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9 Nov
DOCKET #V-320-95 2
MR. STERN: Judge, before we even --
THE COURT: Just a minute. Okay.
Mr. Stern? First of all, let me first say that
both parties are present, Miss Walsh appearing
with the petitioner, Miss Phillipson, and Mr. Stern
appearing with the respondent, Mr. Murtari, and
Mr. Lupia, law guardian, is present. Now,
Mr. Stern, you wanted to request something of the
Court?
MR. STERN: Judge, just for counsel and
your understanding, I appeared Friday before
Judge Hedges, he set a trial down for today at
10:30. I explained to him --
THE COURT: He what?
MR. STERN: He set a trial in his court for
my client today at 10:30. I explained to him
that I believed this trial would go. He said he
was going to send someone down here at 10:30 to
get me to tell him whether I was going or not and
we've got to set a temporary order of custody in
that case so someone may be coming down for me in
about 20 minutes.
THE COURT: Mr. Stern, when we start a
trial here, it's an excuse for every court in
this state.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 3
MR. STERN: I told that to Judge Hedges.
THE COURT: I will not -- once we start
this now we are going straight through. There
are no exceptions and no departures from what the
rules are of the Court, okay? So there's no way
I'm going to be volleying back and forth with two
trials. I mean, just forget it.
MR. STERN: Again, Judge, I'm only
expressing to you what I was told.
THE COURT: I'm telling you this.
MR. STERN: Yes.
THE COURT: Are you in a trial there yet?
Did they start the trial and swear in witnesses?
MR. STERN: I have no intention of leaving,
I just wanted to --
THE COURT: Did they start a trial there?
MR. STERN: No, sir.
THE COURT: You're not in trial there,
you're not in trial anyplace else? Because
that's a legitimate excuse for me not to start
now. But as long as you aren't --
MR. STERN: Yes, sir.
THE COURT: -- once we start here every
Court in this state has to honor that. And
that's the way it's going to be. So now anything
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 4
else?
MS. WALSH: No, your Honor.
THE COURT: Are we ready to start?
MS. WALSH Yes, your Honor.
THE COURT: Opening statements, Miss Walsh?
MS. WALSH: Yes, your Honor.
THE COURT: Let me first of all before we
start so that we can move this along quickly
and -- but give it all the time that you need, I
will not hear any testimony prior to the divorce.
That has been done, it's over with, okay? We're
only interested in circumstances that changed
since then. Okay? And so I'm saying it right at
the outset because I won't make any exceptions to
it. Okay?
MS. WALSH: Thank you, your Honor.
Your Honor, I have an expert witness who is
scheduled to come in this afternoon at 2 o'clock
and I just would like the Court to know that.
I'm not sure we'll be finished with my client,
who is my first witness, but I ask the Court and
Mr. Stern's patience with that.
THE COURT: Well, I'm sure there's no
objection to going out of turn for that. We will
do it for the other side too.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 5
MS. WALSH: Okay. Your Honor, we're here
today seeking the Court's permission to relocate
the child with my client to San Diego, California and
we recognize at this point that that is a heavy
burden and it is our burden to show the Court by
preponderance of the evidence pursuant to the
Tropea case that it is in the child's best
interest and I think, your Honor, that, in fact,
the evidence will show not only that it's in the
best interest but, in fact, my client has a good
and reasonable request before this Court. This
is not based on speculation, it's not based on a
desire just to start a new life, it's not based
on a desire to move someplace out of Syracuse.
It's based on her need to become self-supporting.
It's based on her need to become able to be
economically sufficient so that she can prepare
herself to be self-supporting and prepare herself
to take care of the child.
She has been studying linguistics at
Syracuse University and has been admitted to a
PhD program at the University of California. The
evidence will show that this is a reasonable and
realistic goal that she has to become
self-supporting. The evidence will also show
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 6
that there has been a history in this case of the
respondent failing to provide child support per
the prior order. He has been ordered per the
Judgment and Decree of Divorce to pay $120 per
week for child support. He has steadfastly
refused to obey that order. He is now over
$7,000 in arrears in child support, almost 3,000
in child care, and does not pay anything towards
the medical insurance or medical expenses for
this child.
We recognize that there are many factors
that the Court will look at and one of them is
the reason for the relocation and the reason for
the opposing of the relocation. We submit,
your Honor, that Miss Phillipson has good reason and
that the respondent's reasons for opposing it are
not. He does not come to this Court with clean
hands. We are going to look at the quality of
the relationship between the child, the custodial
parent and the non-custodial parent.
Your Honor, I ask you to take judicial
notice of the decision of Judge Majors in which
the Court found for reasons the Court was unable
to determine that the defendant, Mr. Murtari,
insists on control and domination of the child
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 7
Domenic as well as of the plaintiff. He does
not understand the feelings or concerns of other
persons as observed by the Court throughout the
trial. The evidence will show that that has
continued, your Honor, that that has continued
and will continue because Mr. Murtari has for
whatever reason an unstoppable need to control
and dominate and have his own way.
The Court will also look at the
relationship between the parties and it will show
that there has been bitterness, manipulation and
continued problems throughout this marriage and
since the divorce. The Court will find that
there has been continuing litigation since the
trial, since the divorce, numerous motions to the
Supreme Court, numerous motions to the Appellate
Court. Mr. Murtari has appealed what was a
decent decision from the Supreme Court to the
Appellate Court and to the Court of Appeals and
as late of last week is threatening to continue
to appeal what he put in quotes as, quote, "a
silly divorce." Your Honor, we don't think this
is silly. We think that this has been, in fact,
a very non-silly event.
My client has come in good faith before
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 8
this Court to ask this Court's permission to
relocate for good reasons. We will show that the
respondent's behavior has a negative impact on
the child, that he, in fact, makes bad decisions,
bad judgment, and that, in fact, the loss of some
visitation can be made up through holidays and
summer vacation. The lack of visitation will not
affect this child. This can be made up in a
reasonable way.
The Court will also look at how the life of
the child and the petitioner will be enhanced and
we will be able to prove, your Honor, that it
will be enhanced emotionally, culturally and
economically and that it will be better for the
child to be able to relocate. The Court will
also look to see whether it's feasible to change
custody and I think the facts will clearly show
that there is only one parent here -- as was true
in the divorce, there is only one parent who can
have custody in this matter. There cannot be a
change of custody, it would not be in the child's
best interest.
One other factor that Tropea suggests that
the Court look at is the feasibility of the
respondent moving, and the evidence will show
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 9
that this is a man with an MS in computer science
who has refused to adequately support his child,
has refused to work to his capacity, could, in
fact, become employed almost anywhere in the
country for income over 70,000 and yet he reports
to this Court and reports to the support court
where there is a violation petition pending that
he's making less than $20,000 a year.
Your Honor, there's something very wrong here
with a man who could make 70,000 and asks this
Court to award him not only custody, award him an
assign counsel. There is something very, very
wrong with that. We know our burden is great but
we believe, in fact, that we will be able to
prove it.
One last comment, your Honor. My research
on Tropea says clearly that the Court has to look
at all the factors about what's in the best
interest of the child and I think post Tropea
cases have, in fact, somewhat been overturned or
sent back for the lack of a decent record.
Therefore, I'm going to ask the Judge's patience
in putting a case on and putting it on fully.
Thank you.
THE COURT: Mr. Stern?
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 10
MR. STERN: Judge, it was not my intention
to make an opening statement. I would like to
tell the Court what I expect, Judge, to show and,
very simply, I have made a decision that we're
not going to relitigate the divorce myself. I'm
not going to be putting in any evidence that the
respondent is not a suitable parent or get into
he said/she said about, well, she did this, he
did that. What I am going to focus on will be
the child. I will say and be putting on evidence
to show you that a great deal of the charges that
Miss Walsh has put forward are much more
complicated that she's explained. My client will
explain to you those factors. That he is paying
child support at a level that he can afford.
This is something that's going to be litigated
later in the month anyway but if it's being
brought up to in some way make my client look
bad, I'll give the Court at least something to
hang its hat on.
Judge, my client is a good man, I'm going
to show you that. He's a very good father. He
has done something that -- I forget who said it
but it was said that the man who represents
himself has a fool for a client, and I think
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 11
that's particularly true of my client. He didn't
have the buffer of an attorney in Supreme Court.
I think that it created a lot of animosity
towards him. He did some things that no attorney
would do, out of just experience and knowledge of
the system. That has cost him considerably. He
now comes in here in a very damaged state as a
result of the Supreme Court trial. He's paid a
heavy price for his inability to pay for an
attorney in Supreme Court and for not having an
attorney in Supreme Court.
I'm going to concentrate all of the
evidence on what's in the best interest of this
child as the case law dictates, that there's only
one important person in this courtroom and that
will be Domenic. I'm doing to try and show that
this child is loved by both parents. I'm going
to particularly put the proof on from my client's
side, he has an extended family here in Syracuse,
he's got cousins his own age, he's got a
grandmother who lives here in Syracuse.
Essentially all of his family in the United
States is here in Syracuse, in the surrounding
area. He has a large extended Italian family
here. He gets together for holidays. I
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 12
understand that the child also has grandparents
in Japan but I don't believe that the child will
be any closer to them by being in California.
What we're going to try and show is that
this child is entitled to the consortium of his
father, of his grandmother, of his cousins that
are his own age and older, they're here in
Syracuse, that they know him and love him, and
that to take this child and have him placed in
California outside of the consortium of his family
and that ability to have those relationships as
he grows up is going to be detrimental to this
child, to the grandmother who certainly has a
right and an interest in knowing her grandson and
to his cousins who would grow up with him. Thank
you.
THE COURT: Mr. Lupia?
MR. LUPIA: The law guardian waives.
THE COURT: Okay. First witness,
Miss Walsh?
MS. WALSH: Adrianne Phillipson.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 13
H I R O M I S U M I Y A, having been
called as a witness, being duly sworn, testified
as follows:
COURT ATTENDANT: State your name for the
record, please.
THE WITNESS: Adrianne, Phillipson,
COURT ATTENDANT: Be seated.
DIRECT EXAMINATION
BY MS. WALSH:
Q Miss Phillipson, where do you live?
A I live near the University, off of Thurber and --
Thurber and Remington Avenue.
Q And how long have you lived there?
A Approximately 3 years.
Q And who resides with you?
A My son Domenic.
Q And will you describe your home?
A It's a two-bedroom apartment with living room,
and eating area and a kitchen, bathroom.
Q And how many bedrooms?
A Two bedrooms.
Q And why did you move to that area?
A During the proceeding of the divorce I was given
the permission to move out of marital residence with my son.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 14
Then I started looking for a place to move with my son. I
was working for Syracuse University at that time so I looked
for the area that is close to my work and also close to my
friends. I finally found an apartment where I moved to.
There was a Japanese family living who had same age as
Domenic and they had been playing for a year at that point.
Q And are you here asking the Court to relocate to
San Diego, California?
A Yes.
Q And what are the reasons that you're asking the
Court to relocate?
A I was accepted to a PhD program in linguistics at
University of California. This will give me a big step
forward to become a self-supporting mother.
Q And why did you decide to seek a PhD?
A When I was finishing my Masters Degree I started
to think of the future. I started to look for a job which I
did not get accepted by any and then I talked to my
professors. I also called the committee member who is --
the search committee. I also talked to the recruiting
agency who I sent a resume to and they all recommended
having PhD will give me much stronger skills and
qualification.
Q And you have recently finished a Masters, is that
what your testimony is?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 15
A I am finishing my thesis and I am graduating in
December.
Q And that's been where?
A Syracuse University.
Q And how long has that program lasted?
A Two and a half years.
Q And were you employed during that time?
A Yes.
Q And what was your employment?
A I was a teaching assistant.
Q At Syracuse University?
A Yes.
Q Are you -- okay. Do you have any problem getting
employed not being a US citizen?
A No, I have Green Card and that usually is
sufficient.
Q And you originally are from Japan, is that
correct?
A Yes.
Q And when did you first come here?
A 1981.
Q And English is your second language, is that
correct?
A Yes.
Q Have you visited San Diego, California?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 16
A Yes.
Q And when do you anticipate starting your PhD
program?
A January of 1999.
MS. WALSH: Could I have this marked?
(Whereupon, Petitioner's Exhibit Number 1
was marked for identification.)
Q Showing you what's been marked as Exhibit --
MR. STERN: Excuse me, may I --
MS. WALSH: I'm sorry. Let the record
reflect that I am showing this to Mr. Stern.
MR. STERN: Judge, I want to object to this
because I should have been provided this document
prior to coming into court. I did ask for what
documents were going to be put into evidence.
MS. WALSH: Your Honor, first of all, I
haven't offered it yet as a technicality.
Secondly, the original letter which was having
her admitted was sent to Mr. Stern. We asked
since this Court had delayed this matter for a
letter showing that although she wasn't able to
go in September they have accepted her for
January.
Also, very basically, Mr. Stern's request
for discovery occurred on the day this matter was
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 17
scheduled for trial. It was untimely to begin
with and I complied as best I could given the
time frame, and I believe it's significant to
this matter.
MR. STERN: On two issues. One is that,
first of all, my request at the time was
untimely. It was not on the day of trial, I
believe. But it was untimely. But Miss Walsh
agreed to comply with it and, in any event, it's
now been I think about two months since that
request.
MS. WALSH: No, it was October.
MR. STERN: Okay.
MS. WALSH: It was when we were here in
court last time. I was handed the discovery in
the hall.
MR. STERN: Well, it's been more than 20
days. In any event, Judge, I'll withdraw my --
as it hasn't been offered, I'll withdraw my
objection.
Q Can you identify Exhibit 1, Miss Phillipson?
A Yes.
Q And what is that?
A It is a letter from Linguistic Department of
University of California to myself stating that they have
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 18
accepted me originally for fall of 1998 but they allow me to
defer until January 11th, 1999.
MS. WALSH: Thank you. I would offer
Exhibit Number 1 into evidence, your Honor.
MR. STERN: Judge, I'm going to object on
the grounds that they've had this in their
possession for it appears about a month and I was
not provided with a copy and I asked for all
copies of any exhibits that were going to be
offered into evidence.
MS. WALSH: Your Honor, it's not a month.
This is October 14th, I think the --
THE COURT: Mr. Lupia?
MR. LUPIA: Judge, I have no objection to
it being admitted.
THE COURT: Overrule the objection. You
know, if we're going to -- I don't care, it's
your right to do it but, you know, it's --
without this it stands with what she says under
oath, that she got the letter. I don't
understand why you would object to proving that
that is the case.
MR. STERN: I don't object to that, Judge,
but what I don't want to have happen is later on
in the trial I do get surprised with something
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 19
that I haven't had a chance to look over, I
haven't had a chance to confer with my client and
I certainly want to set a foundation that I don't
want just a flood of things coming in.
THE COURT: Well, you know, on second
thought this is hearsay I suppose. It isn't
proven otherwise, I won't take it. But her word
stands. If you want better proof to show, it's
here. I won't take it.
MR. STERN: It's not on that --
THE COURT: Keep the record clean. It's
fine with me.
MR. STERN: Okay.
THE COURT: I'm just saying I think we
ought to use a little common sense here.
MR. STERN: Again, Judge, it's not on that
issue that I am concerned. I'm concerned about
what the document that I haven't seen is going to
say.
Q Miss Phillipson, what are the financial arrangements
that will allow you to continue your education and provide
you with support when you go to California, if the Court
allows you to go to California?
A They will give me a tuition waiver and from a
second year on I could get teacher assistantship or research
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 20
assistantship.
Q And how long a program is this?
A I expect to be 3 to four years.
Q And are you currently employed?
A No.
Q And how are you able to provide for your needs at
this time?
A I depend on the sale from the house. My parents
has been supportive financially. Those are the two things
that can support me and my son.
Q And are those finite resources?
A No.
Q Do you understand what I mean when I say finite?
Are those resources -- are those resources always going to
be there for you?
A Oh, no.
Q Why do you need to become self-supporting?
A As I said, those resources are not forever and as
we spend it will be gone and I need to insure that I have
economical resource myself so that I don't have to depend on
anybody else.
MS. WALSH: Could I ask that you mark
those?
(Whereupon, Petitioner's Exhibits Numbered
2 and 3 were marked for identification.)
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 21
MS. WALSH: I would like the record to
reflect that I am showing Mr. Stern Exhibits 2
and 3.
MR. STERN: I have no objection to
Plaintiff's Exhibit 2 and, again, I would renew
my objection with regard to Plaintiff's Exhibit 3
as I believe that this is the first time that I
have seen it and I did ask for all exhibits prior
to the trial. Thank you.
MS. WALSH: Your Honor, Exhibit 3 was
attached to a financial affidavit that was
submitted to Kathryn Davies that Mr. Stern has
had in his possession for 3 or four months.
It's a paystub, my client's former paystub,
your Honor.
MR. STERN: Judge, on the basis it was
attached to another petition on another trial, I
don't believe that that suffices but just for the
matter of moving along I will withdraw my objec-
tion. I want the Court to understand my concern.
THE COURT: Mr. Lupia, any objection?
MR. LUPIA: No objection, Judge.
Q Miss Phillipson, I am showing you what has been
marked as Exhibit 2 and 3, can you identify that for the
record?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 22
A Yes.
Q And what is Number 2?
A Exhibit 2 is my tax return form.
Q For what year?
A From 1997. Exhibit 3 shows my paystub from
Syracuse University.
Q And what was your total income in 1997?
A 7,610.
Q And have you ever made more money than that in a
year in the last 3 years?
A No.
MS. WALSH: I'd like to move in Exhibits 2
and 3, your Honor.
THE COURT: No objections? Petitioner's
Exhibits 2 and 3 are received into evidence.
Q Miss Phillipson, is there any other job that you
could do in Syracuse that would allow you to be
self-supporting?
A Not in this area.
Q You have another Masters degree, correct?
A Yes.
Q And what is that?
A Music -- piano performance.
Q And are you able to be self-supporting as a piano
teacher?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 23
A No.
Q Why not?
A It doesn't make enough money. Also, I was forced
to sell the piano at this point. Working hour will conflict
with taking care of Domenic because my students will be
school-aged children who comes after school when Domenic
comes home as well.
Q And why were you forced to sell the piano?
A Because I was financially not being able to make
end meet.
Q You were awarded the piano at the time of the
Judgment and Decree of Divorce?
A Yes.
Q Okay. And at the time you were forced to sell
the piano, had you been able to sell the marital residence?
A I think right immediate after I sold the piano, I
think, I was able to sell the house.
Q But you sold the piano first?
A Yes.
Q And there was some difficulty with selling the
marital residence, correct?
A Yes.
MR. STERN: Objection, leading.
MS. WALSH: I'll withdraw it.
Q And to your knowledge what does your husband do?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 24
What does your ex-husband do?
A He's computer engineer.
Q And what is his level of education?
A He's got a Masters Degree in computer science.
Q And to your knowledge what is the highest income
he ever made?
A Prior to being fired the company paid him over
54,000.
Q Do you have any other work experience, previous
work experience, besides piano?
A I've done some translation interpretation.
Q And that's from Japanese to English?
A Yes, mostly Japanese to English.
Q And is it possible for you to be self-supporting
being a translator in the Syracuse area?
A No.
Q And what was the most you ever made doing
translation?
A In a year about a thousand dollars.
Q About a thousand dollars?
A (Nodding yes.)
Q Have you looked for any jobs in the last year?
A Yes, I have.
Q And where did you look for jobs?
A I looked through Internet mostly, Association of
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 25
Teachers of Japanese, Association of Asian Studies. They
post many opening positions, and I also sent a resume to
recruiting agencies. At that time I was just desperate to
find any job.
Q And approximately how many positions did you
apply for?
A 20 to 30.
Q And were you successful in getting any jobs?
A No.
Q Did you have any job interviews?
A I had two job interviews.
Q And what position were these job interviews for?
A This was like a one year temporary position for
teaching Japanese.
Q And where were those positions?
A One was -- I believe it was in Indiana, the other
one was North Carolina.
MS. WALSH: Could I have these marked?
(Whereupon, Petitioner's Exhibit Number 4
was marked for identification.)
MS. WALSH: Let the record reflect I'm
showing Mr. Stern Exhibit Number 4. And I have
been forgeting the law guardian. I show the law
guardian Exhibit Number 4.
Q Miss Phillipson, can you identify Exhibit Number 4?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 26
A Yes.
Q And what is Exhibit Number 4?
A Those are the letters of rejection, the position
that I applied for.
Q And where are those from?
A One is from Binghamton University, Oberlin,
Williamette University, Colby College, Kenyon College,
Earlham College.
MS. WALSH: Your Honor, I would move into
evidence Exhibit Number 4.
MR. STERN: I have no objection.
MR. LUPIA: None.
THE COURT: Petitioner's Exhibit Number 4,
received into evidence with no objections.
Q Miss Phillipson, have you applied for a job at
Syracuse University?
A No.
Q Are there any jobs at Syracuse University?
A No.
Q And how do you know that?
A Because there is no opening.
Q And as a result of your job efforts what decision
did you make regarding your pursuit of a job?
A After talking to people in the field I decided to
go to PhD.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 27
Q And did you apply to Syracuse University for
their PhD program?
A No, I did not.
Q And why not?
A They don't have PhD program in linguistics.
Q And what specific area of linguistics do you hope
to study?
A First language acquisition but especially
bilingual first language acquisition.
Q Bilingual first language acquisition?
A Right.
Q And what does that mean?
A Language -- first language acquisition in general
is how the children develop languages. Bilingual first
language acquisition is a specialized area studying children
who are raised bilingually or multi-lingually from birth or
less than a month, within a month after birth.
Q Within the month of their birth?
A Yes.
Q And why is this an area you wish to pursue?
A It has been a neglected area, it's -- many
bilinguals -- the society has based on mono lingual society
and the point of youth and bilingual children suffered
as a result and they do require empirical back-up to
promote a bilingual education. What is important to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 28
them is having self-esteem that is related to the language
they speak and many times that has been neglected or worse
they had -- they didn't have self-esteem and that damaged
the growth of the children.
Q Is Domenic being raised bilingually?
A Yes.
Q And since when has he been raised bilingually?
A From his birth.
Q From his birth. And where did you apply for this
PhD program?
A I have applied City University of New York.
Q The City University?
A Of New York. University of California, University
of California at SanDiego and Santa Barbara and University
of Hawaii.
Q Did you apply at Cornell University?
A No, I did not.
Q And why not?
A We have language requirement in order to go to
PhD program. You have to be proficient in either German,
French or Russian.
Q And that was their criteria for admission?
A Yes.
Q And do you meet that criteria?
A No.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 29
Q As far as you know are there any other colleges
or universities in New York State that have the programs in
this area of bilingual language acquisition?
A No.
Q And have you investigated whether there are?
A Yes.
Q And why have you chosen to go to San Diego?
A I was accepted to their program.
Q And what is it about their program that is best
for you in terms of your goal?
A They offer bilingual acquisition courses and
program. They have a good interdisciplinary program,
associated with speech and hearing sciences. Some professor
in that particular department also specializes in bilingual
acquisition. At the same time there is another Japanese
professor who works in the hearing and speech sciences.
Q And what have you learned, if anything, about the
San Diego, California area regarding your goal to become
self-supporting?
A It's -- I found that it's very -- it's almost
like ideal. It's located outside Denver. Denver has a
large Japanese community, both those who are from Japan as
business and as well as the second generation Japanese
Americans. That would provide me a lot of research
materials.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 30
Q And what did you learn, if anything, about the
graduates of this program from Denver -- from San Diego?
A What was encouraging to me was 100 percent, all
of the graduates from PhD program, found a job which --
MS. WALSH: Could I have that marked?
(Whereupon, Petitioner's Exhibit Number 5
was marked for identification.)
MS. WALSH: I show Mr. Stern Exhibit 5
which had not previously been disclosed. It was
not in my possession until last week.
MR. STERN: Judge, perhaps what we could do
is maybe Miss Walsh could maybe just show me all
of the things that she is going to be introducing
that she hasn't shown me previously instead of me
taking time and making an objection one by one.
I don't want a trial by ambush. I asked for
these things previously. If she had them in her
possession, I should have been able to see them.
Let me see which ones I would object to and which
I wouldn't. This is not fair.
THE COURT: Yes.
MS. WALSH: Your Honor, I have no problem
doing that if you would like to take five
minutes.
THE COURT: We're going to take a break now
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 31
anyway. Start again at 11, give you 10 minutes
to go through that, okay?
(Whereupon, a short recess was taken.)
THE COURT: Okay.
MS. WALSH: The record should reflect that
I have shown Petitioner's Exhibit B (sic) to
Mr. Stern and Mr. Lupia, and I'm handing it to
the petitioner.
Q Miss Phillipson, can you identify that for the
record.
A Yes, this is brochure of Linguistics at the
University of California.
Q And is this where you discovered that 100 percent
of the graduates are employed?
A Yes, as well as I talked to the head of the
Linguistics Department.
Q And what else is in this brochure?
MR. STERN: Objection. This is not in
evidence and for the witness to be testifying
from the exhibit is inappropriate without it
being in evidence.
THE COURT: Well --
MS. WALSH: I'll move it into evidence.
THE COURT: Just ask her the question. If
she's got to refresh her recollection, is there
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 32
something in there that she had read or
something? I mean, you know, ask her the
question that you want, not what else is in
there.
Q Did you learn about what else was offered in this
program through this brochure?
A Yes, I have.
Q And what did you learn?
A The interdisciplinary programs, what area do they
do research, who are the faculties, those general
informations.
Q And what does it say in that brochure and what
have you learned about what areas are their graduates
employed in?
A Mostly teaching at the colleges and universities.
Q What percentage are teaching at colleges or
universities?
A 61 percent.
MR. STERN: Again, it appears that the --
excuse me. Objection. It appears that the
witness is testifying reading the document. If
Miss Walsh wants to introduce the document, she
should just introduce it into evidence.
MS. WALSH: I'll be happy to introduce it
into evidence, your Honor.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 33
THE COURT: Any objection?
MR. STERN: I have no objection to it being
introduced in evidence.
