CA 97-3119 & CA 97-3120
John Murtari, Oral Argument, 30 minutes requested.
State of New York
Appellate Division - Fourth Judicial Department
BRIEF for DEFENDANT-APPELLANT
ANSWER: Trial Court denied request as part of same motion, 4/15/97.
STATEMENT OF FACTS
Note: In the first part of this Statement of Facts I include those items of information for which there was no dispute among the parties, or for admissions made by either party. Items which were "alleged" by one party or the other, but not admitted by the other, will be addressed at the end of this statement. For significant items annotations to the Record are given.
SUMMARY ( up to the point where Divorce was initiated).
Mr. Murtari (Appellant-Defendant) was born and raised in Lyons, New York. Mrs. Murtari (Respondent-Plaintiff) was born in Japan, and came to the United States for college where the couple met and were married on Nov 21st, 1987, in the town of Lyons, New York. Through their entire marriage not a single eye witness testified to observing any bad conduct between the couple. The couple did enter a period of extended counseling in 1991/1992, prior to the birth of their child in February of 1993. All eye witnesses at the trial testified to observing warm conduct between both parents and their young son, Domenic. In late 1993, after the birth of their son, Domenic, Mrs. Murtari began to express her desire for a divorce. In 1993/1994 she also entered into some type of business/personal relationship with another man. In August of 1994 Mr. Murtari was terminated by his employer, and both Mr. And Mrs. Murtari began teaching part time at local colleges, and shared care of Domenic. In February of 1995 Mrs. Murtari began private visits to a psychologist, Dr. Hoenig.
Legal Proceeding Summary (a brief summary with dates, names)
Mr. Murtari (Appellant-Defendant) started a Family Court Action in February of 1995 (Exhibit 1, R-330). A Family Court order was issued for joint physical/legal custody of Domenic between spouses, and limitations on the use of Japanese by Mrs. Murtari in the home (R-76). The Defendant was served with a "Summons & Complaint seeking Divorce" (R-40) in June of 1995 on the grounds of "cruel and inhuman treatment." Mr. Murtari made an Answer (R-48) denying the allegations, and did
NOT counterclaim for divorce. The first appearance occurred in front of Charles Major in September of 1995. Mr. Murtari has remained in the marital residence located in Phoenix, New York, and Mrs. Murtari exercised a Court ordered option and moved out of the home to an apartment in the City of Syracuse in October of 1995. Mrs. Murtari was given primary physical custody of Domenic, Mr. Murtari had Domenic at the house from 8am to 1pm 4 days a week, and every other weekend. The Court appointed a Psychologist, Dr. Lois Black to do an assessment, and also appointed Mr. Joseph Lupia, Jr. as Law Guardian for Domenic. There were several pre-trial motions brought by the defendant. Pre-trial his time with Domenic was modified to every week, 2pm Wednesday till 6pm Thursday, and every other weekend. The issue came to trial in April of 1996: the Plaintiff called 2 witnesses to testify, the Defendant called 15 witnesses to testify.
The Court granted a Divorce to the plaintiff on the grounds of "cruel and inhuman treatment". The trial was then adjourned, there was a motion by the defendant in the interim, and trial reconvened in October of 1996 on the issues of equitable distribution and custody. The final judgment was entered on April 3, 1997. The plaintiff was awarded sole custody of Domenic, and Mr. Murtaris time with Domenic was further reduced to 5pm Thursday to 7pm Monday, every other weekend and two hours every Sunday (if convenient for Plaintiff). The equity in the marital residence was split between the couple, with each given the option to "buy out" the other neither has exercised that option and the home is presently to be sold. Child support, which had been at a $60/week level, was doubled to $120/week, based on Mr. Murtaris past income and made retroactive to 1 Oct 1995. No maintenance was assigned to either spouse.
EARLY MARRIAGE (1987 - 1991)
During this time Mrs. Murtari worked part time as a Piano Instructor and also earned her Masters Degree in Piano Performance at Syracuse University. Mr. Murtari worked as an engineer within a
major corporation. The couple did regular volunteer work at the Loretto Geriatric Center (a nursing home), and Mr. Murtari also continued regular volunteer work at the Oxford Inn, a shelter for the homeless, and at Loretto Geriatric Center alone. The couple had disagreements with regards to close family, job schedule, and financial issues.
Mr. Murtaris mother and father lived alone in Lyons, they were both elderly and neither drove a car. Mr. Murtari is their only child. His father, Domenic, had prostate cancer for several years and it had spread. He was required to wear a catheter and Mr. Murtari went home on a weekly basis to help with the care situation. Mrs. Murtaris visits with him became infrequent. His father died in August of 1989, at the age of 97.
MID MARRIAGE - BIRTH OF DOMENIC (1991 - 1993)
In November, 1991 (T1-565) the couple did begin a 3-4 month period of counseling, with Dr. Jeffrey Keefe, a Psychologist, at Mr. Murtaris request (T1-127). His concerns were in the area of money and family issues. The couple reconciled themselves (T1-29). Later, Adriannes parents, residents of Japan, made a large cash gift to the couple to serve as a down payment on a home they had planned to purchase (Gift Letter, Exhibits 31 & 32, R-622). On February 11, 1993, their son Domenic was born. Adriannes parents visited from Japan for the event and it was a happy time together (T1-105). In the fall of 1993 Mrs. Murtari wanted to start her own business. She and her husband explored the possibility of her starting a "play center" business named Gymboree (similar to Discovery Zone).
LATE MARRIAGE - DIVORCE (1993 - 1996)
In Summer/Fall of 1993 Mrs. Murtari made the first mention of Divorce to her husband (T1-249) . For a short while they attended counseling with a counselor name Ms. Hirano. During the Spring of 1994 Mr. Murtari attempted to make an entry into politics with his wifes assistance (T1-574). They also refinanced their home from a 30 year to 15 year mortgage. Later he withdrew from the campaign although no divorce papers were filed. By the fall of 1994 Mrs. Murtari did not want to attempt counseling sessions (T1-260) she thought the marriage was broken (T-36). The couple continued together, they established separate checking accounts for their paychecks.
Mrs. Murtari helps Mr. Sedats Coffee Shop Business
Unknown to Mr. Murtari at this time, Mrs. Murtari had also begun some type of business/personal relationship with another individual, Mr. Taskale Sedat, writing him checks in large amounts (T1-358, bank records, Exhibit 40, R-646). These amounts went unreported in her Statement of Net Worth(Exhibit 15, R-383). In the time frame of September - December of 1994, she was also baking items at home for sale at his business. She was paid about a hundred dollars a week (T1-485), and did not report it as taxable income.
Personal Visits with Mr. Sedat
In September - December of 1994 Mrs. Murtari was spending quite a bit of time away from home outside of the normal work time. She would fail to return home for dinner about 8-10 times/month, and sometimes did not return home until after 2-2:30 in the morning (T1-479). In those early morning hours there were occasions when her car was parked at the home of Mr. Sedat (T1-482). Averaging about once a week she could have been seen alone at a bar or restaurant with Mr. Sedat (T1-482).
Mr. Murtari loses his Job (T1-580)
In August of 1994, Mr. Murtari was acting as a Systems Engineer on a major government defense contract, when he was suddenly terminated from employment over allegations he was making that the government was being defrauded. Mr. Murtari filed an official Navy IG complaint, retained counsel, did file suit (under seal), and the matter is still under investigation by the U.S. Attorneys office in Syracuse, New York.
After August of 1994, the couple had a large drop in income and both Mr. and Mrs. Murtari began working part time. They divided the monthly expenses, with Mrs. Murtari making the mortgage payment and Mr. Murtari paying for all other monthly expenses. With the change in work schedule, the couple also began alternating care for Domenic. Mrs. Murtari looked after Domenic in the mornings, and Mr. Murtari cared for him in the afternoons, and evenings when she was not present.
Breakdown in Family Meals
Mrs. Murtari began to use more Japanese with Domenic when the family was together in the home. Mr. Murtari asked her to use English at the dinner table when they were together she offered that she would be happy to translate what Domenic said (T1-258).
Starting in February of 1995 Mr. Murtari started preparing the family evening meals. Mrs. Murtari had refused to cook his dinner and just wanted to cook for her and Domenic. Mr. Murtari did not like that idea and he began regularly cooking dinner for the whole family (T1-504).
Mr. Murtari starts Home Business
Mr. Murtari began to look for only part time employment after August of 1994. He also made a decision to start his own computer business. Mr. Murtari had a M.S. in Computer Science, (resume, Exhibit 36, R-639) had worked inside both large and small companies, and also within a startup firm some friends of his had launched. It was his idea that he had more employment security and job satisfaction by being his own "boss", and most importantly more time for his family; by February of 1995, The Software Workshop was Incorporated in the State of New York.
(This section of the brief recalls the allegations made by either party, and any response/explanation)
ALLEGATIONS BETWEEN COUPLE
Mrs. Murtari alleged "cruel or inhuman" conduct by the defendant. Defendant denied and responded to these allegations. This list below presents the allegations and shows in the record, separated by a "//", where each party responded. In about ONE hour of direct testimony, she alleged:
Witnesses for Plaintiff
Plaintiff called two other witnesses:
Witnesses for Defendant
The Defendant subpoenaed and had 18 people ready to testify at Trial. The Trial Judge blocked the testimony of 5 based on redundancy or lack of relevancy, but 13 people and eye witnesses testified as follows (none exhibited "hostility" toward either party in their testimony):
--- SUBPOENAED AND BLOCKED BY COURT FROM TESTIFYING AT TRIAL
Ruling on Plaintiffs Deposition
During cross examination the Defendant attempted to introduce the Plaintiffs Deposition into evidence. The Plaintiff objected on the grounds that the witness was present to testify. The Court overruled based on the fact the Defendant had done it at the wrong time, that it could have been received into evidence at an earlier point in the Trial (T1-474).
Video Taped Evidence
The Defendant showed the Court approximately 2 hours from a total of 4 hours of videotape taken in the home (Exhibits 22 & 23). These were not "short clips", but 30 minute to 1 hour segments showing daily interaction between Defendant and Child. The camcorder was just setup in a corner of the kitchen, living room, or bedroom and just allowed to run. The tapes show a very warm and affectionate relationship between Father and Son as they go through their daily routine.
Trial Adjourned for Six Months
Testimony was hurried on the last day (T1-583 ). The Trial Judge encourage the defendant to complete his testimony so the other side could cross examine, the Court then found that sufficient evidence had been provided to support a finding of "Cruel and Inhuman" treatment by the Defendant. The Defendant was surprised to later learn that trial would not continue until October to determine Custody and Equitable Distribution.
The Plaintiff later served the Defendant with a Show Cause order requesting he be imprisoned for not fully complying with prior orders of the Court to pay child support, law guardian expenses, and the psychologist. The hearing on this was delayed to coincide with the continuation of the Trial.
The Trial Judge had decided the issue of grounds, the second half of the trial was to be dedicated to the issues of equitable distribution and custody.
