SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ONONDAGA

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AFFFIDAVIT in SUPPORT OF CROSS MOTION

Index No. M-705-95
 
 


ADRIANNE MURTARI,

                        Plaintiff,             

                                               

      - against -                                    

     

 

JOHN MURTARI,

                        Defendant.

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State of New York       )

County of Onondaga      ) ss:

 

JOHN MURTARI, being duly sworn, deposes and states:

1.                I am the defendant in this action, and I make this affidavit in support of my request for an order denying the relief requested in the Plaintiff’s Notice of Cross Motion, dated March 14, 1996.

2.                I also wish to record my intent to file a “Demand for Jury Trial” if a determination is made the present Note Of Issue should not be vacated.  There is a $50 fee associated with the filing, and the procedures were not clear on what the time frame is when a Motion is made to vacate.  It seemed reasonable to assume that a defendant would not have the information necessary to make that determination until discovery is complete.

 

Granting of Relief Requested by Defendant

 

3.                My most pressing issues, as a father, is concern that our son have a stable environment.  I am not asking “for it all” -- I just want an equal relationship with my Son. I am concerned that the “best interests of the child” are :

Item

Defendant

Plaintiff

Good Moral Upbringing

Takes Domenic to church on weekends. Can demonstrate to Domenic concern for others via charity work he has done for the past 10 years.

Admitted behavior consistent with Adultery.  Admitted tax fraud. (Defendants Affidavit, 11 March, Exhibit Q)

Extended Family

My mother and Domenic have an excellent relationship. She provides a female presence in the home. I have a large extended in the area. A chance for Domenic to experience family events, life long friendships.

All family lives in Japan. It will be a long distance relationship. (Defendants Affidavit, 11 March, Exhibit Q)

Parental Stability

I have a large depth of experience in my field.  The present business (operated from our home) provides an excellent environment for quality family time.

Before marriage I lived alone and had my own home(s) for about 7 years.

Adrianne is still finding her “niche” in life as a professional.  She has never lived alone. (Defendants Affidavit, 11 March, Exhibit Q)

Guidance for our Son

I am familiar, through first had experience, with American schools, afterschool clubs, and sports.

Adrianne, who was born and raised in Japan, will have to overcome some hurdles in adapting to these environments. (Defendants Affidavit, 11 March, Exhibit Q)

Desire/Ability to be a Good Parent

I had a good family and I wish to be present as a father to our son.  I have worked very hard to create a home business that would maximize the amount of time I was present. From August of 1994 -- I have been home as much (and potentially more) than Plaintiff.

I accepted Plaintiff’s adulterous conduct to keep peace in the home and try to maintain a family (not perfect) environment for our son.

Adrianne did not want to have a child. After Domenic was born, at 8 months, she sought to start her own business, outside the home.  Spent numerous evenings away from home. (Defendants Affidavit, 11 March, Exhibit Q)

 

Plaintiff has the financial resources to help with Home finances. Has demonstrated no concern that Domenic will lose the only real home he has known.

Neighborhood/School

We live in an excellent subdivision. Many children around Domenic’s age. The Phoenix School district is well respected and there is also private schooling available. Domenic will be able to form friendships that last him through school.  Large wooded lots, just a wonderful opportunity to enjoy the outdoors and play games.

Presently in an apartment in the City of Syracuse.

Community Involvement

I have been active in local politics, a father’s group, and have a good relationship with the neighbors. Domenic will be able to see that actions speak louder than just words.

Unknown.

Financial Stability

I have never been bankrupt -- have an excellent credit rating, and know how to work hard.  The business has a proven record of growth.

Adrianne does have larger financial resources available.

 

Deny Plaintiff’s Request for Exclusive Use of Marital Residence

1.                The plaintiff left our home of her own volition.  While there was a “one sided” psychological report presented -- there has been no evidence to support this type of action, other than Plaintiff’s single-minded desire to pursue a “forced” divorce at all costs (including ignoring the best interests of our son).

2.                I have certainly not “dissipated” any assets in any type of reckless or self-serving behavior.  I have made NO significant personal purchases in the past year.  Monthly expenses are approximately:

a)                Mortgage:   $730

b)                Taxes:      $333

c)                Vehicle/House Insurance:  $100

d)                Health Insurance:  $420.00

e)                Heat/Electricity:   $125.00

f)                Food:               $150.00

g)                Gas/Veh. MX:        $120.00

This totals to app: $24,000 in the last twelve months, no money has been wasted.  I have done everything possible to conserve resources -- when our son is not present the thermostat is set back to 63 during the day and 60 at night.

3.                In paragraph 4 of her affidavit -- plaintiff alleges that I admitted some of the money used for our home was a gift from her parents.  This is true, with the understanding that if was a gift to both of us as a couple. No where in the affidavit do I admit the gift money for our home was to my wife alone.
During questioning counsel was vague about who the exact recipient of many of these gifts was -- this is still at issue.

4.                The plaintiff’s parents did send her a gift to buy a grand piano; and in the affidavit I do admit that.

5.                Counsel for defendant is well aware of these expenses -- I have fully disclosed to her all financial information requested. The mortgage (which I had made arrangement with the mortgage company to run one-month behind) is now current (see Exhibit A) and while there is still $2000 remaining on the tax bill -- that will be paid by 4/1/96.