MR. LUPIA: None.
THE COURT: What number?
MS. WALSH: Number 5, your Honor.
THE COURT: Petitioner's Exhibit Number 5
is received into evidence.
Q Is there anything else about going to San Diego,
California that was particularly beneficial to you in terms of
your pursuit to become self-supporting?
A University of California is the headquarters of
Association of Teachers of Japanese. That would provide me
meeting people there, work with them and get head start.
Q And have you visited San Diego, California?
A Yes, I have.
Q And when did you visit?
A The end of August.
Q That was after you had been accepted, correct?
A Yes.
MR. STERN: Objection, leading.
THE COURT: Sustained.
Q And from what you observed on your visit, how far
is San Diego from Denver?
A About half an hour drive.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 34
Q And describe the physical relationship to the
best of your ability between San Diego and California -- and
Denver?
MR. STERN: Objection. Its relevance? I
don't understand what the relevance of how close
San Diego is to Denver.
MS. WALSH: I think she testified, and if
she hasn't she will, that there is a large
Japanese population in Denver that will afford
her opportunities for employment.
THE COURT: Okay. Go ahead.
Q You can answer the question, which was describe
the physical relationship between San Diego and Denver?
A It is like a suburb of Denver, like Liverpool to
Syracuse.
Q And how do you know about the Japanese community
in Denver?
A How do I know? I did the research. I went to
the library, I got some information to contact, I called the
people up, I asked around.
Q And why is a large Japanese community important
to your work?
A For my research as well as job opportunities.
Currently about 50 Japanese companies there and it's growing
and there is also substantial number of Japanese Americans.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 35
Q And you said how many Japanese companies?
A About 50.
Q 50? Are there any other advantages besides
economic or your work to being near a large Japanese
community?
A Culturally it is important for me and for
Domenic who is growing up as bilingual and they have a
Japanese school in Denver once a week.
Q And what does that Japanese school do?
A They teach writing, reading, math, science, in
Japanese.
Q And it's once a week?
A It's once a week.
Q So this would be in addition to his regular
schooling?
A Yes.
Q And that happens on the weekends?
A Yes.
Q Do you know anything else about the Japanese
community in Denver?
A As I said, it's substantial number so they have
newspapers, they have cultural events.
Q You say they have a newspaper, do you know
anything about that newspaper?
A I just found out over the phone and they're
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 36
sending me the newspaper as well but I haven't received it
yet.
Q Do you know how often it's published?
A It's a weekly paper.
Q Do you know how long it's been published?
A Oh, I don't know.
MR. STERN: Judge, if it would expedite the
trial for us to stipulate to the fact that I -- I
don't have any personal knowledge but if it makes
a difference that there is a large and vibrant
Japanese population in Denver, I am willing to
stipulate to that.
THE COURT: Okay.
Q Miss Phillipson, what would you be qualified to do
after you have received your PhD in linguistics?
A What would be the big difference is that I will
be qualified for a 10-year-track position compared to
temporary position which is just a substitute of like some
other professor.
Q And when you say a 10-year-track position, you
mean on the college level?
A Yes.
Q And any other jobs that you will be qualified
for?
A As a researcher -- I'll be more qualified for
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 37
translator too but the researcher developing textbooks or
language assessment with PhD you can be a head of research
project.
Q Be the head of a research project?
A Yes.
Q You mean for a company?
A Company, yes.
Q And why did you visit San Diego?
A I wanted to make sure it is a safe and a good
environment for myself and for my son.
Q And what did you observe when you visited?
A It was such a beautiful place, climate is dry,
over 300 days of sunshine, very safe and clean place. I
have just never seen such a place in the States. I did not
see any litter, vandalism, any part of the city.
Q Did you observe any living arrangements?
A Yes.
Q And what did you observe?
A I checked out a family housing at -- provided by
University of California.
Q And what did you observe about that?
A They're located near the campus, it is very safe
and nurturing place, very family friendly place.
Q And did you -- are you eligible to get an
apartment there?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 38
A Yes.
Q Have you applied to get an apartment there?
A Yes, I have.
Q And have you been accepted?
A Yes.
Q And describe the apartment?
A Again, it is two-bedroom apartment -- I mean,
townhouse, and a living room, kitchen, bathroom, washer and
dryer area, it has a playground provided, child care is also
provided.
Q And do you know what it's going to cost you per
month?
A Yes?
Q How much?
A $503 including utility.
Q Including utilities?
A Yes.
Q And how many bedrooms?
A Two bedrooms.
Q And what do you pay now for your apartment?
A $594.
Q Does that include utilities?
A No.
Q So it's 594 plus utilities?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 39
(Whereupon, Petitioner's Exhibit Number 6
was marked for identification.)
Q Miss Phillipson, handing you what has been marked as
Exhibit 6, can you identify that for the record?
A This is a newsletter of the family housing.
Q And what did you learn about the family housing
from the newsletter?
A They have family events, baby-sitting
information, they give you what to look for, watch out, the
community.
MS. WALSH: I would like to move into
evidence Exhibit Number 6.
MR. STERN: I object to its admission,
Judge. The first time I'm seeing it is today and
too much for me to read now. And, additionally,
I don't see its relevance.
MS. WALSH: I think it's relevant in terms
of my client's ability to --
THE COURT: What about competency though on
all of these things? The objection -- I mean, I
don't know. I don't even know why it's
important. She can testify to what she's done.
I mean, if you want better stuff to look at, you
can look at it, you know, but if she's testifying
and there's no one to counteract it, that's what
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 40
we got.
MS. WALSH: Are you going to --
THE COURT: I won't take that if there's an
objection.
MS. WALSH: Thank you.
THE COURT: She can testify to everything
that she did and what she read and what she saw
and tell us about it.
Q You testified that you learned that there was
child care available at the family housing, correct?
A Yes.
Q And how -- what kind of child care?
A It's provided -- providing after school child
care, also baby-sitters available in that family housing.
Q And do you know what your schedule would be if
you were to go to California?
A Yes.
Q And what would your schedule be?
A My class would be Tuesdays and Thursdays from
about 10 to 4 o'clock.
Q And you would not have school on Monday,
Wednesday or Friday, is that correct?
A Right.
Q What role, if anything, then would child care
play for Domenic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 41
A It will be very minimal.
Q Okay. What to your mind is the advantages of
living in the family housing at the University?
A First of all, it's a safe place, it would provide
Domenic and myself easy way to meet people in assimilation.
That would provide good place to -- for Domenic to --
provide Domenic to socialize with other kids and meet new
kids.
Q And would Domenic have his own room?
A Yes.
Q And what other facilities for Domenic did you
observe at this housing?
A They had playgrounds.
Q And could you compare it to where you live right
now?
A It's brighter, size-wise it's approximately the
same but it's -- I feel safer.
Q But it's cheaper too?
A Cheaper, yes.
Q Is that what your testimony was?
A Yes.
Q And what do you pay now per month for utilities?
A Approximately 40 to $50.
Q And the new apartment is going to be
approximately $90 cheaper and it includes utilities, is that
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 42
correct?
A Right.
Q So it would be approximately $90 plus $50 cheaper
per month?
A Right.
Q Miss Phillipson, were you able to investigate the
educational opportunities for Domenic when you were in
San Diego?
A Yes.
Q And what did you do to investigate?
A I went to -- what do they call -- school --
school board of San Diego area and I got the newspaper because
that was during the summer, they had a special issue for
back to school and they listed every single school in the
district.
Q And what do you know about where Domenic would
be going to school?
A I just have accepted to move -- the move to the
apartment from the housing and according to the location I
checked the school. It's called Aurora 7.
Q Aurora 7?
A Aurora 7. And they have half-day kindergarten.
There are 3 kindergartens that consist of 19 children
and two teachers and they also have enrichment program
after -- in the afternoon.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 43
Q And what did you learn about anything -- what did
you learn, if anything, about their ratings regarding the
school?
A They are academically very -- rated very well.
Parents satisfaction is over 90 percent.
MR. STERN: Objection as to -- I mean,
there should be some foundation as to her
expertise in this area and what knowledge she
has. I mean, if she wants to talk about her own
personal beliefs and, I liked it, it was red, it
has clean walls or something, but it's
statistics.
MS. WALSH: Could you mark that for me,
please?
THE COURT: Yes.
MS. WALSH: I asked her to mark this.
THE COURT: Do you have this arranged here
because a lot of this I can't accept unless you
have an agreement on it.
MS. WALSH: I understand, your Honor.
THE COURT: I'll sustain that objection.
It has to be factual, not giving your opinion.
Okay?
(Whereupon, Petitioner's Exhibit Number 7
was marked for identification.)
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 44
Q Miss Phillipson, how did you learn about the academic
rating of the school, Aurora 7?
A That was in the newspaper.
Q It was, pardon?
A In the newspaper of all the information provided
by the school.
MR. STERN: Objection, hearsay.
MS. WALSH: I show Mr. Stern Exhibit
Number 7.
THE COURT: Hold it. I've got to rule on
it. I sustain the objection.
Q Miss Phillipson, handing you what has been marked as
Exhibit Number 7, can you identify that for the record?
A Yes, this is the copy from the newspaper that
gives you all the information about school.
Q And is that the source of your information about
the school?
A Yes.
Q And what did that tell you about the school?
MR. STERN: Objection, hearsay.
THE COURT: Sustained.
MS. WALSH: I would like to move Exhibit
Number 7 into evidence, your Honor.
MR. STERN: Objection. I haven't seen this
before. It's hearsay evidence. It's a photocopy
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 45
I assume of an original which is not here in
court.
THE COURT: Mr. Lupia?
MR. LUPIA: Judge, I would object as well.
It's hearsay.
THE COURT: Sustained.
Q What else did you learn, if anything, about the
educational standards of the school in San Diego?
A All the schools are much higher score than, SAT
scores --
MR. STERN: Objection as to foundation.
Q How did you learn that?
A From the school district.
Q And did you meet with anyone at the school
district?
A Yes.
Q Who did you meet with?
A I don't remember the name but the head of the
school district.
Q And Domenic would be enrolled in kindergarten,
is that correct?
A Yes.
Q And his schedule would be what, do you know?
A I was told that it will be a half-day
kindergarten with enrichment in the afternoon.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 46
Q And do you know what his hours would be?
A From 8:30 until -- including enrichment it would
be like 2, 2:30.
Q And on two days a week you would need to provide
after school, is that correct?
A Yes.
Q For how long?
A Until 4 o'clock.
Q And the rest of the days you wouldn't need to
provide any after school, is that correct?
A Right.
Q And Domenic is currently enrolled here in
Syracuse in school?
A Yes.
Q Where is he enrolled?
A Jowonio.
Q And will he be able to attend Jowonio next year?
A No.
Q And he's currently enrolled in what year?
A Kindergarten.
Q And next year he would be going to first grade,
correct?
A That's correct.
Q And if Domenic and you are forced to stay here,
where would Domenic be going to school next year?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 47
A The school district would be Percy Hughes.
Q And that's the Syracuse City School District?
A That's correct.
Q Did you learn anything about the size of classes
at the Aurora 7 school?
A There about 19 students and two teachers.
Q 19 students and two teachers?
A Yes.
Q And did you learn anything about the philosophy
of the school?
A They are striving for encouraging individual
growth and to survival skills.
MR. STERN: Judge, it's all coming in but I
object to this as hearsay. I'm sure that there
are fine schools that can be found and as to her
testifying as to their philosophy and this and
that --
MS. WALSH: We're going to move on now,
your Honor.
MR. STERN: This is just hearsay.
THE COURT: Okay. It is usual if someone
is contemplating a move to make inquiries on
their own and we can accept it. If you want to
challenge it, go ahead and challenge it. It's
her word against yours I suppose but, I mean,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 48
this is a thing that's done all the time to check
on what schools are available and so on, and I --
you know, she can testify as to what she
investigated and what she got out of it.
MR. STERN: Okay.
THE COURT: You can cross-examine her on
it, how far she went in her investigation and so
forth. Okay? And I think that's fair. Okay.
MS. WALSH: We're going to move on at this
point, your Honor.
THE COURT: Yeah.
Q Miss Phillipson, you have sole custody of Domenic,
correct?
A Yes.
Q Subject to the respondent's visitation?
A Yes.
Q And that's per the Judgment and Decree and
decision of Judge Majors?
A Yes.
MS. WALSH: Your Honor, I'm going to ask
that the Court accept the Judgment and Decree of
Divorce and the decision. When I gave Mr. Stern
the information he requested, I specifically said
I wasn't going to give court documents because
they were of record. They are voluminous in this
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 49
case to begin with and that his client could
provide him with all of those anyway, okay?
THE COURT: You know, the Court takes
notice of all its orders, okay, including Supreme
Court and everything else. Those orders are
attached to the petition so I don't see any need
to --
MS. WALSH: Okay.
THE COURT: -- reintroduce them.
MS. WALSH: Okay. Unless I ask my client
to --
THE COURT: Those are all a matter of
record, court record, and we have to take notice
of them. They're here.
MS. WALSH: Could I ask you -- is the
decision -- is the Court's decision --
THE COURT: The decisions are there.
MS. WALSH: Not just the Judgment and
Decree of Divorce?
THE COURT: No, the decision -- I thought
the decision was here.
MS. WALSH: I just want to make sure.
THE COURT: This is the judgment and then
the decision. A is the decree and C is the
decision. They're in the papers.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 50
Q Miss Phillipson, you're familiar with the Judgment
and Decree of Divorce?
A Yes.
Q And you were able to review it before you came to
Court today?
A No.
Q Have you reviewed it in the last couple of weeks?
A Yes.
Q Okay. And pursuant to the Judgment and Decree of
Divorce and the decision there was a restraint on the
respondent, correct?
A Yes.
Q And what was the nature of that restraint?
MR. STERN: Objection. Judge, are we
getting into the divorce and the things that have
occurred --
MS. WALSH: Only --
MR. STERN: I haven't finished yet. And
the things that occurred prior to this action?
THE COURT: No. We're talking about a
decision I believe, correct?
MS. WALSH: Correct.
THE COURT: And I imagine we have to know
what it is to see what was done concerning that
up to today.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 51
A The restrain order is provided because the
respondent started to visit the child care --
MR. STERN: Objection.
THE COURT: Excuse me. What was the
restraint, I think is the question.
Q What was the restraint?
A The respondent was not to be able to visit the
child care center.
Q And that was as a result of specific actions,
correct?
MR. STERN: Objection, leading.
A Yes.
THE COURT: Let's go on. The Court is
aware of it. In fact, the Court read all of this
to prepare for today's trial. I'm aware of all
of that. So let's talk about after that. In
fact, it goes on about when the child goes into
the next year, correct?
Q Was there any ongoing problems based on the
restraining order on Domenic, for Domenic?
A After the --
Q Yes.
A After the restrain order?
Q Yes.
A Before the restrain order or before his father
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 52
starts to visit the child care Domenic -- it was about a
month into when he started going to child care and he was
just getting used to the child care, interacting -- start
interacting with other children and teachers. After his
father's visit he refused to interact with other children
and the teachers and he told me, I do not want to interact
with other children. When I asked a reason, he said, he
goes, daddy doesn't go to the child care. He also had a
problem with the lunch, eating lunch. He refused to eat
lunch with other children. It lasted over a year.
Q Did you talk to Domenic about his refusal to eat
lunch with other children?
A Yes, I did.
Q And what did Domenic tell you?
A Because daddy doesn't come to the child care.
Q And has this matter been resolved?
A This year finally after two years he finally
started to eat lunch with other children and the last year
when he started Jowonio he was still -- the first 3 months,
September through December, from what I heard from teachers
he didn't interact very much. I started to hear a lot more
interaction with other children after the Christmas
vacation. One teacher said that Domenic had a fight with
other children which is good sign because before that he was
just standing by not interacting with other children,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 53
therefore he did not get into any trouble. But because he
started to interact with other children there is always
conflict. That's how he got into the fight and the teacher
told me that's a positive sign for him. By the end of last
year he not only interacted with other children but when
there is a conflict he learned how to negotiate with other
children. I was very happy to hear that teachers said that
he starts to interact with other children and try to make a
bridge between other children when they have conflict as
well. He did not still eat lunch but now and then I started
to hear from teachers he had a sip of drink because he
refused to eat and drink throughout the day.
Q And why did he tell you -- did he tell you why he
refused to eat and drink with the other children?
MR. STERN: Asked and answered.
A His answer was because his daddy didn't come to
the day care, which is very surprising to me. After so many
years, so many time, time passed but it had such a great
impact on him, negative impact on him, and I was very
shocked about it. It was beyond my imagination to
understand.
Q Miss Phillipson, describe the communication between
you and the respondent regarding what's in Domenic's best
interest?
A It's been very difficult. It's almost
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 54
impossible.
Q Are you able to have direct communication with
him?
A Not anymore. I used to. I tried -- I used to
talk to him over the phone. Then he would start saying,
just think about what you're doing, you know, what you
think, you know what you're doing to Domenic, just come
back to real life and --
Q What effect, if any, did that have on you?
A I felt awful and after the phone conversation I
started to cry and I decided not to talk him over the phone.
Instead I started to write a letter or send a fax.
Q And at this point that's how you communicate, by
fax or letter?
A Yes, I do.
Q And describe how -- describe your communication
when you try and schedule a change to schedule vacations?
A It was an endless battle.
Q Pardon me? I didn't hear you.
A Endless battle. He would count his hours in
minute, the time he would lose, but if I ask him adjustment
he would not consider my time loss but he would just take
it. He would not consider exchanging the time but when he
lose it, he would count to the minute.
Q Was there any particular problems related
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 55
regarding vacations?
A Especially summer vacation it was always endless
going back and forth because I wanted to leave enough time
for Domenic for time change, jet lag, because usually a
week or so he's very tired but his father did not allow that
time because he's concerned with the time, how much time he
will have, how much time he would lose. And eventually I
had to ask my attorney -- like this summer I asked my
attorney to deal with it.
Q When you say you asked your attorney to deal with
it, what do you mean?
A It became impossible to negotiate with him
because there is no negotiation. There's no give and take
deal. But he would just keep taking it.
Q So when you tried to schedule summer vacation it
had to be done between your attorney and the respondent, not
directly with you and the respondent, correct?
A Yes.
MR. STERN: Objection.
THE COURT: Sustained. That's leading.
You'll have to ask the question.
Q Why did you ask your attorney to communicate with
the respondent?
A Again, he would become very controlling and start
saying things like, think about Domenic.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 56
Q What other problems do you have dealing with the
respondent concerning what's in the best interest of
Domenic?
A He always says it's best for Domenic but what I
see is putting his desire first.
Q Whose desire first?
A His father's desire. He would -- over the period
of time he would say manipulative things to Domenic.
Q Can you give us examples of the manipulative
things that he says to Domenic?
A It goes back to around November '96. That's when
I became first alert about a situation.
MR. STERN: Judge --
A Because Domenic started saying --
MR. STERN: Objection.
THE COURT: Hold on.
MR. STERN: My objection is this. I
thought you were very clear about the fact --
THE COURT: I agree. And I am going to
sustain the objection. I will definitely not go
beyond the date of the decree.
Q Miss Phillipson, the Judge wants to insure that we
don't go after March 26th, 1997.
A Yes, it's November '96.
Q Right. And that was after you were in court?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 57
A Right.
MS. WALSH: That's true, your Honor. We
were in court -- our last day of court was
October 2nd, 1996.
THE COURT: Yeah.
Q It's listed on the top of the Judgment and
Decree.
A And the first --
THE COURT: I got that so what is so
important that happened in between that and the
decision -- I mean, the actual order?
MS. WALSH: She's going to testify as to
what she began to notice regarding the
manipulation by the respondent of the child.
THE COURT: That was after the hearing but
before the decision, is that --
MS. WALSH: Before the decision and before
the judgment, correct. Unfortunately, the
decision is not dated. The only thing --
THE COURT: You know, I'm still not going
to -- we go from the decree and that's it. The
decree is dated and we're going to go from there.
A Next event, next thing I noticed, he --
THE COURT: If it's all that serious, there
must be something since then, since the decree.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 58
Q We need to go from March of '97.
A '97.
Q What you're going to testify has to be after
March of '97.
A May of '97. He came back crying and he had
wheezing and next day I also had to take him to the doctor
because his wheezing continued.
THE COURT: I've got to know when, where,
who was there, and the child was crying coming
back from where? I don't know from where.
THE WITNESS: From visitation.
THE COURT: You have to go easy and take it
in stages like that, all right? Go ahead.
Q This was in May of 1997?
A Yes.
Q And he was returning from where?
A From visitation from his father.
Q And where were you?
A I was at home.
Q And what occurred? Was there anybody else there
besides you and Domenic?
A No.
Q What occurred?
A And his father.
Q His father was there?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 59
A Brought him back. He came back crying and he was
wheezing.
Q He was what?
A Wheezing.
Q Wheezing.
A And I took him to the pediatrician the next day
and the following day when I was ready to give him a bath he
started to ask me, do you feel lonely when I'm not here.
Q Do you feel what?
A Lonely.
Q Lonely.
A I said no, I -- knowing that you have a good time
with father, I'll be happy and I'm grown-up so I can take
care of myself. And then he told me, daddy always tells me
he's lonely when Domenic is not there. He always tells him
he wants Domenic to stay longer. So I asked him what does
he make you feel. How does he make you feel. And he was --
just turned to four and he was pointing his stomach and he
said this feels funny. So I asked him, do you feel like
you're doing something wrong, and he said yes. And that
continues to this day. And the transition has been very
difficult for him.
Q Okay. Let's stop, okay? When you say that
continues to today, what continues to today?
A His father telling him he feels lonely, he want
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 60
him to stay longer.
MR. STERN: Objection as to foundation and
as to hearsay.
THE COURT: Sustained. Listen, please, you
have to speak up a little bit too because I am
straining like crazy to hear you.
THE WITNESS: I am sorry.
THE COURT: But you have to speak up and
you have to say what the child said to you and
what you said to the child. That's the only way
this can come in, okay? As best you remember it.
I've got to know when it was, where it was, who
was there, what the child said to you and what
you said to the child, and that's the way it will
come in. And that's an exception that we make
here because we consider a child a quasi party to
these proceedings, okay?
Q Miss Phillipson, you testified that that first event
occurred in May of '97, correct?
A Yes.
Q And approximately how many times since then have
you had those kinds of conversations with Domenic in which
he tells you the same types of things he said in May of '97?
MR. STERN: I'm going to object as to, I
don't understand what she means by that type. If
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 61
she would just specify what we're talking about.
MS. WALSH: Okay.
Q How many times has Domenic told you that his
father tells him that he feels lonely when Domenic leaves?
A Since then countless, every time -- almost every
time he comes back from his visitation, and usually when he
cries I assure him it is not his fault.
Q Now, you said that transitions were difficult.
That was your testimony?
A Yes.
Q Okay. And when you say transitions, what do you
mean?
A Visitation occurs every other weekend. I usually
bring him to his father's. There is some exceptions but
usually I bring him to his father's.
Q Okay. And when you bring him to his father's,
where do you bring him?
A Lately I bring him to Thruway exit off 690.
Q And how long have you been doing that?
A I think it's over a year.
Q And who requested that the transition be at the
Thruway exit?
A The beginning of the transition has been --
Q At there?
A At --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 62
Q And who requested that you bring him there at the
beginning?
A Oh, his father.
Q His father. And before it was at the Thruway
where did you bring him?
A There was time I brought him to the marital
residence in Phoenix.
Q And that's where the respondent was residing?
A Yes.
Q And what are the problems that you've had at the
beginning of the visitation?
MR. STERN: If any. Leading.
THE COURT: Overruled. Did you have any
problems, first of all.
Q Did you have any --
THE COURT: Regarding the visitation, did
you have any problems since this order was made?
MS. WALSH: Your Honor, I believe she
testified that there were problems at the
beginning of visitation and --
THE WITNESS: Yes.
Q And what are those problems?
A He would ask me if I would be okay, if I feel
lonely, and there is at times that he did not want to go.
Q And how do you handle it when Domenic tells you
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 63
things like that?
A When he tells me if I feel lonely?
Q Yes.
A I tell him knowing that he's happy having fun
I'll be happy for him and I am okay so you don't have to
worry about mommy.
Q And what problems, if any, do you have at the end
of visitation, at the end of the -- at the transition at the
end of visitation?
A It's been always difficult but there is times
he -- his father always insists on prolonging the transition
time, creating fake family conversation.
Q Is there a specific time that you can remember?
A In September after this summer vacation twice --
Q September of 1998?
A September.
Q September of --
A Of '98, the most recent one. He spend almost a
half an hour outside the door during the transition.
Q Who spent?
A Domenic's father and Domenic.
Q Outside whose door?
A My house, my door. Other times there is -- there
is a time that we had a problem with a diaper situation
and --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 64
Q Okay. We're going to get to that.
A Okay.
Q Let's -- when you said that there was a half an
hour, would you describe what happened?
A His father opened the door or I opened the door
and they were there and Domenic always comes in father's
arm like a baby. He carries him all the way as long as I
have seen him -- seen them.
Q And how old is Domenic now?
A Five years old.
Q How much does he weigh?
A 45 pounds or so.
Q So Domenic is being held in his arms by his
father?
A Yes.
Q Okay. And what happened?
A Then his father usually starts telling me that
Domenic wanted to tell you such and such and I already
have -- Domenic -- which Domenic requested me to do as
well but I already talk to Domenic that he is five years
old, or since four years old, that it is important that you
tell in your own words as much as you can and daddy will be
happy to hear your own words and that's being -- I have
always encouraged him to do.
Q And what happened on this specific day? What did
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 65
you do when the conversation continued?
A I told them that I prefer to hear from Domenic
instead of his father and Domenic seemed -- needed more
time and John was still holding him so Domenic didn't --
you know, wasn't on the floor. He was holding him.
Q So his father did not put him down to allow him
to come in, is that correct?
A Right. So I closed the door and -- I told them
that when you're ready, let me know. Then I closed the
door. Then they spend a half an hour outside the door.
Q And what, if anything, did you observe at the end
of the half hour?