Financial Information (T2-27 )
The Defendant made detailed testimony to his financial condition and presented an updated Affidavit of Net Worth. After the marriage Mr. Murtari had added Mrs. Murtari to all his financial accounts, checking and savings. When they purchased their first home in 1991, in which Mr. Murtaris income alone was used to qualify for the Mortgage and to make payments, he also made sure his wife was on the deed. He held no private bank accounts or hidden cash reserves from his spouse.
Mrs. Murtari had a separate checkbook which he used for her piano instructor business, and which was also used when her parents would transfer spending money. Mr. Murtari never looked at his wifes checkbook. Mr. Murtari was not aware that in the fall of 1993, his wife made some withdrawals totaling $20,000 and gave them to a Mr. Taskal Sedat.
Work History 1987-1994 (T2-32 )
From 1987 - 1991 the Defendant had worked at General Electric, with a starting salary of $36,000, which grew to $46,000 by the time he left the company to begin work at a small company which had been started by some friends. He had discussed this with his wife. At the new company his pay was only $40,000 and he worked with them from September of 1991 to July of 1993 (shortly after the birth of Domenic). After almost two years he felt it was a "dead-end" position, and after family discussion, decided he would pursue other employment and began work with Trident Systems in July of 1993. He was suddenly discharged in August of 1994, with assistance of counsel, he filed suit against Trident Systems and Martin Marietta, the suit is presently under seal and the matter still under investigation.
Decision to Start Business 1994 (T2-38 )
After being terminated he began to work part time as a consultant and then made a decision he wanted to spend more time at home with his son. He enjoyed consulting and the control it gave him over his daily schedule, and decided to pursue it more exclusively in the future. He also considered starting his own company, he had a Masters Degree in computer science and a wealth of experience, including working inside the small startup firm started by his friends. At that same time his wife had begun teaching Japanese at a local college. They basically split the day, with him working mornings, and his wife working afternoons. Each cared for Domenic while the other was gone.
Mr. and Mrs. Murtari agreed to share the monthly expenses, since both were working part time. Mrs. Murtari paid the mortgage, while Mr. Murtari paid for health insurance, utilities, food, car insurance, home insurance. This arrangement lasted until February of 1995, when Mrs. Murtari informed him that she had made her last mortgage payment. The family had three vehicles: a 1977 Chevy Nova, a 1987 Honda Accord, and a 1988 Dodge Caravan. In the summer of 1995 the Honda Accord was sold, over the objections of Mrs. Murtari, to help pay for living expenses. The older Chevy Nova was to be sold at the time of trial.
The Defendant drew on a prior company savings plan to start the business, and also to pay monthly household expenses. Of the approximately $29,000 that was in his savings plan he withdrew approximately $19,000 during 1995. Just $8,000 were a direct capital investment into his new company, The Software Workshop Incorporated. The other $11,000 were a loan from him to the company for operating capital. This loan was being repaid by the company at from $500 - $900/month, and in 1995 the Company had repaid approximately $8,300 of the $11,000 loan. The company also paid Mr. Murtari $400/month for rental space of the office in the home, including utilities, totaling to $3,600 for the year.
The actual income of the Company, from customer payments, was only $600.00 for 1995.
Defendants Income - 1995 (T2-44)
In 1995 the Defendants total salaries, wages, tips to be reported on Form 1040 were $7,100. This constituted payment from his earlier part time consulting job, and his present adjust teaching position at Onondaga Community College. He also received an additional $3,600 in rental payments by the company, and approximately an $8,300 loan repayment.
Defendants Shared Assets with Mother(T2-27, T2-57)
There was only one other joint account which originally belonged to his Mother and Father, after the death of his father his mother put his name on the passbook, but he never deposited funds into the account, the account held approximately $6,000 - $7,000. In addition, after his fathers death, he and his mother became co-owners of the home, but his mother later transferred the home to Mr. Murtari, the town of Lyons is on full value assessment, and the home is assessed at $37,000, his mother presently lives there alone, and has a Life Estate in the property as part of the deed.
Defendants Income - 1996 (T2-60)
Mr. Murtari had taken two teaching positions during the year: at Columbia College from January-March (short semester system) for $1,200 and at Onondaga County Community College (OCC) from January-August for $6,300, and was also teaching at OCC in the fall semester and yet to be paid and anticipated $3,700. The company had been paying Mr. Murtari $400/month rental, and had completed repayment of the original load in the amount of $2,700. There was no salary from the company, and no other fringe benefits in the form of a vehicle, insurance, or any other items.
Debt Burden (T2-61)
The Defendants total debt, which was all in the form of credit cards, was $38,000. $6,000 of the debt was on two credit cards, and was for personal items, such as food, gasoline, and other items. The other cards, totaling $36,000, was for the corporation. The defendant kept the accounts separate so their would be no mixing of personal/corporate items. The corporation was making the payments on the cards associated with its debt. The company was showing positive growth in 1996, and was able to service its debt. It was Mr. Murtaris plan to attempt to get a "consolidation" loan with a much lower rate of interest for the Corporation.
Educational Expenses of Mrs. Murtari (T2-63)
Mrs. Murtari began her Masters degree at Syracuse University after the couple were married. She was granted a Masters in Piano Performance in app. 1991. Check registers from the couples joint account showed payments totaling $1,160 to her piano instructor. There were also app. $2,160 in payments on a Grand Piano (Mrs. Murtaris parents had paid the rest of the cost). Her parents had also paid for tuition costs at Syracuse University. Mr. Murtari paid for maintenance of her vehicle and other home expenses.
While she had made app. $2000-$3000/year in the past, the receipt of the Masters degree was expected to increase her income as it increased her prestige as a piano instructor. Her teaching rate had been $15-$20/hour, and could be expected to reach $40/hour given her degree and experience.
Support Payments (T2-97)
Defendant had been ordered to pay $60/week in Child Support since March of 1996. Since his wife and child had moved out of the home in October of 1995, he had been making private payments for family health insurance coverage. This was a private plan, none of Mr. Murtaris employers offered such health coverage to part-time employees. The monthly amount was equivalent to the support payment, he continued the insurance coverage and did not make the support payment, until October of the year (when his wife told him that she and Domenic were covered under a work policy).
Defendant "rests" fearing another long adjournment (requesting mistrial, Closing Argument, T2-215)
I think we could potentially bring this thing to a speedier closure without potentially going through all the time of an appeal. I mean I think most of the discovery is done, the facts are well known. If I had an attorney come on board, you know, I mean everything is, a great deal done and known. And it wouldn't take that much longer, I don't think, to read this stuff for me and to say, you know, okay we're -- we have a few more discovery items potentially to complete but then we're ready to go and could get this issue done, your Honor. Because I really want to get it done. The only reason I'm resting right now, your Honor, is I did not want to undergo the chance of having the trialadjourned again. Because it's been six months. I mean my ability to live is being prejudiced because I'm under all these temporary orders. I haven't seen my son for a year as a formal father. And it's been difficult. So that's one of the reasons I'm resting is, I just -- it's more damage to me by going on just by saying, hey, let's finish the trial today.
DENIAL OF REPRESENTATION OF COUNSEL TO DEFENDANT
In numerous requests the defendant requested representation by Counsel, with the suggested method being a "pool" of funds which both parties could access. There is clear precedence for a "level playing field" between spouses. Instituted to protect a financially destitute spouse from being "raped" by the other spouse in a proceeding where they could not afford attorneys, expert witnesses, and the like. This is directed by DRL 237 (a), and in perhaps the "clearest" summary, Dikranian v. Dikranian 263 AD 128, found that when a spouse assails the validity of a marriage and seeks to destroy a relationship which has existed between parties for several years, the other spouse should be afforded means of defending themselves in such action.
Financial Condition of Defendant
On numerous occasion throughout the proceeding Defendant requested funds for Counsel: Pre-trial motions heard Sep 12, 1995 (R-110), Nov 21, 1995 (R-154), during break in Trial Sep 10, 1996 (R-282). These requests were denied on every occasion. Probably the most severe example of this was during the closing of trial, Oct 2, 1996 (T2-214), when Defendant had given detailed testimony (T2-27 thru T2-99) to his financial state and discussed his Statement of Net Worth (R-626) and a draft of his 1995 tax return (R-641). Examination by the Court and Opposing Counsel failed to show any other assets, even after complete discovery. The defendant even showed that the Plaintiff had at least $20,000 in funds that were transferred from her accounts to another man (T1-358) and not accounted for.
Q Mrs. Murtari, in a timeframe from October 1993 until November 1993, in two months, you wrote four checks totaling, $6,500. Do you recall the purpose of those expenditures or who they were to?
A I think those are the series of checks I wrote help a friend who started a coffee shop and I managed with my, arranged with my parents to lend the money to this person.
Q What was the name of this individual?
Q Mrs. Murtari, were these, is your testimony these were a loan or a gift to Mr. Taskale?
A It's a loan.
Q A business loan?
A From my parents.
Q Did you recommend to your parents that they give Taskale this loan?
A I did not recommend but I discussed it with them.
Q Had your parents ever met Mr. Taskale prior to loaning him this money in person?
Q Did your parents, are your parents in a formal business relationship with this individual?
Q Mrs. Murtari, in the timeframe within two days starting July 28th 1994, ending July 29th 1994, you wrote a series of three more checks totaling fourteen thousand dollars. Who were those written to?
A I think that's part of the series.
Q Can you testify to what was the total amount planned on giving Mr. Taskale?
A About twenty thousand dollars.
Q And Mrs. Murtari, in the timeframe from August 1994 to October 1994, there were four more large checks totaling to approximately eighty-five hundred dollars. Do you recall who those were to?
Q Now you said that the total note to Mr. Taskale was twenty thousand?
A Around twenty thousand. I don't remember the exact number.
Q These totaled expenditures would be twenty-eight, twenty-nine thousand dollars, could the loan have been that amount?
A I don't remember.
Q Did your parents execute a formal note on this loan?
Q And has Mr. Taskale been repaying this loan?
A I don't know.
Q Did the formal note call for repayment?
A Because my parents don't speak English and he understand much, I know I was, I was there to write the letter. And I don't recall right now exact number but its after three or four years he needs to repay with interest.
MR. MURTARI: Your Honor, due to my lack of preparation, that completes my ability to cross-examine on financial matters of this witness.
There were canceled checks (R-647), along with earlier testimony from the Plaintiff, just prior to the filing for divorce, and NOT reported on her Statement of Net Worth (R-383). The defendant again made motion for counsel at the end of trial, and this was still denied (T2-214).
Award of Fees to Defendant
The defendant hopes that as the Court reviews this entire record (in which one spouse attempts to strip the other of property, and most of all, access to their child) it will find and award Defendant some measure of Fees for the real expense it has taken to defend himself in this action.
No Intent to Fake Poverty
There is no doubt the defendant had held good paying jobs in the past. The record was clear that the loss of his last full time job was unexpected, and that the defendant made a measured decision to start his own business to allocate more time for family (T2-28). At NO part in the entire record was any evidence presented, or even an accusation made that Mr. Murtari was just doing some pre-divorce "posturing". The overwhelming financial evidence presented, and oral testimony from other witnesses, shows that he was sincere in his goal of starting a business. The business was underway by the time he was served with "divorce papers", and he felt it unreasonable to expect him to stop the business, with a total loss of the investment he had already made, and then begin to seek full time employment, and still have time to see his child during those mid-week visits. Mr. Murtari was always there for his child during his parenting time to help maintain a stable home environment.
