Why Parents Who Batter Win Custody
by Sarah Childress
Newsweek 2006
It took six years for Genia Shockome to gather the courage to leave her husband, Tim. He pushed her, kicked her and insulted her almost from the moment they married in 1994, she says. She tried to start over with their children when the family moved from Texas to Poughkeepsie, N.Y. It didn't last long. Tim called her constantly at work and, after they split up, pounded on her door and screamed obscenities, she alleged in a complaint filed in 2001. Tim was charged with harassment. As part of a plea deal, Tim agreed to a stay-away orderâ014but denies ever abusing her or the children. In custody hearings over the past six years, Tim has insisted that he's been a good father, and argued that Genia's allegations poisoned their children against him. The judge sided with Tim. This summer he was granted full custody of the kids, now 11 and 9. Genia was barred from contacting them.Genia is one of many parents nationwide who have lost custody due to a controversial concept known as parental alienation. Under the theory, children fear or reject one parent because they have been corrupted or coached to lie by the other. Parental alienation is now the leading defense for parents accused of abuse in custody cases, according to domestic-violence advocates. And it's working. The few current studies done on the subject consider only small samples. But according to one 2004 survey in Massachusetts by Harvard's Jay Silverman, 54 percent of custody cases involving documented spousal abuse were decided in favor of the alleged batterers. Parental alienation was used as an argument in nearly every case.This year the National Council of Juvenile and Family Court Judges denounced the theory as "junk science," and at least four states have passed legislation to curtail its use in custody cases involving allegations of domestic violence. "It's really been a cancer in the family courts," says Richard Ducote, an attorney in Pittsburgh who has represented abuse victims in custody cases for 22 years. "It's made it really difficult for parents to protect their kids. If you ask for protection, you're deemed a vindictive, alienating parent."
\u003cbr /\>It may seem hard to fathom how a judge could award custody to a parent accused of abuse. But battered spouses often don\'t file criminal chargesâ014so no judicial finding is made against their matesâ014and family-court judges typically aren\'t trained to referee the complexities of abusive relationships. (Although men are sometimes battered by their wives, women are the victims in the majority of abuse cases.) Judges often throw out documented evidence of spousal abuse, arguing that it is irrelevant in a custody case. And experts say that family-court judges often look favorably on the alleged abuser because he seems more willing to share custody than the accuserâ014who is hellbent on keeping the father away from the child. According to a survey by Geraldine Stahly, a psychology professor at California State University at San Bernardino, attorneys will caution battered spouses against reporting abuse in court so they don\'t lose their children. (Stahly and other academics say the parental-alienation argument has more legitimacy in custody disputes that don\'t involve charges of abuse.)\u003cbr /\>\u003cbr /\>Parental-alienation syndrome was first introduced by child psychiatrist Richard Gardner in the 1980s. Fathers-rights groups picked up on the idea and began trying it out in court. These groups condemn abusers. But Dan Hogan, executive director of Fathers & Families, a nonprofit group that advocates for joint custody, argues that all too often the accusers lie in order to win custody of their kids.\u003cbr /\>\u003cbr /\>\u003cbr /\>There\'s a small but growing movement to ban parental alienation in custody cases, sparked by embattled parents bonding online. They\'ve linked with lawyers and advocates for battered spouses across the country. At least four states, including California, have laws protecting parents who make good-faith abuse allegations. Others may soon follow their lead. Greg Jacob, an attorney who takes cases for abused parents pro bono, is drafting legislation to shop to Virginia and Maryland next month. Meanwhile, parents like Genia keep fighting. "It\'s so hard, having my children lost," she says, her voice breaking. "This was my lifeâ014my children."\u003cbr /\>\u003cbr /\>\u003cbr /\>Copyright © 2006 Newsweek\u003cbr /\>\u003cbr /\>Sent from my BlackBerry wireless handheld.\u003c/div\>",0]
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It may seem hard to fathom how a judge could award custody to a parent accused of abuse. But battered spouses often don't file criminal chargesâ014so no judicial finding is made against their matesâ014and family-court judges typically aren't trained to referee the complexities of abusive relationships. (Although men are sometimes battered by their wives, women are the victims in the majority of abuse cases.) Judges often throw out documented evidence of spousal abuse, arguing that it is irrelevant in a custody case. And experts say that family-court judges often look favorably on the alleged abuser because he seems more willing to share custody than the accuserâ014who is hellbent on keeping the father away from the child. According to a survey by Geraldine Stahly, a psychology professor at California State University at San Bernardino, attorneys will caution battered spouses against reporting abuse in court so they don't lose their children. (Stahly and other academics say the parental-alienation argument has more legitimacy in custody disputes that don't involve charges of abuse.)Parental-alienation syndrome was first introduced by child psychiatrist Richard Gardner in the 1980s. Fathers-rights groups picked up on the idea and began trying it out in court. These groups condemn abusers. But Dan Hogan, executive director of Fathers & Families, a nonprofit group that advocates for joint custody, argues that all too often the accusers lie in order to win custody of their kids.There's a small but growing movement to ban parental alienation in custody cases, sparked by embattled parents bonding online. They've linked with lawyers and advocates for battered spouses across the country. At least four states, including California, have laws protecting parents who make good-faith abuse allegations. Others may soon follow their lead. Greg Jacob, an attorney who takes cases for abused parents pro bono, is drafting legislation to shop to Virginia and Maryland next month. Meanwhile, parents like Genia keep fighting. "It's so hard, having my children lost," she says, her voice breaking. "This was my lifeâ014my children."
Copyright © 2006 Newsweek
Monday, August 27, 2007
JUDGE AMODEO APPOINTED CRIMINAL VIOLA STROUD
RE: JUDGE AMODEO APPOINTED CRIMINAL VIOLA STROUD
TO SUPERVISE GENIA SHOCKOME.
Saturday, December 11, 2004
Children's supervisor shown sleeping on job
Gannett News Service
A videotape played in Dutchess County court Friday showed a court-appointed supervisor apparently sleeping while she was supposed to be overseeing a visit in Poughkeepsie between two children and their estranged mother. The tape, made by the children's mother, showed Viola Stroud of Mahopac sitting motionless on a couch, her eyes closed and her face tilted forward, as the children played a noisy game of air hockey several feet away. Later, Stroud is seen telling the mother to ''shut that off'' and hiding her face behind a handful of papers. She also demanded that the woman, Yevgenia Shockome, turn over the camera and the tape, and threatened to ''call the authorities.'' ''You're breaking the rules. Please don't take my picture,'' Stroud said. Stroud runs an organization called Little Angels Supervised Visitation, which provides court-ordered oversight of children and non-custodial parents accused of domestic violence, drug abuse or other problems. The private agency has received appointments in Westchester, Putnam and Dutchess counties. Checks written to self Stroud has also served as a court-appointed guardian for mentally incapacitated adults and, in September, published reports said she wrote tens of thousands of dollars in checks to herself, to ''cash'' and to Little Angels after she was given control over the finances of three Putnam women. Last month, the Putnam district attorney confirmed a criminal investigation of Stroud after a state judge ordered her to repay more than $30,000 to a Mahopac woman who suffered blindness and brain damage after a car crash. Stroud, 61, was not present in the courtroom Friday and did not return a telephone message left at her home. Her lawyer, Ronald Levine of Poughkeepsie, was not in his office late yesterday afternoon and did not return a message left with a receptionist. Shockome, who is involved in a bitter, four-year divorce case, said she made the tape at her Poughkeepsie condominium on Aug. 28. Shockome, 32, said her visitation rights were canceled afterward. Shockome said Stroud routinely slept during more than 20 previous supervised visits between Shockome and her children, whose father has sole custody. ''I liked it, because when she was sleeping I had more private time with my kids,'' Shockome said. At an Aug. 31 court hearing, Stroud denied sleeping during any of the visits, Shockome said. Dutchess County Family Court Judge Damian J. Amodeo, who appointed Stroud to Shockome's case and presided over Friday's hearing, did not comment on the content of the hourlong tape
TO SUPERVISE GENIA SHOCKOME.
Saturday, December 11, 2004
Children's supervisor shown sleeping on job
Gannett News Service
A videotape played in Dutchess County court Friday showed a court-appointed supervisor apparently sleeping while she was supposed to be overseeing a visit in Poughkeepsie between two children and their estranged mother. The tape, made by the children's mother, showed Viola Stroud of Mahopac sitting motionless on a couch, her eyes closed and her face tilted forward, as the children played a noisy game of air hockey several feet away. Later, Stroud is seen telling the mother to ''shut that off'' and hiding her face behind a handful of papers. She also demanded that the woman, Yevgenia Shockome, turn over the camera and the tape, and threatened to ''call the authorities.'' ''You're breaking the rules. Please don't take my picture,'' Stroud said. Stroud runs an organization called Little Angels Supervised Visitation, which provides court-ordered oversight of children and non-custodial parents accused of domestic violence, drug abuse or other problems. The private agency has received appointments in Westchester, Putnam and Dutchess counties. Checks written to self Stroud has also served as a court-appointed guardian for mentally incapacitated adults and, in September, published reports said she wrote tens of thousands of dollars in checks to herself, to ''cash'' and to Little Angels after she was given control over the finances of three Putnam women. Last month, the Putnam district attorney confirmed a criminal investigation of Stroud after a state judge ordered her to repay more than $30,000 to a Mahopac woman who suffered blindness and brain damage after a car crash. Stroud, 61, was not present in the courtroom Friday and did not return a telephone message left at her home. Her lawyer, Ronald Levine of Poughkeepsie, was not in his office late yesterday afternoon and did not return a message left with a receptionist. Shockome, who is involved in a bitter, four-year divorce case, said she made the tape at her Poughkeepsie condominium on Aug. 28. Shockome, 32, said her visitation rights were canceled afterward. Shockome said Stroud routinely slept during more than 20 previous supervised visits between Shockome and her children, whose father has sole custody. ''I liked it, because when she was sleeping I had more private time with my kids,'' Shockome said. At an Aug. 31 court hearing, Stroud denied sleeping during any of the visits, Shockome said. Dutchess County Family Court Judge Damian J. Amodeo, who appointed Stroud to Shockome's case and presided over Friday's hearing, did not comment on the content of the hourlong tape
Saturday, August 25, 2007
NY TIMES - 1100 CASES FROM JAILED SUPREME COURT JUSTICE GARSON
NY TIMES
October 12, 2004, Tuesday
By LESLIE EATON (NYT); Metropolitan Desk
“DISPLAYING ABSTRACT -
State Supreme Court Justice Gerald P Garson, former Brooklyn matrimonial judge, has pleaded not guilty to bribery charges and is awaiting trial; court officials say Garson granted over 1,100 divorces in his five years on bench; there has been no wholesale re-examination of Garson's cases; Administrative Judge Jacqueline W Silbermann has reopened only three of those cases so far; even in cases that involved Garson and Paul Siminovsky, lawyer who testified that he paid off Garson, rulings have not necessarily been scrutinized or overturned…”
October 12, 2004, Tuesday
By LESLIE EATON (NYT); Metropolitan Desk
“DISPLAYING ABSTRACT -
State Supreme Court Justice Gerald P Garson, former Brooklyn matrimonial judge, has pleaded not guilty to bribery charges and is awaiting trial; court officials say Garson granted over 1,100 divorces in his five years on bench; there has been no wholesale re-examination of Garson's cases; Administrative Judge Jacqueline W Silbermann has reopened only three of those cases so far; even in cases that involved Garson and Paul Siminovsky, lawyer who testified that he paid off Garson, rulings have not necessarily been scrutinized or overturned…”
MISGUIDED BLACK ROBE - Supreme Court Justice Jacqueline Silbermann ordered the release of the prisoners/ crimes - the rape,sodomy of boys & girls
'Dirty Dozen' Sex Fiends Will Stay in Custody — for Now
The Associated Press New York PostNovember 18, 2005
ALBANY — A dozen sex criminals who won their conditional release in court after being ordered held in a psychiatric hospital by Gov. Pataki will instead remain in custody as the state appeals the court decision, the governor said Friday.