A Domenic eventually came in.
Q And what was his -- what was Domenic doing when
he came in?
A He was still sobbing.
Q Sobbing?
A What was interesting was we closed the door and a
few minutes he stopped crying, he went back to regular
five-year-old, very active and started telling me about the
dinosaur book he read.
Q And did Domenic say anything else to you about
the half hour outside the door?
A No.
Q Do you remember any other particular problems
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 66
that occur around transitions?
A My memory goes back to diaper situation.
Q Okay. And tell us what the diaper situation was?
A I potty-trained him when he turned to four and I
told his father the fact he was potty-trained, how I trained
him, but I noticed he comes back with a diaper. I used to
go to the marital residence in Phoenix to pick Domenic up
and I noticed that he's wearing diaper and I express a
concern not in front of Domenic but afterwards --
Q Who did you express the concern to?
A I expressed a concern to his -- to Domenic's
father.
Q And what was your concern?
A I was concerned because he's potty-trained with
me, he's capable of going to the bathroom, but yet he was
put back into the diaper at his father's and it is such an
extreme double standard.
Q And Domenic was completely trained at your house
at four?
MR. STERN: Objection, leading.
THE COURT: Sustained.
Q How old was Domenic when he was trained at your
house?
A He was trained during the day at four and summer
of '97 when I took Domenic to Japan and spend a full four
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 67
week he was potty-trained completely.
Q So after that summer you were not using diapers
at all, correct?
A Right.
Q And what was the problem that you observed
regarding his toilet training with his father?
A I tried to talk to his father and tried to
express how important it was to Domenic to be potty-trained
in both houses. I also talked to Domenic's pediatrician
about the situation and she told me that children should be
potty-trained by four and it is not fair for Domenic to be
imposed in such a double standard.
MR. STERN: I'm going to object as to
hearsay, what the doctor said.
THE COURT: Sustained.
Q What, if anything, did you tell the respondent
about what he could do to help him train Domenic at his
house?
A What did I fell the respondent?
Q Yes.
A I tried to explain how I trained him and
emphasized during the visitation maybe you -- he could pick
one day to just to spend on potty-training, which I did.
But knowing his personality I prepared him as well which I
told him.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 68
Q Did you talk to Mr. Murtari about your
conversations with the child's pediatrician?
A Yes, I did.
Q And what did you tell the respondent about that?
A I told him about what the doctor said. I also
gave him a number he can call.
Q Call who?
A Call the pediatrician.
Q So you gave Mr. Murtari the phone number?
A Yes.
A Originally I was talking to him over the phone
but Domenic's father became very irritant about the subject
and he started telling me, if you think it's that important
you should write me a letter, so I started writing him a
letter. I wrote him a letter as best of my knowledge March,
May, also immediately before the summer vacation because I
was very concerned that Domenic would be in diaper during
this long vacation.
Q And you said there was a time when there was a
problem regarding the diaper at a transition?
A Yes.
Q And what was that -- do you remember when that
problem was?
A I believe it's -- he was potty-trained in
February and we were still wearing jackets so I believe that
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 69
that was March, March or April, early April.
Q Of 1997?
A Of 1997, yes.
Q And you stated previously that you were going to
the marital residence to --
A Yes.
Q -- bring -- to pick up Domenic?
A Yes.
Q And what occurred?
A I noticed he was in a diaper.
Q Who else was there?
A There was a time that some neighbors were there
too but mostly his father, myself and Domenic.
MR. STERN: Excuse me. I'm going to object
as to relevance. How much of the diaper incident
do we have to -- I mean, we're going over and
over about diapers and all this. How much do we
need to hear for it to be relevant to a
relocation case?
MS. WALSH: Your Honor, if I could be
heard?
THE COURT: Yeah.
MS. WALSH: I believe the fact is that it
is very important because it goes very
specifically to not only the issue of the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 70
respondent's judgment regarding the child but I
do believe the respondent also has a cross
petition for custody before the Court.
THE COURT: I understand. I am not going
to restrict that but we're going to take it up at
2 o'clock. We're going to break for lunch.
MS. WALSH: Could I ask the Court what kind
of calendar the Court has at 2 so that I can talk
to my --
THE COURT: We may have to start a few
minutes later than that. Let's see. I've got
maybe 3 real quick things. I'll say this, that
we will start no later than 2:30. Okay?
If you're ready to go at 2:30, okay, we will
start --
MS. WALSH: So I can have my witness --
THE COURT: Whatever I've got will be done
by then.
MS. WALSH: So I can have my witness come
at 2:30.
THE COURT: 2:30 will be fine.
MS. WALSH: Okay.
MR. STERN: If I could just understand how
much more time you will need with this witness
and what you expect so that can I plan my
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 71
witnesses.
MS. WALSH: I think my expert will be about
an hour and I expect that I will be another hour
with my client.
THE COURT: Yeah, okay.
MR. STERN: I need to be heard on the
expert, Judge, because I'm not sure -- I'm going
to object to the admission of the expert. I put
in a request for his curriculum vitae or any
information regarding what his expertise is. To
this date I haven't received that.
THE COURT: You have to do that when she
puts him on the stand.
MR. STERN: But I'm entitled to know --
THE COURT: As far as his credentials?
MR. STERN: What his credentials are.
THE COURT: It's more important, you know,
on an argument on whether -- you know, on whether
it's necessary in this case on whether, you know,
it's material and relevant and so on. He's going
to be here, okay? And the point is, what are you
trying to use him for?
MS. WALSH: Your Honor, I did disclose that
I was using this. I would again remind the Court
that I was given an omnibus discovery on the date
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 72
that we were scheduled here for trial. I told
you in chambers and Mr. Stern that I would comply
as best I could within 24 hours. I wrote a
letter, explained what his credentials were,
explained that he would be here, and I have
gotten nothing back in terms that it was
insufficient, nor have I gotten any other
requests so I did, in fact, disclose it.
MR. STERN: Judge, how can I cross-examine
this man on what his credentials are when I have
been given no disclosure as to what they were to
this point. Miss Walsh told me that she was
going to comply. I haven't received anything.
THE COURT: You know, this is the day of
the trial and, you know, if you didn't make any
motions for me to, you know, before the trial,
you have to make them when the person is here.
You make them then. But I'm telling you now if
it's material, it's relevant, he's going to be
here, okay, that's what I'm looking for.
MR. STERN: Okay.
(Whereupon, a luncheon recess was taken.)
THE COURT: Back on the matter of Murtari/
Phillipson on Docket V-320-95. Both parties are
present with counsel, the law guardian is
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 73
present. Miss Walsh?
MS. WALSH: I'd like to call Dr. Ken
Reagles.
K E N N E T H W. R E A G L E S,
having been called as a witness, being duly
sworn, testified as follows:
COURT ATTENDANT: State your name for the
record, please.
THE WITNESS: My name is Kenneth William
Reagles.
THE COURT: Miss Walsh?
DIRECT EXAMINATION
BY MS. WALSH:
Q Dr. Reagles, where do you reside?
A I reside at 6751 Flametree Drive in Dewitt.
Q And do you have a professional address?
A Yes. Actually I have two. At
Syracuse University it's 258 Huntington Hall, and I also
have an office for the consulting business that I run and
that is at 500 Plumb Street, Suite 550 in Downtown Syracuse.
Q And what is your profession?
A I'm a professor of rehabilitation services and a
specialist in vocational rehabilitation.
Q And will you define what rehabilitation services,
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 74
what a rehab specialist is?
A Yes, an individual who does the work that I do is
involved in the vocational rehabilitation of individuals who
have barriers to employment. In most instances those
barriers are physical or emotional, sometimes they're
cultural, and so the rehabilitation specialist's job is to
assist those individuals to the extent that they can compete
with individuals who are not disabled or who are culturally
advantaged, if you will.
Q And what tools does a rehab -- rehabilitation
counselor specialist use in making these assessments about
people?
A Well, there are a variety of tests and measures
within the vocational area. We would use vocational
interest, batteries, aptitude tests, intelligence tests,
achievement tests as well as tests of personality. We would
also used specialized tests that would get at specific
vocational skills such as mechanical aptitude, opportunity
to -- or the capacity to see things in three dimensions like
as measured by an instrument called the Minnesota Paper Form
Board Test but in addition to tests and measures we also
rely heavily upon medical information that is generated by
treating physicians. We would use some reports from allied
health professionals, such as psychologists, neuro
psychologists, social workers, anyone else who has specific
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 75
information about an individual with whom we would be
working. We utilize the interview process to essentially
take a history of the individual, learn about their assets
and liabilities, their strengths, their barriers to
employment. I would also utilize authoritative references
in our field, many of which are generated by the
U.S. Department of labor, such as the Dictionary of
Occupational Titles, the Occupational Outlook Handbook. We
would also rely upon labor statistics generated by State
Department of Labor as well as the Federal Department of
Labor. We would use wage data generated by Department of
Labor, Department of Commerce. We would utilize demographic
information such as life expectancies, work life
expectancies, social economic status, that sort of thing.
So those would be some of the instruments that -- and
sources of information that we would typically rely upon.
Q Are you presently employed in this area?
A Yes, I am.
Q And what is your current employment?
A Professor of Emeritus at Syracuse University
within the Rehabilitation Services Department where I have
been since 1975. Since 1969 I have been the owner and,
therefore, the president of a consulting firm known as
K.W. Reagles and Associates, that provides essentially
forensic rehabilitation psychology services to attorneys and
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 76
their clients. I have also in 19 -- from 1980 until 1987 I
was the co-owner with Dr. Ronald Dougherty of an outpatient
clinic known as Pelion that provided vocational and medical
services to a variety of client populations.
Q Dr. Reagles --
THE COURT: Excuse me just one second.
(Short pause.)
THE COURT: I'm sorry. Go ahead.
Q Dr. Reagles, will you provide us with your
educational background?
A Yes, I have an Undergraduate Degree in physical
education and chemistry from the University of Wisconsin at
LaCrosse and that was achieved in 1962. I have a Masters
Degree in counseling and guidance from SanDiego State
University in SanDiego, California and that was achieved in
1966 and I have a PhD, a Doctorate of Philosophy in
rehabilitation counseling psychology from the University of
Wisconsin at Madison and that was achieved in 1969.
Q And what subject matter is included in the course
of study leading to a degree in rehabilitation counseling
psychology?
A First, rehabilitation counseling psychologists
are concerned with individuals who have disabling conditions
so there's a great deal of study about medical information,
disease processes, trauma, other ways of which individuals
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 77
can become disabled including those that are either
inherited or are what we call developmental disablities,
acquired during the developmental process either prior to or
to an individual's birth or subsequent to it. We also are
concerned about getting people back to work so there's a
great deal of study of vocational psychology of where people
work, what qualifications it takes to become employed, what
happens to workers when they become disabled, what are the
trends within the world of work with regard to what jobs are
coming into existence, which ones are going out of favor,
which ones is there a great deal of demand for, which ones
not so much demand for, the wages, the fringe benefits, the
unemployment rates, the work life expectancies associated
with employment.
We do what we do within a context of a counseling
relationship so there's a great deal of information about
human growth and development, personality theory, the
conduct of interviews and counseling sessions, how to assist
individuals with disablities adjust to their disability, and
by that I mean not only physical disablities but cultural
issues as well, educational deficits. We more recently have
become specialists in the use of technology to minimize or
even eliminate the consequences of disability and so those
are the essential areas of study within a degree leading to
rehabilitation counseling psychology or rehabilitation
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 78
counseling.
Q And would you tell us about your previous work
experience, briefly?
A Sure, of course. And actually I taught school in
the public schools of Wisconsin for two years, I was a
junior high school general science teacher and then I began
to pursue graduate study and I worked as a counselor at the
University of Northern Illinois for one semester before
embarking upon a doctoral study at the University of
Wisconsin. Having completed that degree in 1969 I had an
opportunity to spend a year in Israel assisting in the
establishment of the first rehabilitation counseling program
outside the United States. I returned to the University of
Wisconsin where I spent five years as the research director
of a federally funded rehabilitation research institute and
in 1975 I learned of a position vacancy at Syracuse
University that was a combination of teaching and research
and community service. I applied for the position, I was a
successful applicant and in the fall of 1975 my wife and my
daughter and I moved to Syracuse where we have lived ever
since.
Q And at your work both at the University of
Wisconsin and at Syracuse University have you completed any
research in your field?
A Yes, I have.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 79
Q And in what areas?
A Most of my research has been about the impact of
rehabilitation services, the economic benefits, individual
satisfaction with rehabilitation services. I have developed
a number of tests and measures to measure such impact. I've
also looked at issues of cultural disadvantagement, directed
a five-year study at the University of Wisconsin called the
Wood County Project which tested the effectiveness of
traditional vocational rehabilitation techniques for
individuals whose barriers to employment were cultural, not
medical. More recently I've had an opportunity to be
involved in research regarding substance abuse, especially
with Dr. Dougherty and but the prevailing theme within my
research focus has been upon the economic consequences of
disability.
Q And have you published or written any books in
this area?
A Yes, I have. I've written four books,
approximately 15 chapters in books that others have edited,
about the same number of monographs, which are essentially
short books, 80 to 100 pages long. Primarily those were the
results of specific research projects and I have more than
50 articles that have been published in professional
journals.
Q And are there professional organizations to which
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 80
you belong?
A Yes, there are.
Q And what are they?
A The American Counseling Association, the National
Rehabilitation Association, the National Association of
Forensic Economists. I also belong to the National Council
of Rehabilitation Educators, the American and National
Rehabilitation Counseling Association, and the National
Association of Rehabilitation Professionals in the private
sector.
Q And have you had a leadership role in any of
these organizations?
A Yes.
Q And what is that?
A I have been the national president of the
American Rehabilitation Counseling Association, I have also
been the national president of the National Council of
Rehabilitation Educators.
Q And have you offered your services to attorneys
and their clients?
A Yes, I have.
Q And what is the nature of the services that you
offer?
A Most typically I am involved in legal matters
that I think we know as personal injury or wrongful death
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 81
cases, more -- or, less frequently I'm involved in marital
matters, wrongful dismissal, sexual harassment cases. So
that's the nature of the kinds of cases that I get involved
in.
Q And have you testified in Court before on these
matters?
A Yes, I have.
Q And in what courts have you testified?
A I have testified in New York Supreme Courts in --
from Buffalo to Rochester to Syracuse to Utica to Albany
down into the New York City area as well as Watertown,
Binghamton, other communities. I have also testified in
Federal Courts in most of those communities. I have
testified in courts outside of New York State. I have also
testified in Canada.
Q And have you testified in matrimonial matters on
the economic value and -- of a housewife?
A Yes, I have.
Q And have you testified in those kind of matters
regarding the steps that a housewife or a homemaker must
take to become self-supporting?
A Yes, I have.
Q And are you paid for your services?
A Yes, I am.
Q And have you been employed by both plaintiffs and
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 82
defendants or petitioners and respondents?
A Yes, I have.
Q And do your fees depend in any way on the outcome
of the trial?
A No, they don't. I'm paid for my time.
MS. WALSH: Your Honor, I'd like at this
time to ask that Mr. Reagles be qualified as an
expert in the field of rehabilitation counseling.
THE COURT: Mr. Stern?
MR. STERN: Judge, at this time I'd like to
renew my objection as I placed on the record. I
had asked in my omnibus discovery demands served
upon the petitioner more than 20 days ago the
name and address of each person whom they intend
to call as an expert witness, a statement of the
qualifications of such expert witness, the
statement and reason --
THE COURT: I'm going to interrupt you,
Mr. Stern. I received absolutely no motions in
this regard. I received no motions to preclude
anything, and I have been here 18 years and this
is the way I have handled every case such as
this. We don't require that witness lists be
traded. If that's something that you've got a
beef about from discovery, you should bring it to
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 83
the attention of the Court before the trial date.
So I'm overruling your objection, it's on the
record and we're going to proceed. Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay.
MR. STERN: Judge, I'd like a little voir
dire, if I may.
THE COURT: You may.
VOIR DIRE EXAMINATION
BY MR. STERN:
Q Hi, Professor Reagles.
A How are you doing?
Q I just have a couple of questions about your
experience in the area of helping people get jobs as a
professor of linguistics. How many of those cases have you
worked on?
A I believe that this is the first case that I have
been involved in --
Q Okay.
A -- where the employability of someone with the
prospective accomplished one of the doctoral degree in
linguistics has occurred.
Q Has part of your -- do you have any background in
linguistics?
A Only to the extent that the Department with which
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - VOIR DIRE 84
I have been affiliated with at Syracuse University is -- has
been historically within the same department as the
communications sciences and disorders department and many of
my colleagues in that department have joint appointments to
the Department of Linguistics so I'm generally familiar with
it but I would certainly admit that I'm not intimately
familiar with it.
Q Certainly. Do you have any familiarity with --
what sort of tests do you have -- I mean, as an expert what
sort of test can you have to gauge someone's language
ability?
MS. WALSH: Your Honor, I would welcome
this as a cross-examination. I don't know that
it's voir dire.
THE COURT: Yeah, this is more to his
credentials as an expert than voir dire.
MR. STERN: I understand, Judge. What I'm
trying to understand is that certainly he has an
education in vocational rehabilitation and
certainly if I had some brain injury or various
problems with that there's lots of things a
vocational rehabilitation expert is good for.
But my question to him is what can he add to this
as to this woman's ability to get a job as a
linguistics professor.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - VOIR DIRE 85
THE COURT: Why don't you wait until you
get the direct testimony and then you can find
out. Maybe he hasn't got anything on that.
MR. STERN: Well, that was what I was
trying to see from voir dire.
THE COURT: Well, the voir dire is strictly
for his credentials.
MR. STERN: Okay.
THE COURT: That's what it's for. As to
whether he's an expert or not and that's limited
to that. So you have to wait for your other
questions later on.
MR. STERN: I understand, Judge. And I
would have no objection to him being admitted as
an expert in rehabilitation.
THE COURT: Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: The witness is regarded as an
expert.
CONTINUED DIRECT EXAMINATION
BY MS. WALSH:
Q Dr. Reagles, did there come a time when you were
asked to evaluate the matter of Miss Adrianne Phillipson?
A Yes.
Q And specifically what were you asked to do?
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Official Court Reporter
K. REAGLES - DIRECT 86
A I was asked to become familiar with who she was,
what her family background had been, what her educational
history has been, essentially what her marital and parental
histories have been. I was asked to become familiar with
the evolution of her career aspirations, as reflected not
only in her academic accomplishments but upon her future
professional pursuits. That is, what it is that she wants
to do for her professional career. Then to within that
general area to learn more specifically about her
professional and career aspirations as they involved the
study of linguistics, specifically the phenomenon of
language acquisition and even more specifically within
circumstances -- usually families where there is what we
call bilingualism, that is parents who have -- one parent
having English, the other having Japanese as the languages
of choice and the influence of that phenomenon about the
acquisition of language by the children, and having that as
the back drop of her career and professional aspirations to
then conduct a study of the sites within U.S. colleges and
universities where the accomplishment of those career
objectives would be most feasible.
Q And what information did you consider in
conducting your study?
A Well, I conducted an interview of -- do you want
to tell me your first name?
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 87
Q Adrianne.
A Adrianne, the pronounciation. I conducted a
personal interview of her, I looked at her academic
accomplishments with respect to the transcript of her
grades, her receipt of degrees. I also then looked at -- of
concern since the focus was upon the acquisition of language
within bilingual families where Japanese was one of the
predominant -- was one of the predominant languages, of
where within the U.S. populations are the concentrations of
individuals of Japanese heritage, since research would be
more prevalent in such settings. I also looked at
institutions having doctoral programs within this general
area of study. I also considered her health background, her
family background, her role as a parent. Those were the
general areas of concern that I had.
Q And what did you learn about Miss Phillipson's need
to become self-supporting at this time?
A I learned that it was quite paramount, that
economically things are not well for her. She has been
involved in what I would call several temporary and
part-time employment endeavors that are not consistent nor
economically fulfilling to the extent that she is presently
economically self-sufficient.
Q And based on what you have learned can she be
self-supporting in the Syracuse area with her current
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 88
credentials?
A In my opinion she cannot.
Q And why not?
A Well, first of all, the degree that she has in
music is more in music theory, not in instruction and so
while she has attempted to earn an income from piano
instruction I believe that the fact that she doesn't have a
degree in music instruction and the fact that she has a --
what I would call a language accent barrier to communication
with students makes it difficult for me to conceive of that
as an area of sufficient income for her.
Q Go ahead.
A She also has had some employment ventures with
colleges and universities, law firms and others where she
has done either translation or interpreter services on
behalf of -- for example, clients of a law firm where the
client spoke Japanese but not English. She's done some
teaching I believe at Lemoyne and at Syracuse University in
the language department, teaching Japanese. Most of those
positions have been eliminated, if not all of them, by the
University's decision to use teaching assistants for those
positions rather than what we call adjunct professors. So
those -- the two principal reasons, or those are the reasons
that I think the two principal areas of vocational activity
that she has attempted in the past are not likely to produce
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 89
the economic wherewithal for her to be self-sufficient in
the Syracuse area.
Q And in your evaluation did you learn whether or
not any of her income that she got from these various
pursuits provided an income which would enable her to be
self-supporting?
A I did.
Q And what -- and were any -- was any of those jobs
able to provide income on a self-supporting basis?
A In my opinion they were not.
Q You stated that Miss Phillipson had a current
impediment or barrier to becoming self-supporting in certain
areas. What is that barrier at this time?
A Well, I think that the fact that English is not
her first language, the fact that she speaks English --
American English with an accent, is a barrier to her
involvement in positions wherein communication, oral
communication, is an important element of such activity amd
certainly music instruction as an example would be one of
those.
Q And is that a barrier to her pursuing her current
goal of a PhD in bilingual education?
A To the contrary. I think it is -- given the
choice of areas of study, it actually is an asset.
Q What did you learn about Miss Phillipson's
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 90
educational background?
A I learned that in 1986 she completed a Bachelor's
Degree, a Bachelor's of Arts degree in photojournalism and
in 1993 she completed a Masters of Arts Degree in music with
an emphasis in piano and that presently she is pursuing a
Masters Degree in linguistics and should complete that at
the end of this semester.
Q Dr. Reagles, are there any authoritative
references that are used by members of your profession to
assist in the study of the availability and focus of
doctoral programs in linguistics?
A Yes.
Q And what are those references?
A Well, the ones that are most commonly used are
the descriptions of the programs that are generated by the
individual graduate programs in linguistics and those are
compiled by an organization having to do -- it's the Society
of Linguistic Associations or the Association of Linguistic
Societies, I'm not sure exactly what the title of the
organization is, but they publish a directory of programs in
linguistics in the United States and Canada. That is a
reference work that I relied upon.
Q And how are they used in the appraisal of the
appropriateness of that?
A What one does is essentially a matching process
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 91
of identifying the specific interests of the individual, in
this instance Adrianne, and then looking at the
characteristics of the graduate programs to find the best
match. That's the first step. Then the other step in this
particular instance was to look -- since the focus is upon
the acquisition of language, bilingualism within families
where American English and Japanese is spoken, then to look
at the concentration of -- within the population of
individuals of Japanese heritage to then essentially combine
the concentrations of such populations with the graduate
programs in those areas to see where the most opportune
areas of scientific and academic inquiry would be.
Q Let's first examine the area of her academic
performance. Did you consider some of her academic
performance more pertinent than others when you did this
study?
A Yes, I did.
Q And what were they?
A Well, certainly the -- her academic preparation
in the area of linguistics as it relates to her potential
for additional graduate study was to me more pertinent than
her background in music, for example.
Q And would you summarize her accomplishments in
the graduate school at the University in the area of
linguistics?
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 92
A Yes. Within the area of linguistics I have
looked at her transcript and there is essentially nothing
but A's and B's and she has a grade point average of well
over 3.5 in her major area of study.
Q And based on your familiarity with her graduate
work do you have an opinion as to her potential for doctoral
study in linguistics?
A Yes, I do.
Q And what information did you consider most
relevant in forming that opinion?
A Once again, the grades that she received within
the core area of study in linguistics and its relationship
to my familiarity with the prior academic accomplishments
sought by faculty within doctoral programs.
Q And what is your opinion as to her potential for
doctoral study?
A It's my opinion that she has the potential to
successfully complete a doctoral program in linguistics.
Q Do you have an opinion as to her goal, which is
to become a PhD in bilingual education, whether or not that
is a realistic goal for this woman to accomplish?
A Yes, I do.
Q And do you have an opinion -- do you have an
opinion as to whether or not if she was able to accomplish
that she would be able to become self-supporting?
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Official Court Reporter
K. REAGLES - DIRECT 93
A I do.
Q And why do you have that opinion?
A It's my opinion that the area of bilingualism
with the growing international focus upon commerce, tourism,
other areas of what I would call social intercourse would
make this an area where there is sufficient demand that if
she were to complete her doctoral degree that she could be
economically sufficient.
Q Dr. Reagles, do you have any information
regarding the rate of employment for people who graduate
from these kinds of programs?
A The numbers of graduates is -- in each particular
program is relatively small, maybe as few as two or three a
year to -- in smaller programs, to maybe a half a dozen or
eight or ten. So that nearly all of those individuals are
successfully employed upon the completion of the degree.
Q Now, Dr. Reagles, did you conduct a study of the
distribution or concentration of persons of Japanese
heritage within the United States?
A Yes, I did.
Q And why was that important?
A Well, because of the importance of having a
population concentration of individuals of Japanese heritage
relative to the academic and research focus of bilingualism
where one of the languages is Japanese, that it appeared to
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 94
me to be most appropriate for the doctoral program under
consideration to at least have access to such a population
or to unique research resources, that was an important area
to examine.
Q And did you prepare an exhibit of your findings?
A Yes, I did.
Q And could I have that?
A Yes.
MS. WALSH: I would like the record to
reflect that I am showing that exhibit to
Mr. Stern.
MR. STERN: Judge, even when I asked
earlier can I see all exhibits which are going to
be admitted in so that can I make a decision at
once, this wasn't included in that packet.
THE COURT: I'm not going to repeat it.