Plaintiff was well funded
Her mother and father were "well off" and able to send her periodic cash gifts of $5,000-$10,000 for
spending money during the marriage, and also send the couple over $50,000 for expenses associated with the new home. She was able to retain experienced counsel, and through some arrangement was allowed to run up large unpaid legal bills, while at the same time her parents bought her a brand new 1996 Honda Accord. Mr. Murtari also asked the Court that similar "debt limits" be imposed on both sides, this was also denied.
Practical Necessity of Counsel in Matrimonial Law
Lack of Counsel was a hammer blow to this entire family receiving Justice. Mr. Murtari, with an excellent educational record and work experience, certainly represents the best of what natural resources a "pro se" defendant could have. Yes, Mr. Murtari did read the practice books, but their is no substitute for trial experience. What this case makes crystal clear is that a "pro se" defendant has little hope for a fair outcome in current matrimonial procedure. These proceeding are rarely heard by Jury, and there is a de facto system of negotiation between Judges and counsel for each side. The Law Guardian often plays the role of "tie breaker", and occasionally an expert may be consulted. Without representation of Counsel, Mr. Murtari could not participate in these negotiations as an equal. The rulings during trial and also pre-trial motions show a disturbing pattern developing. The defendant requests relief from the Court and provides rationale and factual detail. The plaintiff make a "cursory" or even no response to the issues raised by the defendant, and the relief is denied.
DENIAL OF JURY TRIAL
It was a well known fact to both parties that Mr. Murtari wanted a Jury to decide the issues of grounds. The knowledge went so far as to be used by the plaintiff as another accusation against Mr. Murtaris conduct. In early March the defendant received a response to written interrogatories from the Plaintiff and also a notice that a Note of Issue(R-265) had been filed on February 21st. He immediately wrote a letter to the Court (R-200), dated March 5th, and expressed his desire for a Jury. A motion to Vacate the Note of Issue was filed by the defendant on March 11th (R-201).
Green v. Siben 480 AD2d 923, found that late filing of Jury demand was excused based on factual showing that earlier waiver of right was result of inadvertence or other excusable conduct indicating lack of intention to waive such right. In a similar vein, Fryer v. Connor 152 AD 249, found that if failure to file timely notice was due to inadvertence and correction of such error would not prejudice plaintiffs right, defendant would be permitted to serve and file a demand for jury.
The defendant simply did not understand that filing a Jury Demand did not indicate readiness for trial, but was just a notice. The defendant wanted the Note Of Issue vacated, and was under the mistaken impression that to file a Jury Demand would be indicating he thought the matter was ready for trial.
The Judge delivered a written order denying the request on March 27th (R-265); however, Mr. Murtari did still file the Jury Demand on April 2nd (R-268), and on the first day of Trial requested that a jury be drawn (T1-5), this was also denied:
MR. MURTARI: Your Honor, I would ask that we delay and have time to impanel the jury, Your Honor, it was, it's been clear I think all during this proceeding, the plaintiff has been well aware that I desired a jury trial. I think when the note of issue was filed you know my letter to you, I noted my desire is for a jury, and that some of those follow-up affidavits, Your Honor, technically I screwed up by not filing that jury demand. Since then it's been done within a week of your decision not to vacate, I did file the jury demand. You know I am here disputing the grounds. I am not countersuing for divorce. That's a significant right for me to have that heard by a jury. And you know, I am asking the Court to please reconsider that I know I have got your order we had previously made a decision.
THE COURT: We have already ruled on that. Unless the other side consented I can't change that. So that motion is also denied. We can proceed.
OBJECTIONS TO DR. HOENIGS EXPERT TESTIMONY
About four months prior to filing for Divorce Mrs. Murtari had several sessions with Dr. Hoenig, a very experienced Psychologist in the Syracuse area. A letter from Dr. Hoenig (R-78) was submitted during the first pretrial motion in this proceeding.
Domenic may well come gradually to the emotional conclusion that in order to be "male", he must finally learn to identify with the coercive and rigid behaviors of the father. He may mimic the lack of empathy for anothers point of view and become also, as the father models so well, unable to take into account others wishes . Indeed with opportunities for more flexible and affectionate interactions with non-neurotic male adults "
The letter is very damaging to Mr. Murtari, and especially to his relationship with his child; however, it is disturbing that any professional would perform an evaluation of a spouse, based only on a description provided by their spouse whose is seeking divorce.
Mr. Murtari made a reasonable response and wrote to the Doctor (Nov 1995), attempting to appraise her of the situation, and asking she clarify her letter with the Court (Exhibit 7, R-253):
I have discussed the contents of the letter with both a psychologist and counselor and both were surprised to hear of such strong remarks especially when it was none this was a marital dispute and no attempt had been made to interview the other individual . . . you may be surprised to know I have done a lot of volunteer work in the community both with the elderly and the homeless and many of the health care professionals I have dealt with have found me to be a kind and empathetic individual, the kind of man a father should be.
I think the record needs to be set straight. . . I would greatly appreciate a letter from you to the Judge which simply describes what other evidence you had to justify terminating a childs relationship with his father.
None of this was done by Dr. Hoenig.
Dr. Hoenig Reprimanded by Ethics Committee for her Conduct
This would appear to be unethical conduct and Mr. Murtari submitted a complaint to the local Psychological Association. It was so found later (Oct 96) when Dr. Hoenig was reprimanded by the Central New York Psychological Association (R-294) for violation of their ethical codes (detailed in R-294), she accepted the letter of reprimand.
Trial Appearance and Expert Testimony
When Doctor Hoenig was called to testify at trial, the defendant objected on the grounds she had not been identified as an expert during discovery (T-160):
MR. MURTARI: Your Honor, I object, Your Honor, the witness was not identified as an expert during discovery. I have seen nothing on her prior to this trial. She was listed as an eyewitness, Your Honor, only, on Mrs. Walsh's response on to discovery requests so I would ask that the line of questioning be just to what an eyewitness would be qualified to give.
MS. WALSH: Your Honor, that was my question. I didn't ask for an opinion. I asked her to describe for the Court the emotional condition that Murtari in February of .
THE COURT: Yes. Overruled.
. Testimony continued .
MR. MURTARI: Your Honor, I object.
THE COURT: What was the date of this?
A In February of '.
THE COURT: Doctor, I don't know -- serve any of this, Mr. Murtari any discovery demands for?
MR. MURTARI: Yes, I did Your Honor.
MS. WALSH: Yes, Your Honor, and I told, I told Mr. Murtari that Dr. Honig was going to be testifying. She was going to be testifying as to the course of treatment. She was going to be testifying as to what her clinical observations were. And I believe this is in that line of questioning, Your Honor.
MR. MURTARI: Your Honor.
THE COURT: As a matter of fact you told, I was present when you told.
MS. WALSH: Correct, but I had written him prior to that, Your Honor.
THE COURT: In chambers.
MR. MURTARI: Your Honor, to formally she was only, Mrs. Walsh only told me she was going to testify to what she saw and heard as an eyewitness not to draw opinions and conclusions as an expert witness, she never clearly said Dr. Honig's going to be testifying in the capacity as an expert witness at this trial.
MS. WALSH: And she is testifying as to what she clinically observed as the counselor, Your Honor.
MR. MURTARI: Your Honor, she didn't observe, she has to limit her to what directly was observable, not these conclusions of terror and, Your Honor, there was a lot of interpretation happening.
THE COURT: I understand what you're saying but I am going to permit it. I want to hear what she has to say.
In NY Court Rules, 202.16(g) it is stated that, "Each expert witness whom a party expects to call at the trial shall submit a written report, which shall be exchanged and submitted no later than 60 days before the date set for trial "
In direct examination by the Law Guardian, Mr. Lupia, there was the following exchange:
Q Given the scenario, that one parent, given the hypothetical, that one parent exercises domination and control, is a joint custody situation appropriate in that case?
MR. MURTARI: Your Honor, I object. In asking the witness to draw a conclusion to the final, to what's at issue here, and by not even an expert to ask to answer a hypothetical question.
THE COURT: Overruled.
Testimony Causes Surprise at Trial
Doctor Hoenig created a surprise at Trial, when she described her professional background, and included the information that she was a Board Member of a day care center (Nurturing World) where Domenic was currently in attendance, and for which Mrs. Murtari had made vague allegations of "disruptive" conduct on the part of Mr. Murtari. The defendant had already subpoenaed and was ready to call a supervisor of the center, Ms. Roche, to testify on his behalf, and was surprised to learn of the relationship between the Ph.D. Psychologist and the high-school graduate employee. There was more concern raised regarding undue influence when there was testimony that Dr. Hoenig had discusses her feelings with the employee (T-195 .. T-197).
Q Dr. Honig, you stated, I just wanted to clarify you stated you were a board member of Nurturing World?
Q In that capacity, are you related or do you have any influence in the hiring and firing decisions that go on there?
A For teachers, no, the director does that.
Q Do you exhibit any control over the hiring, firing or salary of the director?
A The board does.
Q As a collective body?
A As a collective body only.
Q And what is your position on the board?
A Just a member of the board.
Q And Dr. Honig, when was the last time you spoke with Ms. Roche the director concerning this matter?
A Two days ago.
Q And what was the topic of that conversation?
A I wanted to make absolutely sure if I have to go testify in court today, that what I had heard her bring to our as a concern for us as a board to address, that I was repeating exactly the words she had brought to us, and that I would not be misinterpreting in any way or misremembering what she had said, when she brought this problem to the board. And I also wanted to ask her about the stuttering and whether my clients' perception that this stuttering decreased very much after the cessation of these constant visits, was something the teachers had noticed and she had noticed and she so confirmed this two days ago in a telephone conversation. Both of the events I had just talked about.
Q And Dr. Honig, did Ms. Roche during this conversation advise you that she would be appearing as a witness here?
A She said that she had been asked, yes.
Q Did she discuss any of her testimony with you?
A Zero, nothing.
Trial Appearance and Hearsay
MR. MURTARI: Your Honor, I object. Your Honor, a lot of this is hearsay, Your Honor, continuing hearsay being presented as evidence. Dr. Honig did not observe any of this.
MS. WALSH: Correct, Your Honor.
THE COURT: That's correct, she didn't say she did, she is telling us what she.
MR. MURTARI: Yes, Your Honor.
HE COURT: Described the treatment. Overruled.
In one unusual exchange, Dr. Hoenig used the letter of concern Mr. Murtari had written (discussed above), as justification for her diagnosis. The answer speaks for itself in describing this experts attitude:
Q Dr. Honig, what was your response to this letter? [Exhibit 7, R-353]
A Sadness, sadness.
Q Did you attempt to contact Mr. Murtari though?