State Supreme Court Justice Jacqueline Silbermann on Tuesday ordered the release of the prisoners — whose crimes include the rape and sodomy of boys and girls — pending examinations of each inmate by two court-appointed psychiatrists. Pataki appealed that decision Friday, leading to a temporary stay on the judge’s order, Pataki’s office said.
The convicted sex offenders had been ordered held by Pataki. After years of failing to secure a law that would allow civil confinement of some sex offenders when their sentences end, Pataki decided to “push the envelope” of the law by ordering them held in a psychiatric hospital. Pataki used the state’s involuntary commitment law, which normally deals with the non-criminal mentally ill, to win extended confinement of the sex offenders.
Lawyers for the prisoners petitioned the court for their release, arguing their clients’ detentions were illegal because the state violated the law that governs the transfer of apparently mentally ill prisoners to hospitals.
“We feel very strongly that the state has to comply with the corrections law, which it simply didn’t do,” said Stephen Harkavy, deputy director of Mental Health Legal Services. He represented the 12 defendants. Harkavy said he will try to get the stay lifted by an appellate court.
The case will probably be argued early next week, he said. From there it could be appealed to the state’s highest court, and it could take months for the Court of Appeals to rule.
Pataki asserted he acted within his legal rights. “I’m going to do everything in my power as governor to keep these predators, when it’s appropriate and when it’s legally permissible, away from our children and away from society,” Pataki said during a TV appearance.
“I have no doubt I have the legal authority to take the steps I have taken.”
Richard Hamill, president of the New York State Alliance of Sex Offender Service Providers, said there are some offenders who are too dangerous for society, but civil commitment is “hugely expensive” and affects only a tiny fraction of pedophiles, rapists and other sex criminals.
“If you put 400 offenders in civil commitment, you’ve really addressed less than 2 percent of the registered sex offenders out there,” he said. “And there are probably 10 offenders out there for every one that has been arrested and registered. It’s not a potent way to make the community a lot safer.”
Hamill said lifetime probation is one idea that has been very effective in reducing the number of offenders who commit crimes after they are released from prison.
The Associated Press New York PostNovember 18, 2005
ALBANY — A dozen sex criminals who won their conditional release in court after being ordered held in a psychiatric hospital by Gov. Pataki will instead remain in custody as the state appeals the court decision, the governor said Friday.
State Supreme Court Justice Jacqueline Silbermann on Tuesday ordered the release of the prisoners — whose crimes include the rape and sodomy of boys and girls — pending examinations of each inmate by two court-appointed psychiatrists. Pataki appealed that decision Friday, leading to a temporary stay on the judge’s order, Pataki’s office said.
The convicted sex offenders had been ordered held by Pataki. After years of failing to secure a law that would allow civil confinement of some sex offenders when their sentences end, Pataki decided to “push the envelope” of the law by ordering them held in a psychiatric hospital. Pataki used the state’s involuntary commitment law, which normally deals with the non-criminal mentally ill, to win extended confinement of the sex offenders.
Lawyers for the prisoners petitioned the court for their release, arguing their clients’ detentions were illegal because the state violated the law that governs the transfer of apparently mentally ill prisoners to hospitals.
“We feel very strongly that the state has to comply with the corrections law, which it simply didn’t do,” said Stephen Harkavy, deputy director of Mental Health Legal Services. He represented the 12 defendants. Harkavy said he will try to get the stay lifted by an appellate court.
The case will probably be argued early next week, he said. From there it could be appealed to the state’s highest court, and it could take months for the Court of Appeals to rule.
Pataki asserted he acted within his legal rights. “I’m going to do everything in my power as governor to keep these predators, when it’s appropriate and when it’s legally permissible, away from our children and away from society,” Pataki said during a TV appearance.
“I have no doubt I have the legal authority to take the steps I have taken.”
Richard Hamill, president of the New York State Alliance of Sex Offender Service Providers, said there are some offenders who are too dangerous for society, but civil commitment is “hugely expensive” and affects only a tiny fraction of pedophiles, rapists and other sex criminals.
“If you put 400 offenders in civil commitment, you’ve really addressed less than 2 percent of the registered sex offenders out there,” he said. “And there are probably 10 offenders out there for every one that has been arrested and registered. It’s not a potent way to make the community a lot safer.”
Hamill said lifetime probation is one idea that has been very effective in reducing the number of offenders who commit crimes after they are released from prison.
JUSTICE SILBERMANN - MISGUIDED BLACK ROBE - NO FAULT, NO CLUE - JUDICIAL REPORTS
LexPress: Divorce Tort
By Jesse SunenblickPosted:08-13-07
The Appellate Division chides a Manhattan Supreme Court Justice's handling of a 2005 divorce. And, on the verge of becoming the longest-tenured chief prosecutor in the borough's history, Queens DA Richard "The Judge" Brown opens up to The Daily News, among other news.
NO FAULT, NO CLUE
The Appellate Division, First Department has chastised Manhattan Supreme Court Justice Jacqueline Silbermann and reversed her ruling in an uncontested 2005 divorce, when she awarded “everything,” according to The New York Post, to the former president of the Village Reform Democratic Club in Manhattan. Susan Gass has said she didn’t even know she was being sued for divorce (her husband, Thomas, claims he served her papers). In its decision, the Appellate Division said Silbermann "abused her discretion" when she ignored Gass's repeated attempts to fight the divorce, which gave child custody and the house to her husband. Silbermann is Administrative Judge of the Manhattan Civil Term and, statewide, Deputy Chief Administrative Judge for Matrimonial Matters.
By Jesse SunenblickPosted:08-13-07
The Appellate Division chides a Manhattan Supreme Court Justice's handling of a 2005 divorce. And, on the verge of becoming the longest-tenured chief prosecutor in the borough's history, Queens DA Richard "The Judge" Brown opens up to The Daily News, among other news.
NO FAULT, NO CLUE
The Appellate Division, First Department has chastised Manhattan Supreme Court Justice Jacqueline Silbermann and reversed her ruling in an uncontested 2005 divorce, when she awarded “everything,” according to The New York Post, to the former president of the Village Reform Democratic Club in Manhattan. Susan Gass has said she didn’t even know she was being sued for divorce (her husband, Thomas, claims he served her papers). In its decision, the Appellate Division said Silbermann "abused her discretion" when she ignored Gass's repeated attempts to fight the divorce, which gave child custody and the house to her husband. Silbermann is Administrative Judge of the Manhattan Civil Term and, statewide, Deputy Chief Administrative Judge for Matrimonial Matters.
JUSTICE SILBERMANN ABUSED HER DISCRETION - KUDOS TO THE FIRST DEPARTMENT FOR INCREASING PUBLIC FAITH
Gass v Gass
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04
[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass,
Defendant-Appellant.
Susan Gass, appellant pro se.
Philip Groner, New York, for respondent.
Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.
Gass v Gass
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04
[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass, Defendant-Appellant.
Susan Gass, appellant pro se. Philip Groner, New York, for respondent.
Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04
[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass,
Defendant-Appellant.
Susan Gass, appellant pro se.
Philip Groner, New York, for respondent.
Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.
Gass v Gass
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04
[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass, Defendant-Appellant.
Susan Gass, appellant pro se. Philip Groner, New York, for respondent.
Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.
MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS - VICTIM # 4
ExclusiveDeadbeat ex-judge gets break in court
BY NANCIE L. KATZ
DAILY NEWS STAFF WRITER
Monday, May 7th 2007,
A Manhattan judge dropped her arrest warrant last week against a deadbeat dad who owes $250,000 in child support because the father - a former judge himself - said he was poor and depressed.Justice Joan Lobis' decision, just a month after approving the warrant, enraged the ex-wife of disgraced former jurist Reynold Mason."There is no justice! There are no laws!" fumed Tessa Abrams Mason, who has had to raise three kids without her ex-husband's help and now faces eviction from her Long Island home. "He knows how to work the system, and she's letting him do it. She's failing my kids."Lobis refused to explain her actions to the Daily News.Mason, now a real estate agent in Georgia, said in court papers that he had declared bankruptcy and become depressed after he was kicked off the bench in 2003 for dipping into a legal client's escrow account."All of my resources and energy were given to coping with the shock of the life-altering events swirling around me," Mason whined.He claimed he earned $68,000 over two years selling real estate - far less than his $136,700 annual salary as the first Caribbean-born state Supreme Court justice.That prompted Lobis to revoke the warrant Wednesday, ordering him instead to post $150,000 bond.