The motion should have been made before trial for
any grievances you had with your requests. I'm
not going to entertain them now.
MR. STERN: Judge, there's no --
THE COURT: The only objection I'm going to
entertain now during this whole trial has to do
with competency, relevancy and materiality only.
That's all. Everything else should have been
brought to the Court beforehand.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 95
MR. STERN: Judge, may I be heard on this
issue? This is the first time that I have
been -- that I have seen this piece of paper. I
could not have made a motion that I haven't been
provided with this prior to trial until this very
moment.
THE COURT: Well, is she moving that paper?
MR. STERN: I believe that she's -- yes,
she's asking to have it --
THE COURT: What is it? Are you making a
motion to introduce that into evidence?
MS. WALSH: I will, your Honor.
THE COURT: What is it? Well, at that
point I will hear your objections, I will hear
his objections and I'll make a ruling.
(Whereupon, Petitioner's Exhibit Number 8
was marked for identification.)
MS. WALSH: I would like the record to
reflect that I have shown this to Mr. Stern. I
am now showing it to the law guardian.
Q Handing you what has been marked as Exhibit
Number 8, Dr. Reagles, can you identify that for the record?
A Yes, this is an exhibit that I prepared showing
the distribution of individuals of Japanese heritage by
state and then also the 10 states that have the greatest
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 96
concentration of such individuals.
Q And what did you learn about your study of the
concentration of Japanese citizens?
A I learned that individuals with Japanese heritage
are -- populations are concentrated most prevalently in two
states, California and Hawaii, California having
approximately 313,000 such individuals, Hawaii approximately
247,000 such individuals, and the next state with -- in rank
order of the numbers of such individuals is New York with
only 35,281, most of whom are concentrated in the New York
City area.
Q And what did you find out about the State of
California?
A The State of California is the ninth population,
having the ninth highest concentration of individuals of
Japanese heritage.
MS. WALSH: Your Honor, I'd like to move
Exhibit Number 8 into evidence.
THE COURT: Mr. --
MR. STERN: Judge, I'm not going to object
to it. Just, as I understand, that is his list
of the states with the highest concentration but
I don't like being presented with things on the
day of trial and here this is --
THE COURT: I can't help it. Again, I'm
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 97
going to tell you that all discovery is supposed
to be made before trial and any problems you have
with it should be brought to the attention of the
Court before trial and at this point the only
objections that I will entertain have to do with
materiality, relevancy and competency. Okay.
Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay. That's number -- what is
it?
COURT REPORTER: 8.
THE COURT: Petitioner's Exhibit Number 8
received into evidence with no objection.
Q Dr. Reagles, did you then examine the
descriptions of the academic doctorate programs in
linguistics who had faculty members who had conducted
research in Japanese/American English bilingualism?
A Yes, I did.
Q And what information did you consider?
A What I considered was essentially what was
contained in your question and that is what academic
programs have faculty members who are conducting such
inquiry.
Q And did you prepare an exhibit of the academic
programs that met the search criteria?
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Official Court Reporter
K. REAGLES - DIRECT 98
A Yes, I did.
Q And do you have that with you?
A Yes, I do.
MS. WALSH: Would you mark that?
(Whereupon, Petitioner's Exhibit Number 9
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibit 9 to Mr. Stern and then
to the law guardian.
Q Dr. Reagles, handing you what has been marked as
Exhibit Number 9, can you identify that for the record?
A Yes, this is the listing of the five university
programs that have in my opinion the most pertinent doctoral
research programs relative to Adrianne's career and
professional aspirations, with just a brief comment about
the program features of each.
Q And what did you learn about the University of
California?
A I learned that to my surprise that there is
located what is called the Bilingual Resource Center that
focuses upon child language acquisition.
MS. WALSH: I'd like to move into evidence
Exhibit Number 9.
MR. STERN: Judge, I object as I asked in
the omnibus discovery demand a copy of any and
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 99
all exhibits that you intend to introduce at
trial. That was not included in the discovery
packet that I received and I object on the
grounds that it should have been provided to me.
THE COURT: For the same reason the
objection is overruled. Mr. Lupia?
MR. LUPIA: No objection, your Honor.
THE COURT: Petitioner's Exhibit 9 is
received into evidence.
Q Dr. Reagles, did you learn about any of the other
programs, whether they had the specific kind of bilingual
education programs?
A There were others.
Q Where were they located?
A Well, they were at the University of Hawaii,
Columbia University, University of Washington, University of
Chicago, Rutgers, University of Texas at Austin, Boston
University, MIT, University of Arizona, and McGill
University in Toronto.
Q Did you then combine the information that you had
regarding the concentration of persons of Japanese heritage
with the information about the pertinent doctoral programs?
A Yes, I did.
Q And what information did you discover?
A What I learned was that the four programs that
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 100
had -- well, of the five programs that had the strongest
areas of research inquiry into first language acquisition
and bilingualism were four universities in California where,
of course, there is the highest population of individuals of
Japanese heritage there, Stanford University, University of
California at Berkeley, University of California at
Los Angeles, University of California at SanDiego. The
fifth one was the University of California at San Diego which
was, of course, in California which is the state with the
ninth highest population of individuals of Japanese
heritage.
Q And did you prepare an exhibit?
A Yes, I did.
Q And could I have that?
MS. WALSH: Make that number 10.
(Whereupon, Petitioner's Exhibit Number 10
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibit 10 to Mr. Stern and to
the law guardian.
MR. STERN: Judge, I again object as this
is the first time that I have seen this document,
I'm surprised by the document and I did ask for a
copy of any and all exhibits which were intended
to use at trial by an omnibus discovery demand.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 101
THE COURT: The objection is overruled, the
same reason.
MS. WALSH: Just for the record,
your Honor --
THE COURT: Mr. Lupia?
MR. LUPIA: She hasn't even offered it yet
but I have no objection.
THE COURT: Oh, I thought you offered it.
MS. WALSH: I am going to offer it now,
your Honor.
THE COURT: Oh, okay.
MS. WALSH: Your Honor, just for the
record, since Mr. Stern is putting this in in
every exhibit I would like the record again to
reflect that I was presented with this discovery
motion on the day that we were first scheduled
for trial. We were then scheduled again and the
Court's calendar -- within a week of that date,
the Court then again adjourned it because of the
Court's schedule. So this is not a discovery
motion that has been pending for any long period
of time. I was handed it to -- it was handed to
me on the day that we were first scheduled for
trial in this matter or maybe even the second day
we were scheduled for trial in this matter.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 102
Q Dr. Reagles, handing you --
MR. STERN: Hold on. I would also just
like to make the record clean on that. I believe
I handed this to counsel for the petitioner on, I
think October -- the last time we were in Court.
I think it was October 5th, and there have been
adjournments but at the time I handed it to you,
to the petitioner's counsel, she represented to
the Court that there was no need for additional
time, that she would provide me with the things
that I had asked for which was only three
requests -- only three demands in the discovery
in my demand. And it's been more than 20 days.
She certainly had sufficient time to provide me
with those things. If it was untimely at the
time, it certainly isn't now. Thank you.
MS. WALSH: I was handed this on October
8th and we had a conference in the Court's
chambers in which I agreed to give what
information I had. We were then again scheduled
on this matter on October 20th.
THE COURT: Okay. Let's go on. You're
moving that document now?
MS. WALSH: Yes.
THE COURT: Okay. The objection the same?
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 103
MR. STERN: Same objection, your Honor.
THE COURT: Any objection?
MR. LUPIA: No objection, your Honor.
THE COURT: Same ruling. Received.
Q Dr. Reagles, based on your study of the
availability of pertinent doctoral programs in linguistics
and the concentration of Japanese within the U.S.
population, do you have an opinion with a reasonable degree
of certainty within your field of the most appropriate
doctoral programs relative to Miss Phillipson's professional
intent?
A I do.
Q And what is that opinion?
A It's the four institutions in California whose
names I recited earlier, as well as the University of
California at San Diego.
Q Dr. Reagles, did I ask you to examine the issue
of Mr. Murtari's employability?
A Yes, you did.
Q Assuming that Miss Phillipson will have to relocate?
A Yes, you did.
MS. WALSH: Would you mark that?
(Whereupon, Petitioner's Exhibit Number 11
was marked for identification.)
MS. WALSH: And the record reflect that I
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 104
am showing Exhibit 11 to Mr. Stern. And I'm
showing it to the law guardian.
Q Handing you what has been marked as
Exhibit Number 11, can you identify that for the record,
Mr. -- Dr. Reagle?
A Yes, this is Mr. -- John Murtari's resume.
Q And how did you obtain a copy of that resume?
A You gave a copy of it to me.
Q And that's the resume that you examined?
A Yes, it is.
Q Did you study his educational background?
A Yes, I did.
Q And what did you learn about his educational
background?
A I learned that he has a Bachelor of Science
degree in astronautical engineer from the U.S. Air Force
Academy that was achieved in 1978, with a grade point
average of 3.5, and subsequently he completed a Master of
Science Degree in computer science from the Syracuse
University in December 1986 with a graduate grade point
average of 3.4.
Q And what did you learn about Mr. Murtari's work
history from that resume?
A Mr. Murtari's work history has --
MR. STERN: I'm going to object. Judge, I
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 105
asked again what would be the substance of
testimony of the expert. I was told that
Dr. Reagle -- this was an October 1st, 1998
letter from Miss Walsh. It says, on September
29th I received your discovery demand.
Dr. Reagles will be only discussing --
interviewed my client and it only basically says
that he will be testifying with regard to the
petitioner, not my client. Again, I'm surprised
by this testimony and unprepared for this
expert's testimony on my client so I'm going to
object to any testimony in this regard when I
was -- this is a surprise to me.
MS. WALSH: Your Honor, I believe in his
opening statement Mr. Stern stated that he was
going to be able to show that Mr. Murtari's
failure to pay support was based on legitimate
reasons. I think that very clearly the Tropea
case says that any relocation must consider the
educational and vocational ability of the other
party to be able to relocate and I can bring back
Mr. -- Dr. Reagles on rebuttal if we need to. It
seems to me a complete waste of time. And I
would say to your Honor, this is Mr. Murtari's
resume, I'll ask him hypothetical questions.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 106
THE COURT: I'll take your specific
objection on this line of questioning. I'm going
to reserve decision on it so that we don't have
to bring back this witness. There's no jury
here.
MR. STERN: I understand, Judge.
THE COURT: I will have to, you know --
MR. STERN: Judge, the thing I would say is
that --
THE COURT: So we will -- that way we can
go on but I will reserve decision on whether this
line of questioning with regard to your client is
appropriate or not, okay?
MR. STERN: Okay. Thank you, Judge.
Q You've never met Mr. Murtari, have you,
Dr. Reagles?
A No, I have not.
Q And what did you learn about his work history
from that resume?
A I have learned that his principal employment has
been generally within the computer science field as a
systems engineer, systems analyst, programmer, programmer
analyst and computer consultant.
Q And do you have any other information about
Mr. Murtari other than the resume?
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 107
A No, I do not.
Q And based on his educational and work experience
do you have an opinion as to the rate of pay at which
Mr. Murtari could be employed in the Syracuse area?
A Yes.
Q And what is that opinion?
A It's my opinion that there are a number of
occupational titles that are pertinent to his background for
which position vacancies currently exist. As a computer
programmer there are currently 26 vacancies within the
greater Syracuse area with starting salaries ranging from
$33,228 to $41,912. As a computer systems hardware
specialist or technician or engineer, within the Upstate
New York area, which would be from Albany to Buffalo, there
are 229 position vacancies with wages ranging from $37,492
to $54,964. As a systems analyst, 249 position vacancies in
Upstate New York with salaries ranging from $48,984 to
$63,752, and as a programmer/analyst in Central New York,
that's the greater Syracuse area, 24 position vacancies with
salaries ranging from $40,144 to $51,844.
MR. STERN: Objection, relevance. I
thought this was about relocation, an ability to
get a job in another place, and we're talking
about his ability to get a job here in Syracuse.
I object to the relevancy of his testimony,
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 108
your Honor.
THE COURT: I think it has to do with
support payments.
MR. STERN: It has a lot to do with support
payments but that's another trial.
THE COURT: It's very much in issue here,
quite frankly. It's an issue. It was raised in
all the papers. Okay. I mean, she can use this
expert for more than one reason.
MR. STERN: Okay. But, Judge, when I
objected, the things that she said that she
needed this witness for --
THE COURT: I reserved on that. You'll get
a decision on that.
MR. STERN: Okay.
THE COURT: All right.
Q Dr. Reagles, did you complete your testimony on
that area?
A Yes, I did.
Q And based on your familiarity with the employment
of persons with his computer and information background, do
you have an opinion as to his prospects for employment in
the Denver, California area?
A Yes, I do.
Q And what information did you consider?
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A I considered, first of all, a very impressive
resume with excellent work experience within the computer
science field with a number of different disciplines within
that field. I also considered information from the
U.S. Department of Labor regarding the demand for
individuals within the computer science field and let me
quote, "Computer scientists, computer engineers, systems
analyst including programmers, expected to be the top four
fastest growing" --
MR. STERN: Objection. Is the witness
reading from something?
THE WITNESS: Yes, I am.
MR. STERN: Judge, is that into evidence?
THE COURT: Do you want to identify it?
THE WITNESS: Yes, this is from the
Occupational Outlook Handbook which is a
publication of the U.S. Department of Labor
within the category of occupations known as
professional and technical occupations, more
specifically computer scientists, computer
engineers and systems analysts and programmers.
MR. STERN: Judge, this is not a document
that this witness has prepared. I don't
understand why he's reading from it. This is
hearsay. I object to him reading onto the record
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another book which is not admitted into evidence.
MS. WALSH: Your Honor, if I could lay some
foundation.
Q Dr. Reagles, is this one of the tools that a
rehab counselor uses in terms of doing vocational
assessments?
A Yes, it's one that I cited in the -- in my
opening remarks.
Q And is it one of the tools that you use in the
regular course of your business?
A Yes.
Q And is it a research tool that's commonly used by
people in your profession?
A If research is defined broadly, yes.
Q And what -- tell us again what this is.
A This is a publication of the U.S. Department of
Labor that is information for individuals considering
careers in a variety of different occupations and
professions with regard to the nature of the work, the
training that is required, the opportunities for
advancement, the earnings associated with such work, what is
the overall picture of demand within the labor force as --
Q And -- I'm sorry?
A And so it is a document that has a great deal of
relevance to the issue of Mr. Murtari's employability in
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areas around the country.
Q And did you use that in basing your opinion on
whether he could be employed in the Denver, California area?
A Yes, I did.
Q And can you remember without reading it what it
is that you --
A Oh, sure.
Q Can you remember or do you need that to refresh
your recollection?
A Yes, I can.
Q Okay. And what did you learn?
A Well, what the Department of Labor has done in
this particular document is identified the 20 occupations
and professions for which there will be the greatest demand
within the next 10 to 15 year period. The computer science
field including the four job titles that I mentioned
comprise four of the fastest growing occupations and
occupations of greatest demand within the labor market and
will continue to be so for the foreseeable future.
Q And those four -- four areas -- I'm sorry, I
forgot what you called them, four --
A Occupational Titles.
Q Occupations, are occupations that Mr. Murtari is
eligible for, correct?
A Qualified to --
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Q Qualified for.
A Work that he has done in the past. He's
qualified by virtue of his educational background and his
work experience, yes.
Q And do you have an opinion as to his
employability in the San Diego/Denver, California area?
A Yes, I do.
Q And what is that opinion?
A That since there is essentially a national demand
for individuals within this -- within these occupational
classifications that it's my opinion that he would be
readily employable in most any job market that he entered.
MS. WALSH: I have no further questions,
your Honor.
THE COURT: Okay. Mr. Stern, do you want
to take a short break so you can collect your
thoughts and your questioning, and we'll give it
like 10 minutes and then we'll go with you on
cross.
MR. STERN: Thank you, Judge.
(Whereupon, a short recess was taken.)
THE COURT: Okay.
CROSS-EXAMINATION
BY MR. STERN:
Q Let me first ask you about this narrow field
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that we're talking about which is -- it's first language
acquisition and bilingualism?
A Yes. It's really within the context of
bilingualism.
Q And that's a pretty narrow area, correct?
A I'm not sure how you define pretty narrow but --
Q It's a --
A I would call it a specialized area, yes.
Q Yes, it's highly specialized?
A Yes.
Q What brought you to look at that particular
specialized area of all possible careers?
A Sure. Following my interview of Adrianne and
learning of what her career and professional aspirations
were and then looking at the most typical route to that
goal, that's how I got into that area.
Q She had already been accepted into the program
when you began interviewing her?
A Not to my knowledge.
Q Okay. Did she come to you for counseling on the
issue of, what should I do?
A No, she did not.
Q Okay. You didn't advise her to go in this area?
A I did not.
Q She brought this area to you?
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A That is correct.
Q Had she already -- she had already then been
applying in this area?
A Quite frankly, I don't know.
Q Okay.
A I believe that she had made some applications but
I honestly don't know.
Q Okay. How many of these jobs are there in
bilingual first language acquisition and bilingualism in the
United States?
A I would suspect that there are between 100 and
200 at the doctoral research level.
Q Jobs?
A Yes.
Q Working in universities?
A Yes.
Q Doing this type of research?
A Yes.
Q And where are most of those jobs located?
A Mostly at the University -- with respect to the
issue of bilingualism involving Japanese?
Q Right.
A They are -- most of those positions are at
academic institutions within the population concentrations
of Japanese within our society.
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Q How do you know this?
A Simply because of the preponderance of
institutions with that focus as I examined it.
Q Are in California, the majority are in
California?
A Yes. Well, yes, I would say that the majority
are, yes.
Q Let me just show you Plaintiff's Exhibit 9, this
is your document?
A Yes.
Q Does that help refresh your memory?
A Sure.
Q And as I look at it there is -- out of five you
found with that concentration with professors who teach in
that area, four of them are in California?
A That is correct.
Q Okay. One's in SanDiego, two in SanFrancisco,
Stanford and Berkeley?
A Yes.
Q And then UCLA is in Los Angeles?
A LosAngeles, yes.
Q And then the one is in California?
A Yes.
Q So the majority of her jobs would have to be in
California if she were to get a job in this area?
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A Actually I don't know that because that calls for
knowledge of the future employment market, you know, that I
have no way of assessing. What this list really is is the
list of doctoral programs where the research focus and the
faculty qualifications and other academic resources in my
opinion are most appropriate to her career goals.
Q And it's based, of course, upon -- there's no way
for you to know what it will be in the future?
A That's correct.
Q But right now everybody -- the majority of the
jobs are in California?
A Not the jobs, don't misinterpret me.
Q Okay.
A The educational opportunities are most
appropriate at those institutions at California.
Q Okay. What I was asking originally was how many
jobs are there to be had in this area and you had said a
couple hundred in the area. Now, how many jobs are there in
the area with regard to Japanese first language bilingual
education?
A I don't know. There's no -- I have tried to find
out such information but I was unable to find that -- it's
quite specific information. It's generally not compiled
with that specificity.
Q Did you ever find any jobs that were vacant right
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now for that particular -- for somebody with a PhD in that
area?
A Yes.
Q How many of those jobs are available today
or since the last time you have looked?
A I would say from the search that was done late
summer that there were approximately around 30 position
vacancies nationally.
Q In Japanese first language instruction?
A They have to do with the -- with a Japanese
instruction. Not all of them are within the context of
bilingualism or even first language acquisition.
Q And where were those jobs located?
A Essentially all over the country.
Q All over the country?
A Yes.
Q How many here in New York?
A I found to my recollection just one and this was
at Hamilton College and it was only a teaching fellowship,
it was not a doctoral faculty position.
Q So it wouldn't be a full-time position?
A That's right.
Q Or might not lead into one?
A That's correct.
Q It might just be --
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A That's correct. It would typically be occupied
by an individual who was continuing to pursue graduate
study.
Q Would it be fair to say that the majority of
these positions would probably be in the higher Japanese
populated areas like California, Hawaii?
A I would agree, yes. Yes, although -- you know,
as a generality I would agree with that but not all of them
are.
Q Okay. Now, you had looked at -- one of the
resources you used was the directory of programs in
linguistics, correct?
A Yes, that's correct.
Q And that was a 1995 publication?
A I believe it is, yes.
Q Let me show you Plaintiff's Exhibit --
Petitioner's Exhibit Number 10, your document?
A Yes.
Q And certainly some things have changed in the
last three years?
A I suspect they have, yes, right.
Q Okay. But this is the best guess you could give?
Is there another publication -- is there another publication
that's subsequent to the 1995?
A It is to my knowledge -- to my knowledge it is
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published periodically. The most recent copy that we could
find was the 1995 edition.
Q Okay. Now, certainly you reviewed the
requirements that the University of California has to see if
they were suitable to her particular strengths and
weaknesses?
A Yes, I did.
Q Is one of the publications that you reviewed this
publication?
A Actually, I didn't review that. I was aware that
that had been made available but I had personally not seen
it.
Q Okay. Well, let me give you this, it's marked as
Petitioner's Exhibit 5?
A Yes.
Q It's titled, Graduate Study in Linguistics at the
University of California, San Diego?
A Yes.
Q Well, first let me ask you, what did you review
in determining what the requirements were of the programs
that she would be going into?
A The descriptions that were in the Linguistic
Society of America Publication called the Directory of
Programs in Linguistics. It has the faculty members,
members' names, their research interests, it has the
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academic support resources. Those are generally speaking.
Q Requirements for PhD, things like that?
A Generally speaking, yes.
Q What course requirements are necessary, what
aptitudes are necessary, as such?
A I'm not sure that it gave that. It was more
for -- it was more description of the program than it was of
specifically what they were looking for because the match of
doctoral student with program is such a unique phenomenon --
Q Sure.
A -- that they specifically don't specify in any
great detail what it is that they're looking for.
Q So you're not sure whether her particular
strengths and weaknesses would match with this particular
graduate program because they didn't tell you what the
requirements were academically and aptitude-wise from the
research that you have done?
A I only know that by virtue of learning that she
had made application to that program and had, in fact, been
accepted and offered an assistantship. So on the basis of
that I would conclude that there was probably a pretty good
match.
Q You would conclude, you're not sure, you're not
giving an opinion, a professional opinion, it's a guess?
A Well, I could tell you from nearly 30 years of
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experience as a professor associated with doctoral programs
that who gets admitted to doctoral programs is a very unique
phenomenon, it is a eclectic mix between faculty members and
students.
Q I'd be happy to submit you as an expert in
faculty review and PhD programs also. Let me bring you
to --
A Or who gets into law school.
Q Yeah, exactly.
A There are some less than objective criteria that
sometimes get used.
Q Sometimes very objective but not the ones that we
think they should be. Now, let me ask you about the
vocational evaluation you did. It was not a full vocational
evaluation, it was not -- was it?
A Well, typically a vocational evaluation -- the
term vocational evaluation is usually related to job skills
and --
Q Correct.
A -- and it is more appropriate for individuals who
have little sense of what it is that they want to do, and
what you're trying to do is give them information from which
they can make better decisions. And so in the context of
that definition of the term, no, I did not do a vocational
evaluation but more a survey and study of Adrianne's
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educational and vocational background and career aspirations
as articulated to me in the interview and matching that with
the information that was made available to me from the
resources that I consulted about these programs.
Q Okay. So you didn't do a full vocational
evaluation?
A In my mind it would not be appropriate.
Q Okay.
A She had very clear ideas of what it was that she
wanted to do.
Q And only based upon where she wanted to go which
was in the bilingual -- I keep forgeting it myself.
A Bilingualism. First language acquisition.
Q So only in the context of what she came to you
for did you see -- did you do an evaluation?
A Generally speaking, that's correct. In other
words, I narrowed my focus to those graduate programs where
their offerings were commensurate with her interests but
through that process I would acknowledge that I became
generally aware of other programs in linguistics but also
learned that either their requirements or their research
focus was not appropriate, it didn't concern Japanese, it
didn't concern bilingualism.
Q So your focus -- certainly you had a very strong,
tight focus on first language acquisition and bilingualism
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and then more broadly in your research you found out about
also issues of linguistics and careers in linguistics but
that was probably the widest focus was just in linguistics?
A Yes. I guess one thing that I would say is I was
impressed with the number of programs that there are in
linguistics.
Q And you didn't do a -- you didn't do a vocational
evaluation beyond linguistics and a career in academia in
linguistics or a career in something having to do with --
let me retract that.
You didn't do a vocational evaluation beyond the
focus of linguistics generally and, more specifically, first
language acquisition bilingual?
A I would have to say that, yes, I did, because I
was asked to do two things. One is to assess her current
employability in the greater Syracuse area with the academic
training and job experience that we've learned about that
she has but then to go to the real issue that I thought was
of more importance and that is her doctoral study, where is
the most appropriate place for her relative to her stated
interests and career aspirations.
Q Let me just understand this because I feel like
I'm getting a long answer. I don't understand the answer.
Your -- you focused on the issue of linguistics and her
interest in being in linguistics, you focused on her ability
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to make a living in that area, in this area and areas of the
country, correct?
A Generally speaking I would agree with you, yes.
Q Well, you're certainly not saying that she can't
do any other job than linguistics, correct?
A I am not.
Q Okay. What about her ability to work in retail?
A I'm sorry, that strikes me as so disparate from
anything that she has ever done before that I believe that
that would be inappropriate.
Q Well, she has a child whose father, grandmother
and extended family live here in Syracuse, did she tell you
that?
MS. WALSH: I'm going to object,
your Honor, to the nature of that question in
terms of this witness. I think it's outside the
scope of direct examination and he answered the
question. He doesn't now need to be
argumentative about it.
MR. STERN: Judge, if I may be heard? I'm
not being argumentative. I'm trying to
understand what he was looking at.
THE COURT: I'll let him answer. Go ahead.
Q Did she tell you that her son's extended family,
the majority of his extended family, is right here in
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Syracuse?
A I believe she did, yes.
Q Okay. So certainly some people, one of their
objectives might be to keep a family together and find a job
in an area so they can keep a family together?