A No, I felt that this was the letter of someone who did not understand or have ability to step back and regard his own actions with his child, and his spouse, in an objective manner despite marital pain so that he could recognize the episodes that had been described. Obviously by saying these episodes if true would mean that person was a monster, meant to me sadly that that person had very little ability to understand the reality, the reality of what was going on in among the three people in this relationship. That's why I felt sad for the three people.
REPORT OF DR. BLACK ENTERED INTO EVIDENCE WITHOUT HER TESTIMONY OR OPPORTUNITY FOR CROSS-EXAMINATION
Dr. Black, Court appointed Psychologist, did generate a report but was not called by the Plaintiff to testify, in questionable preference to Dr. Hoenig. It must be fair to assume that Plaintiff preferred the testimony of an expert who had never met Mr. Murtari, versus Dr. Black who could have been subjected to length cross-examination regarding her conduct and her report. The rules of evidence do allow an unfavorable inference to be made when a party fails to call a witness under their control, who should have been expected to deliver testimony favorable to their cause.
Introduction of Report into Evidence
During trail, opposing Counsel produced the report of Dr. Black and attempted to enter it into evidence (T1-81). Defendant objected on grounds the Doctor was not available to testify under cross examination. The objection was overruled.
THE COURT: Well -- you have seen Dr. Black's report have you, Mr. Murtari?
MR. MURTARI: Yes, Your Honor, I have seen it and I object to it being introduced into evidence because of the problems with Dr. Black and myself that started on the very first session that you know we addressed in motion I brought before you. That I wanted another psychologist, that there were some heated exchanges between myself and the doctor in correspondence and it's simply not objective, this is different than the draft. The doctor has refused to provide me with that draft of the report. And without cross-examination, Your Honor, I just very prejudiced evidence here without putting her on the stand and cross-examining her about her methods.
MS. WALSH: Your Honor, I believe as the Court will remember that we picked Dr. Black to do the evaluation of everybody. And that based on that, I believe she is the professional chosen by the Court, I believe under the new matrimonial rules her report can go in, the Court can use it as it wishes. Mr. Murtari is free to cross-examine her if he wishes to subpoena him but I do not believe that I have the burden. Also, Your Honor, Dr. Black has not been fully paid for her services and I am very, because Mr. Murtari has not paid for her, his half and I am very reluctant to use her time so I have chosen to base mine on the court.
THE COURT: It will be received.
Basic rules of evidence would preclude such introduction, and no exception is also given under New York Court Rules 202.16(g), "In the discretion of the court, written reports may be used to substitute for direct testimony at trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for cross-examination."
Basis of Issues Worthy of Cross-Examination:
In her written report makes a summary statement, supported by little factual detail in the report itself(R-344):
I see him [Domenic] as a normal healthy young child who is warmly attached to both parents. He is significantly dependent psychologically on his mother, who historically has been, and who remains, his primary attachment figure.
It is the defenses assertion that the conclusion on "primary attachment" may be wishful thinking. After a period of several months separation from his father Ms. Roche, the director of the day care center, provided the following testimony about Domenics preferences when both parents were present, and his father was about to leave the center after visiting (T1-328):
Q Okay. And Ms. Roche, one last incident then I think we will be through. The very, I think this occurred on the final day, when Mr. Murtari visited the Center, to refresh your memory, I believe Mrs. Murtari usually arrived at 12:15 but on this day she was late. And do you recall you know the children would normally go to nap time and that Mr. Murtari and his son were just sort of hanging out also?
Q Okay. Can you explain to the Court what happened when Mrs. Murtari arrived? A Domenic became upset. When you said good bye when they arrived you said good-bye to both Domenic and Adrianne, and then he got very upset, crying. You know pulling on her, I want to go, I want to go.
Q Do you recall a smaller incident, Miss Roche, again if you don't remember you don't remember, when his mother first arrived there, Domenic was going to get his clothes on, do you recall him expressing a preference that that daddy should get him dressed?
A You know he was crying and I was saying things about daddy but it wasn't very clear. I knew he just he seemed like in a hurry to leave. And I think there was confusion with both parents there.
Q And it's true on that day that you entered an -- I'd discussion with Mrs. Murtari for a while and then Mr. Murtari was standing with Domenic?
Q And Domenic was holding on?
Q And that finally to clarify that the episode of crying began when finally Mr. Murtari had to leave and?
A That's when he started crying.
In another area, Dr. Black report states (Exhibit 2, R-343), comments in s:
Mr. Murtaris way of parenting Domenic is very different from his wifes. His approach is cerebral rather than intuitive, planful as opposed to spontaneous, and creates a very different kind of interaction between them; the father leads; the son follows. There is clearly emotional intensity in their interchanges [a juror watching the taped evidence might have used the non-technical word - love]: when the father is patient, the child is generally compliant [This could be said of anyone, but somehow has an ominous tone here. In all the time spent watching them, I have nothing factual to comment on but there must be something wrong!] "
These remarks are strongly refuted by extensive videotaped evidence of other interactions between Domenic and his father. Please watch the first few minutes of Exhibit 22, taken after Domenic has woken up and come to daddys room to play on the bed. Watch as they play their "tent" and "steps" game then read Dr. Blacks report about a "cerebral" relationship.
(Judges, I plead with you to take the time to watch those tapes I understand home movies can be boring, but in this case, where almost all of the Plaintiffs case is based on things she said they provide the clearest and most compelling evidence and will leave you wondering, "What type of mother would try to pull their child away from a loving father? Were these allegations of control pure fabrication? Why didnt Dr. Black comment on the warm relationship between father and child?")
In another area, Dr. Black report states (Exhibit 2, R-343), comments in s:
..Mr. Murtari appears relatively deficient in a number of qualities These I would categorize as the a capacity to listen empathetically, to nurture sensitively, to console, to contain, and to foster emotion closeness [the observed facts providing the foundation for these summary opinions are not given anywhere in the report]"
The defendant has an extensive record of community, church, and charitable involvement, and also called numerous witnesses to testify to his general character, two excerpts follow:
INCOMPLETE DISCOVERY/DENIAL OF MOTION TO VACATE NOTE OF ISSUE
Premature Filing of Note of Issue
The defendant had served written interrogatories on the plaintiff in February 1996. In early March, 1996, the defendant received the response on the interrogatories (R-200), along with notice that the plaintiff had filed the Note of Issue (R-266) on February 21st. The defendant had no time to frame a response. In his motion to Vacate the Note of Issue, 11 March 1996, (R-201) the defendant was concerned about numerous discrepancies in the reply to interrogatories, and was also concerned that he needed more time to complete discovery. Even before the motion was heard, the Court had already issued an order, March 7th, scheduling a trial date of April 11th (R-272). In an order dated April 5th, the relief was denied. The defendant had very little time to complete trial preparation.
Kantor v. Kantor 474 NYS2d 842 found that a statement of readiness is inherently defective where it is filed before the opposing party has had reasonable opportunity to determine whether the filing partys answers to interrogatories are adequate and to move for corrective relief if that is not the case.
Concealment of Counseling History
In requesting a divorce based on the "cruel and inhuman" treatment of her spouse, plaintiff raised the issue of her mental state and placed it squarely at issue. The complaint is full of standard "boiler plate" alleging such a monstrosity of conduct throughout the marriage by the defendant that it was a course of conduct, and that she can not even recall every incident (R-40); however, there was a disturbing paucity of objective evidence presented to match the allegations at trial.
The couple had a history of counseling; however, to prove her point the Plaintiff calls to the witness stand a Psychologist which she alone had begun visiting in February of 1995, in the months prior to filing for divorce, and in the same time frame as the start of a Family Court Action that had been brought by her husband (Exhibit 2, R-331). Opposing Counsel failed to call the prior counselors to the witness stand, given the complaint, they certainly would have been expected to testify to the continuing mental torture this poor woman had received at the hands of her spouse.
Refusal of Plaintiff to Authorize Release of Counseling Records
The defendant requested the plaintiff complete authorizations to release these records on two occasions:
McKenzie v. McKenzie 78 AD2d 585, found that when a plaintiff has placed in controversy in an action her physical and mental condition which she relates to her claim for relief. The defendant is entitled to make a copy of her hospital records (CLPR 3121; Wegman v. Wegman 46 AD2d 908).
Opportunity for Independent Expert Evaluation
In an early motion the defendant was concerned about demonstrated bias by the Court appointed Psychologist, Dr. Black. After their first meeting, he wrote a letter to the Doctor on October 26th, 1995 (R-16). He apprised her of some additional persons she might wish to consult with, and also expressed his concern over remarks she had made during their first meeting:
He asked that future sessions be recorded to avoid any potential for ambiguity about what happened. Dr. Black first rejected any such suggestion out of hand, stating it was quite an unusual request. In the meanwhile the defendant had checked with other Psychologists and discovered it was not considered abnormal in this type of evaluation (R-156). A Motion was then submitted to the Court on November 13th, asking for appointment of another individual (R-154). The relief was denied.
Doctor changes recommendations between DRAFT and FINAL report
In late January, 1996, Dr. Black briefed all parties, including the Law Guardian, on the contents of her report (which she called a DRAFT), there were significant differences in the content and recommendations made when the final report was released a few weeks later. The defendant was quite concerned the changes were due from influence by the Law Guardian (R-209). At one point Doctor Black had sent the defendant two notes (R-216/217) stating she would not release her results to another Psychologist for peer review. After pressure from the other psychologist, she agreed to release the information (R-218). After the release of Dr. Blacks report the defendant needed more time to consult with another expert and to have another review done.(R-201) These requests were also denied. Given the documented behavior of Dr. Black, to which their was no dispute to factual material included in defendants affidavits, better discretion would have been to allow another evaluation.
This same report was accepted by the Court into evidence at Trial, without Dr. Black being made available for cross-examination (documented elsewhere in this brief).
DENIAL OF REQUEST FOR MISTRIAL
The only witness for the plaintiff was Dr. Alice Hoenig, an experienced Psychologist who readily wrote a report (Exhibit 7, R-349) and took the witness stand against the defendant as described earlier in this brief. The "factual" foundation for her entire testimony was solely based on her conversations with Mrs. Murtari in the months just prior to her filing for Divorce. Indeed, her first meeting with Mr. Murtari occurred at Trial.
This "expert" was happy to testify that she could not have been deceived by Mrs. Murtari. That her ability to read body language allowed her to determine Mrs. Murtari was quite truthful (T1-185,186), and in the exchange below she was also certain her conduct was quite ethical (T1-194).
Q It's fair to say you labeled Mr. Murtari with a
Q Without ever?
Q Meeting him?
Q And you state that you would see that within the guidelines of the professional guidelines of the association?
A Those guidelines that you just showed to the Judge are guidelines for a custody evaluation. I was making an evaluation for the child's mental health, and the mother and child's relationship and the mother's mental health, at that time, to the best of my ability. I had not been asked to do a custody evaluation which would require relationship with both the father and the mother and the child, in separate dyads together. D.Y.A.D.S., to see them together. As couples, yes.
Q Dr. Honig, regarding the other guidelines of the American Psychological Association, so you're saying that your conduct here would have complied with other guidelines that might have been appropriate to this type of evaluation or your relationship with your client?