Lobis was far more harsh the following day - ordering sheriffs to her courtroom in an unrelated case to arrest a mom who owed $5,000 in child support. The woman dodged jail by borrowing the cash.nkatz@nydailynews.com
BY NANCIE L. KATZ
DAILY NEWS STAFF WRITER
Monday, May 7th 2007,
A Manhattan judge dropped her arrest warrant last week against a deadbeat dad who owes $250,000 in child support because the father - a former judge himself - said he was poor and depressed.Justice Joan Lobis' decision, just a month after approving the warrant, enraged the ex-wife of disgraced former jurist Reynold Mason."There is no justice! There are no laws!" fumed Tessa Abrams Mason, who has had to raise three kids without her ex-husband's help and now faces eviction from her Long Island home. "He knows how to work the system, and she's letting him do it. She's failing my kids."Lobis refused to explain her actions to the Daily News.Mason, now a real estate agent in Georgia, said in court papers that he had declared bankruptcy and become depressed after he was kicked off the bench in 2003 for dipping into a legal client's escrow account."All of my resources and energy were given to coping with the shock of the life-altering events swirling around me," Mason whined.He claimed he earned $68,000 over two years selling real estate - far less than his $136,700 annual salary as the first Caribbean-born state Supreme Court justice.That prompted Lobis to revoke the warrant Wednesday, ordering him instead to post $150,000 bond.
Lobis was far more harsh the following day - ordering sheriffs to her courtroom in an unrelated case to arrest a mom who owed $5,000 in child support. The woman dodged jail by borrowing the cash.nkatz@nydailynews.com
NY DAILY NEWS - MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS
Ex-judge a real stiffOwes former wife & three kids 200G
BY NANCIE L. KATZ
Originally published on November 12, 2006
DAILY NEWS STAFF WRITER
A former Brooklyn judge whose shady dealing got him booted off the bench has embarked on a new career as a deadbeat dad, the Daily News has learned.Ex-judge Reynold Mason has refused to pay more than $200,000 in court-ordered child support and alimony to his former wife and their three children, records show.Now his one-time spouse, who struggles to get by on $9.45 an hour at WalMart, her daughter and two sons are facing eviction from the Long Island home."I am so frustrated," Tessa Abrams Mason, 46 told The News. "This should not have been. There's no end. This guy is free. It's like he has a new life and it's okay."A former city Civil Court judge who later made the jump to state Supreme Court, Mason, 55, was removed from office in 2003 after the state Commission on Judicial Conduct found that he had pocketed escrow funds and illegally sublet his rent-stabilized apartment.The couple met in 1989 when he was a landlord-tenant lawyer. They married in 1993. A year later, she led his campaign to become the first Caribbean-American on the Brooklyn Civil Court. In 1997, he was elected to the Supreme Court, where he earned $136,700 a year.That same year, he left Tessa pregnant with their third child, she said. The couple was divorced in 2004 in Manhattan, where the case was moved to avoid any conflict of interest.Up until he was tossed from the bench, she said, child-support payments of $2,600 a month were being garnished from Mason's paycheck. A $600 monthly alimony order was never paid.Mason soon pulled up roots and moved to Georgia where he obtained a real estate license and today sells homes for a large brokerage.His real estate Web site highlights his former judicial and legal career, plus teaching stints at three New York colleges.But there's no mention of his deadbeat ways, Abrams Mason noted.His tab has risen to $200,000 in child support plus alimony, according to city records.He has ignored repeated judgments issued by Manhattan Supreme Court Justice Joan Lobis.Reached by phone in Georgia last week, the ex-judge declined comment. "Send me a copy [of the article]," he said. "Say whatever you want."Abrams Mason said she has appealed to the city's child support enforcement unit and the city Law Department, which is supposed to alert officials in Georgia of Mason's debts.A Law Department official said that Georgia authorities have been notified.Yet Abrams Mason still struggles to live on $1,500 a month, and now must find another place to live because the small, affordable house a friend had rented her has been foreclosed."It's hurting our children," she said. "I can barely live on what I make. I can't take a second job, I have to take care of the kids."
BY NANCIE L. KATZ
Originally published on November 12, 2006
DAILY NEWS STAFF WRITER
A former Brooklyn judge whose shady dealing got him booted off the bench has embarked on a new career as a deadbeat dad, the Daily News has learned.Ex-judge Reynold Mason has refused to pay more than $200,000 in court-ordered child support and alimony to his former wife and their three children, records show.Now his one-time spouse, who struggles to get by on $9.45 an hour at WalMart, her daughter and two sons are facing eviction from the Long Island home."I am so frustrated," Tessa Abrams Mason, 46 told The News. "This should not have been. There's no end. This guy is free. It's like he has a new life and it's okay."A former city Civil Court judge who later made the jump to state Supreme Court, Mason, 55, was removed from office in 2003 after the state Commission on Judicial Conduct found that he had pocketed escrow funds and illegally sublet his rent-stabilized apartment.The couple met in 1989 when he was a landlord-tenant lawyer. They married in 1993. A year later, she led his campaign to become the first Caribbean-American on the Brooklyn Civil Court. In 1997, he was elected to the Supreme Court, where he earned $136,700 a year.That same year, he left Tessa pregnant with their third child, she said. The couple was divorced in 2004 in Manhattan, where the case was moved to avoid any conflict of interest.Up until he was tossed from the bench, she said, child-support payments of $2,600 a month were being garnished from Mason's paycheck. A $600 monthly alimony order was never paid.Mason soon pulled up roots and moved to Georgia where he obtained a real estate license and today sells homes for a large brokerage.His real estate Web site highlights his former judicial and legal career, plus teaching stints at three New York colleges.But there's no mention of his deadbeat ways, Abrams Mason noted.His tab has risen to $200,000 in child support plus alimony, according to city records.He has ignored repeated judgments issued by Manhattan Supreme Court Justice Joan Lobis.Reached by phone in Georgia last week, the ex-judge declined comment. "Send me a copy [of the article]," he said. "Say whatever you want."Abrams Mason said she has appealed to the city's child support enforcement unit and the city Law Department, which is supposed to alert officials in Georgia of Mason's debts.A Law Department official said that Georgia authorities have been notified.Yet Abrams Mason still struggles to live on $1,500 a month, and now must find another place to live because the small, affordable house a friend had rented her has been foreclosed."It's hurting our children," she said. "I can barely live on what I make. I can't take a second job, I have to take care of the kids."
MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS VICTIM # 3
How My Ex-hubby Paid to Be Judge Former Wife Claims Cash & Bribery 'Package Deal'
By Nancy KatzNew York Daily News
January 23. 2007
Tessa Abrams Mason says her ex-husband, Reynold Mason, was expected to come up with cash for all comers.
Ex-Brooklyn Supreme Court Justice Reynold Mason found out early, his ex-wife says, that running for judge meant making big payoffs to pols and hiring people he was told to.
In a shocking new twist in the exploding "judgeships for sale" scandal, the ex-wife of a disgraced Brooklyn Supreme Court judge has revealed details of a systematic payoff scheme that bought her husband his seat on the bench.
Tessa Abrams Mason alleges the couple spent nearly $100,000 - some of it bribe money - to boost the legal career of her then-husband, former Supreme Court Justice Reynold Mason.
In a series of exclusive interviews, Abrams Mason implicated well-known Brooklyn Democrats in the deals - including former state Sen. Carl Andrews, who has close ties to Gov. Spitzer.
Brooklyn District Attorney Charles Hynes, who has been probing court corruption, was not familiar with Abrams Mason's story, said spokesman Jerry Schmetterer.
But Schmetterer added, "Based on the scope of our investigation, we take any allegations about corruption seriously."
The startling accounts were given to the Daily News over the past six months in dozens of interviews and in an explosive unpublished memoir.
Although other jurists have been caught up in the ever-widening probe, it is the details provided by Abrams Mason that make her story so compelling.
She tells how:
* Her husband had to buy a package deal of payoffs to secure the party's backing.
* Andrews allegedly took a $5,000 payoff in an
envelope at Mason's Brooklyn law office - for which no services were received.
* Mason had to hire a campaign manager and an election lawyer at the direction of the local party.
* Once elected, he had to hire a law clerk chosen by the party.
"They didn't care if Mason was competent," his ex-wife, 46, told The News. "All they cared about was [that] Mason had a deep pocket and could raise funds and throw around money without asking questions."
Caught dipping into escrow
Her ex-husband was stripped of his post in 2003 after she told the state Commission on Judicial Conduct that he dipped into an client escrow account to fund the campaign - an accusation that the commission substantiated.
Mason, 57, now a real estate agent in Georgia, has been ducking court-ordered child support payments for years. Recently a New York state judge threatened him with jail if he didn't show up to explain why he hasn't paid up the $200,000 he owed.
Reached by telephone last week, Mason vehemently denied the charges of his former spouse, whom he calls "a bitter woman."
"I never paid a bribe to anyone," he said. "What they do is meet with you [and say],
'If you want our help, you gotta do XYZ.' That's all they ever said."
"You work with them," Mason added. "You want to win. You bite the bullet and do what you have to do."
But his ex-wife's startling account of back-door deals and pay-for-play demands seems to mirror much of what Hynes has uncovered in a corruption probe now in its sixth year.
Hynes' work led to the toppling of once-powerful Democratic boss Clarence Norman and the indictment of three state Supreme Court justices and other elected officials.
Norman's lawyer said his client was focused on his next trial, due to get under-way today with jury selection. "Any other allegations are simply a scurrilous attempt to poison a jury pool," said attorney Edward Wilford.
First race an eye-opener
In 1994, Mason was a 46-year-old real estate lawyer just starting to make a name for himself in Brooklyn's West Indian community when he decided to run for the bench.
A native of Grenada, he had married Abrams Mason, who worked as his office manager and paralegal, a year earlier. The couple have three children.
Though Mason had dabbled in local politics, his entry into the judicial race proved an eye-opener for him and his new bride. In heavily Democratic Brooklyn, the primary was the real election and he faced stiff opposition.
Friends led him to pols with close ties to Norman. One of the first stops was a meeting with local Democratic district leader Marietta Small.
Small, who later held a top patronage post in Brooklyn Surrogate's Court, taught the couple the facts of life about judicial politics, Abrams Mason said.
"Small was not interested in money, but influence and power," she said. "Everyone else was interested in payoffs."
To get Norman's backing, Mason was told, he would have to take what his wife described as "the package deal."
That included a campaign manager selected by the bosses who would be paid $15,000, an election lawyer who would get $10,000 and inherit Mason's cases and clients if he was elected, and a law clerk handpicked by Small once he got on the bench.
"At one meeting, Mason was told you have to pay Andrews $5,000 cash and make donations to other candidates," his ex-wife said. "Whatever money politicians asked for, Mason had to have it right then and there. We ended up spending nearly $100,000."
Not all of it was reported by Mason's campaign, she added. Campaign finance records reviewed by The News show Mason's campaign spent $67,895.04.