A That's not what I was asked to do.
Q Excuse me?
A That's not what I was asked to do.
Q Okay.
A I mean, that is beyond my qualifications.
Q She didn't say that one of my objectives is to
make sure that Domenic grows up in Syracuse?
MS. WALSH: I'm going to object,
your Honor.
MR. STERN: I'm asking a question.
THE COURT: Well, go ahead. Answer it
but --
A She did not. She did not. She -- I must tell
you that she expressed concern for her son with regard to
those issues but she did not state her concerns in the
language that you did.
Q Okay. You don't know what her ability is to get
a job in retail, would you have an opinion?
A I have an opinion that it would be quite remote,
primarily because retail involves oral communication skills
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and accuracy of communication and it's my opinion that the
accent associated with her oral communication as well as the
inadequacy of the speech volume would place her at a
considerable disadvantage for being successful in a retail
occupation.
Q What about as a professor, her language problems
as a professor teaching in an American --
A I think it is a disadvantage and that's why I
think that for her to focus into an area of academic pursuit
where, in fact, her language and accent could actually be
seen as an advantage -- in other words, when you're dealing
with individuals who are bilingual, that is that they speak
either English or Japanese, she could speak in a language
that was most preferred by the recipient of that
communication.
Q Well, if she was teaching American students --
A Uhm-hmm.
Q -- in the issue of bilingualism --
A Uhm-hmm.
Q -- certainly she would be teaching in English?
A Not necessarily. I mean, there may be
individuals of Japanese heritage. I suspect that she would
be teaching individuals of both languages and I would say
that her capacity to be an effective lecturer is limited by
those difficulties.
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Q But you're hypothesizing, you don't know what
language people are teaching their courses in, you're
hypothesizing that in all possible worlds it's possible that
she might be teaching in Japanese at an American university?
A I'm saying that that's possible.
Q Okay.
A I think that that issue makes it even more
compelling for her to pursue a career as a researcher
wherein her oral communication skills are not as important
as they are as a lecturer.
Q Now, she's applied for a number of jobs as an
instructor in Japanese, correct?
A Yes.
Q And she certainly has the credential to be a
instructor in Japanese, that's just someone who helps out
the professor in language instruction?
A She has done that, yes.
Q And she hasn't gotten a job?
A That's my understanding.
Q Would you agree that one of the detriments for
her is probably this language barrier for her that you
discussed?
A That may be a factor but I think a bigger factor
is the fact that the institutions have eliminated adjunct
professors to the preference of using teaching assistants,
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individuals who are part of the program, the doctoral
students within those programs.
Q Well, there are language instructors right here
in Syracuse?
A Of course.
Q Yeah.
A Of course.
Q That I'm familiar with. What is the -- do you
know the competition, who she's going to be competing
against and their abilities with regard to language?
A Not specifically, no.
Q So it's possible she could come out of a PhD
program and be competing against people who are perfectly
proficient in English?
A Yes, it's possible.
Q And when she's competing against those people --
A Yes.
Q -- it's going to be very difficult for her to get
a job?
A Well, I wouldn't jump to that conclusion. I
would say that she would be at competitive disadvantages
relative to that. It depends what you want them to do. If
the emphasis is upon effectiveness as a lecturer, yes, but
if the emphasis is on effectiveness as a researcher, then I
don't think that she would be at a competitive disadvantage.
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Q She's going to be at a disadvantage against
people who are proficient in English?
A You know, in rehabilitation there's a principle
which we call the competency deviation, and that is that the
more confident people are, the more deviance there will be.
So if she's a very competent researcher, then the more
deviance, if you will, in her expressive language will be
tolerated by those with whom she works.
Q Doctor, she's going to be at disadvantage against
people who are proficient equally in English and Japanese?
A I'm not sure that we can say that.
Q And you don't know the competition at this time?
A Of course not.
Q Okay. If you could look at page 28 of exhibit --
if you could tell me the exhibit of the pamphlet?
A Sure, it's Exhibit 5.
Q Exhibit 5, thank you. On page 28 under language
reading ability, let me read you something. "All PhD
students must demonstrate the ability to read linguistic
literature in either French or German. If a reading exam is
taken for this purpose a dictionary may be used."
A Uhm-hmm.
Q Do you see where it says that?
A Yes, I do.
Q Is this the first that you have seen --
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A This is the first time that I have seen this
brochure, yes.
Q Is that the first that you have heard of this
requirement?
A I believe it is.
Q Knowing that in order to be a PhD student you
must demonstrate an ability to read French or German -- let
me retract that. Does my client speak or read French or
German?
A Does your client?
Q Not my client, I'm sorry. I'm so used to being
the petitioner.
A Sorry.
Q Does Miss Phillipson -- at least I remember her name,
I'm happy for that.
A That's more than I could do.
Q Does Miss Phillipson express a language of either
French or German proficiency in reading or speaking?
A I believe that she has the capability to at least
consider a reading examination in French but I must tell you
I don't know the specific competency that she holds in that
area.
Q To your knowledge does she have any competence in
French?
A I'm not sure.
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Q You don't know?
A I don't know.
Q That's okay.
A No.
Q Do you know if she has any competence in German?
A I don't.
Q Okay. That's all I wanted to know.
A Sure.
Q Now, this is something that I have a question
about. Now, if you look on page 30 --
A Uhm-hmm.
Q Okay? First let me ask you, she's been admitted
into the masters program out at the University of California,
correct?
A My understanding is that she has been admitted
into the doctoral program.
Q Well, let me show you something. This is part of
her petition.
A Okay.
MR. STERN: I didn't pull it out. I just
assume that it would be part of the record.
MS. WALSH: I think, your Honor, we need to
have it marked and put into evidence if we're
going to --
MR. STERN: Well, Judge --
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THE COURT: Is that part of the pleadings?
MR. STERN: It's part of the pleadings.
THE COURT: Yeah, it's the same as -- we
have the part of the pleadings.
MS. WALSH: Okay. What part are you
looking at?
MR. STERN: I'm looking at Exhibit B. It's
Exhibit B of petitioner's petition for
modification of a prior order Docket Number
V-320-95.
Q What I'd like to do is show you -- first ask you,
have you seen this letter dated April 27th, 1998?
A No, I have not.
Q It's fair to say you don't know what program she
has been admitted to?
A Well, I could read but -- I mean, this is not
uncommon. In other words, where an individual had a
particular deficiency, that rather than to admit them
directly to the doctoral program they would admit them to a
masters program until they had satisfied the deficiency but
then move directly into --
Q Certainly, but I'm not asking about that. All
I'm asking is that you were not aware that she has only been
admitted into the masters program? That's a yes or no?
A I was not.
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Q Okay.
A I was not.
Q Thank you. It's a lot easier if you just give me
the answer to my question.
A Well, you know, it really is a difficult question
to answer yes or no because it's somewhat misleading to make
it sound like she applied for the masters program when, in
fact, she applied for the doctoral program.
Q Well, okay. In any event, I don't need to -- if
you're not aware of this I won't --
A Okay.
Q -- get into it but I'm going to ask you a
hypothetical question.
A Say it again.
Q I'm going to ask you a hypothetical question now.
A Okay.
Q Assuming that she was only allowed into the
masters program -- I want you to look at page 30 --
A Yes.
Q -- of Petitioner's Exhibit 5, the linguistics
handbook from the University of California?
A Uhm-hmm.
Q Right at the top it has admissions requirements,
and I know you haven't seen this before.
A Yes.
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Q But it says Masters Degree program, admission
requirements are not rigid, do you see that?
A Yes, I see that. Yes, you read it accurately.
Q And then I want you to follow with me backwards a
bit to page 25, under masters program. Do you see that?
A Yes.
Q Okay. And do you see where it says, most M.A.
students -- what's M.A. mean?
A Master of Arts.
Q -- elect a program of study based on 30 semester
hours of courses, okay, but a thesis plan requiring 24 hours
of courses is available, I assume if you're writing a
thesis. What's 30 semester hours?
A 30 semester hours would be essentially comprised
of courses that would be three credit courses. You would
need 10 of them to get 30 semester hours but you need to
accumulate that many semester hours to satisfy the
requirements of --
Q How many hours is that a week? Is that 30 hours
a week of course work?
A Generally speaking, for each one hour of credit
there is a presumption that that takes three hours of time
outside the classroom.
Q Okay.
A So a three credit course would be essentially
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12 hours a week, three hours in the classroom and 9 hours
outside the classroom.
Q Okay. On page 27 --
A Yes.
Q -- we have course work for PhD for doctoral
program?
A Okay.
Q Now, assuming that Miss Phillipson was admitted into
the PhD program?
A Yes.
Q Do you see where it says the total amount of
course work required for PhD is normally 36 hours?
A Yes. 12 --
Q That's 12 three hour courses?
A Yes.
Q Okay. So that would be -- how much -- so 12
three hour courses, so how much would she be working per
week at a PhD level in this program?
A It depends on what they ask her to do. An
individual who has an assistantship typically takes three
credit courses during the summer semester and works 20 hours
per week as an assistant.
Q Now, you're a professor so you have had your own
PhD students I assume?
A Yes, I have, many of them.
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Q Is that a pretty rigorous endeavor to get a PhD
in a field?
A I think it is, yes.
Q A lot of work?
A Sure.
Q Full time?
A Full time. It depends on how you approach it.
There -- in most doctoral programs you can do some of the
work part time but then there becomes a point where you have
to have either one semester or one academic year of what we
call residency --
Q Yeah.
A -- where you have to be there full time. Full
time is considered nine semester hours.
Q If I wanted to -- if a person wanted to complete
a PhD in three years or four years --
A Uhm-hmm.
Q -- would that be a pretty fast pace in a PhD?
A It would be fairly typical I would say.
Q And that person, would they -- would you estimate
that they would be working, you know, towards their PhD a
great deal of the day?
A It's hard to say.
Q Okay.
A Hard to say. Now, once the course requirements
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are completed, maybe that's only 36 hours, then the work
really becomes upon the dissertation and that is often done
within the context of a research assistantship, it can be
done at a more -- at a pace that is more convenient for the
student.
Q Well, it's been my experience with my friends who
are PhD students --
MS. WALSH: I'm going to object,
your Honor, to Mr. Stern testifying as to his
experience with his friends. He can ask a
question but --
THE COURT: Yeah.
MS. WALSH: I would suggest that that --
THE COURT: Sustained. Keep it objective
to what we're doing here.
Q It's true that PhD students writing a
dissertation, this is one of the most -- for most PhD
students or candidates that the dissertation is one of the
most stressful times in their lives?
MS. WALSH: I'm going to object,
your Honor.
Q Correct?
THE COURT: Overruled. If he can answer,
if he knows the answer.
A I would -- generally speaking I would say it is.
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Q It's a lot of work?
A It's what separates those who get it from those
who don't.
Q Okay. In this program Miss Phillipson would have to
write a dissertation thesis in English, correct?
A In English I suspect, yes, but I don't know that
because I haven't seen the brochure but I would suspect
that's true.
Q Okay. And a dissertation is a publishable work,
correct?
A Not necessarily. The only guarantee that it will
be published is in the University of Michigan Microfilm
Series.
Q But it has to be of quality that it could be
published, publishable quality?
A Whatever that means. If you're talking about
commercially publishable, I would disagree.
Q Okay. One of the things that you talked about
was her economic situation?
A Yes.
Q Okay. And I'd like to ask you some questions
about that?
A Sure.
Q You had said that she had limited economic
resources at this point?
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A I'm not sure if I made that statement but that's
my impression, yes.
Q Okay. Did you review her income tax return?
A I did not.
Q Okay. How -- what did you base your opinion on
her economic situation on?
A Well, she told me about what she had been earning
from past employment as a piano teacher where she earned
approximately $3,000 a year, that she had had some part-time
work either as an instructor of Japanese, for example, at SU
and Lemoyne and that she had from time to time gotten some
what I would call consulting work as an interpretor for,
like, law firms for example, but that I got the impression
that she was having difficulty finding such work and that it
didn't pay particularly well.
Q Okay.
A And that she was not -- she talked also about her
expectations of support from Mr. Murtari that have been
disappointing.
Q So the answer to my question is that the
things -- you haven't reviewed any documents, it's all from
what Miss Phillipson has told you?
A I would agree.
Q Did she tell you about support that she gets from
any other sources?
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A Not specifically, no. That really wasn't an area
of inquiry of mine, quite frankly.
Q Okay. I'd like to take you back -- my client has
shown me the part I was asking --
A Sure.
Q -- one of the requirements of the page 28 of the
linguistic pamphlet under preliminary examination.
A Uhm-hmm.
Q It says, "At the beginning of their second year
in the doctoral program students must submit to the faculty
a research paper based on analysis of language data in a
form suitable for its submission for publication."
A Uhm-hmm.
Q Okay.
A Publication would be in this context within a
professional journal, okay, not for publication for
commercial purposes.
Q Okay. And you would need to have a command of
the language that you're writing in to have it be suitable
for submission for publication?
A Yeah. Frequently they're done in collaboration
with one's major professor because that's how major
professors get publications, is to assist students with such
efforts.
Q So that person would then assumably help her
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along with her --
A They would provide editorial assistance, yes.
The student typically would provide drafts and they would
get edited and they would go through several obliterations.
Q I'd like to ask you, now, you testified you're
being paid to be here?
A Yes.
Q How much are you being paid?
A My usual hourly fee is $165.
Q And how many hours have you worked on this
particular case?
A I don't know exactly. I would suspect it's 15 to
17 hours.
Q Okay. Do you -- so if you can just give me a --
I'm not that good at math. 15 to 17 hours at one --
A Probably about $2500 total.
Q About $2500?
A I think close to that.
Q And that would be the totality of your fees so
far?
A Actually I haven't submitted an invoice and so I
would have to go back and add up the exact number of hours
but it would be in that ballpark.
Q Right around 2500?
A I would guess, yes.
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Q Now, if you're a teaching assistant?
A If I was a teaching assistant?
Q Assuming Miss Phillipson were a teaching assistant at
the University of San Diego, does that's entail putting in
additional hours?
A Additional hours?
Q Other than just studying for her own course work?
A Oh sure, yes. In other words, if a teaching
assistant is actually doing lecturing then they would need
to do preparation for that lecturing. However, sometimes
teaching assistants simply assist an instructor and handle a
discussion group or they assist the instructor with updating
a core syllabus, that sort of thing so they may not --
Q It's generally considered a part-time job?
A Yes, yes.
Q In addition to your full time job of being a
student?
A That's correct. The typical arrangement is an
assistantship is 20 hours a week and then the individual
takes six to nine credits of academic courses.
Q Okay. You had given two opinions. One was
Miss Phillipson's ability to work in this area and the other one
was my client's ability to work in this area.
A Yes.
Q I want to go back to Miss Phillipson's ability to get
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a job here in Syracuse?
A In Syracuse, okay.
Q You're -- or the surrounding area?
A Yes.
Q You're certainly not saying that she couldn't
find work here in Syracuse?
A No, I'm not.
Q Okay. She has a degree in photojournalism?
A She does.
Q She could be a photographer?
A Possibly so.
Q Okay. And she could work for perhaps a newspaper
as a photographer, even with her language barrier?
A I did investigate the opportunities for
photographers within the contemporary labor markets and
there are no vacancies presently.
Q She could work for a company that requires a full
time photographer for doing product work and such, correct?
A Possibly so.
Q Did you review any opportunities in that way?
A No, I did not.
Q Okay. Are you aware of any of the industry here
locally that requires full time photographers for taking
photographs of product and making catalogs and that sort of
thing?
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A Generally, yes.
Q Okay. But in this particular case you didn't
explore that option as that was not something that she
indicated an interest in?
A I did -- no, that's not necessarily true although
I would say that the interest that she had in that field is
diminished by her new found interest in linguistics and
language acquisition.
Q Yeah, her new found interest. Her first degree
was in photojournalism?
A That's correct.
Q And then she got a Masters in music?
A Correct.
Q And now she's working on another Masters in
linguistics?
A That's correct.
Q And then she's going to go to California and get
another Masters in another area of linguistics leading to a
PhD program?
A That's my understanding.
Q So that would be three Masters degrees and then
perhaps a PhD?
A Well, I'm not so sure that she would actually
complete a Masters Degree at California. I would agree with
you that it said that she would be admitted into the Masters
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program but typically once any deficiency is satisfied --
Q That's right, you told me that you didn't know
anything about that. I'm sorry, I'm asking you a question
that you don't --
A I am just telling you what is typical.
Q Okay. Well, let me ask you about Mr. Murtari,
have you ever met Mr. Murtari?
A No, I haven't had the pleasure.
Q Okay. Don't be so sure.
A He's your client.
Q That's right. I just didn't want you to jump to
any conclusions. Now, so you have never interviewed
Mr. Murtari?
A No, I have not.
Q Okay. You reach your conclusion entirely based
upon a copy of the resume that you were given by the
petitioner?
A In part. The other part was essentially the
opportunities within the labor market for individuals with
those kinds of qualifications.
Q Based upon his resume?
A Yes, correct.
Q Okay. Now, Mr. Murtari, did you know that he's
opened up his own business in the computer field?
A I had learned that he held himself out as a
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consultant, yes. I didn't know that it was a business
enterprise as such but as a consultant.
Q And that can be a quite profitable thing right
now?
A What's that?
Q Computer consulting. That is quite lucrative
right now?
A It can be, yes. I know what I pay for a local
area network consultant. It's about $90 an hour.
Q Okay. Also the computer business is booming
right now?
A Yes, it is.
Q Somebody with tremendous computer experience and
knowledge could have -- could open their own business?
A I don't know that. That presumes that the
individual has the competency to run a business. I mean,
there are some people who are very skillful at being a
systems analyst or a programmer, may not have the
capacity --
Q That would be a horrible business person?
A That's correct.
Q But at the very least they certainly could open a
business. How successful it is is dependent on their
business acumen?
A That's correct.
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Q And you have no reason to think that my client
has competent business acumen?
A I have no idea.
Q He could have a very successful business as a
consultant and a computer business?
A I don't know that.
Q You don't know either way, who knows?
A No. What I'm saying is I don't have enough
information. If you asked me about the basis of his work
experience, then I would say that it is highly likely that
he could find success in that area but there are a lot of
other factors that enter into that phenomenon.
Q He doesn't need to have a -- he doesn't have to
have a job with someone else to be using his skills in an
appropriate manner?
A Not necessarily, no.
Q You're a consultant yourself?
A Sure.
Q Okay. Is it true that sometimes a business can
take a few years to get started?
A Surely.
Q To be profitable?
A Absolutely.
Q As a vocational rehabilitation counselor, if
someone said that they wanted to start a business --
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A Uhm-hmm.
Q -- you wouldn't tell them that it needed to be
profitable on day one?
A Of course not.
Q Okay. It takes some time?
A Ordinarily it does, sure.
Q Okay. Additionally sometimes it isn't just the
bottom line with money, sometimes people have other
pressures that dictate what type of a job they get, correct?
A I'm not sure I understand the question.
MS. WALSH: I'm going to object as to the
scope of this and the relevancy, your Honor.
MR. STERN: He testified as to my client's
ability to work here in the Syracuse area and
what he could get in Denver.
THE COURT: Go ahead. Overruled.
A I just didn't understand your question. I'm
sorry.
Q Let me ask it in a more clear way.
A Sure.
Q Sometimes I do that. People's choices and
abilities for performing at certain jobs are not entirely
dictated by just their experience?
A Of course not.
Q For example, someone might have children and they
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might decide although I'm a physician I want to be a
part-time physician so I can stay at home with my kids when
they get home from school, correct?
A They might make that decision.
Q And that's a viable career choice or job choice,
right, with their skills?
A Well, I'm saying that that is -- within our
society that is a choice that people are free to make
recognizing that there are consequences to that decision.
Q Sure. It's fair to say that people make career
choices sometimes based upon family pressures?
A Yes.
MR. STERN: Well, I hope we have
contributed to your hourly rate, your hourly fee.
Thank you very much, Professor.
THE WITNESS: My pleasure.
THE COURT: Mr. Lupia?
MR. LUPIA: Thank you, your Honor.
EXAMINATION
BY MR. LUPIA:
Q Doctor, we spoke very briefly in the hallway?
A Yes.
Q I'm going to ask you questions from the
perspective of the child.
A Yes.
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Q Okay. Currently are you aware that the child is
residing with his mother?
A Yes, I am.
Q And if you were to learn given the hypothetical
that the mother's 1997 income was $7600, would you have an
opinion as to whether or not that is a viable amount of
income to sustain a family of a mother and a child?
A Yes, I would.
Q And what is that opinion?
A It's my opinion that it is insufficient. It's
far less than minimum wage even.
Q And given the scenario -- the hypothetical
scenario that a father is contributing approximately $60 a
week on the average or a total of approximately $3,000 a
year, would the $3,000 hypothetically contributed plus the
$7600 income, would you have an opinion as to whether or not
that would be sufficient for a family to function, a family
of a mother and a child?
A Yes, I do.
Q And what is that opinion?
A It's my opinion that it is insufficient. It's
less than the poverty line for a family of two.
Q Now, Adrianne has talked to you about her prior
employments in the field of piano and music?
A Yes.
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Q And it's your opinion that without the specific
degree relative to musical instruction that she's really
limited to simply being a piano teacher on a private sector,
is that your opinion?
A That is my opinion, yes.
Q Do you have an opinion as to the amount of income
that would normally be generated by a piano teacher in the
Syracuse community?
A No, I don't.
Q You heard Adrianne indicate approximately $3,000 is
what she's able to raise on the side?
A Uhm-hmm.
Q Would you feel that that would be -- in the
future that she would be able to maintain a consistent
figure or whether she should be able to substantially
increase that?
A Substantially is the key word. I think that it
might increase to some extent but I wouldn't expect that it
would increase substantially.
MS. WALSH: Could I just clarify? You're
talking as a piano teacher, is that the question?
MR. LUPIA: Yes.
A As a private piano instructor.
Q Yes.
A Right, who gives private lessons.
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Q So in that respect have you formed an opinion as
to whether or not that is a valid venue in which she should
go in direction?
A My opinion is that the expectation of generating
a sufficient income from that activity alone is one from
which she should be dissuaded and pursue other avenues.
Q Did Adrianne discuss with you her attempts to get
into the other avenue with respect to linguistics here in
the Syracuse community?
A Yes, she did.
Q And did she tell you how many applications she
had sent out?
A I don't remember the -- I know that she has sent
out many but I don't know the specific number.
Q Do you have an opinion as to whether or not given
her current educational status she would be able to maintain
employment in the community, in the Syracuse community?
A Doing what?
Q Linguistics.
A It's my opinion that she would not be.
Q From what you have indicated before, do I
understand that the PhD degree makes that much of a
difference relative to her employment ability in the
linguistics field?
A Yes, it makes a tremendous difference.
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Q And you have indicated that you believe that it
would be 100 percent employment rate?
A Nearly. I would -- if not immediately, certainly
within six months to a year's time.
Q Now, Doctor, I didn't hear any figures. Have you
done any research relative to the compensation --
A Yes.
Q -- for a PhD in a linguistics field?
A Yes.
Q And what research have you come up with?
A Beginning salaries for the academic year of
approximately $40,000.
Q And in your opinion is that sufficient for a
mother and child to live on?
A Yes, yes, it is.
Q Now, if the father were able to generate adequate
income to support the child, would that make a difference in
opinion as to whether or not the mother would be able to --
I'm sorry, I'll withdraw that.
If the father were able to earn sufficient
earnings to generate more child support, would that make a
possible difference in your opinion as to whether or not the
mother could sustain herself on her current type of income?
A I suppose there is a level at which if the father
were generating resources that there might be an opportunity
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for her to do that but I don't know what that level is. It
would have to be a whole lot more than $60 a week.
Q Given a hypothetical --
A Yes.
Q -- that two years out into the field that
Mr. Murtari is trained in that he is currently generating
income of $18,000 per year --
MR. STERN: I am going to object to that
because I think this is a little bit beyond his
expertise. It seems like you're asking him an
economics question regarding how much income
would be required to support a family. Is that
the point of this?
MR. LUPIA: Yes.
MS. WALSH: Your Honor, those statistics
are Labor Department statistics that the witness
has already testified about.
THE COURT: Everybody has been into this
area now, we might as well finish it. Really,
everybody has been into it. So finish it up.
Q Is $18,000 an appropriate figure for a man with
Mr. Murtari's qualifications?
A I think it's -- I think that it has to be put in
the proper context but clearly he is capable of earning
substantially more than that in the competitive labor
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market.
Q Have you formed an opinion given the current
amount of -- given the hypothetical current amount of
support and given the hypothetical current amount of Adrianne,
whether or not Adrianne needs to modify her field of
employment in order to maintain sufficient income to -- for
her child and her to survive?
A Yes, I do.
Q And what is that opinion?
A It's my opinion that if she is going to continue
to reside in the United States that advanced graduate study
such as we have described here today is appropriate.
Q Are you aware that her child is bilingual?
A Yes, I know that -- I have learned that he is.
Q Would the child benefit at all from Adrianne's
moving to the San Diego, California area and studying
linguistics?
A I must tell you I have some personal opinions
about that but I don't think they're professional opinions.
Q Okay. Mr. Stern made reference to Adrianne's
possible employment in other areas. For instance, entry
level into food service, entry level into retail sales,
entry level into a wide range of other occupations here in
the Syracuse community. Presuming they are tolerant of her
accent, have you formed an opinion as to what type of income
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level she would be earning entering these other fields which
do not require high educational skills?
A Right, I do.
Q And what is your opinion?
A Entry level salaries in the neighborhood of 12,
$13,000 a year. For it to be substantially more than that
she would have to work a tremendous amount of hours. The
hours that retail people work, especially entry level
people, are usually the evenings and the weekends.
Q Then would I understand that Adrianne's best out
for making the money that is necessary for supporting her
family would be to get specialized education?
A That is my opinion.
MR. LUPIA: No further questions,
your Honor.
THE COURT: Redirect?
MS. WALSH: Just a few, your Honor.