A That's too vague for me sir.
Q Dr. Honig, as a fellow you're familiar, you are certainly familiar with the association guidelines that would be appropriate to the conduct of your professional relationship with Mrs. Murtari?
Q And I assume you're certifying to the Court that this report would be in compliance with those guidelines?
A To the best of my ability.
Within several months, the Ethics Board of the Central New York Psychological Association would find otherwise.
Complaint with Ethics Board filed by Mr. Murtari
During the proceeding the Defendant had filed a formal complaint with the Central New York Psychological Association regarding Dr. Hoenigs conduct with respect to the letter she had written. Too late for inclusion at trial , Mr. Murtari received a letter from the Ethics Board of the Association affirming his complaint (R-294). The letter documented a reprimand for Dr. Hoenig for her conduct in this matter and ordered to desist from such conduct in the future (R-294).
Basis for mistrial
The defendant submitted a Show Cause Order in early October, 1996, shortly after the conclusion of the trial (R-293), requesting a mistrial be declared based on this official reprimand and the pervasive influence Dr. Hoenig had on the proceedings. The order was return unsigned.
BIASED AND EXTRA-JUDICIAL CONDUCT BY LAW GUARDIAN
Mr. Joseph Lupia, the Law Guardian assigned to represent Domenic, manifested a clear pattern of intentional bias against the defendant. What might have begun as just a "mistake" after writing a too hasty preliminary report, clearly turned into a case of a Law Guardian who stopped looking for objective evidence to best represent the interests of his client and began to selectively report information. This was to the severe detriment of young Domenic being able to maintain regular contact with both parents and also led directly to the prolongation of the proceeding. If Mr. Lupia had based his recommendations on direct observations and credible evidence, as 4th Department Guidelines call for, the whole matter would have probably been settled.
The defendant feels a review of the record will document behavior that simply does not pass a "reasonable person" test, nor does it comply with the guidelines the Fourth Department has established for Law Guardians. It was also disturbing to find the Law Guardian felt at liberty to include new factual information in his post trial report to the Court.
Early Recommendation to Reduce Contact Between Father and Child
Mr. Lupia submitted a report (R-193) to Court just shortly before a Motion appearance by all parties on November 21st, 1995. The Guardian makes this direct report of his observations of the parents:
During each of the home visits the law guardian observed the parents as they interacted with Domenic. Both parents were very attentive of Domenics needs. It is very clear that both parents are well educated and work actively to challenge their child to achieve higher abilities. Domenic converses well with both and appears to enjoy both parents company. He is well behaved in both homes. I saw no problem in either parents ability to care for Domenic.
In this report the objective facts he reports present no clear "favor" to either the plaintiff or defendant.
Mr. Murtari willing to share physical custody.
His report also records the fact that Mr. Murtari is willing to share physical custody with Mrs. Murtari, suggesting a schedule that could give parents equal time with the child during the week. While Mrs. Murtari wants the present "visitation" schedule reduced, which had Mr. Murtari and Domenic together 8AM - 1 PM Monday-Thursday, and alternating weekends.
He records that he only visited with the defendant and plaintiff, and spoke with no other witnesses; however, in his closing paragraphs he states a devastating recommendation, notes in s inserted:
As a result of this investigation, the law guardian has determined that John Murtari seeks to dominate and control his son. Mr. Murtari cannot accept the way that Mrs. Murtari is attempting to raise the child. [he credited allegations made by Mrs. Murtari and her attorney] He repeatedly seeks to dominate and have the last word on all issues involving the child. The need for control is also apparent in his refusal to complete the family assessment which was started with Dr. Lois Black [record shows the defendant never refused, but did make motion to Court to have another appointed. When that was denied, went through with the assessment] The Law Guardian has concerns that if Mr. Murtari were to be awarded custody of Domenic, then he would seek to exercise total control over Mrs. Murtari visitation [just prior Mr. Lupia had noted that Mr. Murtari was willing to share equal time with child between parents, Mrs. Murtari wanted the very reduced schedule] . Instead of weekday visitation Mondays to Thursdays from 8AM to 1PM it is recommended the visits be extended to either all day or even possibly overnight but that they be reduced in number.
His billing record (R-220) confirms that he spoke with just the parties, and opposing counsel, before preparing the report.
Refuses requests to speak with Witnesses
On repeated occasions Mr. Murtari had pleaded with Mr. Lupia to speak with some objective witnesses, this never happened. Indeed, in one of his billing statements, the Law Guardian accused Mr. Murtari of being to "expansive" with his requests (R-219):
This bill is abnormally high. However, you will note that it is mostly due to the fact that Mr. Murtari felt it was necessary to expand on his position at great lengths, either in person, by telephone, or by correspondence.
Defendant Concerned over Process.
In his motion to be heard on March 26th (as part of the motion to vacate the Note of Issue), Mr. Murtari outline his reasons for a new Law Guardian (R-207), he outlined his concerns over the process Mr. Lupia had followed:
The request was denied by the Court.
During Trial Mr. Lupia demonstrated questions seeking only damaging information regarding the defendant (for which Dr. Hoenig and the Plaintiff were happy to provide); however, as the parade of other witnesses passed before him, Mr. Lupia was quite passive and never sought to explore the relationship between father and child with these individuals other than questions that appeared to search for damaging material.
Please watch the first few minutes of Exhibit 22, taken after Domenic has woken up and come to daddys room to play on the bed. Watch as they play their "tent" and "steps" game.(Exhibit 2, R-343),
Post Trial - Deliberate Distortion of Video Taped Evidence and Testimony
Mr. Lupia is an experienced Law Guardian, and clearly knows how to word reports to achieve the desired result. His post trial report (R-298), makes large claims about Mr. Murtari denying food to his child and also serving liquor to the youngster, "in violation of State Liquor Laws" he appears to have "forgotten" what the tapes actually show, and the actual testimony of the Defendant. In his final report to the Court, issued after the Trial concluded, the Guardian spends 3 paragraphs in a section titled "Parents Interaction With Child", he states:
One concern revealed by the tape is that this three year old child was given a liquer (Anisette) for breakfast. Thereafter the child was given wine for lunch. [actual testimony was, T1-645 : "a drop and then milk on top of that, a lot of mix, yes."]The providing of alcohol to a child this young is clearly a violation of New Yorks Alcohol Beverage Control law Secondly the tape also depicts the child crying and carrying on prior to breakfast being served. Domenic is upset and seen asking for a slice of fruit. Despite the crying, the child is not given the fruit, but is instead told to wait until the meal is served. Perhaps these observations are trivial [they may have been trivial, but they were also the ONLY observations from the tape, nothing positive was discussed]; however, the Law Guardian believes that these observations confirm the opinion of Dr. Lois Black, the Court psychologist [already discussed in this brief]
Post Trial - Introduction of more Factual Material
In his post-trial report (R-298) the Law Guardian also discloses more factual information that appears to be important regarding changes in Domenics behavior while under the Plaintiffs control:
The most recent visit with Domenic took place in September of 1996, at his mothers home. During this visit Domenic would not respond to even the simplest questions. There was no communication. It was of concern that he continued to speak only in Japanese. Following that meeting the law guardian contacted Domenics day care center and spoke with the program director, Sara Roche. I was advised that Domenic was becoming much quieter and that he was similarly speaking primarily in Japanese. It appears, therefore, that Domenics ability to communicate is being severely hampered by his use of Japanese.
These are disturbing words, and actually support some of the Defendants concerns which were expressed in his answer to the Divorce Complaint (R-48), and also in the Defendants affidavit which was part of a Family Court action he was forced to initiate in February of 1995 (R-332).
What is also of concern is the Law Guardian did NOT choose to again visit the Defendants home and observe family interactions. Why? The portion of trial beginning in October of 1996, was to focus on Custody, and it appears the Law Guardian was exerting careful control over what information could be placed in the record. The defendant was not even aware that such visits had occurred until reading the Final Report and reported those observations to the Court (R-319).
Mr. Lupia is an experienced Law Guardian, with I believe some 15 plus years. I have an unfortunate feeling these were just not "honest mistakes" and that he was attempting to control what facts would be disclosed and when.
Accountability and Due Process?
The Defendant has asked the Court for permission to cross-examine the Law Guardian regarding his reports in the pre trial motion of March 26th, 1996 (R-201). Opposing counsel stated in her reply affidavit that (R-232), "The Law Guardian can not by law testify in a trial.", and the Court in its order did not grant such relief (R-270).
Judges, I am not a lawyer, but have had the (unfortunate) opportunity to read a lot about the Law. For a while the rules of evidence, trial procedure seemed quite intimidating how does anyone remember all this stuff?? But as I got down to the basics, it was just common sense.
A process which does the best it can to determine truth, and takes into account human failings such as bias and bad memory, and also the ready willingness of people to lie to get something they want.
Hearsay: It requires people to testify to what they could directly experience with their senses allowing them to testify to an event as reported by someone else (other than proving the communication), doesnt prove anything the other person could have lied.
Cross-Examination: People make honest mistakes about what they have observed, they also lie and exaggerate. The ability to cross-examine a witness is essential to a fair process. The right to also "confront your accuser", to show "holes" in their depiction of events. A report full of accusations cannot stand by itself, the author must be available for cross-examination.
When an adult retains a lawyer, that attorney can be held accountable by the client for his actions. The client can "fire" them if they are not happy. How does Domenic hold his law Guardian "accountable?". I have read the Guidelines published by the Fourth Department, I wish they had more detail. I wish they would require the Law Guardian to talk to "real" witnesses and also specify the format of the report, that observed "facts" must first be listed (with their sources), and then followed by recommendations.
I have prepared fact finding reports both as an officer in the Air Force, and in commercial business. In ALL cases such reports clearly separated the facts I had discovered (and would later use in my recommendation), from the recommendation itself. This allowed the "trier of fact" to clearly distinguish the facts from my opinions, and allow them to also draw their own conclusions.
Due Process Rights of Parent and Child Violated
It is my belief the activity of Mr. Lupia violated the due process rights of both the Defendant and Domenic. The defendant does not question his role or right to be an advocate for the child. But when a Law Guardian plays the role of "fact-finder", he must be subject to both discovery and cross examination over his results. Certainly the injection of new evidence after the close of trial can not be justified. Mr. Lupia represented the only "innocent" in this case. Little Domenic only had him to represent his interests (and what greater interest can any child have than a relationship with BOTH their parents).
FINDING OF CRUEL AND INHUMAN TREATMENT
Statute requires proof before a divorce is granted. Rios v Rios 34 AD2nd 325, found it is authorized upon proof that the defendants conduct "so endangered the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant."
The longer the duration of the marriage, the higher the level of proof required. This was also confirmed in a marriage of 10 year duration in , Del Gatto v. Del Gatto, 142 AD2d 545, the court found that, "Although the course of conduct revealed at the trial presents a picture of an unhappy, acrimonious and incompatible couple, the misconduct detailed does not rise to the level endagering the physical and mental well-being or either party so as to render cohabitation unsafe or improper."
