, 294 A.D.2d 565, 566, 743 N.Y.S.2d 139;Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260. This Department has determined sound and substantial basis exists when the lower courts rely on evidence consisting of more than bare allegations of a party but instead relying on a combination of expert forensic reports, the Law Guardian reports, witnesses such as teachers and neighbors. Zafran v. Zafran, 306 A.D.2d 468, 761 N.Y.S.2d 317 (2d Dept, 2003. In Zafran the Second Department found a lower court had sound and substantial basis in its custody detrmination by considering the Law Guardian and two forensic expert reports, the evidence therein and then the lower court expressed its findings as to why one parent was the more suitable custodial parent. Custody determinations must be supported by the record and when a court's decision is contrary to the weight of the credible evidence, it will be reversed. Harvey v. Share, 119 A.D.2d 823, 501 N.Y.S.2d 448 (2d Dept, 1986). The Harvey case also illustrates how important it is for the court to consider more than just affidavits of the parties before making its decision. In Harvey the court had before it reports from the Forensic Services Section of the Nassau County Department of Mental Health, the Nassau County Probation Department and the children's court appointed Law Guardian all recommending that custody of the children remain with their natural mother and nothing in the parties' testimony at the hearing evinced a different conclusion. The Second Department found that the lower court’s failures to state, in its decision, any reason for disregarding the collective recommendations of these disinterested persons and its apparent failure to consider other evidence of the parties' agreements regarding custody was error. Meaning, this Department considers a full record with credible evidence to be made before a court can make custody decisions.

In the present case the lower court failed to conduct a full and plenary hearing on custody. No witnesses testified. No expert reports were evaluated. There was absolutely no supporting proof attached or otherwise that Defendant was an immediate danger or harmful to her child except for Plaintiff's highly exaggerated bare allegations that she abused drugs, alcohol and she was mentally ill, all of which were not substantiated as addressed herein above. Certainly a sound and substantial basis
can not result without a full hearing and just based on recriminating unsupported statements in the parties’ affidavits.
E. The Lower Court's Custody Determination is in Error & Must
Be Reversed as it Never Considered the Totality of the
Circumstances

If the lower court never relied on any disinterested witnesses or experts then it certainly could not have considered the totality of the circumstances, which is more than just allegations in affidavits. The court must evaluate the totality of circumstances, and consider, "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" and the existence or absence of any one factor is not determinative, it is the whole picture that the court must look at. Miller v. Pipia, 746 N.Y.S.2d 729, 297 A.D.2d 362, 364, 746 N.Y.S.2d 729. The lower court never looked at the whole picture and in fact insured it would not by avoiding a hearing and without the benefit of witnesses, expert reports.

POINT III: An Order of Protection Should not be Issued
Without A Hearing & its Issuance Violated DRL 252(8)

A. The Order of Protection was Issued in Error & Must be
Reversed

Compounding the problem of the lower court taking custody away from Defendant on an ex parte basis was the fact that the court waited some 6 days later to cursorily address the order of protection that Plaintiff requested and obtained ex parte. That wait is in contravention to DRL 240(3)(a)(e)(i). DRL 240 (3)(a)(e)(i) mandates that “...a hearing on the motion or portion of the pleading requesting such emergency relief shall be held on the same day or the next day that the court is in session following the filing of such motion or pleading.” The lower court was not in recess for a week. Since it first issued the order of protection ex parte on June 8, 2004. R.53-54. The lower court completely ignored holding an immediate hearing as required by law. Moreso, only where the movant's allegations of abuse are corroborated by affidavits from independent witnesses, by admissions of the plaintiff, or by medical or documentary proof, then the court may grant an order of protection without a hearing. Peters v. Peters, 100 A.D.2d 900, 474 N.Y.S.2d 785 (2nd Dept. 1984). Here, Plaintiff offered absolutely no corroboration and obtained an order of protection ex parte.
It is well stated in the DRL §252 “PRACTICE COMMENTARIES”, 1999 Main Volume, by Alan D. Scheinkman that:
“Where a party has not consented to a temporary order, and there is
no corroboration for the applying party's allegations, and the movant's
allegations are denied by the plaintiff, credibility cannot be determined
on the basis of affidavits and a hearing should be held before an
order of protection is granted. In appropriate circumstances, the court may
issue a temporary order ex parte. The issuance of a temporary order is
appropriate where the situation requires judicial action to prevent danger
or harm to persons.”

There was never any danger alleged, corroborated nor proven and the Plaintiff actually admitted at a June 8, 2004 appearance that there was no danger to the child nor did he ever require medical attention; thus, the ex parte order of protection and further order of protection were issued and extended in error, without a proper hearing.

CONCLUSION

Based on the foregoing, Appellant requests that the lower court’s July 8, 2004 decision spread on the record granting (i) custody of the child to Respondent and (ii) an Order of Protection to the Respondent and the child against Appellant be reversed and that venue be transfered from Westchester County to Bronx County.

Dated: New York, New York
January 14, 2005

Yours, etc.,

 

 

______________________
Susan Chana Lask, Esq.
Attorney for Plaintiff-Respondent
244 Fifth Avenue, Suite 2369
New York, NY 10001
(212) 358-5762