But other expenditures, like the alleged payment to Andrews, "weren't accounted for in campaign records," she said.
At the time, Andrews was an active Democratic leader in Brooklyn and a close confidant of Norman. He was later elected to the state Senate, worked for Spitzer in the attorney general's office, but lost a bid for Congress despite Spitzer's backing.
Andrews was recently hired by Spitzer to work in his Office of Intergovernmental Affairs.
The Village Voice recently identified Andrews as the bagman for a bribe paid to Norman in 2001 to get another judge, Howard Ruditzky, a Supreme Court seat.
Andrews 'insulted' by query
Andrews, 50, did not return repeated calls for comment. But earlier, when asked about the Ruditzky allegation, he replied, "I'm insulted by the question and the implications behind that question. I guess my only crime is being Clarence Norman's friend. Guilt by association."
Yet Abrams Mason says she clearly recalls the day when Andrews showed up at Mason's law office on Glenwood Road in East Flatbush to pick up his cash.
"Mason was annoyed. He said, 'Why do we have to pay this guy $5,000? What is he going to do for me?'"
As it turned out, nothing. She recalled, "Mason took money out of the right-hand drawer of his desk, where we keep our cash and records. He put the $5,000 in an envelope and handed it to him. [Andrews] put it in his jacket pocket. He didn't stick around. That was it!"
"Mason and I thought he took the money to go neutral, because he did nothing. ... He didn't do anything for Mason's opponent either."
"We never saw him again, not even at a fund-raiser," she said.
In a telephone interview, Small also denied any wrongdoing.
"I have no knowledge of anyone taking any bribes," she said. "I would not ever be a part of that. I would never be a part of anything like that. That's the God's honest truth."
Abrams Mason insists thousands in cash went to politically connected operatives who supposedly spent it on such things as neighborhood get-out-the-vote campaigns.
Some of it went to district leaders who controlled large blocs of votes at local housing projects, where "the voters were told who to vote for, and this was a plus."
The support of Norman's army of regulars helped Mason eke out a win in the Civil Court primary by 145 votes.
By the time of his 1996 election to the state Supreme Court, the couple had split. But he would tell her later he had to pay the Democrats even more for that race.
With his expenses mounting, Mason eventually dipped into the client escrow account - a no-no that was exposed by his ex-wife.
The alleged wrongdoing - much of it also detailed in her unpublished memoir, "The Judge's Wife and the Political Mafia" - are unlikely to result in new criminal charges because the statute of limitations has run out.
She decided to go public because the court battle over financial support for their three children has dragged on.
When she could no longer afford a lawyer, she drew up legal papers herself. She eventually won a contempt order against him, demonstrating that of all his political foes, Mason's ex-wife has been the most formidable.
http://www.nydailynews.com/front/story/491095p-413659c.html
Judge Scandal Could Tarnish Spitzer Shine Anti-corrupt Gov Hiring Pol Tied to Norman?
By Lisa L. Colangelo, Nancie L. Katz and Adam LisbergNew York Daily News January 15, 2007
Clarence Norman
Gov. Spitzer took office two weeks ago with a corruption-busting promise - but yesterday he welcomed into his inner circle a man who has been named in connection with an exploding Brooklyn bribery scandal.
Former state Sen. Carl Andrews was one of several insiders who were invited into Spitzer's midtown offices following a news conference where the governor ducked a question about the corruption probe.
"With respect for the alleged improprieties that have been the subject of investigation in Brooklyn, obviously those cases continue and they proceed," Spitzer said.
Andrews is reportedly being considered for a high-ranking post in the Spitzer administration - and while the governor said little, his exit with the well-connected Andrews seemed to show Spitzer was not publicly distancing himself from him.
The Village Voice claimed in a story published Saturday that Andrews picked up a bribe in 2001 - either $25,000 in cash or $3,000 in postage stamps that could be used in a campaign - from a sex therapist named Norman Chesler, who was hoping to get his cousin, Civil Court Judge Howard Ruditzky, a seat on the state Supreme Court.
Andrews allegedly delivered it to his longtime confidant Clarence Norman, a corrupt Democratic Party boss who could be indicted for allegedly taking as much as $70,000 in bribes to put Ruditzky on the bench, The Voice reported.
Andrews told the Daily News yesterday he has never met Chesler - and when asked point-blank about collecting a bribe, said it was beneath his dignity to answer.
"I'm insulted by the question and the implications behind that question," he said. "I guess my only crime is being Clarence Norman's friend. Guilt by association."
Law enforcement sources told The News yesterday that Andrews is not a target in the long-running probe of whether Brooklyn judges have bought their way onto the bench.
Andrews held a community relations job under Spitzer when he was state attorney general. Andrews later served as a Brooklyn state senator and ran unsuccessfully for Congress last fall.
Ruditzky, Chesler and Norman declined to comment. Norman's lawyer Edward Wilford said he has not been contacted by Brooklyn District Attorney Charles Hynes about the allegations.
Prosecutors would not file any new charges against Norman until after his Jan. 23 trial on extortion charges, a law enforcement source said.
Spitzer's office did not respond to a request for comment.
With Nicole Bode and Tamer El-Ghobashy
DA: Norman Sold Judgeship for 50g - & 6g in Stamps
By Nancie L. Katz and Rich SchapiroNew York Daily NewsJanuary 14, 2007
Clarence Norman
Brooklyn prosecutors are seeking to indict deposed Brooklyn Democratic Party chairman Clarence Norman for allegedly selling a judgeship for at least $50,000 in cash and $6,000 in postage stamps, it was reported yesterday.
The alleged corruption, detailed by The Village Voice, has the potential to shake the Brooklyn political establishment and push the Legislature to overhaul how state Supreme Court judges are selected.
Norman - already sentenced to two to six years behind bars for unrelated felony campaign corruption - will be indicted by a grand jury for allegedly demanding payoffs to elevate former Civil Court Judge Howard Ruditzky to the state Supreme Court, The Voice says.
Sources told the Daily News that Ruditzky was granted immunity and recently testified before a grand jury, where he revealed he paid $70,000 for the judgeship.
"A sitting judge told a grand jury that he paid Clarence Norman $70,000 for the nomination," one of the sources said.
The Voice said it had pinpointed only $56,000 in payments.
District Attorney Charles Hynes' case against Norman, according to The Voice, revolves around the testimony of Ruditzky and three other witnesses: Jeff Feldman, the executive director of the Brooklyn Democratic Party; ex-Supreme Court Justice Michael Garson; and Ruditzky's millionaire cousin, an overweight sex therapist named Norman Chesler.
It was Chesler who was at the center of the alleged payoffs, according to The Voice.
In 2001, Chesler began helping Ruditzky in his bid to get reelected to the Civil Court. According to The Voice, Ruditzky wasn't planning to serve if reelected because Norman allegedly had promised to elevate him to the Supreme Court after the balloting.
Norman had the ability to promote Ruditzky because Supreme Court nominees are selected by judicial conventions, a system that allows a Democratic leader in a Democratic county to handpick jurists.
Norman was planning to promote Ruditzky and then select his replacement for Civil Court without having to run that candidate in a primary, The Voice reports.
"If Ruditzky wins reelection, we'll elevate him," Norman told Chesler, according to The Voice.
But that plan crumbled when Ruditzky lost. In stepped Chesler, who, according to The Voice, was allegedly told by Norman, "We could use money for activities in my community."
Chesler's first alleged payment to Norman came in the form of postage stamps, two $3,000 rolls he bought at a post office, The Voice reported.
Chesler, who refers to Ruditzky as "Rudy," also allegedly gave Norman $50,000 - delivering the first half "wrapped in a large brown envelope," according to The Voice.
Bank records reviewed by The Voice reveal a series of withdrawals totaling $43,950 that Chesler made from his company between July and November 2001. Notations contained with the record of the withdrawals, also reviewed by The Voice, said that "CN asked for Rudy to come up and give 50k for services," adding that "since they weren't getting it on their own, they asked for help."
Chesler began cooperating with Hynes' office after being indicted in a car insurance scam, The Voice says.
Ruditzky, Chesler and Norman's lawyer could not be reached for comment yesterday.
Sources told The News last week that Ruditzky's grand jury testimony is being reviewed by the state Commission on Judicial Conduct. Commission administrator Robert Tembekjian declined to comment last week.
David Bookstaver, spokesman for the New York State Office of Court Administration, told The News on Friday that "it would be inappropriate to comment about an alleged ongoing investigation."
Grand jury testimony is secret, and when The News asked Hynes on Dec. 21 about Ruditzky appearing before the panel, Hynes declared it was "untrue." Hynes' spokesman, Jerry Schmetterer, declined to comment Friday on whether the office knew about the alleged bribe.
The author of The Voice article, Wayne Barrett, revealed that his mentor, the late Jack Newfield, had been investigating Brooklyn courts before his death in 2004.
According to The Voice, Newfield had scrawled Ruditzky's name into a notebook that contained his last interview.
More than 30 years have passed since Newfield wrote in 1972, "It is common belief on the streets of this city that judgeships are bought and sold by politicians for cash, and that once on the bench, some judges continue to be up for sale - or at least for rent."
By Nancy KatzNew York Daily News
January 23. 2007
Tessa Abrams Mason says her ex-husband, Reynold Mason, was expected to come up with cash for all comers.
Ex-Brooklyn Supreme Court Justice Reynold Mason found out early, his ex-wife says, that running for judge meant making big payoffs to pols and hiring people he was told to.
In a shocking new twist in the exploding "judgeships for sale" scandal, the ex-wife of a disgraced Brooklyn Supreme Court judge has revealed details of a systematic payoff scheme that bought her husband his seat on the bench.
Tessa Abrams Mason alleges the couple spent nearly $100,000 - some of it bribe money - to boost the legal career of her then-husband, former Supreme Court Justice Reynold Mason.
In a series of exclusive interviews, Abrams Mason implicated well-known Brooklyn Democrats in the deals - including former state Sen. Carl Andrews, who has close ties to Gov. Spitzer.
Brooklyn District Attorney Charles Hynes, who has been probing court corruption, was not familiar with Abrams Mason's story, said spokesman Jerry Schmetterer.
But Schmetterer added, "Based on the scope of our investigation, we take any allegations about corruption seriously."
The startling accounts were given to the Daily News over the past six months in dozens of interviews and in an explosive unpublished memoir.
Although other jurists have been caught up in the ever-widening probe, it is the details provided by Abrams Mason that make her story so compelling.
She tells how:
* Her husband had to buy a package deal of payoffs to secure the party's backing.