REDIRECT EXAMINATION
BY MS. WALSH:
Q Dr. Reagles, is 12, $13,000 sufficient income for
a mother and a child?
A Not in my opinion.
Q What is the poverty line for two?
A With two children it's --
Q With one child.
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A With one child, a family of two, is about
$11,800.
Q On cross Mr. Stern asked you about
photojournalism, you said that there were no current
vacancies, is that correct?
A Correct.
Q Is that in the United States?
A No, that's in the Central New York area.
Q Do you know that Syracuse University recently
laid off one of its three full time photographers?
A I was unaware of that.
Q You were shown a letter from --
MR. STERN: I would object to that if she's
going to enter that into evidence.
MS. WALSH: Pardon?
MR. STERN: I would object to your
introducing into evidence an assumption of fact
other than as a hypothetical.
MS. WALSH: I'll withdraw the question.
THE COURT: Okay, go ahead.
Q You were shown a letter from the University of
California, correct?
A Yes.
MS. WALSH: Mr. Stern --
MR. STERN: I think -- I left it up there.
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MS. WALSH: No, I think it was part of
the --
THE COURT: Here, you can do it right from
here.
MR. STERN: Are you talking about Exhibit B
of your petition?
MS. WALSH: Correct.
Q Showing you this letter, would you review this?
A Yes.
Q After your review could you testify as to which
program Miss Phillipson has applied to at the University of
California?
A She's applied to the PhD program.
Q And that letter states that there are some
deficiencies, correct?
A That is correct.
Q And you said that that was typical in a PhD
program?
A That is correct.
Q And explain to us why that would be typical?
A Because the faculty is very cautious about
admitting someone to a doctoral program given the due
process requirements of dismissing someone from such a
program and so given the uncertainty that the person would
complete the requirements for the doctoral program they're
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more prone to admit them into a Masters Degree program until
those deficiencies have been corrected.
Q Is it in your experience typical that a M.A.
program in Syracuse might not have all of the requirements
for the -- same requirements as an M.A. program in California?
A There are -- within the same field you mean?
Q Correct.
A There may be some differences. Those differences
tend to be minimized more contemporaneously because of the
requirements of accreditation. They try to make it so that
people can move laterally if they want to. But there
certainly could be some differences, yes.
Q And is it fair to say that there may be a
particular -- a course that was not offered at Syracuse that
is a requirement in California that she has to complete before
she's allowed to go on?
A There's a possibility.
Q Okay. So she has not applied to the master's
program at California?
A No, she has not.
Q She's applied to the doctoral program and she's
been admitted to this program, correct?
A That's my understanding.
Q With the understanding that she would fulfill
certain prerequisites?
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A That's correct.
MR. STERN: Objection. He already
testified that he has no knowledge about what
programs she's in, if any. He hadn't reviewed
the letter. He's now being asked questions about
a copy of the letter that he has never reviewed
before and being asked to give a professional
opinion, and I object to it.
MS. WALSH: And I had given him the
opportunity to read the letter, your Honor.
THE COURT: Based on what he read in the
letter we'll accept his interpretation of it.
MS. WALSH: Thank you.
Q Okay. Dr. Reagles, were you given a retainer in
this matter?
A Yes, I was.
Q And what was the amount of the retainer?
A $1,000.
Q And who paid that retainer?
A It has your signature on the check.
Q Okay. It's my check, right?
A Yes.
Q Thank you. Is it true that if you're a graduate
assistant in a program, you are allowed to take fewer course
work during a particular semester while you do your graduate
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assistantship?
A Yes.
Q So it's actually a decrease in the course work?
A That is correct.
Q And that tends to expand in the amount of time
that it would take to finish a program?
A That is correct.
Q But typically you're paid as an assistant,
correct?
A Yes, you are.
Q And you have certain university benefits, is that
correct?
A That's correct.
Q Like health insurance?
A Yes.
Q And Mr. Stern asked you that -- the question that
sometimes career choices are based on family pressures,
correct?
A Yes.
Q Isn't it fair to say that one of those pressures
is the ability to support your children?
A Sure.
Q And that the amount of income you need to
generate is based on the needs of -- the support needs for
the children, correct?
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A Of course.
MS. WALSH: I have no further questions.
Thank you.
THE WITNESS: Certainly.
THE COURT: Mr. Stern, recross?
RECROSS-EXAMINATION
BY MR. STERN:
Q I just have one question which is, if, in fact,
you reduce the amount of course work you're doing as a PhD
student, how much does that extend the number of years it
takes to complete a PhD?
A Usually by one year.
Q About a year?
A Yes.
Q So if you could complete it in four years, you
would complete it in five?
A Well, it's typically two and a half to three
versus three to three and a half.
Q To complete a PhD you're saying after you
completed your Master's?
A Right.
Q Okay. Thank you.
A It really depends upon what one chooses for its
doctoral dissertation. The most amount of time -- the
inordinate amount of time is the time spent on the
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - RECROSS 163
dissertation.
MS. WALSH: So what you were just talking
about is the course work, not the dissertation?
THE WITNESS: That's correct.
MS. WALSH: Thank you.
THE COURT: So we're all set with this
witness, Mr. Lupia?
MR. LUPIA: All set.
THE COURT: The witness is excused. Thank
you, Doctor.
THE WITNESS: My pleasure.
THE COURT: I appreciate your patience.
THE WITNESS: Certainly.
(Whereupon, the witness was excused.)
THE COURT: We'll resume this hearing at
10 o'clock tomorrow morning.
* * * * * *
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 164
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated:
__________________________
Deborah A. McCarthy
Family Court Reporter
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 2
THE COURT: The matter of Murtari/Phillipson --
Phillipson vs Murtari on Docket V-320-95. Mr. Lupia,
law guardian, is present; Miss Walsh appearing
with the petitioner, Adrianne Phillipson, and Mr. Stern
appears with the respondent, John Murtari. And
we are going to continue now and I believe that
we were on direct examination of your client,
Miss Walsh.
MS. WALSH: Yes, your Honor.
THE COURT: And she's still under oath and
she can take the stand.
MR. STERN: Judge, there's just one
administrative matter that I need to discuss with
you.
THE COURT: Yes, Mr. Stern.
MR. STERN: I have a trial in Federal Court
starting on Monday.
THE COURT: That's too bad. We're
continuing on with that.
MR. STERN: I understand. I just spoke
with my secretary that said that the Judge's
clerk had called your office and they had told
her that you were going to be letting me out at
3 --
THE COURT: That what?
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 3
MR. STERN: My secretary just told me -- I
told her that she's going to have to tell the
Federal Judge that I'm in trial and and that
unless he wants to call you and work something
out that I can't leave. I just got a call back
from her and she said that she spoke to your
office and your office told her that I would be
released at 3 o'clock so that I could be over at
Federal Court at 3:30. That's what I was just
told by my secretary.
THE COURT: That my office said that?
MR. STERN: My secretary said that
Judge Bersani said, that Judge Kahn spoke to your
office or to you. That's what I just got from
her.
THE COURT: That's the start of trial
there?
MR. STERN: The trial starts Monday. He's
come in from Albany to be here in Syracuse for a
pretrial and the Attorney General --
THE COURT: Is that to start a trial?
MR. STERN: On Monday, right, and I have a
pretrial at 3:30 with him and I called --
THE COURT: Well, you know, right now I'm
going to check right now because I don't -- no
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 4
one asked me --
MR. STERN: That's why I'm bringing it up
right now.
THE COURT: -- for that permission and I
did not give it and I don't know. I know this,
that every state -- every Court in the state has
to honor a trial that's in progress. Now, I
don't know, maybe the Federal Government gets
their own rules or something, I don't know.
MR. STERN: Well, again, Judge, I'm just --
THE COURT: Well, let me check on it.
MR. STERN: Okay.
(Whereupon, there was a short pause in the
proceedings.)
THE COURT: Someone called here, no one
told them that you were going to be released from
this trial and they're talking about today.
MR. STERN: Right, today at 3 o'clock.
THE COURT: 3 o'clock today?
MR. STERN: Yes. And I explained to --
THE COURT: To start a trial?
MR. STERN: No, Judge, a pretrial.
THE COURT: Well, today is pretrial. But
it's in order to start a trial when?
MR. STERN: Monday.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 5
THE COURT: Monday. So in other words, he
wants me to stop my trial. I'm not going to do
it unless I have to. Unless there's some law
that I have to.
MR. STERN: I assumed -- there's an
Attorney General traveling from Albany today to
be at that pretrial and that's why I wanted to
make sure that he didn't come if you're not going
to release me.
THE COURT: Call him back right now. And
I'll talk to Judge Kahn or whoever I have to talk
to but no one gave permission from here. My
secretary just said that she would discuss it
with me. She hasn't yet.
MR. STERN: All right. I'm glad I brought
it up. Okay.
THE COURT: In fact, I wanted to make
sure --
MR. STERN: What I was told by the clerk is
that Federal Judges don't let any Courts get in
the way of their schedules and I said, well,
that's interesting because I don't think that my
Judge is going to feel the same way.
(Whereupon, there was a short pause in the
proceedings.)
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 6
THE COURT: Okay. That call came from
Albany, someone -- right, someone --
MR. STERN: I believe the call should have
come from here in Syracuse.
THE COURT: Well, I think it's Albany. But
in any event, what he said is that -- I mean,
what my secretary has said is that this is for a
pretrial, right, and that you would only be there
about a half an hour. Now, my problem is not so
much that but I have to finish this trial, I have
to keep going and now I -- we only got --
tomorrow is a holiday.
MR. STERN: Okay.
THE COURT: Thursday we got all day. And
Friday no judges are here, we're all going to be
at a meeting in Utica. So this --
MR. STERN: Please explain it to
Judge Kahn.
THE COURT: This is the problem, if we
don't finish it I have to finish it Monday.
MR. STERN: Please explain it to
Judge Kahn. I'm just a humble servant of the
Court and I am in between two judges. I'm ready
to be here all day and any other time that you
tell me to be here.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 7
THE COURT: Yeah.
MR. STERN: And then I've got Judge Kahn
telling me that he wants me someplace.
THE COURT: Okay. But do you think
realistically you should finish this by the end
of Thursday or not?
MS. WALSH: I would hope, your Honor. I
hope to be finished with my client today and then
it's Mr. Stern's --
THE COURT: What do you think, have you got
a lot of witnesses?
MR. STERN: Well, I wanted to bring in some
of --
THE COURT: I don't want to shorten you.
In other words, you've got to have your right
to --
MR. STERN: I think we should be done by
Thursday but I certainly can't make a promise on
it.
THE COURT: Yeah, okay. All right. Well,
let's get going anyway.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 8
H I R O M I S U M I Y A, having
previously been called as a witness, being
previously duly sworn, continued testifying as
follows:
CONTINUED DIRECT EXAMINATION
BY MS. WALSH:
Q Miss Phillipson, we were going to pick up on the
transition problem you were talking about but first I'd like
to clarify a few things following Dr. Reagles testimony.
A Yes.
Q First of all, in the pamphlet there is a language
requirement, correct?
A Yes.
Q And it states that you're supposed to be fluent
in I think French, German?
A French and German.
Q French and German. And are you fluent in either
French or German?
A No.
Q And did you discuss this problem with anyone in
the University of California program?
A Yes, I have discussed with my advisor.
Q And when did you discuss it with your advisor?
A During the visit in this summer.
Q And what -- what did you learn about that
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 9
requirement?
(Whereupon, there was a short pause in the
proceedings.)
THE COURT: Okay. Just to straighten that
matter out before we continue, is he just wants
you there for today just for about 45 minutes or
whatever.
MR. STERN: Okay.
THE COURT: But that will kill the rest of
the afternoon. But if we're still in trial
that's not going to be a problem of continuing
here.
MR. STERN: Okay.
THE COURT: You have to just let them know.
I mean, you know, so it's just for the purposes
of this pretrial conference or whatever it is.
MR. STERN: So 3 o'clock I'll leave and
then we'll adjourn until Thursday?
THE COURT: Yeah.
MR. STERN: Okay.
MS. WALSH: We will continue this
afternoon, your Honor?
THE COURT: Well, I've got a few cases
there too. Maybe we just better do the morning
and then come back Thursday.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 10
MR. STERN: Okay. Instead of coming in for
a half an hour.
MS. WALSH: Then we won't be finished on
Thursday. I mean, that's just clear. Let's just
make it clear so that Mr. Stern can tell --
THE COURT: Yeah.
MS. WALSH: -- can tell the Judge today.
THE COURT: Make him aware that you may
very well be tied up here at least Monday. Maybe
longer.
MS. WALSH: If we can't go this afternoon.
THE COURT: Well, I've got a bunch of
matters here that have to be processed, all
right, that takes maybe a half an hour. He's got
to be there, you know, leave here at 3. I just
don't think that we're going to get much in.
MS. WALSH: I understand, your Honor. I
just want to make it clear that it seems then
that we're not going to be finished Thursday.
THE COURT: Okay. Let's just figure we'll
go this morning and do what we can and then all
day Thursday and I'll make sure I have got a
clean calendar. No matter what, I'll get rid of
of everything just so that we stay on this all
the way through and then we'll see where we are
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 11
and you may have to do Monday.
MR. STERN: I have no problem with that,
Judge. I am prepared to be in trial, whatever
trial it is, from now until the end of time.
THE COURT: Yeah.
MR. STERN: So --
THE COURT: Okay.
BY MS. WALSH:
Q Miss Phillipson, what did you learn about the
language requirement at the University of California
linguistics program?
A I learned that French and German were required
because in the past many of the linguistic literature was
written in French and German but nowadays an increasing
number of literature is written in English. Also, my
special edition relates to Japanese so I could substitute
Japanese for French or German.
Q So you're allowed to enter the PhD program using
Japanese instead of French or German?
A Yes, correct.
Q And it is a PhD program you've been admitted to,
correct?
A Yes.
Q You're not planning on getting another Masters at
California?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 12
A No.
Q Going back to the issue of the transitions, I
believe you were talking about an incident or several
instances when you were going to the marital residence to
pick up Domenic at the end of visitation, correct?
A Yes.
Q And can you give us a time frame as to when this
occurred?
A I believe it was February through May before the
summer vacation took place.
Q So that would be February through May of 1997?
A Yes.
Q And at that time Domenic was potty-trained at
your home?
A Correct.
Q And tell us what happened when you went to pick
him up at the marital residence? Who was there?
A His father was there, sometimes I found neighbors
are playing with Domenic and the first couple of times after
Domenic was potty-trained I found him in the diaper when I
went to pick him up.
Q And what did you do when you found him in a
diaper?
A I asked his father that Domenic's allowed to use
the bathroom and change to regular underwear before we head
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 13
back to Syracuse, that takes us about a half an hour.
Q And what did Mr. Murtari say?
A First two times he let us use the bathroom.
However, after that I noticed when I go to pick him up the
door was locked. I could not get in and --
Q Did you ask Mr. Murtari to let you in?
A Yes, I did.
Q And did he refuse?
A He did.
Q And at this time were you a co-owner, a joint
owner of that property?
A That's correct.
Q And what happened when he refused to let you into
the house?
A He insisted that he's going to go -- I mean,
Domenic is going to go back to my house with a diaper on. I
told him that is not fair for Domenic and I wanted to have
him go to the bathroom before a half an hour trip, and we
ended up in front of the locked door back and forth, you
know, please let me use and, no, you have to go home. And
that time one of the neighbors was there with his son and
while this was going on he was away from the garage where --
Q The neighbor?
A The neighbor. And I didn't see him but when I
saw him coming towards the garage somehow his father changed
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 14
his mind and opened the door for us and I could have Domenic
use the bathroom and change to his regular shorts.
Q And did there come a time when you stopped
picking up Domenic at the marital residence?
A Yes.
Q And on whose request was that?
A I'm sorry, I don't remember.
Q Okay. And where did you stop -- where was the
transition changed to, from the marital residence to where?
A His father will bring Domenic back to my
apartment.
Q And during the period of time from May of '97 did
Domenic return to your home in diapers?
A Yes.
Q On how many occasions?
A Many times.
Q At the end of every visitation?
A Almost.
Q And did Domenic ever need a diaper at your house
during this period of time?
A No, he did not.
Q And I think you stated that Mr. Murtari had --
you had tried to discuss this with Mr. Murtari, correct?
A Yes.
Q And I think you said that you recommended that he
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 15
speak to the pediatrician, correct?
A Yes.
Q And you said that he said you should put it in a
letter?
A Yes.
Q Okay. Do you remember when that was?
A My first letter was written in March of '97 so I
believe that was -- his request was prior to that.
Q And did he request that you write any other
letters?
A No, he continued every time I tried to talk to
him in that matter he was very irritated and he told me, I
just tell you when changes happen, which I never heard from
him.
Q He never did tell you when a change had happened?
A Right.
Q And what, if anything, did Domenic tell you about
this difference between your house and his father's house?
A Besides diaper?
Q Yes. About the diaper, I'm sorry.
A About the diaper. He doesn't go to the bathroom.
Q He said he wouldn't go to the bathroom?
A Because he was ashamed.
Q And were there any other incidences in which the
issue of the potty-training became a problem for Domenic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 16
A I can't think of it.
Q Now, did there come a time when the transition
changed from Mr. Murtari coming to your house?
A Yes.
Q And when did that occur?
A I believe that was starting from fall of '97.
Q At the end of visitation, right?
A Yes.
Q You testified the other day that he was coming to
your house and prolonging the transition, right?
A Right.
Q And did there come a time when that changed, that
he asked that you --
A Oh, to change.
Q To change where?
A Right.
Q He was going to bring Domenic?
A Yes, I'm sorry, I understand.
Q Let me ask you a question. When did that change
occur?
A I think -- it's been about a month.
Q And who requested the change?
A Mr. Murtari.
Q And how did he request the change?
A He sent me a fax stating that he wanted me to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 17
drop -- meet him at the same place, same place, the Thruway
exit at the end of the visitation.
Q So he sent you a fax requesting this change?
A Yes.
Q And did you acknowledge the letter?
A Yes, I did.
Q And what correspondence, if any, did you have
with Mr. Murtari about the change?
A I also responded with a fax stating that I will
comply his request.
Q And in that fax did you say anything else to
Mr. Murtari?
A I am concerned with his statement making Domenic
feeling guilty. I am concerned of prolonging the transition
time which is very painful to Domenic.
Q And did you ask him to stop that long transition?
A Yes.
Q And did you comply and take Domenic to the
Thruway exit at the end of visitation?
A Yes, I did.
Q So is it the arrangement between you and
Mr. Murtari at this point that the transitions occur at the
Thruway exit?
A Yes.
Q All the transitions are occurring at the Thruway
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 18
exit?
A Yes.
Q And that's at his request?
A Yes.
Q And tell us what happens at the transitions at
the Thruway exit at this time in the last month?
A It's been much better, it's shorter transition.
Domenic is still carried by his father and put into the car
seat but no crying anymore. It's very -- less painful.
Q And it's shorter, is that correct?
A Much shorter, yes.
Q So Mr. Murtari has finally complied with your
request to make the transition shorter?
MR. STERN: Objection, leading.
A Yes.
THE COURT: Overruled.
Q Do you know why it occurs at the Thruway? Did
Mr. Murtari tell you?
MR. STERN: Objection, leading.
A I don't know the reason because he did not make
it clear why he changed to the Thruway exit at the end of
the visitation.
Q Mrs. Murtari, are there other behaviors that you
are concerned about regarding Mr. Murtari's interaction with
Domenic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 19
MR. STERN: Objection, foundation.
A Yes.
THE COURT: Overruled. Answer yes or no,
then we'll get into a foundation if it's yes. If
it's no, then we don't have anything.
A Yes.
Q And what are those concerns?
MR. STERN: Objection, foundation.
THE COURT: I have to first know what it is
and then we're going to find out where, when, who
was there, so on.
MR. STERN: But don't we --
THE COURT: Overruled.
MR. STERN: -- limit it to time?
THE COURT: Answer the question.
A I continued to hear from Domenic that he has
alcoholic beverages at his father's. He sleeps with his
father in the same bed. He continues telling me that his
father tells Domenic that his father feels lonely when
Domenic is not there and want him to stay longer. Once he
told me that before we go to Japan, it's too far for me to
go to Japan; mommy, you should go by yourself. And he was
just too young for -- to make such a statement so I asked
him who said that and he replied by saying daddy.
Q Now, the issue of the alcoholic beverages was an
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 20
issue at the -- during the divorce, correct?
A Yes.
Q And that was brought up during testimony,
correct?
A Yes.
Q And I believe the law guardian had said that it
was inappropriate to be serving the child --
MR. STERN: Objection.
A Yes.
THE COURT: Wait a minute. You know, I
can't follow because you're interrupting the -- I
can't even hear the questions so I don't know
what you're objecting to. You know, you don't
have to worry about a jury. Let her finish.
MR. STERN: All right.
THE COURT: You know, do you want to repeat
the question and then I can hear the objection.
Q Miss Phillipson, there was a concern about Domenic
being served alcoholic beverages at his father's, correct?
A Yes.
Q And that concern was expressed in the court,
correct?
A Yes.
MR. STERN: Objection, leading.
Q It was expressed --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 21
THE COURT: Overruled. Go ahead.
Q By who else expressed that concern?
A Law guardian.
Q And were you surprised to hear that Domenic
stated that he was still getting alcoholic beverages at his
father's house?
A Yes, very much.
MR. STERN: Objection, leading.
THE COURT: Overruled.
Q And does he get any alcoholic beverages at your
house?
A Never.
Q And at your house does Domenic have his own bed?
A Yes.
Q And does he sleep in his own bed?
A Yes.
Q And does he sleep in his own bed all night?
A Yes.
Q And what does he tell you, if anything, about
where he sleeps at his father's?
A He told me that daddy will sleep with him until
the morning.
Q What else, if anything, does Domenic tell you
about his interaction with his father regarding things like
carrying him or sleeping in the bed with him?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 22
MR. STERN: Objection, leading.
THE COURT: Overruled.
A My main concern is that he feels guilty from the
statement made by his father.
Q And how do you know he feels guilty?
A Because he cries when he tells me those things.
His body shakes, trembles, usually his cheeks start to
twitch, and he'll have like a half -- try to smile but I see
the tension in his cheeks.
Q And what does Domenic tell you, if anything,
about what his daddy let's him do or not do?
A I don't know how to answer to that because it's
very opposite thing I would hear from him. I have heard
from him that, I'll tell daddy what I can do but he don't
listen to me. On the other hand, on the other hand, like
carrying him, sleeping with him, having wine, daddy does
anything I tell him to do.
Q When you say daddy doesn't listen when I say I
can do things, what do you mean? What kind of things?
A It's very simple things for five-year-old. One
time he was thrilled to be able to put the jacket on by
hisself and he was showing to every visitor or when we go to
somebody's place he will call attention of everybody that he
can put the jacket on and but his father is -- he didn't let
him do that. And when Domenic asks, daddy wants to do it,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 23
and that occurred to me when I was present as well.
Q You saw that?
A Yes.
Q That his father won't let him put his jacket on
himself?
A Yes.
Q And Domenic is how old now?
A Right now?
Q Uhm-hmm.
A Five.
Q And that's still occurring?
A I see it.
MR. STERN: Foundation.
THE COURT: I didn't -- you know, I didn't
hear that. Is he still doing that? What's the
last -- what was the answer?
THE WITNESS: It still happens.
THE COURT: It still happens. Now, was
there another question and an objection or what?
MR. STERN: Well, I've heard a string of
charges about things my clients said and all that
when she's heard it, but I never heard when she
heard this from the child. Who was there?
THE COURT: Absolutely. You have to tell
us when, where, who was there, what you said to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 24
the child, what the child said to you.
Q Miss Phillipson, where do these conversations with
Domenic usually occur?
A At my house after visitation.
Q And who is present?
A Myself and Domenic.
MR. STERN: Objection, foundation. Which
comments are we talking about?
Q Let's talk about the jacket --
MR. STERN: Okay.
Q -- in specific. Can you remember when Domenic
told you that his father wouldn't let him put his jacket on?
A That specific instant I was in person, I was
present when it happened.
Q And do you remember when that was?
A That was approximately the same time diaper
incident was happening, so March, February, March of '97.
Q And you observed that approximately how many
times?
A That was one time.
Q And when did you have a -- did you have a
conversation with Domenic about that?
A Yes, I have.
Q And where did that occur?
A In my house.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 25
Q And when did it occur?
A Around the same time, after the instance.
Q And what did Domenic say to you?
A But daddy doesn't listen.
Q And what did you say to Domenic?
A I understand there is people who don't listen but
you still need to speak up for yourself, you may have to do
it more than once. I know it's very difficult.
Q Are there any other specific things that you have
discussed with Domenic that he can do that he says daddy
doesn't let him do?
A Getting in and out of the car, car to the house,
he can walk. Diaper was one of the issues too.
Q And have you observed him getting in and out of
the car when he's with his father?
A Yes.
Q Have you observed that in the last two months?
A Yes.
Q And what have you observed?
A Domenic will get out the car but as soon as he's
out of the car his father will pick him up and bring him to
my car and carrying him and put him into the car seat.
Q And does that happen on each and every transition
that you have observed?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 26
Q He's never allowed to walk that you observed?
A Yes.
Q And are there any other problems that you have
observed between Domenic and his father? Are there any
other problems that you can testify to?
A I cannot think of right now.
Q And are there any other problems that you have in
communicating or talking with Mr. Murtari?
MR. STERN: Objection, leading.
THE COURT: Overruled.
A Yes.
Q And what are they?
A He would talk whatever he wants to talk but when
I have issue and I wanted to talk such as diaper or
medication, he would not want to talk.
Q Specifically what was the problem regarding
medication?
A Generally speaking Domenic is a very healthy boy
but every once in a while he gets sick. One time I gave --
one visitation he had an ear infection so I gave father
antibiotic with other package but I was told he did not
finish.
Q Do you remember when that was?
A I believe that was last fall.
Q Fall of '97?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 27
A '97.
Q And who did you have this conversation with?
A I talked to Mr. Murtari.