6.                I have kept up both the home and surrounding grounds.  This is still home to both my son and I.  

7.                Plaintiff and her Counsel were both aware of the tax situation of the home (Exhibit H from my affidavit, dated 11 March, 1996). I remember discussing the tax bill with Ms. Walsh and her telling me “not to worry about paying, its okay to be a little in arrears” -- I DID NOT TAKE HER ADVICE.

8.                As was my stated plan, I am currently working at OCC teaching two nights a weeks.  I was working at Columbia college for one semester, but am not working their now due to lack of registration for the class I was scheduled to teach.  Administrators at both campuses would testify that I have certainly made my self available.  Also, I enjoy teaching.

9.                My business, The Software Workshop Incorporated, is starting to experience growth (See Exhibit C).  We got our first customers in December and I am happy to say that while income from sales still does not meet expenditures -- they are moving much closer together.

10.            I fully expect to have income running ahead of expenditures by this summer.  The company will then be in a position to more rapidly decrease the debt burden incurred during startup.

11.            I am now training a new employee which has helped pick up the workload introduced by more sales.

12.            Even without the Plaintiff’s help I should have the financial means to support our home and our child; however, her willing cooperation in this would make it much easier for ALL concerned.

 

Deny Plaintiff’s Request for Child Support & Maintenance

13.            Although plaintiff argues that the home and vehicle are “hers”; the fact is I have been making the monthly payments on the home ($730/month), along with insurance on the home and vehicle.  I am also paying for health insurance to cover both her and our son ($423/month) -- where a plan just for me would be app. $200/month.

14.            The fact is since February of last year the Plaintiff stopped contributing to support of our home (even though she had income)

15.            During her deposition (see Exhibit B) the Plaintiff admitted her mother recently (Dec 1995) bought her a new 1996 Honda Accord LX (est. value $20,000) -- but did not leave her any money to help pay insurance or other expenses.  Plaintiff is not behaving in a manner consistent with financial need -- but is denying me assistance in maintaining our home.

16.            Examination of financial records show Plaintiff has incurred no significant debt.

 

Deny Plaintiff’s Request for Interim Counsel Fees

17.            Plaintiff has the financial advantage in this litigation. I have made repeated requests to the court for financial assistance for counsel in order to have a “level playing field” -- these have been denied.

 

Sanction Plaintiff’s Counsel for Deliberately Making Misleading and Non-Factual Statements in affidavits.

18.            In Paragraph 5 of her affidavit, Plaintiff clearly misrepresents the transcript of the EBT.

a)                The record is clear that I have executed a well thought out plan to begin my own business. To which I am well suited by training and experience.

b)                The record is clear I have no intention of “willingly” return to “big business” -- that I wanted to have more control over my time with my family.

c)                The record is clear that Plaintiff’s counsel continued in a line of “hypothetical” questioning -- just to record me saying specific words(pp. 36).

19.            Paragraph 9 of the affidavit is clear perjury.  I have numerous conversations with Ms. Roche during this time. She repeatedly told me my limited presence at the center was NOT disruptive and that only my wife and her counsel had a problem with it.  I was told by Ms. Roche that action by my wife and her counsel forced them to have a “Board Meeting” and establish a policy.

20.            In many areas of the affidavit Plaintiff makes wild allegations about “harassing behavior” and “not being willing to work” which are not supported by any specifics -- nor do they have any basis in fact.

21.            In Paragraph 8 Plaintiff accuses me of not paying fees to both Mr. Lupia and Dr.Black, without a factual basis. For the record:

a)                As stated in Exhibit I (Defendant’s Affidavit, dated 11 March) -- I made it clear to Mr. Lupia that I was concerned about his conduct and that I would consider his bill after receiving a statement from him that he had complied with all applicable guidelines. I have yet to receive a response.

b)                Other than asking for complete statements -- I have not had any discussions with Dr. Black regarding payment. I do not know where plaintiff got her information.  As the exhibits in Defendant’s Affidavit of 11 March document, I am concerned with her behavior in this matter and whether it was done in a professional manner.  I have already paid Dr. Black $1000.00 (via deposit), and I do not plan on making further payment until a more complete review of her conduct/report can be made.

22.            I am concerned about the conduct of the professionals in this matter.

a)                I had sent Dr. Hoenig a letter outlining my concerns about her “one-sided” report.  I received no response at all from her office.

b)                I conduct the New York State Office of Professional Discipline and submitted a complaint.  The local investigator told me that a “hole” in the law prevents them from investigating this because I was not Dr. Hoenig’s patient at that time.  The investigator told me they frowned on this type of Psychological report, where one party’s character is assaulted on the basis of just the other spouse. The investigator referred me to the local Psychological Association and told me to submit my information to them on the basis of unethical conduct.

Dr. Black has been obstructive in releasing material associated with her work.  I am having it reviewed, but that review is not complete yet.  It is gratifying to note that Dr. Blacks report does not echo the report of Dr. Hoenig in labeling me as a threat to my son, neurotic, or over controlling.

                                                ____________________   

                                                JOHN MURTARI

Sworn to before me this

20th day of March, 1996.

 

_____________________________
Notary Public