* Andrews allegedly took a $5,000 payoff in an
envelope at Mason's Brooklyn law office - for which no services were received.
* Mason had to hire a campaign manager and an election lawyer at the direction of the local party.
* Once elected, he had to hire a law clerk chosen by the party.
"They didn't care if Mason was competent," his ex-wife, 46, told The News. "All they cared about was [that] Mason had a deep pocket and could raise funds and throw around money without asking questions."
Caught dipping into escrow
Her ex-husband was stripped of his post in 2003 after she told the state Commission on Judicial Conduct that he dipped into an client escrow account to fund the campaign - an accusation that the commission substantiated.
Mason, 57, now a real estate agent in Georgia, has been ducking court-ordered child support payments for years. Recently a New York state judge threatened him with jail if he didn't show up to explain why he hasn't paid up the $200,000 he owed.
Reached by telephone last week, Mason vehemently denied the charges of his former spouse, whom he calls "a bitter woman."
"I never paid a bribe to anyone," he said. "What they do is meet with you [and say],
'If you want our help, you gotta do XYZ.' That's all they ever said."
"You work with them," Mason added. "You want to win. You bite the bullet and do what you have to do."
But his ex-wife's startling account of back-door deals and pay-for-play demands seems to mirror much of what Hynes has uncovered in a corruption probe now in its sixth year.
Hynes' work led to the toppling of once-powerful Democratic boss Clarence Norman and the indictment of three state Supreme Court justices and other elected officials.
Norman's lawyer said his client was focused on his next trial, due to get under-way today with jury selection. "Any other allegations are simply a scurrilous attempt to poison a jury pool," said attorney Edward Wilford.
First race an eye-opener
In 1994, Mason was a 46-year-old real estate lawyer just starting to make a name for himself in Brooklyn's West Indian community when he decided to run for the bench.
A native of Grenada, he had married Abrams Mason, who worked as his office manager and paralegal, a year earlier. The couple have three children.
Though Mason had dabbled in local politics, his entry into the judicial race proved an eye-opener for him and his new bride. In heavily Democratic Brooklyn, the primary was the real election and he faced stiff opposition.
Friends led him to pols with close ties to Norman. One of the first stops was a meeting with local Democratic district leader Marietta Small.
Small, who later held a top patronage post in Brooklyn Surrogate's Court, taught the couple the facts of life about judicial politics, Abrams Mason said.
"Small was not interested in money, but influence and power," she said. "Everyone else was interested in payoffs."
To get Norman's backing, Mason was told, he would have to take what his wife described as "the package deal."
That included a campaign manager selected by the bosses who would be paid $15,000, an election lawyer who would get $10,000 and inherit Mason's cases and clients if he was elected, and a law clerk handpicked by Small once he got on the bench.
"At one meeting, Mason was told you have to pay Andrews $5,000 cash and make donations to other candidates," his ex-wife said. "Whatever money politicians asked for, Mason had to have it right then and there. We ended up spending nearly $100,000."
Not all of it was reported by Mason's campaign, she added. Campaign finance records reviewed by The News show Mason's campaign spent $67,895.04.
But other expenditures, like the alleged payment to Andrews, "weren't accounted for in campaign records," she said.
At the time, Andrews was an active Democratic leader in Brooklyn and a close confidant of Norman. He was later elected to the state Senate, worked for Spitzer in the attorney general's office, but lost a bid for Congress despite Spitzer's backing.
Andrews was recently hired by Spitzer to work in his Office of Intergovernmental Affairs.
The Village Voice recently identified Andrews as the bagman for a bribe paid to Norman in 2001 to get another judge, Howard Ruditzky, a Supreme Court seat.
Andrews 'insulted' by query
Andrews, 50, did not return repeated calls for comment. But earlier, when asked about the Ruditzky allegation, he replied, "I'm insulted by the question and the implications behind that question. I guess my only crime is being Clarence Norman's friend. Guilt by association."
Yet Abrams Mason says she clearly recalls the day when Andrews showed up at Mason's law office on Glenwood Road in East Flatbush to pick up his cash.
"Mason was annoyed. He said, 'Why do we have to pay this guy $5,000? What is he going to do for me?'"
As it turned out, nothing. She recalled, "Mason took money out of the right-hand drawer of his desk, where we keep our cash and records. He put the $5,000 in an envelope and handed it to him. [Andrews] put it in his jacket pocket. He didn't stick around. That was it!"
"Mason and I thought he took the money to go neutral, because he did nothing. ... He didn't do anything for Mason's opponent either."
"We never saw him again, not even at a fund-raiser," she said.
In a telephone interview, Small also denied any wrongdoing.
"I have no knowledge of anyone taking any bribes," she said. "I would not ever be a part of that. I would never be a part of anything like that. That's the God's honest truth."
Abrams Mason insists thousands in cash went to politically connected operatives who supposedly spent it on such things as neighborhood get-out-the-vote campaigns.
Some of it went to district leaders who controlled large blocs of votes at local housing projects, where "the voters were told who to vote for, and this was a plus."
The support of Norman's army of regulars helped Mason eke out a win in the Civil Court primary by 145 votes.
By the time of his 1996 election to the state Supreme Court, the couple had split. But he would tell her later he had to pay the Democrats even more for that race.
With his expenses mounting, Mason eventually dipped into the client escrow account - a no-no that was exposed by his ex-wife.
The alleged wrongdoing - much of it also detailed in her unpublished memoir, "The Judge's Wife and the Political Mafia" - are unlikely to result in new criminal charges because the statute of limitations has run out.
She decided to go public because the court battle over financial support for their three children has dragged on.
When she could no longer afford a lawyer, she drew up legal papers herself. She eventually won a contempt order against him, demonstrating that of all his political foes, Mason's ex-wife has been the most formidable.
http://www.nydailynews.com/front/story/491095p-413659c.html
Judge Scandal Could Tarnish Spitzer Shine Anti-corrupt Gov Hiring Pol Tied to Norman?
By Lisa L. Colangelo, Nancie L. Katz and Adam LisbergNew York Daily News January 15, 2007
Clarence Norman
Gov. Spitzer took office two weeks ago with a corruption-busting promise - but yesterday he welcomed into his inner circle a man who has been named in connection with an exploding Brooklyn bribery scandal.
Former state Sen. Carl Andrews was one of several insiders who were invited into Spitzer's midtown offices following a news conference where the governor ducked a question about the corruption probe.
"With respect for the alleged improprieties that have been the subject of investigation in Brooklyn, obviously those cases continue and they proceed," Spitzer said.
Andrews is reportedly being considered for a high-ranking post in the Spitzer administration - and while the governor said little, his exit with the well-connected Andrews seemed to show Spitzer was not publicly distancing himself from him.
The Village Voice claimed in a story published Saturday that Andrews picked up a bribe in 2001 - either $25,000 in cash or $3,000 in postage stamps that could be used in a campaign - from a sex therapist named Norman Chesler, who was hoping to get his cousin, Civil Court Judge Howard Ruditzky, a seat on the state Supreme Court.
Andrews allegedly delivered it to his longtime confidant Clarence Norman, a corrupt Democratic Party boss who could be indicted for allegedly taking as much as $70,000 in bribes to put Ruditzky on the bench, The Voice reported.
Andrews told the Daily News yesterday he has never met Chesler - and when asked point-blank about collecting a bribe, said it was beneath his dignity to answer.
"I'm insulted by the question and the implications behind that question," he said. "I guess my only crime is being Clarence Norman's friend. Guilt by association."
Law enforcement sources told The News yesterday that Andrews is not a target in the long-running probe of whether Brooklyn judges have bought their way onto the bench.
Andrews held a community relations job under Spitzer when he was state attorney general. Andrews later served as a Brooklyn state senator and ran unsuccessfully for Congress last fall.
Ruditzky, Chesler and Norman declined to comment. Norman's lawyer Edward Wilford said he has not been contacted by Brooklyn District Attorney Charles Hynes about the allegations.
Prosecutors would not file any new charges against Norman until after his Jan. 23 trial on extortion charges, a law enforcement source said.
Spitzer's office did not respond to a request for comment.
With Nicole Bode and Tamer El-Ghobashy
DA: Norman Sold Judgeship for 50g - & 6g in Stamps
By Nancie L. Katz and Rich SchapiroNew York Daily NewsJanuary 14, 2007
Clarence Norman
Brooklyn prosecutors are seeking to indict deposed Brooklyn Democratic Party chairman Clarence Norman for allegedly selling a judgeship for at least $50,000 in cash and $6,000 in postage stamps, it was reported yesterday.
The alleged corruption, detailed by The Village Voice, has the potential to shake the Brooklyn political establishment and push the Legislature to overhaul how state Supreme Court judges are selected.
Norman - already sentenced to two to six years behind bars for unrelated felony campaign corruption - will be indicted by a grand jury for allegedly demanding payoffs to elevate former Civil Court Judge Howard Ruditzky to the state Supreme Court, The Voice says.
Sources told the Daily News that Ruditzky was granted immunity and recently testified before a grand jury, where he revealed he paid $70,000 for the judgeship.
"A sitting judge told a grand jury that he paid Clarence Norman $70,000 for the nomination," one of the sources said.
The Voice said it had pinpointed only $56,000 in payments.
District Attorney Charles Hynes' case against Norman, according to The Voice, revolves around the testimony of Ruditzky and three other witnesses: Jeff Feldman, the executive director of the Brooklyn Democratic Party; ex-Supreme Court Justice Michael Garson; and Ruditzky's millionaire cousin, an overweight sex therapist named Norman Chesler.
It was Chesler who was at the center of the alleged payoffs, according to The Voice.
In 2001, Chesler began helping Ruditzky in his bid to get reelected to the Civil Court. According to The Voice, Ruditzky wasn't planning to serve if reelected because Norman allegedly had promised to elevate him to the Supreme Court after the balloting.
Norman had the ability to promote Ruditzky because Supreme Court nominees are selected by judicial conventions, a system that allows a Democratic leader in a Democratic county to handpick jurists.
Norman was planning to promote Ruditzky and then select his replacement for Civil Court without having to run that candidate in a primary, The Voice reports.
"If Ruditzky wins reelection, we'll elevate him," Norman told Chesler, according to The Voice.
But that plan crumbled when Ruditzky lost. In stepped Chesler, who, according to The Voice, was allegedly told by Norman, "We could use money for activities in my community."
Chesler's first alleged payment to Norman came in the form of postage stamps, two $3,000 rolls he bought at a post office, The Voice reported.