Q And he told you he didn't give Domenic the
medication?
A Right.
Q Did he give you any reason as to why he didn't
give him the medication?
A He was fine and he didn't want to take it.
Q And this was a prescription for antibiotic that
his doctor had given him?
A Yes.
Q And it was for an ear infection?
A Yes.
Q And you had asked Mr. Murtari to continue the
dosage?
A Yes.
Q And as far as you know he refused?
A Right.
MR. STERN: If I just may have a
clarification. This is the child? Who is saying
that Mr. Murtari refused, the child said this or
Mr. Murtari told her? I didn't understand that.
Q Who told you that Mr. Murtari would not give the
child his antibiotic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 28
A Mr. Murtari.
Q Was anyone else present?
A No.
Q Where did this occur?
A During the transition.
Q And this was in fall of '97?
A Yes.
Q Mrs. Murtari, did there come a time when you were
forced to take legal action against Mr. Murtari after the
Judgment and Decree of Divorce?
A After the Judgment. I'm sorry, could you repeat
the question again?
Q Did you have to go back to Court after the
Judgment and Decree of Divorce?
A Yes.
Q To enforce the Judgment?
A Yes.
Q And why specifically did you have to do that?
A Because Mr. Murtari wasn't complying the order to
sell the house.
Q And the Judgment and Decree of Divorce had
ordered the house sold, correct?
A Yes.
Q And how was he not complying?
A After each of us had 30 or 60 days to buy each
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 29
other out, we put the house on the market as the order said
but he was not -- he did not cooperate to put the house on
the market. He was -- I think he was telling the real
agent --
Q The real estate agent?
A -- the real estate agent that unless she can put
notes on the market, say that house is pending in the court.
Q That an appeal was pending?
A That an appeal was pending, okay.
MR. STERN: Judge, I'm going to object as
to relevance as to custody. I don't understand
the relevance of this. It seems to be more of a
fiduciary issue.
THE COURT: I would expect -- I'm assuming
that it has to do with, you know, a support issue
and, you know, what was necessary --
MS. WALSH: Correct, your Honor.
THE COURT: The Decree of Divorce, the
equitable distribution which goes to support the
child because she had the custody. Am I correct?
MS. WALSH: Correct, your Honor.
THE COURT: So I think that's all relevant.
MS. WALSH: It will go to the whole issue,
your Honor, of this ongoing litigation which has
been in every Court in New York State since the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 30
Judgment and Decree of Divorce.
MS. WALSH: Could I have that marked,
please?
(Whereupon, Petitioner's Exhibit Number 12
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Mr. Stern and the law guardian
Exhibit Number 12.
Q Miss Phillipson, handing you what has been marked
Exhibit Number 12, can you identify that for the record?
A Yes.
Q What is it?
A It is a motion made by myself seeking enforcement
of Judgment and Decree of Divorce.
Q That's actually the orders following the motion,
correct?
A Yes.
Q Okay. And pursuant to that order were you
appointed as the receiver of the property at Sourwood Drive?
A Yes.
Q And pursuant to that order was the respondent
ordered to vacate the marital residence within a specific
period of time?
A Yes.
Q And pursuant to that order were you awarded
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 31
attorney's fees for bringing the enforcement action?
A That's correct.
MS. WALSH: I'd like to move Exhibit Number
12 into evidence.
MR. STERN: Judge, I object on a technical
issue that this is not a certified copy and it's
improper to be admitting it but I believe it
should be a part of the Court's record as it is
if the Court has the court documents.
THE COURT: Well, you know, the Court's
going to take notice of any of its orders. We'll
check if that's a concern and make sure it's --
you know, it's an exact copy of the original.
MS. WALSH: Your Honor, I have an
attorney's certification here. I can resign
that. This is a copy of my certification but
I'll be happy to resign that and make it a
certified.
THE COURT: All right. Mr. Lupia?
MR. LUPIA: Judge, I have no
objection.
THE COURT: Okay. Petitioner's Exhibit
Number 12 is received into evidence.
Q Now, pursuant to this order Mr. Murtari was
ordered to execute certain documents transferring the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 32
property to you, correct?
A Yes.
Q And did he, in fact, do that?
A No, he did not.
Q And what action, if any, did you have to take to
get the documents put into your name?
A I have to go back to the Court to ask sheriff
sign the deed.
Q So we had to go back to the Court again, correct?
A Yes.
MS. WALSH: Can I have that marked?
(Whereupon, Petitioner's Exhibit Number 13
was marked for identification.)
MS. WALSH: I would like the record to
reflect that I am showing Mr. Stern Petitioner's
Exhibit Number 13.
MS. WALSH: I show the law guardian
Petitioner's Exhibit 13.
(Whereupon, Petitioner's Exhibit Number 14
was marked for identification.)
Q Miss Phillipson, can you recognize Petitioner's
Exhibit Number 13?
A Yes.
Q And what is that?
A This is the order allowing the sheriff to sign
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 33
the deed.
MS. WALSH: And I would move Exhibit
Number 13 into evidence.
MR. STERN: I object on the same grounds,
this is a copy and uncertified copy.
THE COURT: Mr. Lupia?
MR. LUPIA: No objection, and I ask that
the Court take judicial notice of the original
order.
THE COURT: Petitioner's Exhibit 13,
received into evidence.
Q And did there come a time when the sheriff was
asked to sign a deed transferring the property into your
name?
A Yes.
MS. WALSH: I'd like to have the record
reflect I am showing Mr. Stern Exhibit Number 14.
And I am showing the law guardian Exhibit
Number 14.
Q Miss Phillipson, can you identify Exhibit Number 14?
A This is the sheriff signing the deed transferring
the property to myself.
MS. WALSH: I would like to admit -- offer
Exhibit Number 14 into evidence, your Honor.
MR. STERN: I object again. These are all
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 34
uncertified and this is also uncertified. If
Miss Walsh would like to do the certification
herself, I think that would be better than just a
copy.
MS. WALSH: I will be happy to do that,
your Honor. I can bring my stamp and do that.
THE COURT: Okay. Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay.
Q And when is that dated?
THE COURT: Petitioner's Exhibit 14 is
received into evidence.
Q The date is on the top.
A September 24th, 1997.
Q And for each of these incidences in which you had
to go back to court, did you incur attorney's fees?
A Yes.
Q And did it cause you any other concerns besides
financial?
A Yes.
Q And what were they?
A Emotional stress, myself and on Domenic.
Q And pursuant to the order Mr. Murtari was to
vacate the residence, correct?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 35
Q And did he vacate the residence?
A No.
Q And did there come a time when you had to have
him evicted?
A Yes.
Q And do you remember when that was?
A December 17th, '97.
Q December 17th, 1997? And what did you have to do
to have him evicted?
A I have to get the mover because I was told I have
to empty the house and I have to hire locksmith to change
all the locks of the house. I had to call the towing
company because Mr. Murtari refused to hand the key to the
car in spite of the request from the sheriff.
Q And did you have to be there at the eviction?
A Yes.
Q And did you have to deal with the sheriff?
A Yes.
Q And what do you know, if anything, occurred on
that day.
A Occurred?
Q Yes.
A I was asked to wait at the curve while the sheriff
was making last attempt to make Mr. Murtari comply the
order, which he refused. I saw him in the sheriff's car and
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 36
drove by. Then I was asked to empty the house with the help
of a mover.
Q To your knowledge was Mr. Murtari arrested on
that day?
A Yes.
Q And why was he arrested?
A He refused to move out of the house.
Q And that was on December 17th, 1997?
A Correct.
Q And did he miss any visitation because of the
arrest?
A Yes.
Q And how -- do you know how long he was in jail?
A I believe that was about a week.
THE COURT: Miss Walsh, I'm going to
interrupt you here. We need to just take a very
short break. Five minutes and we'll come back.
(Whereupon, a short recess was taken.)
THE COURT: Okay.
Q Miss Phillipson, how did it feel and what was your
reaction on the day of the eviction?
A It was just awful and heartbreaking too and it
made me realize that he would do anything to get his way.
Q And when you say he, who do you mean?
A He --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 37
Q Who is he?
A Oh, Mr. Murtari.
Q And why did you find it heartbreaking?
A I knew that I had to empty the house on the day
of the eviction. I also asked Mr. Murtari to let them
know -- let him know that it needs to be moved out so that
he can take an action, but he chose not to do.
Q So when you went into the house after he was
arrested, the house was full?
A The house was full, yes.
Q He had not moved out the furniture?
A No.
Q And what did you then have to do?
A The movers started getting everything out to the
curve, bringing out to the curve, including Domenic's
furniture and that was heartbreaking. I saw his toys,
furniture, just put out on the curve.
Q And they were told to move things at the curb on
the order of the sheriff, is that correct?
A That's correct.
Q Had you made any attempts to do something besides
move it to the curb prior to the eviction?
A My attorney contacted Mr. Murtari to move the
furniture out because we was informed that this has to
happen.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 38
Q Did you ask the sheriff if you could put it
anyplace else?
A Yes.
Q And where did you want to put it? What did you
ask? What did you ask the sheriff?
A Oh, on the day of the eviction?
Q No, before the eviction.
A Before the eviction. If it can be moved to
somewhere else.
Q And what did the sheriff inform you?
A It was not allowed.
Q So you were forced to empty the house and put it
on the curb, is that correct?
A Right.
Q And how long did you have to be there that day?
A All day until I think it was 4:30 or 5 o'clock.
Q And was the sheriff there all day too?
A They have to be, yes.
Q And the movers?
A Yes.
Q Did there come a time when you were able to sell
the house?
A Yes.
Q And at that time did you do a receiver's
accounting?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 39
A Yes.
Q And did you account for how much it cost you to
do the receivership?
A Yes.
Q And how much was that?
A Approximately 6500.
(Whereupon, Petitioner's Exhibit Number 15
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibit Number 14 to Mr. Stern
and the law guardian.
MR. LUPIA: 15.
MS. WALSH: 15, I'm sorry.
Q Miss Phillipson, showing you what is Exhibit
Number 15, can you identify that for the record?
A Yes, this is receiver's report.
Q And do you know where that was submitted?
A Supreme Court.
Q To Judge Majors?
A Yes.
MS. WALSH: I'd like to move Exhibit
Number 15 into evidence.
THE COURT: Any objections?
MR. STERN: I have no objection.
MR. LUPIA: No objection.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 40
THE COURT: Petitioner's Exhibit 15
received into evidence with no objection.
Q Miss Phillipson, as a result of the sale of the
marital residence were there certain judgments that were
paid out of the proceeds?
A Yes.
Q And can you tell us what those judgments were?
A Over 18,000 was for dissipated marital asset,
approximately 44, 43 or 4400 was child support arrear, and
another 3,000 for attorney's fee and totals over $25,000.
Q So it was a judgment that you had against
Mr. Murtari, correct?
A Yes.
Q And that was partially satisfied out of the
proceeds of the marital residence?
A Correct.
Q But not totally, correct?
A Right.
Q There was some deficiencies, correct?
A Yes.
Q And was there a judgment to another third party
that had to be paid out of the proceeds of the marital
residence?
A Attorney's fee.
Q Do you want to review it? I think if you review
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 41
it towards the end you'll see that there is a -- there was
another judgment. Go towards the back. Go towards the back
of the exhibit, please. There's two satisfactions. Does
that refresh your recollection?
A Yes.
Q There was a lien against the real property at the
time of sale, correct?
A That's right.
Q And who was that against, the lien?
A Attorney Bucci.
Q Attorney Bucci, correct, had a judgment?
A Yes, yes.
Q And who did she have a judgment against?
A Mr. Murtari.
Q And that had to be satisfied out of the proceeds,
correct?
A Correct.
Q Do you know how much that was for?
A That was 3500.36.
Q And that had to be satisfied before the property
could be sold, correct?
A Yes.
Q So that was right off the top of the proceeds?
A Right.
(Whereupon, Petitioner's Exhibits Numbered
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 42
16 and 17 were marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibits 16 and 17 to Mr. Stern
and to the law guardian.
Q Now, I think you testified, Miss Phillipson, that
pursuant to the sale of the residence you had to satisfy a
prior judgment --
A Yes.
Q -- that you had against Mr. Murtari?
A Yes.
Q And that was in the amount of $25,000, correct?
A Right.
Q Except for that payment has any attempts been
made to satisfy any of the judgments that you have against
Mr. Murtari?
A Not at all.
Q Handing you what has been marked as Exhibit
Number 16, can you identify that for the record?
A This is a motion made by myself for money
judgment.
Q That is a money judgment, correct?
A Yes.
Q And what is it for?
A Asking for attorney's fee, that was incurred by
going to Appellate Division.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 43
Q That's awarding you attorney's fees, correct?
A That's correct.
Q And it's a money judgment against you?
A Against Mr. Murtari.
Q For how much money?
A $10,506.25.
Q And has Mr. Murtari made any attempts to pay
anything on that judgment?
A No.
MS. WALSH: I would move Exhibit Number 16
into evidence.
MR. STERN: Judge, I would object to it not
being properly certified.
THE COURT: Mr. Lupia?
MR. LUPIA: No objection, your Honor.
THE COURT: Objection overruled.
Petitioner's Exhibit Number 16 is received into
evidence.
Q Miss Murtari, showing you what has been labeled
as Exhibit Number 17, can you identify that for the record?
A This is another money judgment.
Q Against whom?
A Against Mr. Murtari.
Q And is it -- to who -- who has the money
judgment?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 44
A I do.
Q You do?
A I do.
Q And what is that money judgment for, what is that
amount?
MR. STERN: Judge, I'm going to object as
she seems to be reading from an exhibit which
isn't in evidence.
MS. WALSH: I would move it into evidence,
your Honor.
MR. STERN: Well, I object as it's not a
properly certified document. It's a copy of a
Court document which should be authenticated as
being true and accurate and so I object to it
going in on that purpose.
MS. WALSH: I will certify all of the
documents, your Honor.
THE COURT: Okay. And with that, the Court
will receive the document into evidence.
Q How much is that for, Miss Phillipson?
A $11,772.52.
Q And has Mr. Murtari made any efforts to pay on
that judgment?
A No.
Q Miss Phillipson, pursuant to the Judgment and Decree
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 45
of Divorce you were awarded child support, correct?
A Yes.
Q And what is the amount of child support that the
Court has ordered?
A $120 a week.
Q And has Mr. Murtari ever paid you $120 per week?
A Never.
Q What is the amount that he pays you?
A $60 a week.
Q And as of today's -- or, as of November 1st what
child support amount is owing since the Judgment and Decree
of Divorce?
A Approximately 7200.
Q And pursuant to the -- strike that.
And you have a current petition for a violation
of that court order pending, is that correct?
A Yes.
Q And that's pending here in Family Court?
A Yes.
Q In front of Kathyrn Davies?
A That's correct.
Q And that matter had previously been scheduled two
different times, correct?
A Yes.
Q And it's now been adjourned until when?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 46
A November 30th.
Q And prior to you bringing that violation petition
did Mr. Murtari ever bring any other petition to modify
that, that decree regarding child support?
A No.
Q After you filed the violation he brought a
modification petition, is that correct?
A Yes.
Q Do you remember when you filed that modification
petition -- when you filed the violation petition?
A I don't remember exactly but that was before the
summer.
Q Before what?
A Before this summer.
Q So it was in April or May of 1997?
A Yes.
Q Does Mr. Murtari always pay $60 per week on time?
A No.
Q And has there been any other occasions where he
has gone for more than two or three weeks without paying you
any support?
A Yes.
Q And can you tell us when that was?
A During this summer he did not pay me from
June 16th through September, I think that was -- towards the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 47
end of September.
Q Is there any other time that he did not pay you
every week?
A After the eviction.
Q And how long did he go without paying you
anything at that time?
A It was a couple of weeks.
(Whereupon, Petitioner's Exhibit Number 18
was marked for identification.)
MS. WALSH: I want the record to reflect
that I am showing Mr. Stern Exhibit Number 18.
And the law guardian.
Q Miss Phillipson, handing you what has been marked
Exhibit Number 18, can you identify that for the record?
A Yes.
Q And what is it?
A It is a child support payment paid by Mr. Murtari
to me.
Q And it's a copy of what?
A A personal check.
Q Whose personal check?
A Mr. Murtari's.
Q And what's the date on the check?
A September 28th, '98.
Q And what is the amount of the check?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 48
A $840.
Q And what is the notation on the check?
A From July 14th through October 20th.
MS. WALSH: I would like to move Exhibit
Number 17 into -- 18 into evidence.
MR. STERN: I have no opposition.
MR. LUPIA: No objection.
THE COURT: Petitioner's Exhibit 18
received into evidence, no objection.
Q Miss Phillipson, pursuant to the Judgment and Decree
of Divorce Mr. Murtari was ordered to pay a certain
percentage of child care and medical, is that correct?
A Yes.
Q And has he paid -- made any contributions for
child care or medical since the Judgment and Decree of
Divorce?
A No.
Q And as of November 1st what amount of child care
is due and owing from Mr. Murtari?
A I believe approximately 2800.
Q And are you currently providing medical insurance
for Domenic?
A Yes.
Q And what is the cost per month?
A $356.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 49
Q Does Mr. Murtari make any contributions to that
payment?
A No.
Q Did that payment recently change?
A Yes.
Q Why?
A Because I was no longer a teacher assistant at
Syracuse University.
Q And when you were a teaching assistant did you
receive medical insurance as a benefit?
A Yes.
Q And you didn't have to pay the $350 per month?
A No.
Q Correct? And do you anticipate that when you
become a teaching assistant at California you will be able to
get health insurance for Domenic?
A Yes.
Q Does this amount that you have testified here
today include child support that was due and owing prior to
the Judgment and Decree of Divorce?
A Prior to.
Q I can change the question. The amount of child
support that you have testified about is from the Judgment
and Decree of Divorce, is that correct?
A Right.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 50
Q That does not include anything that was owed
prior, correct?
A That's right.
Q You, in fact, had a money judgment for what had
been due and owing prior?
A Yes.
Q Is it fair to say that Mr. Murtari has never paid
the complete amount of child support for any week, any month
in which he has been ordered to do so by the Court?
A That's correct.
Q Is it fair to say that he has never made a
contribution for child care?
A That's correct.
MR. STERN: Objection, leading.
THE COURT: Overruled.
Q Mrs. Murtari -- Mrs. Phillipson, besides the actions
that we've already talked about in Supreme Court and Family
Court, there has been other actions pending in the Courts of
New York State, correct?
A Yes.
Q And what are those?
A Appellate Division and the Court of Appeal.
Q And who brought the action in the Appellate
Division?
A Mr. Murtari.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 51
Q And who brought the action to the Court of
Appeals?
A Mr. Murtari.
Q And did Mr. Murtari have any communications with
you regarding the ongoing litigation?
A Through my attorney.
Q Did he ever tell you directly about his plans to
appeal?
A Yes.
Q And how did he tell you those plans?
A Through a personal letter.
Q And what did he tell you in the personal letter?
MR. STERN: Objection, foundation.
THE COURT: Sustained. When was the letter
and --
Q Was this one or more letters?
A More than one letter.
Q Do you remember how many?
A Two or three.
Q And did you recently get a letter in which he
said he was going to continue to appeal?
A Yes.
(Whereupon, Petitioner's Exhibit Number
19 marked for identification.)
MS. WALSH: I show Mr. Stern Exhibit
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 52
Number 19.
Q Mrs. Murtari, handing you what has been marked as
Exhibit Number 19, can you identify that for the record?
A Yes.
Q And what is that?
A It is a letter from Mr. Murtari addressed to
myself.
Q And what's the date on that letter?
A October 28th, '98.
Q 1998?
A Yes.
Q And did you just receive that?
A Yes.
Q And what, if anything, does that letter say to
you about Mr. Murtari's ongoing appeal of the Judgment and
Decree of Divorce?
MR. STERN: Objection, the document is not
in evidence.
MS. WALSH: I would move the document into
evidence, your Honor.
MR. STERN: Judge, on that basis if this is
another document that I haven't seen prior to
walking into court, I object to it being admitted
as, you know, again, I should --
THE COURT: I will give you a lot of time
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 53
to study it. I won't interfere -- it won't
prejudice -- it won't be prejudicial. I'll give
you plenty of time to look at it so that you can
cross-examine her.
MS. WALSH: Your Honor, the record should
reflect that I gave a copy of that to Mr. Stern
yesterday.
THE COURT: I don't know -- you said it
yesterday on the record?
MS. WALSH: Yes, I gave it to him
yesterday, your Honor. And it's a letter that
was sent last week by Mr. Murtari.
Q What does Mr. Murtari say about the ongoing
litigation in the Appellate Division and the Court of
Appeals regarding the Judgment and Decree of Divorce?
A Yes, I am appealing --
MR. STERN: Objection, the documents speaks
for itself.
THE COURT: Wait a minute. Please.
MR. STERN: I object --
THE COURT: Overruled. Part of it any way,
until we -- so we know what's going on.
A Yes, I am appealing silly divorce in court,
judgment, but I know the marriage is over and it is time to
move on.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 54
Q He's telling you that he's still appealing this,
is that correct?
A Yes.
Q And in past letters what has Mr. Murtari told you
about what he will do in court?
A In the past --
Q In the past letters what did he tell you?
A He will continue to get his way.
Q And did he tell you anything about how long --
MR. STERN: Objection, foundation as to the
last comments.
MS. WALSH: I'll strike that.
Q Did he tell you anything about how long he would
continue this appeal?
A As long as it takes.
Q And did he tell you anything about the cost?
A Yes.
Q And what did he say to you about the cost?
MR. STERN: Objection.
A That it would cost me about 42,000 --
MR. STERN: The last question --
THE COURT: Hold it. That last objection,
when, where did he say this to you, what did you
say to him, what did he say to you.
Q How did he tell you that he would -- what it
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 55
would cost?
THE COURT: I can only take one objection
at a time on the item at the time. I can't go
back.
MR. STERN: I understand, Judge.
THE COURT: Okay.
MR. STERN: I was trying to go back. I
also ask --
THE COURT: You can't go back.
MR. STERN: I understand.
THE COURT: I have to take it just for
what's happening now. Okay. So we will get
that.
MR. STERN: And if you would also instruct
the witness when I'm objecting that it's not her
time to continue to talk over me. I am trying
to, you know, protect my client's rights and to
make sure that --
THE COURT: You've got to let her finish
her sentence.
MR. STERN: When should I object?
THE COURT: We can't even get it properly
in the record when that happens, you know. And
especially when it's a non-jury thing there's no
reason for interrupting. Okay.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 56
Q How did you learn of Mr. Murtari's decision to
keep appealing this and to keep spending money on appeals?
A Through his personal letters.
Q And these are letters that he wrote to you?
A Correct.
Q And in these letters he has stated that he will
continue the struggle?
A Yes.
MR. STERN: Objection, leading.
THE COURT: Overruled.
MS. WALSH: Could you please mark these
two?
(Whereupon, Petitioner's Exhibits Numbered
20 and 21 were marked for identification.)
MS. WALSH: The record should reflect I'm
showing Mr. Stern Exhibit Number 20 and Exhibit
Number 21.
MR. STERN: Judge, before we even begin to
get into these, I believe that these are from
1996.
MS. WALSH: I believe one is from 1996 and
one is from 1997, your Honor, and I am using them
to show Mr. Murtari's intent. We will get into
the numerous Appellate Division motions he has
brought but I think it goes to his state of mind
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 57
and his desire to completely take up this matter
in an inappropriate way which has put tremendous
financial and emotional burden on my client which
is one of the issues that we're dealing with here
and these had been provided to Mr. Stern in the
past.
MR. LUPIA: I would also object on the
basis of that it predates the matrimonial
resolution.
THE COURT: I'm not going to get -- as I
said in the beginning, I'm not going to allow
that but, you know, it was really brought up on
your insistence on when, you know, she testified
that he is continually appealing and is going to
continue this and you wanted to know what date on
it but I suppose you can take, if you have it,
take data that comes after the decree so we don't
get involved in that.
MS. WALSH: One I believe was after the
decree, your Honor. I don't know what date it
was. Mr. Murtari has -- the copy does not have a
date, and I am just doing it for the brief
purpose of showing Mr. Murtari's intent which I
think is significant. If this is his intent
prior to the Judgment and Decree of Divorce, I
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 58
think it's very important for the Court to be
aware of that.
MR. STERN: Judge, maybe we should just
reopen the divorce. I can bring in Ms. Phillipson's
intent prior to the divorce.
THE COURT: Okay.
MR. STERN: I can perhaps --
THE COURT: I already ruled that we're not
going to allow it to go there as we stated at the
beginning of the trial.
Q Miss Phillipson, you've had knowledge for a while
that Mr. Murtari was going to continue this legal struggle,
correct?
A Yes.
Q And that's through letters he sent you?
A Yes.
Q Including the one recently, correct?
A Yes.
Q And what do you know, if anything, from what he
has told you in these letters about the financial cost?
A 40 to $80,000.
Q And what did he say about the 40 to $80,000?
A That it will cost me to go through the
litigation.
Q And that he was going to continue it regardless
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 59
of the cost?
A Correct.
MR. STERN: And I would just object as to
foundation, when this was said, how it was said.
Q And it was said in these letters, correct?
A Yes.
Q And letters from who to whom?
A Mr. Murtari to myself.
Q And do you remember when the letters were?
A There is letters at the various times.
Q You can say you don't know if you don't remember.
A I do remember one letter like August of '97 and
sometime in '96.
Q And then the current one also, correct?
A Yes.
MR. STERN: Objection. Judge, they just
back-doored in a letter I believe from August of
'96 that you ruled was not going to come in and
now they're trying to speak about a letter
from --
THE COURT: '97. Wasn't it '97?
MR. STERN: She said '97 but I'm looking at
the letter and it says 1996 and there are other
things in it. And I thought we were going to try
to stay away from this. I believe there is a
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 60
letter now from a week ago but there's been --
you know, they don't have anything that's recent.
I just don't think it's proper for her to now try
to add a year to the date when she knows that
it's 1996.
THE COURT: Well, that's what
cross-examination is all about. Okay.