Similar was affirmed in, where the court found that "at trial plaintiff testified that the marriage lacked communication and sexual intimacy, that defendant pushed her a few times causing minor bruises, and, as a result of which she gained excessive weight. Defendant denied the allegations of fault. The record establishes, at best, only strained relations and incompatability which are insufficient to sustain a divorce based on cruel and inhuman treatment (see, Kleindinst v. Kleindinst, 116 AD2d 988; Buckley v. Buckley, 93 AD2d 973, Falcone v. Falcone, 112 AD2d 796). Plaintiff presented no medical proof to establish that her health was adversely affected by defendants alleged conduct."
In a recent decision of Newkirk v. Newkirk, 212 AD2d 951, the court held that the husband failed to meet his burden of establishing cruel and inhuman treatment. A high degree of proof is required to establish cruel and inhuman treatment . . . the activities that are alleged must be viewed in scope of the entire marriage. The parties were together 10 years and had 3 children before the husband moved away to pursue his divorce. The marriage was of significant length and the transgressional acts must be viewed in terms of the scope of the marriage including the fact it produced three children.
When balancing the amount of credible evidence presented by both plaintiff and defendant, it is the defendants belief that a clear preponderance of the evidence shows the defendant guilty of no such conduct.
Allegations and responses were supplied in the Statement of Facts.
The Record is Clear about Credibility
Hidden Financial Transactions
As previously documented in this brief, the plaintif mislead the Court about financial transactions with Mr. Sedat and did not report large transfers on her Statement of Net Worth.
Plaintiff continually tried to have the Defendant removed from the Marital Residence, claiming he had NO equity interest in the property. Plaintiffs answer to Defendant (T1-245):
Q Okay. And do you remember your parents by signing a gift letter to both you and your husband as mortgage holders?
Opposing counsel also made motion to have Defendant taken "off the deed" and thrown out of the house for the same reason at the end of the first Trial period (T-658).
The Defendant could not find the records. They were "missing" from the home, he was fortunate to subpoena the Mortgage company and retrieve copies of the documents. (Exhibits 31 & 31, R-622)
Hides Relationship with Mr. Sedat
In much of the pre-trial proceeding the Plaintiff accused the Defendant (R-230) with items like:
"He has a delusional fantasy about the issue of adultery " Judges, as recorded in the Statement of Facts, the Plaintiff admitted to the types of conduct which normal people might associate with "adultery".
He may not have had proof of a "fire", but there sure was a lot of "smoke".
The Plaintiffs candor in admitting her conduct may be attributable to the fact she was the first party to undergo an E.B.T. (Exhibits 17 & 18, R-395). Plaintiff and her Counsel did not know the extent of eye witnesses the defendant might be able to produce; and also were not sure at that time if had hired a private investigator.
Strong acts of provocation by Plaintiff
The record shows a spouse who was dead-set on Divorce, had consulted legal Counsel, and appeared to be preparing a foundation for a "forced" Divorce by talking to Dr. Hoenig just months before filing. It is clear that Dr. Hoenigs report is a wild exaggeration of the Defendants conduct and character who supplied all this information, the Plaintiff and with good reason and intent. She also behaved in a manner that eventually flounted her affair to Mr. Murtari, look at everything I am doing, why dont you just give me a divorce:
The Plaintiff also transferred over $20,000 out of her accounts (T1-358, Exhibit 40, R-646) in the months prior to filing for divorce.
The Trial Court failed to include any of these "admissions" by the Plaintiff in its findings. All this was consistent with allegations made in the Defendants Answer to the Complaint (R-48).
While hoping that eventually things would "settle down", the above conduct concerned the Defendant with respect to their son, Domenic. In January of 1995 he sought legal Counsel to start a Family Court action, his affidavit is consistent with this record. (Exhibit 1, R-330). The Family Court Judge, in May of 1996, issued an order assigning joint physical and legal custody to both spouses, and directing English be spoken as a family (R-76)
Worst admitted action made by Defendant
The defendant stated that Mrs. Murtari always had a car to drive, but when she started wanted to use his vehicle to see Mr. Sedat, he told her not to, and eventually would disable the vehicle (T-593).
Q Did you give your wife any reasons why you didn't want her to drive the Caravan?
A Yes, I had told her that we had separated maintenance on the vehicles. At that time I wasn't working full-time, I was changing the oil on the Caravan. And I told her that I had accepted my feelings about her affair but I didn't feel that I had to supply a vehicle for it.
Q Mr. Murtari, what did you do after that?
A What, when it seemed that we couldn't reach resolution, I would not -- constantly but when I would remember and come home, I would merely disable the battery, pull off the battery cable on one of the jumpers on the car.
There was Genuine Cruel and Inhuman Treatment
In the Defendants answer, he also complains about "Cruel & Inhuman" treatment by his spouse; however, he did not claim this occurred during the majority of the marriage. He accepted the disagreements as normal, he accepted the lack of support he got as his father was dying as unfortunate. He did NOT even complain that his wife had started an affair while they were married for him, ALL these things happen in marriages, people are people, and they make mistakes a good marriage is WORK, and it requires acceptance. Appellant makes no claim to perfection, but the actions which began in 1993/1994 would have been difficult for any person to cope with.
The Plaintiffs actions in pursuing this divorce have been devastating! For anyone to attempt to unjustly separate a child from a loving parent is CRUEL and INHUMAN. To feel justified in making lies and exaggerations, just because your spouse would not go along with divorce is to have total disregard for your young child, and also for your spouse. This was CRUEL and INHUMAN.
The Defendant had a wealth of written information regarding this conduct in the form of notes (Exhibits 24 & 25, R-563), but was blocked from introducing them into evidence, and did not have the presence of mind/knowledge to use them to "refresh his memory" and then make oral testimony.
This brief includes the testimony of the tears young Domenic shed at the daycare center as he was separated from his father. Judges, please take Judicial Note, that Mr. Murtari (as would any loving father), also shed tears as he drove home from the center that day. Tears that have been repeated all too many times in the past months.
There was a time when accepting infidelity for the sake of the children and in an attempt to preserve a marriage was considered a virtue.
FINDING OF PHYSICAL AND LEGAL CUSTODY
This is the most crucial item, and the defendant placed it LAST in the brief in the hope that familiarity with the nature of the proceeding, the objective evidence, and the testimony would make this much easier.
Judges of the Appellate Division, this proceeding has reached you because as a loving father I do not want to be wrongly separated from my child, and also do not want my child to suffer in separation from me. If you have time to review nothing else, please closely review this issue of legal and physical custody of Domenic, not through the allegations, but through the facts.
Defendant wants Domenic to have REGULAR contact with both Mommy and Daddy
As documented in the reports from the Law Guardian, numerous motion papers, and his testimony (T-209):
A. What I'm looking for is pretty much consistent with what I gave Dr. Black back in January; she asked for a care plan. What that basically was was that right now, while this issue is going on, that we have equal physical and legal custody of Domenic until everything is decided. And an equal sharing of time where he is with Adrianne, essentially equivalent amount of time as he is with me. Because both of us do work, we're both teachers and we both work part time. And it seems that there is no reason we can't both cover him.
A: While we're still --
Q. So you are looking for sole legal custody?
MR. LUPIA: Thank you, Mr. Murtari.
BY THE COURT:
Conduct of Parents
The evidence clearly shows the plaintiff involved in a pattern of conduct consistent with adultery (prior, this brief), indeed, this appears to be the genuine motivation for this entire action. The evidence also shows a defendant whose worst "crime" is not agreeing to a divorce several years ago because he thought it would be best for their child to have a mother and a father. The evidence also clearly shows a father who acts as a man of compassion and has a strong, loving and mutual bond with his son (prior, this brief)
What frightens here is a pattern of conduct by the plaintiff which has consistently attempted to reduce Domenics contact with his father through pre-trial motions. The evidence also show a plaintiff whose conduct is consistent with a "strong hatred" of her husband and an inability to acknowledge much of the good in the marriage. This would clearly be a poisonous heritage to pass on to young Domenic. This pattern of conduct was supported by a personal letter from Mr. Murtari to his wife, introduced by the Plaintiff into evidence (Exhibit 49, R-654), this was another documented attempt by Mr. Murtari to bring this affair to closure for the sake of their child
Best Interests of the Child
The evidence also shows an objective difference between the parents with regards to whom can provide the best upbringing for the child, in the "best interests of the child". The defendant has a home, a close extended family, oral Testimony of Mrs. Mary Paliotti (T1-209), Mrs. Mary Caplan (T1-221), in the local area. He has demonstrated excellent moral character through involvement in local church and other charitable efforts (this Brief, prior). The defendant has an excellent educational record and work background (this Brief, prior). The defendant has demonstrated that being a parent is #1 in his life, and has also demonstrated his desire to have Domenics mother involved with the child. The plaintiff presently lives in an apartment in the City of Syracuse, while the defendant occupies the family home in a private development in the town of Lysander
UNFAIR PROPERTY/SUPPORT DISTRIBUTION
Both space and time prohibit me from making a proper exposition on these topics; however, I hope the Court will examine the following issues:
Exhibit 39 (R-644), contains some notes the Defendant used while testifying.
It is the Defendants belief that a fair distribution would have allowed the Defendant a greater portion of the equity in the Marital Residence, and with fairer distribution of the above, make it possible for the Defendant to maintain the home for Domenic and himself as a residence as the child grows.
RIGHT TO TRIAL BY JURY AND PROOF BEYOND A REASONABLE DOUBT ON GROUNDS & CUSTODY
Mr. Murtari did not have fair access to our legal system. The Judge, opposing counsel, and the Law Guardian all knew how the system worked, how things were done. Perhaps an outstanding Judge, or Law Guardian, would have had the insight to step forward and deplore the lack of clear evidence of wrong doing by the Defendant but these were average people, doing their job the way they were used to doing it. They had developed a "system" for handling these types of cases. Unfortunately, personal bias develops when any two people meet, and unfortunately these biases often substitute for fact. Judge Major somehow "knew" that Mr. Murtari had done something wrong, but just couldnt put his finger on it.
The Jury Protects the Citizen from Intrusion by the "State" in their lives
Certainly, the right to a Jury is one of our most important rights in the Bill of Rights. The founders of our nation knew that a "jury of your peers" was necessary to protect the freedom of its citizenry from unwarranted intrusion by the "State" even if this is under the mask of "benign" intrusion, or "good public policy".
The extensive argument which follows highlights United States Supreme Court decisions which have upheld the special nature of the parent/child bond. It is but a natural extension that this bond also be afforded the protection of a Jury, and of a standard of proof "beyond a reasonable doubt" that which we afford our most valued liberties.
The beauty of the American Jury is that of a "reality check." What this case of Murtari v. Murtari so clearly illustrates, is the need for a "reality check". You have to bring in six-twelve people, supplied with just common sense, and no prior prejudice or bias against the parties, and convince them of the merits of your case.
SUMMATION OF THE ENTIRE ARGUMENT IN JUST ONE LINE
A punk kid stealing a 6 pack of beer from a convenience store has a right to a Jury, and a standard of proof "beyond a reasonable doubt.", does not any child/parent relationship deserve that same standard of care by our society?