Chesler, who refers to Ruditzky as "Rudy," also allegedly gave Norman $50,000 - delivering the first half "wrapped in a large brown envelope," according to The Voice.
Bank records reviewed by The Voice reveal a series of withdrawals totaling $43,950 that Chesler made from his company between July and November 2001. Notations contained with the record of the withdrawals, also reviewed by The Voice, said that "CN asked for Rudy to come up and give 50k for services," adding that "since they weren't getting it on their own, they asked for help."
Chesler began cooperating with Hynes' office after being indicted in a car insurance scam, The Voice says.
Ruditzky, Chesler and Norman's lawyer could not be reached for comment yesterday.
Sources told The News last week that Ruditzky's grand jury testimony is being reviewed by the state Commission on Judicial Conduct. Commission administrator Robert Tembekjian declined to comment last week.
David Bookstaver, spokesman for the New York State Office of Court Administration, told The News on Friday that "it would be inappropriate to comment about an alleged ongoing investigation."
Grand jury testimony is secret, and when The News asked Hynes on Dec. 21 about Ruditzky appearing before the panel, Hynes declared it was "untrue." Hynes' spokesman, Jerry Schmetterer, declined to comment Friday on whether the office knew about the alleged bribe.
The author of The Voice article, Wayne Barrett, revealed that his mentor, the late Jack Newfield, had been investigating Brooklyn courts before his death in 2004.
According to The Voice, Newfield had scrawled Ruditzky's name into a notebook that contained his last interview.
More than 30 years have passed since Newfield wrote in 1972, "It is common belief on the streets of this city that judgeships are bought and sold by politicians for cash, and that once on the bench, some judges continue to be up for sale - or at least for rent."
SECOND KUDOS TO THE FIRST DEPARTMENT FOR TRUMPING MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS
St. Clement v Casale 2006 NYSlipOp 03697
May 11, 2006 Appellate Division, First Department
Published by New York State Law Reporting Bureau: <http://www.courts.state.ny.us/reporter/> pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006 Courtney St. Clement, on Behalf of Taylor Ernest Casale, Appellant,vGerald Casale et al., Respondents.—[*1]Orders, Supreme Court, New York County (Joan B. Lobis, J.), entered April 12, 2002, September 23, 2002, on or about April 29, 2004, August 26, 2004 and November 19, 2004, which, respectively, inter alia, denied petitioner mother's application for temporary custody of the subject child, confirmed a Special Referee's report, denied her request to have the child evaluated by the Bellevue Hospital Child Protection Unit, denied her motion to renew, and denied her motion to subpoena the child's pediatrician; and order and judgment (one paper), same court and Justice, entered September 21, 2004, which, inter alia, awarded child support to respondent father Gerald Casale in the amount of $567 monthly, retroactive to April 16, 2001, the date of the judgment awarding the father custody, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a hearing before Supreme Court in order to reevaluate the best interests of the child, as well as the issues of child support. Family Court, during the pendency of this appeal, and in response to a petition filed by the Administration for Children's Services naming petitioner and respondents herein as respondents in that proceeding, has appointed a law guardian to represent the interests of the child. That law guardian is directed to continue to represent the child for the purposes of the Supreme Court proceeding directed herein.
In this matter, we find troubling respondents\' refusal, in the face of petitioner\'s allegations of abuse and sexual misconduct, to address the issue of the Web site postings in question, for if respondent Londa did, in fact, post these messages, a change in custody may very well be warranted. In addition, given the somewhat contradictory positions espoused by Dr. Prezioso, the child\'s pediatrician, both in support of, and in opposition to, petitioner\'s order to show cause, we find clarification of her observations necessary in order to make an informed determination regarding the child\'s best interests. Finally, we remand the issue of child support to Supreme Court, for as Supreme Court acknowledged in its decision, its ability to review the referee\'s conclusions was circumscribed by the parties\' failure to submit a transcript of the hearing, in violation of CPLR 4320. Concur—Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ.\u003cbr /\>\u003cbr /\>Sent from my BlackBerry wireless handheld.\u003c/div\>",0]
);
//-->
It is settled that the essential consideration in making an award of custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Faunteleroy v Mercado, 5 AD3d 482, 482-483 [2004]), and a court may direct a change in custody if the totality of the circumstances warrants a modification and such a change is in the best interests of the child (Matter of Mathis v Parkhurst, 23 AD3d 923, 924 [2005]; Matter of [*2]Dow v Dow, 306 AD2d 529, 530 [2003]). Some of the factors to be considered include "the quality of the home environment, parental guidance, financial status and ability to provide for the child as well as the ability to provide for the emotional and intellectual development of the child" (Matter of Luz Maria V., 23 AD3d 192, 193 [2005], lv denied 6 NY3d 710 [2006], citing Eschbach, 56 NY2d at 172). Moreover, the burden of establishing a change in circumstances requiring a modification of an existing custody order rests with the petitioner (Matter of Martin R.G. v Ofelia G.O., 24 AD3d 305, 305-306 [2005]; Matter of Millan v Vargas, 5 AD3d 602 [2004]).In this matter, we find troubling respondents' refusal, in the face of petitioner's allegations of abuse and sexual misconduct, to address the issue of the Web site postings in question, for if respondent Londa did, in fact, post these messages, a change in custody may very well be warranted. In addition, given the somewhat contradictory positions espoused by Dr. Prezioso, the child's pediatrician, both in support of, and in opposition to, petitioner's order to show cause, we find clarification of her observations necessary in order to make an informed determination regarding the child's best interests. Finally, we remand the issue of child support to Supreme Court, for as Supreme Court acknowledged in its decision, its ability to review the referee's conclusions was circumscribed by the parties' failure to submit a transcript of the hearing, in violation of CPLR 4320. Concur—Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ.
May 11, 2006 Appellate Division, First Department
Published by New York State Law Reporting Bureau: <http://www.courts.state.ny.us/reporter/> pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006 Courtney St. Clement, on Behalf of Taylor Ernest Casale, Appellant,vGerald Casale et al., Respondents.—[*1]Orders, Supreme Court, New York County (Joan B. Lobis, J.), entered April 12, 2002, September 23, 2002, on or about April 29, 2004, August 26, 2004 and November 19, 2004, which, respectively, inter alia, denied petitioner mother's application for temporary custody of the subject child, confirmed a Special Referee's report, denied her request to have the child evaluated by the Bellevue Hospital Child Protection Unit, denied her motion to renew, and denied her motion to subpoena the child's pediatrician; and order and judgment (one paper), same court and Justice, entered September 21, 2004, which, inter alia, awarded child support to respondent father Gerald Casale in the amount of $567 monthly, retroactive to April 16, 2001, the date of the judgment awarding the father custody, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a hearing before Supreme Court in order to reevaluate the best interests of the child, as well as the issues of child support. Family Court, during the pendency of this appeal, and in response to a petition filed by the Administration for Children's Services naming petitioner and respondents herein as respondents in that proceeding, has appointed a law guardian to represent the interests of the child. That law guardian is directed to continue to represent the child for the purposes of the Supreme Court proceeding directed herein.
In this matter, we find troubling respondents\' refusal, in the face of petitioner\'s allegations of abuse and sexual misconduct, to address the issue of the Web site postings in question, for if respondent Londa did, in fact, post these messages, a change in custody may very well be warranted. In addition, given the somewhat contradictory positions espoused by Dr. Prezioso, the child\'s pediatrician, both in support of, and in opposition to, petitioner\'s order to show cause, we find clarification of her observations necessary in order to make an informed determination regarding the child\'s best interests. Finally, we remand the issue of child support to Supreme Court, for as Supreme Court acknowledged in its decision, its ability to review the referee\'s conclusions was circumscribed by the parties\' failure to submit a transcript of the hearing, in violation of CPLR 4320. Concur—Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ.\u003cbr /\>\u003cbr /\>Sent from my BlackBerry wireless handheld.\u003c/div\>",0]
);
//-->
It is settled that the essential consideration in making an award of custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Faunteleroy v Mercado, 5 AD3d 482, 482-483 [2004]), and a court may direct a change in custody if the totality of the circumstances warrants a modification and such a change is in the best interests of the child (Matter of Mathis v Parkhurst, 23 AD3d 923, 924 [2005]; Matter of [*2]Dow v Dow, 306 AD2d 529, 530 [2003]). Some of the factors to be considered include "the quality of the home environment, parental guidance, financial status and ability to provide for the child as well as the ability to provide for the emotional and intellectual development of the child" (Matter of Luz Maria V., 23 AD3d 192, 193 [2005], lv denied 6 NY3d 710 [2006], citing Eschbach, 56 NY2d at 172). Moreover, the burden of establishing a change in circumstances requiring a modification of an existing custody order rests with the petitioner (Matter of Martin R.G. v Ofelia G.O., 24 AD3d 305, 305-306 [2005]; Matter of Millan v Vargas, 5 AD3d 602 [2004]).In this matter, we find troubling respondents' refusal, in the face of petitioner's allegations of abuse and sexual misconduct, to address the issue of the Web site postings in question, for if respondent Londa did, in fact, post these messages, a change in custody may very well be warranted. In addition, given the somewhat contradictory positions espoused by Dr. Prezioso, the child's pediatrician, both in support of, and in opposition to, petitioner's order to show cause, we find clarification of her observations necessary in order to make an informed determination regarding the child's best interests. Finally, we remand the issue of child support to Supreme Court, for as Supreme Court acknowledged in its decision, its ability to review the referee's conclusions was circumscribed by the parties' failure to submit a transcript of the hearing, in violation of CPLR 4320. Concur—Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ.
KUDOS TO THE FIRST FIRST DEPARTMENT FOR DOING THE RIGHT THING - TRUMPING MISGUIDED BLACK ROBE SUPREME COURT JUSTICE JOAN LOBIS
Cordula Bartha, Respondent-Appellant,
v
Nicholas Bartha, Appellant-Respondent.
State of New York, Appellate Division, First Department, January 27, 2005
APPEARANCES OF COUNSEL
Ira E. Garr, P.C., New York City (Jane R. Slavin and Ira E. Garr of counsel), for appellant-respondent.
Polly N. Passonneau, P.C., New York City (Donna E. Bennick and Polly N. Passonneau of counsel), respondent-appellant.
OPINION OF THE COURT
Saxe, J.
The determination of equitable distribution made by the Special Referee and incorporated in the court's judgment is both inequitable and unsupported by the record in numerous respects; in particular, the conclusion that plaintiff had no right to any portion of the marital residence or its appreciation in value was contrary to fundamental principles of equitable distribution. Reversal of the financial provisions of the judgment is therefore necessary.
Plaintiff Cordula Bartha, who was born in the Netherlands, emigrated with her family to Italy in 1960. She earned a Ph.D. in German literature from the University of Rome, after which she found employment as an assistant to a publisher. In 1973, she met defendant Nicholas Bartha, a medical student of Romanian and Hungarian heritage. The parties lived together in Rome until defendant graduated from medical school in April 1974, at which time they relocated to the United States and moved in with defendant's parents in a large house owned by defendant and his mother in Rego Park, New York. While defendant studied to pass the examination required of graduates of foreign medical schools, plaintiff worked in the cultural section of the Netherlands Consulate.
In 1976, defendant passed the test that entitled him to practice medicine in the United States, and began an internship at Elmhurst General Hospital in Queens, New York. At about the same time, plaintiff learned that she was pregnant, and the parties married on January 10, 1977. The couple's two children, born, respectively, on August 5, 1977 and December 11, 1978, are now adults.
Although plaintiff continued to work until shortly before their first child was born, she subsequently remained at home with the children until the youngest was approximately 11 years old. Plaintiff returned to work at the Consulate on a part-time basis in 1989, and resumed full-time status there in 1994. In the meantime, defendant completed his internship and residency, and from 1979 until the present has worked as an emergency room physician.
The family, along with defendant's parents, moved to Manhattan in 1986, to a townhouse located on East 62nd Street, which was purchased in 1980 for $395,000, with cash totaling $199,699 obtained from a variety of sources, including a check from defendant's parents and a payment of separate funds belonging to plaintiff; the seller took back a mortgage for the remainder. Once the renovations on the building were completed, this townhouse contained the duplex apartment in which the parties resided, another apartment for defendant's parents, a rental apartment, and a physician's office unit on the first floor. Title to the property was placed in the name of defendant's parents at the time of the purchase; subsequently, it was put jointly in defendant's and his mother's name. Although the parties disagree as to the source of the mortgage payments between 1980 and 1985, it is undisputed that by 1988 the mortgage payments were made from the parties' joint account, as were the costs of the extensive renovations made on the property prior to their taking residence.
In October 2001, plaintiff wife vacated the marital residence and commenced this action for divorce.
After a fault trial, a divorce was granted in favor of plaintiff. The economic issues were referred to a Special Referee to hear and determine.
The Referee found that the townhouse on East 62nd Street was not marital property, but [*2]was in part the separate property of defendant and in part belonged to the parties' children. It was noted that defendant obtained title to 50% of the marital residence as a gift from his father and another 25% as an inheritance from his mother, while the remaining 25% had been willed by his mother to the children of the marriage.
The Referee then found that plaintiff was entitled to a distributive award, calculated to include (1) half the money the marital estate would have received had they rented out the apartment supplied to defendant's parents (determined to be $400,000), (2) half the income lost to plaintiff because she stayed home instead of working while the parties' children were young (determined to be $550,000), (3) half of the $1,112,467 in marital funds which the couple put into the marital residence, and (4) the $196,500 in separate property which plaintiff contributed over the years to the marital residence. The total distributive award thus came to a total of $1,227,733.50.
The Referee also directed defendant to pay plaintiff maintenance of $2,000 per month for three years, and denied plaintiff an award of counsel fees.
We affirm the determination awarding a divorce to plaintiff on grounds of cruel and inhuman treatment. Plaintiff's proof, when viewed cumulatively, established by a preponderance of the credible evidence that defendant had engaged in a course of conduct which was harmful to the plaintiff's physical and mental health, thus rendering cohabitation unsafe or improper (Domestic Relations Law § 170 [1]).
This was not a case of ordinary marital dissatisfaction or even "riotous quarrels" as defendant suggests. Defendant intentionally traumatized plaintiff, a woman of Jewish origin born in Nazi-occupied Holland, with swastika-adorned articles and notes affixed around their home, and became enraged when she removed them. He ignored her need for support and assistance while she was undergoing surgery and treatment for breast cancer (see Siczewicz v Siczewicz, 92 AD2d 915, 916 [1983], appeal dismissed 59 NY2d 968 [1983]). He systematically cut off her access to marital funds and credit as a means of psychological abuse. Even plaintiff's assertion that defendant completely ceased speaking to her is not benign, but must be understood in the context of the prior years' verbal abuse.
Physical violence is not a prerequisite for a showing that plaintiff's physical or mental well-being rendered it unsafe or improper for her to continue cohabiting with defendant as required by Domestic Relations Law § 170 (1) (see Hessen v Hessen, 33 NY2d 406, 410 [1974]; Pfoltzer v Morris-Pfoltzer, 9 AD3d 615, 616-617 [2004]). Nor did plaintiff need an expert to prove that defendant's actions had the claimed effect on her mental condition (see Levine v Levine, 2 AD3d 498, 500 [2003]), particularly in view of her explanation that she is the type of person who finds it difficult to consider seeking psychological treatment.
However, the Referee's determination of the economic issues must be rejected.
With regard to the Manhattan townhouse on East 62nd Street, which was purchased in 1980 for $395,000, and was valued by the neutral appraiser in June of 2002 at $5 million, it was error to accept at face value the claim that initially placing the townhouse in the names of defendant's parents, and defendant's subsequently holding joint title with his mother, rendered the property nonmarital. [*3]
It is true that it was defendant's parents who took title to the townhouse when it was purchased in 1980, and that defendant's father thereafter purported to gift his half of the house to defendant, while the other half remained in his mother's name, until at her death in 1997, when defendant inherited 50% of her interest in the property, with the remainder willed to her granddaughters, the parties' children. However, the names in whom title was placed does not end the analysis, especially in circumstances such as these.
It is central to the Equitable Distribution Law that the term "marital property" includes property acquired by either spouse during the marriage "regardless of the form in which title is held" (Domestic Relations Law § 236 [B] [1] [c]). That one of the spouses acquired title to property jointly with another relative would not necessarily interfere with its being considered marital, at least to the extent of the spouse's established interest (see Antenucci v Antenucci, 193 AD2d 948 [1993]). Moreover, in this instance, the manner in which defendant's parents initially obtained title, and defendant then obtained title from his parents, supports the claim that the townhouse was truly the marital property of these parties, at least in part, from the outset, and that any additional interest that defendant acquired from his parents subsequently might similarly be considered marital property as well.
It is undisputed that $45,095 of the $199,699 cash used for the purchase of the townhouse came from plaintiff's separate property. Moreover, while $114,369 of the cash down payment came from a check from defendant's parents' account, in the context of the probate of his mother's estate, defendant took the position that at least $60,000 of that payment belonged to him and constituted marital assets. Indeed, that defendant considered the funds held in his parents' names to belong in part to himself and his wife was illuminated by the manner in which he and his family handled their finances generally. For instance, while defendant's mother alone received the rents on the Rego Park building that she and defendant had purchased jointly before the marriage, the building's expenses were paid by plaintiff and defendant, from marital earnings. Indeed, in the probate of his mother's estate, in which defendant successfully defended a challenge by his nephews to his right to inherit his mother's interest in the townhouse, defendant asserted that he and his parents had so thoroughly commingled their assets that while he had, technically, inherited property from his mother, the inheritance actually amounted to a repayment to him of financial loans that he and his wife had made to his mother over the course of many years.
There is a "presumption in favor of marital property, premised on the contemporary view of marriage as an economic partnership, crediting each party's contributions, whether monetary or not, to the growth and value of the marriage" (DeJesus v DeJesus, 90 NY2d 643, 648 [1997]). The term marital property must be broadly construed in order to give effect to the economic partnership concept (Price v Price, 69 NY2d 8, 11 [1986]), and assure that "to the extent that the appreciated value of separate property is at all 'aided or facilitated' by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution" (Hartog v Hartog, 85 NY2d 36, 46 [1995]).
To the extent defendant establishes that a portion of the down payment for the Manhattan townhouse was from funds of his parents which had not been intermingled with marital funds, or [*4]from his own separate property, he is entitled to a credit for that contribution; but, otherwise, the property, or at least the 75% interest therein currently held in defendant's name, is marital property[FN*] (see Heine v Heine, 176 AD2d 77, 84 [1992], lv denied 80 NY2d 753 [1992]). The appreciation of the value of the house, from $395,000 to $5 million, was unrelated to the down payments, but very much related to the complete gutting and renovation which was largely overseen by plaintiff, and paid for out of the parties' marital funds (id.). Furthermore, the mortgage payments were made entirely from marital funds, at least from 1988 on, and possibly during the earlier years as well.
As to the distributive award that the court granted to plaintiff, both parties agree that there is neither support nor sufficient explanation of how the Referee calculated the amounts of $400,000 for loss of rental income and $550,000 for plaintiff's loss of employment income. Even if we agreed with the characterization of the marital residence as defendant's separate property, a remand would be necessary on this basis in any event.
The need for reassessment of the equitable distribution award also necessitates reassessment of the court's maintenance award to plaintiff. We note, however, that the record fails to disclose how a maintenance award of $2,000 per month for three years will enable plaintiff, who currently lives in a small apartment in Washington Heights with her two adult daughters, to retain her predivorce standard of living (see Hartog v Hartog, 85 NY2d at 50-52; Summer v Summer, 85 NY2d 1014 [1995]). Finally, the question of whether or not plaintiff is entitled to an award of legal fees in connection with this matrimonial proceeding must also be reassessed in accordance with the final equitable distribution determination.
Accordingly, the judgment of divorce of the Supreme Court, New York County (Joan B. Lobis, J.), entered May 9, 2003, which, inter alia, granted plaintiff a divorce, provided for a distributive award to the wife, awarded her maintenance in the sum of $2,000 per month for a period of three years, and denied her application for attorney's fees, should be modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs.
Buckley, P.J., Tom, Andrias and Marlow, JJ., concur.
Judgment of divorce, Supreme Court, New York County, entered May 9, 2003, modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs.
Footnotes
Footnote *: While plaintiff challenges the authority of defendant's mother to bequeath 25% of the house to her granddaughters, she nevertheless does not want to challenge her daughters' ownership rights.
Source: New York State Courts
v
Nicholas Bartha, Appellant-Respondent.
State of New York, Appellate Division, First Department, January 27, 2005
APPEARANCES OF COUNSEL
Ira E. Garr, P.C., New York City (Jane R. Slavin and Ira E. Garr of counsel), for appellant-respondent.
Polly N. Passonneau, P.C., New York City (Donna E. Bennick and Polly N. Passonneau of counsel), respondent-appellant.