I know of no more exquisite torture that what a loving child and parent can experience when they are forcibly separated! I can think of no more important right than the sanctity and respect due that bond. I know of no more careful deliberation than what must be taken before recommending that bond be broken and I can think of few matters which would require a higher standard of proof.
The excerpt which follows has been edited for size and content, the substance of the brief was from a similar case in Wisconsin, permission was given by the attorney to use portions of the argument. Just wanted to make it clear that the Defendant did not do all the voluminous research referenced in the following argument. It has TWO major sections, first including "social" research, next "legal" research.
Dated: May 5, 1994
Copy permission granted by Travis Ballard, JD, Adrian MI
The Best Interests of the Child Requires Joint Custody
In recent years whenever the marital status of two parents changed from married to divorced the child loses one parent in most instances. In nine out ten cases, the child lives with the mother and "visits" with the father every other weekend. Dr. Richard Warshak, The Custody Revolution (1992). Indeed, this is so common that it is called "standard" visitation, In short, it is the arrangement that is meted out to children in the absence of compelling proof that some other arrangement would better serve the needs of the child. While the child is continually told that the divorce is "not your fault" the child is routinely punished by the change in marital status of his parents by the loss of one of those parents as a major factor in the childs life.
This brief takes the position that this current state of affairs is a destructive holdover of the prevailing cultural paradigms in existence at the time that divorce rates began to rise. The scientific evidence concerning the results of these policies points clearly to the damage suffered by children and society when the relationship with either parent is significantly weakened. It further indicates that, contrary to the cultural assumptions in existence in the decade which spawned the high divorce rate, men and women are equally good at parenting and equally important to the well being of the child. Finally, it is argued that any schema which impairs the parent/child relationship without clear and convincing evidence of a compelling state interest for doing so violate the Equal Protection and Due Process rights of both the parent and the child.
Dr. Richard Warshak, Americas leading expert on father custody, described the history of routine custody arrangements as follows:
"In earlier times it was assumed that men, by nature, are better suited to protect and provide for children. Since 1920, it has been assumed that women, by nature, are better suited to love and care for children.
"These assumptions, which so powerfully affect so many childrens lives, are based on nothing more than folklore and sexual stereotypes .... As guidelines for custody dispositions, folklore, sentiment, and stereotypes are poor substitutes for factual information. In the last two decades, social scientists have examined different custody arrangements and their effects on childrens development. If this information is ignored, and we continue to allow myth and sentiment to rule custody decisions, we short change our children and we short change ourselves."
Extensive evidence will be presented in this brief which indicates that it is imperative that the child/parent relationship with both parents be maintained as much as possible.
Unfortunately, current arrangement do not routinely maintain both relationships.
Indeed, the current policy results in a situation in which 42% of fathers fail to see their children at all after divorce. Frank F. Furstenberg, Jr. and Christine Winquist Nord, "Parenting Apart: Patterns of Childbearing after Marital Disruption," Journal of Marriage and the Family 47, no. 4 (November 1985): 874, cited in Sylvia Ann Hewlett, When the Bough Breaks (1991) at 286Ä87.
As the rate of divorce triples between 1960 and 1982 before leveling off at the 50 percent mark, a generation of children raised in fatherless families has been extensively studied. Despite the overwhelming evidence that children need both parentseven after the dissolution of a marriage America has been slow to change the paradigm it holds which presumes that the post-divorce family will have only a single parent. "The main obstacle to progress is not ignorance, but the illusion of knowledge."
A. Overwhelming Research Favors Joint Custody as the Preferred Alternative
In all actions involving child custody of visitation the issue is. "What are the best interests of the child?" or, in other words, "What disposition serves the best interests of the child?" See, e.g. Burich v. Burich, 314 N.W. 2d 82, 85 (1981). The most recent scientific evidence clearly demonstrates that paradigms of family law which do not give a preference to joint custody must be viewed as a threat to the best interests of children who find themselves with divorcing parents.
Research of the past decade has revealed new insights into how children of divorce are affected by the custody and visitation arrangements imposed on them by the family law courts of our nation. Numerous shibboleths about so-called impracticalities of joint custody or expansive parental contact arrangements have been disproved. The evidence is simply overwhelming that joint custody or expansive parental contact is the optimal way to promote the best interests of the child.
The Childrens Rights Council conducted a "comprehensive survey of more than 50 studies showing the greater risks (on a variety of indicators) for children raised in single- parent homes...whether the single parent is a father or a mother." D. Levy, Ed., The Best Parent is Both Parents, A Guide to Shared Parenting in the 21st Century, Childrens Rights Council (1993) at p. 118, fn. 38.
The majority view of the psychiatric and pediatric profession is that mothers and fathers are equals as parents. See J. Atkinson, "Criteria for Deciding Child Custody in the Trial and Appellate Courts, " Family Law Quarterly, Vol. XVIII, No 1 (Spring 1984). A close relationship with both parents is necessary to maximize the childs chances for a healthy and productive life.
Dr. Richard Warshak described the results of the most recent research as follows:
"Much of the earlier work in infant development concerned the bonding between the mother and child. Under the influence of the motherhood mystique, we had always assumed that these bonds were the exclusive providence of mothers and children.
"We were wrong. Numerous studies have established beyond a doubt that infants form close attachment bonds with their fathers and that this occurs at about the same time that they form attachments to their mothers. Although father and mother usually play different roles in their childs life, different does not mean more or less important.
Psychologists Ross Parke, of the University of Illinois, and Douglas Sawin, of the University of Texas...carefully observed fathers and mothers bottle-feeding their newborns. They found that fathers were as sensitive as mothers to their babys signals. Fathers, like mothers, responded to their infants clues by stopping the feeding for a moment, talking to the baby. and looking more closely to see what was wrong. Moreover, the amount of milk consumed by the infants with their mothers and fathers was nearly identical.
"Another series of studies has found that meneven bachelor college studentsare as sensitive as women in discriminating among different crying patterns of infants. Whether or now we want to attribute these findings to a paternal instinct, these, and many similar studies conducted at universities throughout the world, have established beyond a doubt that women have no monopoly on child-care skills."
Dr. Frank Williams, a leading authority on the effects of divorce on children compared joint custody to traditional visitation arrangements in his October 20, 1990, address in Washington, D.C. (2)
"It is the continued parental bonding, not the number of homes or vehicular travel, that will be the crucial determinant of children;s forward psychological development following divorce. In these days, when both parents frequently work, and rely on sharing the child-rearing with each other, with other family members, and with housekeepers and day care personnel, the concept of one primary psychological caretaker is outdated. Frequently there are two psychological caretakers, or a network of caretakers, supervised by two parents."
The emotional stability of children of divorced parents is directly related to the quality of their continuing relationships with both of their parents. "We have repeatedly described the dissatisfaction of so many youngsters who felt they were not seeing their fathers often enough, If custody and visiting issues are to be within the realm of the best interest of the child, then such widespread discontent must be taken very seriously. "J. Wallerstein and J. Kelly, Surviving the Breakup, 142-143 (1980) . See also, D. Luepnitz, Child Custody, A Study of Families After Divorce, (1983).
In a revised version of an address presented by Dr. Joan Kelly, who has performed extensive research on the effects of divorce upon children, at the annual meetings of the American Psychological Association in 1987, Kelly wrote:
"The primary negative aspect of divorce reported by children in numerous studies was loss of contact with a parent (Hetherington et al., 1982;
Kurdek & Berg, 1983; Wallerstein & Kelly, 1980, Warshak & Santrock, 1983). The traditional visiting pattern of every other weekend, most often a maximum of four overnights spent with the father per month, created intense dissatisfaction among children, and especially young boys. Youngsters expressed profound feelings of deprivation and loss, and reactive depressions were frequently observed in young school-aged boys (Wallerstein & Kelly, 1980)." Id.
Indeed, sole custody arrangements with limited visitation by the non-custodial parent have resulted in children suffering a broad range of emotional disorders including deep feelings of loss and abandonment, strained interactions with both parents, disturbances in cognitive performance, and sex role identification problems. Trombetta, Joint Custody: Recent Research and Overloaded Courtrooms Inspire New Solutions to Custody Disputes, 19 J. Fam. L. 213, 217-20 (1980).
Researchers Alston and Williams noted that "[a] significant relationship was found between father absence and self-concepts of the boys. They placed less value on themselves, had less stable relationships with peers, less interaction with family members and showed a weaker scholastic performance. D. Alston and A. Williams, "Relationship Between Father Absence and Self-Concept of Black Adolescent Boys," Journal of Negro Education, Vol. 51, No. 2 (Spring 1982), 134-138. See also, Richard Koestner, et al.,
The importance of the father was again pointed out by Professor Daniel Shybunko in his 1989 study:
"... The father-child relationship was found to be a good predictor of social competence regardless of marital status. Moreover, the importance of the father-child relationship increased dramatically in the divorced family. This supports the view (Hetherington, Cox & Cox, 1978) that availability of the father is associated with positive adjustment and social relations, especially with boys." Daniel Shybunko, "Effects of Post-divorce Relationships on Child Adjustment", Children of Divorce:
The implications of the social science research on single-custody families was translated from bland, euphemistic terms of art such as "positive social behaviors" and "predictors of social competence" into graphic reality by Professor Stanley Page, while writing for a general audience:
"The homes lacking a father are, obviously, mostly the product of ... divorce ... Having opted for divorce as the solution to family and marital problems, our society has created a built-in child-destroying machine. And since there is not, as yet [in 1984], even the proposal of an idea for remedying the inevitably resultant distortion of the child-father relationship, we can be confident that the seeds of a vast army of sociopaths have been sown. Bred in fatherless homes and filled with boundless and amorphous rage for which they are not to blame, they will overrun this land. They are sure to make it even more uninhabitable for peace-loving citizenry already troubled by major breakdown in morality and by all manner of rampant vice and criminality."
One would expect that those divorce parents whose parental rights and responsibilities were felt most strongly would be where joint custody was ordered. Because both parents were still "members of the family", payment of child support should be higher where a paren-tectomy had been performed. In fact, "[t]he Census Bureau reported similar results in 1992, in the first survey it ever made on the relationship between joint custody, visitation and support. The Census Bureau found that [parents] with joint custody paid 90.2 percent of their support, [those] with visitation paid 79.1 percent of their support, and [those] with neither joint custody nor visitation paid only 44.5 percent of their support." U.S. Bureau of Census, "Child Support and Alimony: 1989," Current Population Reports, Series P-60, No. 173 (Washington, D.C.: GPO, 1991), cited in D. Levy, Ed., The Best Parent is Both Parents, A Guide to Shared Parenting in the 21st Century,, Childrens Rights Council (1993) at p. 22, fn. 37.
The complex dynamics of childhood development within the context of divorce and recent scientific data related thereto strongly militate against the any paradigm that does not prefer joint custody arrangements. A simplistic guideline of alternate weekend visitation, although quicker to mete out, inevitably ignores the unique circumstances of each such child whose life will be shaped by the trial courts decision.