OPINION OF THE COURT
Saxe, J.
The determination of equitable distribution made by the Special Referee and incorporated in the court's judgment is both inequitable and unsupported by the record in numerous respects; in particular, the conclusion that plaintiff had no right to any portion of the marital residence or its appreciation in value was contrary to fundamental principles of equitable distribution. Reversal of the financial provisions of the judgment is therefore necessary.
Plaintiff Cordula Bartha, who was born in the Netherlands, emigrated with her family to Italy in 1960. She earned a Ph.D. in German literature from the University of Rome, after which she found employment as an assistant to a publisher. In 1973, she met defendant Nicholas Bartha, a medical student of Romanian and Hungarian heritage. The parties lived together in Rome until defendant graduated from medical school in April 1974, at which time they relocated to the United States and moved in with defendant's parents in a large house owned by defendant and his mother in Rego Park, New York. While defendant studied to pass the examination required of graduates of foreign medical schools, plaintiff worked in the cultural section of the Netherlands Consulate.
In 1976, defendant passed the test that entitled him to practice medicine in the United States, and began an internship at Elmhurst General Hospital in Queens, New York. At about the same time, plaintiff learned that she was pregnant, and the parties married on January 10, 1977. The couple's two children, born, respectively, on August 5, 1977 and December 11, 1978, are now adults.
Although plaintiff continued to work until shortly before their first child was born, she subsequently remained at home with the children until the youngest was approximately 11 years old. Plaintiff returned to work at the Consulate on a part-time basis in 1989, and resumed full-time status there in 1994. In the meantime, defendant completed his internship and residency, and from 1979 until the present has worked as an emergency room physician.
The family, along with defendant's parents, moved to Manhattan in 1986, to a townhouse located on East 62nd Street, which was purchased in 1980 for $395,000, with cash totaling $199,699 obtained from a variety of sources, including a check from defendant's parents and a payment of separate funds belonging to plaintiff; the seller took back a mortgage for the remainder. Once the renovations on the building were completed, this townhouse contained the duplex apartment in which the parties resided, another apartment for defendant's parents, a rental apartment, and a physician's office unit on the first floor. Title to the property was placed in the name of defendant's parents at the time of the purchase; subsequently, it was put jointly in defendant's and his mother's name. Although the parties disagree as to the source of the mortgage payments between 1980 and 1985, it is undisputed that by 1988 the mortgage payments were made from the parties' joint account, as were the costs of the extensive renovations made on the property prior to their taking residence.
In October 2001, plaintiff wife vacated the marital residence and commenced this action for divorce.
After a fault trial, a divorce was granted in favor of plaintiff. The economic issues were referred to a Special Referee to hear and determine.
The Referee found that the townhouse on East 62nd Street was not marital property, but [*2]was in part the separate property of defendant and in part belonged to the parties' children. It was noted that defendant obtained title to 50% of the marital residence as a gift from his father and another 25% as an inheritance from his mother, while the remaining 25% had been willed by his mother to the children of the marriage.
The Referee then found that plaintiff was entitled to a distributive award, calculated to include (1) half the money the marital estate would have received had they rented out the apartment supplied to defendant's parents (determined to be $400,000), (2) half the income lost to plaintiff because she stayed home instead of working while the parties' children were young (determined to be $550,000), (3) half of the $1,112,467 in marital funds which the couple put into the marital residence, and (4) the $196,500 in separate property which plaintiff contributed over the years to the marital residence. The total distributive award thus came to a total of $1,227,733.50.
The Referee also directed defendant to pay plaintiff maintenance of $2,000 per month for three years, and denied plaintiff an award of counsel fees.
We affirm the determination awarding a divorce to plaintiff on grounds of cruel and inhuman treatment. Plaintiff's proof, when viewed cumulatively, established by a preponderance of the credible evidence that defendant had engaged in a course of conduct which was harmful to the plaintiff's physical and mental health, thus rendering cohabitation unsafe or improper (Domestic Relations Law § 170 [1]).
This was not a case of ordinary marital dissatisfaction or even "riotous quarrels" as defendant suggests. Defendant intentionally traumatized plaintiff, a woman of Jewish origin born in Nazi-occupied Holland, with swastika-adorned articles and notes affixed around their home, and became enraged when she removed them. He ignored her need for support and assistance while she was undergoing surgery and treatment for breast cancer (see Siczewicz v Siczewicz, 92 AD2d 915, 916 [1983], appeal dismissed 59 NY2d 968 [1983]). He systematically cut off her access to marital funds and credit as a means of psychological abuse. Even plaintiff's assertion that defendant completely ceased speaking to her is not benign, but must be understood in the context of the prior years' verbal abuse.
Physical violence is not a prerequisite for a showing that plaintiff's physical or mental well-being rendered it unsafe or improper for her to continue cohabiting with defendant as required by Domestic Relations Law § 170 (1) (see Hessen v Hessen, 33 NY2d 406, 410 [1974]; Pfoltzer v Morris-Pfoltzer, 9 AD3d 615, 616-617 [2004]). Nor did plaintiff need an expert to prove that defendant's actions had the claimed effect on her mental condition (see Levine v Levine, 2 AD3d 498, 500 [2003]), particularly in view of her explanation that she is the type of person who finds it difficult to consider seeking psychological treatment.
However, the Referee's determination of the economic issues must be rejected.
With regard to the Manhattan townhouse on East 62nd Street, which was purchased in 1980 for $395,000, and was valued by the neutral appraiser in June of 2002 at $5 million, it was error to accept at face value the claim that initially placing the townhouse in the names of defendant's parents, and defendant's subsequently holding joint title with his mother, rendered the property nonmarital. [*3]
It is true that it was defendant's parents who took title to the townhouse when it was purchased in 1980, and that defendant's father thereafter purported to gift his half of the house to defendant, while the other half remained in his mother's name, until at her death in 1997, when defendant inherited 50% of her interest in the property, with the remainder willed to her granddaughters, the parties' children. However, the names in whom title was placed does not end the analysis, especially in circumstances such as these.
It is central to the Equitable Distribution Law that the term "marital property" includes property acquired by either spouse during the marriage "regardless of the form in which title is held" (Domestic Relations Law § 236 [B] [1] [c]). That one of the spouses acquired title to property jointly with another relative would not necessarily interfere with its being considered marital, at least to the extent of the spouse's established interest (see Antenucci v Antenucci, 193 AD2d 948 [1993]). Moreover, in this instance, the manner in which defendant's parents initially obtained title, and defendant then obtained title from his parents, supports the claim that the townhouse was truly the marital property of these parties, at least in part, from the outset, and that any additional interest that defendant acquired from his parents subsequently might similarly be considered marital property as well.
It is undisputed that $45,095 of the $199,699 cash used for the purchase of the townhouse came from plaintiff's separate property. Moreover, while $114,369 of the cash down payment came from a check from defendant's parents' account, in the context of the probate of his mother's estate, defendant took the position that at least $60,000 of that payment belonged to him and constituted marital assets. Indeed, that defendant considered the funds held in his parents' names to belong in part to himself and his wife was illuminated by the manner in which he and his family handled their finances generally. For instance, while defendant's mother alone received the rents on the Rego Park building that she and defendant had purchased jointly before the marriage, the building's expenses were paid by plaintiff and defendant, from marital earnings. Indeed, in the probate of his mother's estate, in which defendant successfully defended a challenge by his nephews to his right to inherit his mother's interest in the townhouse, defendant asserted that he and his parents had so thoroughly commingled their assets that while he had, technically, inherited property from his mother, the inheritance actually amounted to a repayment to him of financial loans that he and his wife had made to his mother over the course of many years.
There is a "presumption in favor of marital property, premised on the contemporary view of marriage as an economic partnership, crediting each party's contributions, whether monetary or not, to the growth and value of the marriage" (DeJesus v DeJesus, 90 NY2d 643, 648 [1997]). The term marital property must be broadly construed in order to give effect to the economic partnership concept (Price v Price, 69 NY2d 8, 11 [1986]), and assure that "to the extent that the appreciated value of separate property is at all 'aided or facilitated' by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution" (Hartog v Hartog, 85 NY2d 36, 46 [1995]).
To the extent defendant establishes that a portion of the down payment for the Manhattan townhouse was from funds of his parents which had not been intermingled with marital funds, or [*4]from his own separate property, he is entitled to a credit for that contribution; but, otherwise, the property, or at least the 75% interest therein currently held in defendant's name, is marital property[FN*] (see Heine v Heine, 176 AD2d 77, 84 [1992], lv denied 80 NY2d 753 [1992]). The appreciation of the value of the house, from $395,000 to $5 million, was unrelated to the down payments, but very much related to the complete gutting and renovation which was largely overseen by plaintiff, and paid for out of the parties' marital funds (id.). Furthermore, the mortgage payments were made entirely from marital funds, at least from 1988 on, and possibly during the earlier years as well.
As to the distributive award that the court granted to plaintiff, both parties agree that there is neither support nor sufficient explanation of how the Referee calculated the amounts of $400,000 for loss of rental income and $550,000 for plaintiff's loss of employment income. Even if we agreed with the characterization of the marital residence as defendant's separate property, a remand would be necessary on this basis in any event.
The need for reassessment of the equitable distribution award also necessitates reassessment of the court's maintenance award to plaintiff. We note, however, that the record fails to disclose how a maintenance award of $2,000 per month for three years will enable plaintiff, who currently lives in a small apartment in Washington Heights with her two adult daughters, to retain her predivorce standard of living (see Hartog v Hartog, 85 NY2d at 50-52; Summer v Summer, 85 NY2d 1014 [1995]). Finally, the question of whether or not plaintiff is entitled to an award of legal fees in connection with this matrimonial proceeding must also be reassessed in accordance with the final equitable distribution determination.
Accordingly, the judgment of divorce of the Supreme Court, New York County (Joan B. Lobis, J.), entered May 9, 2003, which, inter alia, granted plaintiff a divorce, provided for a distributive award to the wife, awarded her maintenance in the sum of $2,000 per month for a period of three years, and denied her application for attorney's fees, should be modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs.
Buckley, P.J., Tom, Andrias and Marlow, JJ., concur.
Judgment of divorce, Supreme Court, New York County, entered May 9, 2003, modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs.
Footnotes
Footnote *: While plaintiff challenges the authority of defendant's mother to bequeath 25% of the house to her granddaughters, she nevertheless does not want to challenge her daughters' ownership rights.
Source: New York State Courts
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