It is particularly important for a young boy to have significant blocks of times with his father as a male role model. Healthy social and personality development of young boys of divorce parents is directly related to the quantity and quality of interaction the boy is able to enjoy with his father. See Lamb, Michael and Sagi, Abraham, Fatherhood and Family Policy, Lawrence Erlbaum Associates, 1983; Santrock, Warshak, and Elliott, Social Development and Parent-Child Interaction in Father-Custody and Stepmother Families Non-Traditional Families: Parenting and Child Development, ed. by Michael Lamb, 1982, Hodges, William F. supra.
Unfortunately, it is still a common phenomenon to see trial courts bound more by traditional methods of dealing with child custody and visitation questions rather than accept more progressive, modern approaches which better serve the best interests of the minor child.
Devices which are tempting for judicial expediency are poorly equipped to deal with the individual needs of children of diverse backgrounds who will have their lives so intimately shaped by the decisions of trial judges. What is called for is a policy which will expand the range of opportunities for children of divorce rather than one which imposes such narrow and restrictive limitations on these children.
Trial courts should endeavor to insure that children of divorce have the maximum opportunity for both physical and emotional contact with each parent unless direct physical or significant emotional harm to the child will result from this contact.
Dr. Isolina Ricci, Director of California Family Court Services and author of Moms House, Dads House, noted as early as 1980 that Given any voice in the matter, younger children will almost always choose the newer two-home alternative over the traditional one-home settlement with one parent consigned to the sidelines. The children Ive worked with inevitably go straight to the heart of the issue, even when their parents are caught in tunnel vision of a real home. When they visit their non-custodial parent, they stake out territory ... They shy away from words like visit my Dad. Instead, they say theyre going to be with my Dad or live with my Dad this summer. An for good reasons: outsiders visit; families live together. Isolina Ricci, Ph.D., Moms House, Dads House; Making Shared Custody Work (1980).
A childs right to a relationship with both parents ought not to be compromised merely because of the marital status of the parents. The court in Franz v United States, 707 F.2d 582, 701 (D.C. Cir. 1983) held that "a parents right to the preservation of his relationship with his child derives from the fact that the parents achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A childs corresponding right to protection from interference in the relationship derives from the psychic importance to him being raised by a loving, responsible, reliable adult." Id, at 599.
In Clark v Jeter, 56 U.S.L.W. 4527 (June 6, 1988), the U.S. Supreme Court held that "a childs interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interests." Id at 1419. See also Strandberg v City of Lelenas, 791 F.2d 744 (9th Cir. 1986). Just as a child has a constitutional interest in the parent-child relationship if the parents never marry, so the relationship is protected if the parent marriage fails.
B. Only a Presumption in Favor of Joint Custody Accords appropriate respect to the constitutional protections surrounding the parent-child relationship.
The U.S. Supreme Court long ago noted that a parents right to "the companionship, care, custody and management of his or her children" is an interest "far more precious" than any property right. May v Anderson, 345 U.S. 528, 533, 97 L.Ed. 1221, 73 S. Ct. 840, 843 (1952). In Lassiter v Department of Social Services, 452 U.S. 18, 27, 68 L.Ed. 2d 640, 102 S.Ct. 2153, 2159-60 (1981), the Court stressed that the parent-child relationship" is an important interest that undeniably warrants a deference and, absent a powerful countervailing interest, protection." quoting Stanley v Illinois, 405 U.S. 645, 651, 31 L. Ed.2d 551, 92 S.Ct.1208 (1972). See also Franz v United States, 707 F.2d 582, 594-602 and 712 F.2d 1428 (D.C.Cir. 1983) (interest of non-custodial parent in consortium with child constitutionally protected); Sherrod v Berry, 827 F2d 195, 207(7th Cir. 1987) (parental association a constitutionally protected liberty interests>
This is not to say that courts should blindly or automatically impose joint custody arrangements. Clearly, there are many situation where joint custody is neither appropriate nor practical. Whenever a parent/child relationship is restricted by a family court order, however, such a restriction must be done in the least restrictive manner.
Maximizing time with each parent is the only Constitutional manner by which a parent is able to maintain a meaningful parent-child relationship after divorce. While geographic distance, school schedules and the like must be factored into the custody/visitation calculus, trial courts faced with a custody/visitation decision must accord appropriate constitutional respect to maintaining a healthy parent-child relationship by granting each parent as much time as possible with the child under the circumstances of each case. "No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v Elrod, 411 F. Supp, 645, 649 (1976).
Application of constitutional protections to custody/visitation rights is a necessary corollary to the Bill of Rights because individual liberty cannot be secured unless "certain kinds of highly personal relationships" are afforded "a substantial measure of sanctuary from unjustified interference by the State." See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624 (1980). Providing constitutional shelter for a parent-child relationship simply reflects the realization that individuals draw much of their emotional enrichment from such relationships and that the sanctity of family relationship is "deeply rooted in this Nations history." Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977).
If there is any fundamental proposition of government on which all would agree, it is that one of the highest goals of society must be to achieve and maintain equality before the law. Yet this ideal remains an empty form of words unless rights are equally enforced. The appropriate manner for enforcing the constitutional right to a meaningful parent-child relationship after divorce is for courts to maximize the time the child spends with each parent absent compelling reasons to the contrary. "It is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal." Ashby v White 2 Ld. Raym. 938, 953 (1703).
In the Court of Appeal in Jermstead v. McNelis (1989) 210 Cal.App.3d 528, a statutory criteria for child placement in adoption proceedings of a "best interest of the child" was weighed against a parents federal constitutional rights to a parental relationship with ones children:
"We are constrained to read section 7017,subdivision (d)(2) in a manner which avoids a potential for conflict with the federal constitution. [Citations omitted.] If read to bar a parental preference of a natural father who has appropriately grasped his custodial opportunity interest the statute would present such a conflict. The statute, as we said, lends itself to conformity with the constitutional concerns. In a case where the natural father has diligently sought to shoulder the burdens of the paternal relationship, including the burden of custody, the requirement of parental preference arises from the federal Constitution. Accordingly, the statutory criteria of section 7017 for the best interest of the child regarding retention of parental rights under the statute must be read in the light of this requirement. The statute admits of such an accommodation." Id. at 541.
Clearly the "best interests of the child" standard is to be read in light of the requirement that the parental-child relationship remain intact.
In those cases where joint custody is not ordered in a divorce setting, the parent without custody has been deprived of physical custody, just as in any other setting. The identity of the person who has custody of the child is irrelevant to the requisite proof required to deprive one parent of physical custody. Surely an action to determine whether a parental right should be retained is as fundamental to the parent child relationship as an action to terminate that relationship.
The impact these judicial decisions have on the lives of all concerned cannot be over estimated. Childhood passes rapidly and it quickly becomes too late to unring the bell. Expanded visitation or joint custody may seem unimportant, but only to those who have never experienced the hollow time of forced separation. "No human bond is cemented with grater strength than that of parent and child." Michelle W. v Ronald W., 39 Cal 3d 354 (1985).
Seton Hall Professor Holly Robinson has spelled out this argument in detail:
It is accepted constitutional doctrine that the due process clause of the fourteenth amendment protects interests that are recognized as constituting "life," "liberty," or "property." In a number of decisions, the Supreme Court has recognized that individuals possess a fundamental liberty interestentitled to constitutional protectionregarding such matters as the decision whether to have children, decisions concerning the upbringing of their children, and the retention of their children through exercise of custody. Read together, the cases clearly establish a zone of privacy around the parent-child relationship, which only can be invaded by the state when the state possesses a sufficiently compelling reason to do so. As a result, when the marital breakdown occurs, both parents are entitled to constitutional protection of their right to continue to direct the upbringing of their children through the exercise of custody. Adequate protection of this parental right requires that parents be awarded joint custody [or expansive visitation] ... unless a compelling state interest directs otherwise. H.L. Robinson, Joint Custody: Constitutional Imperatives, 54 Cinn. L. Rev. 27, 40-41 (1985) (footnotes omitted). See also, Ellen Canacakos, "Joint Custody as a Fundamental Right", Arizona Law Review, Vol 23, No 2 (Tuscon, AZ: University of Arizona Law College), Tuscon, 95721.
This proposition that the parent-child relationship in a traditional custody/visitation dispute commands constitutional al respect is admittedly lacking a long life of specific case authority approving it. This lack of specific case authority is not fatal to the propositions vitality. At least one federal court has found that the paucity of cases recognizing the constitutional sanctity of this relationship is readily explained by the relative rarity of divorce in American society in the past. That court further held that the historical absence of a strong tradition should not result in denial of the constitutional protection for such relationships as they become increasingly prevalent.
Maximizing the childs time with each parent is the constitutional mandate absent a compelling state interest of protecting the child from harm. There is no evidence that maximizing the childs time with both parents would cause the child any harm. The evidence is quite the opposite.
To further underscore the need for courts to consider the constitutional protections which attach in family law matters, one need only look to recent civil rights decisions. In Smith v City of Fontana, 818 F2d 1411 (9th Cir. 1987), the court of appeals held that in a civil rights action under 42 U.S.C. section 1983 where police had killed a detainee, the children had a cognizable interest under the due process clause.
The analysis of the court included a finding that "a parent has a constitutionally protected livery interest in the companionship and society of his or her child. Id at 1418, citing Kelson v. City of Springfield, 767 F.2d 651 (9th Cir. 1985). In Smith the court stated: "We now hold that this constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents."
It is with great respect that I ask the Court to overturn the Judgment of the Trial Court with respect to Grounds, Custody, and Equitable Distribution, to be remanded for a new trial, with a preliminary hearing to examine spousal resources and to create a pool of funds for representation by Counsel.
To grant the Defendant any "fees" that would be appropriate and just, both for this appeal and the defense of the entire action.
If the Court finds an unjustified pattern of bias by Mr. Lupia, I respectfully ask that a new Law Guardian be appointed to represent our son, Domenic.
If the Court finds an unjustified pattern of bias by Judge Major, I respectfully ask the matter be returned to a new Judge.
Regarding the most important issues of custody while the proceeding is pending, The Defendant pleads with the Court for our whole family, that the Court immediately restore equal custody between parents, respecting the last Family Court Order for this family (R-76), which was written as a voluntary stipulation between the parties. The Court, in this Record, has a wealth of both eye witness, videotape, and other evidence. The Defendant prays the Court will be able to order:
As a "lay person", I respectfully ask the Court to find unconstitutional those provisions in New York State Court Rules and the CPLR which deny a party the right to a Trial by Jury on the issues of Custody and Equitable Distribution in a Matrimonial Proceeding. To find unconstitutional any Court Rule which allows a Law Guardian to make factual findings without the opportunity for cross examination at the times those findings are presented to a Court.
The Defendant has no desire to re-try this matter. It is the defendants sincere desire that a fair temporary ruling on Custody will allow the couple to hopefully (with the help of mediation):
(Judges, I thank you for the time and consideration you will/have expended on this matter. It is not only important to me, but too many, many families in similar straights - John Murtari)