MR. STERN: Okay.
Q Now, Miss Murtari, this matter was appealed to
the Appellate Division, correct?
A Yes.
Q And in the course of that appeal there were
numbers of motions brought to the Appellate Division,
correct?
A Yes.
Q And who brought those motions?
A Mr. Murtari.
MS. WALSH: Your Honor, I have a number of
motions. I'm happy to do them as one exhibit or
would you like them marked separately?
THE COURT: Any reason not to mark them all
together?
MR. STERN: I'm sorry, what are you now?
MS. WALSH: A number of motions to the
Appellate Division. I can do them one at a time
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 61
or I can do them in one --
MR. STERN: Well, it seems that you're
going to be going into them in detail so why
don't we have them each marked?
MS. WALSH: I'm not going into them in
detail but I'll be happy to have them each
marked.
(Whereupon, Petitioner's Exhibits Numbered
22 through 29 were marked for identification.)
MS. WALSH: Have the record reflect that I
am showing Mr. Stern 22 through 29.
THE COURT: Mr. Stern?
MR. STERN: Yeah.
THE COURT: Could I just hear from you
regarding any objections because, you know, we're
not going to -- we're going to be breaking now
and you'll have plenty of time to study the
documents for questioning.
MR. STERN: Okay.
THE COURT: I'm just concerned now about
whether --
MR. STERN: I've got two more documents to
write down. I'm trying to go through them as I
have just been handed them and, again, I asked
for all documents that were going to come in and
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 62
this is the first time that I have seen --
THE COURT: Again, I'm not going to hear
any more. I received absolutely no motions to
preclude, no motions of any any kind prior to
trial. Once we start the trial --
MR. STERN: Judge, I can't make a motion to
preclude if I don't have it.
THE COURT: You can do what you want with
it. You have it on the record, your right to
appeal and everything.
MR. STERN: But, Judge, I can't --
THE COURT: I'm not going to repeat that.
You keep bringing it up since we started the
trial. Discovery according to the CPL is between
the attorneys. If you need the Court, you come
in with papers, and I didn't get any papers.
MR. STERN: But, your Honor --
MS. WALSH: If I could be heard on this
issue?
THE COURT: Yeah.
MS. WALSH: I informed Mr. Stern when I
responded to the late motion for discovery that I
was not going to provide him with all of the
court papers, his client has proceeded pro se and
could provide them to him and they were
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 63
voluminous and I wasn't going to spend time and
money doing that. He could go to his client. I
informed him of that and I never heard anything
about that.
THE COURT: Okay.
MR. STERN: And, Judge, just on the record,
I can't make a motion to preclude a document
which I don't know is going to be introduced into
evidence until it's shown to me while I'm
standing in trial.
THE COURT: You asked for certain material,
if you didn't get it you could come to the Court
for assistance. It's done all the time,
Mr. Stern. That's the way I -- like, I have
never seen this in 18 years. This is the first
time. All discovery problems are settled before
trial. I'm not kidding you about that. That is
the truth. I have never seen it.
MR. STERN: Judge, I agree with you.
THE COURT: Now, maybe you're right but
I'll tell you, I've never had the chance to
investigate it because it never happened. All of
those matters are handled before we start a
trial.
MR. STERN: Judge, if somebody asks you
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 64
for --
THE COURT: Okay. You want to -- let's get
to this.
MR. STERN: All right.
THE COURT: Either you want more time --
and you'll have a lot of time because we won't be
back until Thursday.
MR. STERN: I don't need any more time. I
have finished up --
THE COURT: Yeah, okay.
MR. STERN: -- writing them down.
THE COURT: Okay. As to those, objections?
MR. STERN: Well, I would -- they haven't
been offered yet, have they?
MS. WALSH: I intend to offer them,
your Honor.
THE COURT: Okay. Go ahead.
MS. WALSH: Are you objecting?
MR. STERN: Are you offering them into
evidence?
MS. WALSH: I'll offer them into evidence
and I'll deal with them as quickly as I can.
MR. STERN: I have no objection if
Miss Walsh is going to be certifying them as
accurate to the Court.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 65
MS. WALSH: I will certify them,
your Honor.
THE COURT: Okay. Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay. Petitioner's Exhibits 22
through 29 received with no objections.
MS. WALSH: Does my client need to identify
them?
THE COURT: No, they're all set.
MS. WALSH: Okay.
THE COURT: Everybody acknowledges that?
They're being brought in by stipulation.
Q Miss Phillipson, is it fair to say that Mr. Murtari
brought numerous motions to the Appellate Division?
A Correct.
Q And were at least four of those for a stay of
enforcement of the Judgment and Decree of Divorce?
A Yes.
Q And was one of them to amend his appeal?
A Yes.
Q And was one of them to reargue after the
Appellate Division had made a decision?
A Yes.
Q And each and every time that Mr. Murtari brought
a motion what did you have to do?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 66
A I have to respond.
Q Did you have to come into the office and read the
motion?
A Sometimes I did.
Q And did you have to allow me to respond on your
behalf?
A Yes.
Q And was this a financial cost to you?
A Yes.
Q And was there any other cost to you other than
financial?
A Emotional stress.
Q And describe for us that stress.
A This has been going non-stop, relentlessly.
Q Since when?
A Throughout the Judgment of Divorce and after the
Judgment of Divorce.
Q How does it make you feel?
A I feel my right is violated as well. I -- I know
the Court doesn't allow me to say before the judgment but
this is throughout, continuous emotional abuse towards me.
Q Do you feel Mr. Murtari is attempting to continue
to control you?
A Yes.
Q Do you feel he's attempting to continue to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 67
threaten you with more legal action?
MR. STERN: Objection.
A Yes.
MR. STERN: Leading.
THE COURT: Overruled.
Q And how does that make you feel?
A Awful.
Q And at the same time Mr. Murtari is asking you to
be friendly to him, is that correct, in the letter of
October 28th?
A Yes.
Q And can you be friendly with him?
A No.
Q Why not?
A I cannot be friend who I cannot trust, who keeps
hurting me.
Q And do you think this is also hurting Domenic?
A Yes.
Q How is it hurting Domenic?
A Financially this is a burden and it is a
substantial amount of money that can be saved to -- for
other purposes for Domenic. Emotionally he would state
inappropriate things to Domenic.
Q Can you give me an example of an inappropriate --
THE COURT: I think we're going to break
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 68
here, pick it up Thursday at 10 o'clock.
* * * * * *
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated:
__________________________
Deborah A. McCarthy
Family Court Reporter
DEBORAH A. McCARTHY
|
Official Court Reporter
12 Nov
MR. STERN: Judge, a couple of matters to
discuss on scheduling.
THE COURT: Yeah, just a second. Okay. On
the matter of Phillipson vs Murtari, Docket V-320-95.
Mr. Lupia, law guardian is present; Miss Walsh
with the petitioner and Mr. Stern with the
respondent. Mr. Stern?
MR. STERN: Judge, I had my pretrial on --
THE COURT: You had what?
MR. STERN: The pretrial with Judge Kahn I
believe was on Tuesday and he asked me to ask the
Court to release me Monday afternoon by 1 o'clock
so that I can begin a trial on a prisoner case in
Federal Court.
THE COURT: How long?
MR. STERN: The trial?
THE COURT: Yes.
MR. STERN: I expect the trial shouldn't be
more than a day. Maybe Monday and part of
Tuesday at the longest.
MS. WALSH: Your Honor, I have to object.
We are here today, we're not here tomorrow --
THE COURT: We're going to finish this
case. I'm going to keep going.
MS. WALSH: I have cleared Monday and
DEBORAH A. McCARTHY
Official Court Reporter
Tuesday.
THE COURT: If you want to convey that to
him, if he wants to talk to me he can call me.
MR. STERN: Okay, Judge.
THE COURT: I already mentioned that. When
they called the other day, I released you for
that thing but the understanding that I have to
finish this trial. We're in the middle of a
trial.
MR. STERN: Judge, if we don't finish up on
Monday, it's your intention to begin again the
next day on Tuesday?
THE COURT: I plan to keep going until we
finish. Time is very short here. I've got a lot
of cases backed up for trial, you know, and I --
MR. STERN: Okay. I impressed that to the
Judge. What he had said to me was that there
were people coming from all over the state to be
there for that trial including the prisoner and I
told him, yes, I understand that but, you know,
we have other concerns here in this court and
that I would give him a call tonight or tomorrow
and explain to him what you ordered.
THE COURT: Okay. If we stick to this
maybe we can finish it. Okay?
DEBORAH A. McCARTHY
Official Court Reporter
MR. STERN: Excuse me?
THE COURT: Maybe we can finish this.
MR. STERN: Well, I still haven't even had
a -- okay. I'm hoping.
THE COURT: Well, you know, you've got one
more? This is your last witness?
MS. WALSH: I just have a few minutes
with my client.
THE COURT: And then we can finish that.
And how many witnesses do you expect?
MR. STERN: I would say probably -- Judge,
there's all together seven but the majority of
them are half hour. I mean, at most, a half hour
of direct testimony. They are mostly witnesses
to the relationship between my client and his
son. If it even takes a half an hour, I would be
surprised so I would expect if I had a good half
day I could get all of my witnesses in.
THE COURT: A half a day?
MR. STERN: Yeah.
THE COURT: Really?
MR. STERN: Yeah. Not including my client.
My client might take a half day himself.
THE COURT: Yeah.
MS. WALSH: Your Honor, I would just like
DEBORAH A. McCARTHY
Official Court Reporter
to ask the Court for an offer of proof in terms
of who the witnesses would be and what they would
testify to. Our experience is in Supreme Court
Mr. Murtari attempted to bring in over 18
different witnesses and we had to -- for issues
of both relevancy and repetitiveness we had to
cut that down or the trial would have gone much
beyond the seven days it already did so at this
point I'd like Mr. Stern to give us an offer of
proof as to who will be his witnesses and what
they will testify so that we can be prepared for
that.
MR. STERN: Judge, I don't know entirely
what happened in the Supreme Court but my
understanding is that it was not an attorney
handling the case. I would be happy to go
through each -- what each of the witnesses are
going to testify to. Essentially I have told you
what they're going to testify to.
THE COURT: It's worth it to do it because
Miss Walsh might even stipulate to what they're
going to say if it's, you know -- I mean, it's
possible. I'm not saying she will but if she
sees what it is and what they're going to say --
MR. STERN: You know, Judge, as it is we
DEBORAH A. McCARTHY
Official Court Reporter
have heard -- my client is at a tremendous
disadvantage. He has gone through a very messy
divorce in which his character has obviously --
he's had a very huge disadvantage. He messed up
his own divorce in a terrible way. He's
alienated the law guardian by bringing charges
against him. He has alienated the Judge in
Supreme Court. He's got decisions that are
horrible. What I want to do is try -- now I've
got Miss Phillipson basically horribly making him
sounds like he's a monster, emotional abuse, all
of this stuff. I'd like some third party people
who you might even think are objective and I
believe are objective witnesses to come in and
speak as to -- not as to whether he's such a
great guy in general but does he have a
relationship with his son, is he an appropriate
father to his son.
THE COURT: Well, that stuff is all
admissible.
MS. WALSH: Could we have an offer of
proof? I would like a list of who is going to be
coming.
THE COURT: Yeah.
MS. WALSH: Would you please give me the
DEBORAH A. McCARTHY
Official Court Reporter
names?
MR. STERN: Yes. Mr. Murtari, why don't
you just state them on the record since you're
more familiar with their names. I haven't
prepared a list. What are their names?
MS. WALSH: And what they will testify to.
MR. STERN: Why don't we start with the
first person. Who is your first -- your mother,
Mrs. Murtari, right?
MR. MURTARI: That's right.
MR. STERN: Okay.
MS. WALSH: Your Honor, if I could just be
heard on this issue. Mrs. Murtari testified in
Supreme Court and Mrs. Murtari's command of
English is very poor. In the Supreme Court the
Judge allowed his mother to testify but, in fact,
Mr. Murtari who was acting his own -- in his own
behalf testified for much of what she said and I
would really object to that unless, in fact,
Mrs. Murtari's command of English has gotten
better or unless they have an Italian translator
who will come in and translate for her.
MR. STERN: Judge, my understanding is that
although she is an Italian immigrant her command
of English is decent. She is 82 years old and I
DEBORAH A. McCARTHY
Official Court Reporter
have no doubt that if the Court has some patience
you will be able to hear questions in English and
an answer in English. It is true, I believe I'm
going to need my client on some words. Somehow
when she hears the word come out of his mouth in
English she understands the word, she will answer
back in English. I have no belief we need to
bring in an Italian translator but if we need to
I'd be happy to adjourn to hire an interpretor at
I guess the County's expense since my client is
assigned to come in and do this.
THE COURT: What else?
MR. MURTARI: Your Honor --
THE COURT: Who else? Never mind. Go to
the next one.
MR. STERN: Amy.
MR. MURTARI: Murtari, a cousin.
MR. STERN: Amy Murtari who is a cousin.
She has children Dom's age that Dom plays with.
She's part of the extended family. I think
she'll talk about the relationship that she sees
that Dom has with his father and she'll also
discuss the relationship that Dom has with his
cousins and he has older cousins and young
cousins here in this area. They have a large
DEBORAH A. McCARTHY
Official Court Reporter
extended family and that there is quite a network
here. We have Cheryl Kwiek, another cousin
who -- she also has her own children?
MR. MURTARI: Yes. We see them quite
often.
MR. STERN: That they see often for
holidays and such.
MS. WALSH: And what's her name?
MR. STERN: Cheryl Kwiek. And it's spelled
K-W-I-E-K. Judge, there's also -- we've got two
employees of his, one is an ex-employee, doesn't
work with him anymore. When Mr. Murtari's
business was in his home and he would take off,
you know, large blocks of times to be with
Domenic when he had visitation, Walt Jaworsky
would be running the business during that time
and what he's going to come in to talk about is
he is somebody who has no -- he's got no dogs in
the fight, so to speak. He has no interest one
way or the other. He doesn't work for
Mr. Murtari anymore. I don't believe that he is
a personal friend, but he has witnessed the
relationship between Domenic and his father to be
a close one, to be -- that Mr. Murtari is a
loving, appropriate father.
DEBORAH A. McCARTHY
Official Court Reporter
THE COURT: Okay. What's next?
MR. STERN: Also George Law who works with
him now. He's a present employee. Although it's
true its his boss but what he is going to testify
to is that he's there when Domenic comes over and
he sees the attention --
THE COURT: He observes them, right?
MR. STERN: Hum?
THE COURT: He observes them together?
MR. STERN: Yes, and he's a third party.
THE COURT: All right. What else?
MR. STERN: I have a character witness.
His name is Michael Sullivan, he's the director
of Oxford Street Inn. Mr. Murtari volunteers to
do charity work in the community. He's been very
active politically and in charitable ways. He's
known Mr. Murtari for a number of years, 13
years, he knows his reputation in the community,
and I think he'll be helpful to give the Court
some balance as to -- other than Miss Phillipson's
claims of his emotional abuse and what a monster
he is, that he is a genuinely nice person and
that he's a person that goes above and beyond.
MS. WALSH: Your Honor, I would object to
that witness. There was a -- I'm not sure it was
DEBORAH A. McCARTHY
Official Court Reporter
the same witness but there was somebody from
Catholic Charities who testified at the trial and
there is a finding in the decision regarding
Mr. Murtari's work in the community and I will be
more than happy to stipulate as to that. I
believe that's irrelevant at this point. We
already did that in the trial.
I would also question when Mr. Jaworsky
worked for Mr. Murtari to make sure that it was
after the Court -- the Judgment and Decree of
Divorce and that I believe those two witnesses
would be duplicative and I also question whether
or not the two cousins would be duplicative,
your Honor, and what difference the two of them
could have.
MR. STERN: Judge, essentially you're going
to make a finding of whether -- you have to know
what sort of a man my client is. If the best
interests of this child are served by removing
the child from him essentially permanently so
that he can have one or two weeks in a year maybe
at most of visitation, I don't even know if he'll
get that much if the child leaves, you have to
know what kind of a father he is, what kind of a
relationship he has, and what kind of a man he
DEBORAH A. McCARTHY
Official Court Reporter
is. I don't know what happened in the Supreme
Court trial and I can't dispute Miss Walsh
because she was there and I wasn't but I'm trying
to put on the best proof I can so that the law
guardian and this Court can make the best
decision they can as to the best interest of
Domenic Murtari.
THE COURT: Yeah, okay. Well, the only one
I see is the one she was willing to stipulate to,
his --
MR. STERN: She's only willing to stipulate
to the fact that he does work in the community
but this man has known -- Michael Sullivan has
known my client for 13 years and he's known --
THE COURT: Has he ever observed him with
the child?
MR. STERN: Yes, he has.
THE COURT: Okay. I don't think there's
too much, I mean.
MR. STERN: And these are quick -- I'm not
looking to, you know, spend a day with them.
We're on our third day of testimony with
Miss Phillipson but I'm not going to be doing that
sort of thing.
THE COURT: Yeah, Miss Walsh?
DEBORAH A. McCARTHY
Official Court Reporter
MS. WALSH: Is that all? Is there any
other witnesses?
MR. STERN: That will be it. So I guess
it's six people.
MS. WALSH: And you don't plan on calling
Mr. Murtari?
MR. STERN: Yes, I do.
MS. WALSH: Okay. So there's seven.
THE COURT: Who?
MS. WALSH: Mr. Murtari.
THE COURT: Oh, yeah.
MR. STERN: Judge, if we can start today I
believe at 2 o'clock with these witnesses I
should be finished with them this -- by the end
of today and I can start with Mr. Murtari I
believe maybe even today too, start. I don't
think I can finish.
THE COURT: Okay. Let's get started and
keep going. We'll be able to start at 2:30 this
afternoon and go to 5 so we'll get that done.
Okay. All right. We're continuing direct,
right.
MS. WALSH: Yes, your Honor.
THE COURT: Yeah.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 14
H I R O M I S U M I Y A, having
previously been called as a witness, being
previously duly sworn, continued testifying as
follows:
CONTINUED DIRECT EXAMINATION
BY MS. WALSH:
Q Miss Phillipson, I believe we ended up talking about
the effect of the ongoing litigation on Domenic, is that
correct?
A Yes.
Q And you said that there was a financial impact,
correct?
A Yes, very much.
Q And what is that financial impact?
A Every time he brings the motion or any action to
the Court I have to respond and that would -- and incur that
attorney's fee.
Q And describe your emotional concern about the
effect on Domenic.
A Most current one was around eviction time.
Q Around what time?
A Eviction time. He was very much effected by it.
Which I did not consider was necessary to expose him in such
a turmoil.
Q When did you first notice that Domenic was
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 15
concerned about the eviction?
A I believe that was around November, beginning of
November.
Q 1997?
A 1997.
Q Do you remember when the eviction actually
occurred?
A December 17th, 1997.
Q And what did Domenic first tell you about, if
anything, about the eviction?
A That evening, particular evening he was -- he
didn't quite settle himself, he was coming, going. I was in
the kitchen preparing the dinner and finally he spoke to me,
mommy, when do people go to jail, and I usually carry out a
conversation in Japanese but he threw the word jail in
English which I did not understand for a while and I kept
asking him.
Q So Domenic usually speaks to you in Japanese?
A Correct.
Q So when he used the word jail he used it in
English?
A Yes.
Q And what did you say to him?
A When people don't obey what they are supposed to
do, that's when they go to jail.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 16
Q Did Domenic tell you why he was concerned about
going to jail?
A Because daddy told him that he was going to jail.
Q Domenic said that his daddy told him he was going
to jail?
A Yes.
Q And this was the beginning of November of 1997?
A Yes.
Q Did he say anything else to you about what daddy
told him?
A I asked him, because he looked very shakey and he
was trembling so I asked him, did daddy tell him don't tell
mommy and first he said no, and then he said yes.
Q So Domenic said that his father said he shouldn't
talk to you about it?
A Right.
Q Was there any other incidences or events in which
you were concerned about Domenic around the issue of the
eviction?
A Two visitations prior to the eviction took place,
I never seen him in such a condition that even the next
morning after the visitation he couldn't put himself
together, he kept sobbing and I left him in the room with
the clothes to change.
Q And this happened on how many occasions?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 17
A Twice.
Q And this happened right after he returned from
visitation?
A Correct.
Q And this was immediately before the eviction?
A Before the eviction.
THE COURT: Just one second.
(Whereupon, there was a short pause in the
proceedings.)
Q What did you do on these two occasions,
Miss Phillipson?
A I sat with him in, we have a calming down chair
in the house and we sat down in the chair.
Q And what was Domenic doing at this time?
A He was curled up in my -- on my lap and he kept
sobbing.
Q And was he shaking?
A He was trembling, yes.
Q And what all did he say to you at this time?
A He kept crying so I just acknowledged the
difficulty he must be going through to go back and forth
between the two extremes because this was at times he was
still wearing diapers as well.
Q At his father's house?
A At his father's, yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 18
Q But he wasn't wearing them at your house?
A Yes. And he just kept nodding his head, you
know, deeply.
Q And what, if anything, occurred -- and -- strike
that.
And there came a time when Mr. Murtari did go to
jail, correct?
A Yes.
Q And he missed visitation during that period of
time, correct?
A Yes.
Q And did there come a time after --
MR. STERN: Objection, foundation as to the
first question.
Q Do you know when he went to jail?
A December 17th, 1997.
Q And how do you know he went to jail?
A Because I saw him in the sheriff's car.
Q And how do you know he stayed in jail for more
than one day?
A Because I was told by the sheriff.
Q And did there come a time when you found out that
he was out of jail?
A Yes.
Q And how did you find that out?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 19
A I had a contact with one of his cousins, Cheryl
Kwiek, and she called me, he's getting out of the jail and
he wanted to come and pick up Domenic for Christmas
visitation.
Q And did you allow that visitation to occur?
A Yes.
Q Was there any problems regarding that visitation?
A Yes.
Q And what were the problems?
A After I received the phone, I -- that was in the
morning and Domenic was playing in his room. I went to his
room and I told him that he's coming to pick you up for
vacation. He protested and started to cry, I don't want to
go, I want to stay here.
Q And what, if anything, did you say to Domenic?
A I told him this is the order from the Judge and
daddy loves to see you as well.
Q And what arrangements, if any, did you make
regarding transportation?
A I was informed again by the Cheryl Kwiek that
Mr. Murtari was willing to pick him up and bring him back.
Q And did you have any further conversation
regarding transportation around Christmas vacation?
A The night before Domenic was supposed to come
back I had a call from Mr. Murtari saying that I was to come
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 20
and pick him up at his grandmother's house.
Q At Mr. Murtari's mother's house?
A Yes.
Q And where is that?
A It's called Lyons, about an hour from Syracuse.
Q And it was your understanding that Mr. Murtari
was going to bring him back and forth, correct?
A Yes.
Q And Mr. Murtari then changed that plan? He
wanted you to go?
A Yes.
Q And did you?
A No.
Q Why not?
A Because agreement wasn't in such a way and my
going to his grandmother's house takes me hour.
Q To get there?
A To get there.
Q And an hour to get back?
A Yes.
Q And how was that resolved?
A I left -- I called Cheryl Kwiek immediately after
the phone from Mr. Murtari and -- but she was not home, I
left a message that how the actual agreement went and she
called me back and she had talked to Mr. Murtari and he
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 21
called -- he told her that he called me, that -- apologizing
that he would bring him back.
Q And he did do the transportation?
A Yes, but he never called me back.
Q He didn't?
A No.
Q He had told -- strike that.
Mrs. Murtari, have you ever interfered with
visitation, have you ever interfered with his weekend
visitation?
A No.
Q And have there been times when you have cancelled
Sunday church visitation?
A Yes, I have.
Q And what is your understanding as to what the
Judgment and Decree of Divorce states regarding Sunday
church visitation?
A My understanding is that Domenic's father has --
may take Domenic to church and allowed to do so for two
hours between 9:30 and 11:30.
Q And those are on the weekends when you have
Domenic, correct?
A Yes.
Q Those are the every other weekend you have
Domenic for the weekend, correct?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 22
A Yes.
Q And are there occasions when you have -- what's
your understanding about when you can cancel that
visitation?
A My understanding of the order says -- is that
when I visit Japan with my son, also when I make a special
trip with my son I --
Q What about it?
A I can cancel the church, going to church
visitation.
Q And are there times when you are out of town and
you cancel that visitation?
A Yes.
Q And do you usually -- do you give Mr. Murtari
notice of that cancellation?
A Yes, I do.
Q And how do you give him notice?
A I send him a fax.
Q And how many days in advance do you usually send
him a fax?
A Two days or as soon as possible I know my plan
over the weekend.
Q And is there a specific time of the year when
this usually occurs?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 23
Q And when is that?
A After the summer vacation, September, I took -- I
cancelled a couple of visitations there.
Q And September of 1998?
A Yes.
Q And is there a reason why you cancelled those
visitations?
A On the three occasions I went to -- there was
International Hot Air Balloon Festival in Thousand Island, I
also took him to Watkins Glen with his friend's family, I
also went to Letchworth State Park.
Q And was there any times previous that you had
cancelled those?
A Yes, I have.
Q And were those also occasions when you were out
of town?
A Yes.
Q And did there come a time around eviction that
you cancelled those visitations?
A Yes.
Q And did you always give Mr. Murtari notice?
A Yes, I did.
Q And it's your testimony that if you were going to
be out of town you could do that, correct?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 24
Q And that's the only times that you had the
ability to go out of town, is that correct?
A Yes.
Q On the weekends that you had Domenic?
A Yes.
Q You couldn't take him out the other weekends when
he was with his father?
A No.
Q Miss Phillipson, Mr. Murtari has complained regarding
Domenic's contact by telephone, correct?
A Yes.
Q And have you attempted to address this with
Domenic?
A Yes, yes.
Q What problems are you having with Domenic
regarding the telephone?
A He hates telephone. He never picks up the phone.
He literally runs away from the phone. I have been working
on it, not only Mr. Murtari but also my grandparents want to
talk to him on the phone, he never comes to the phone.
Also, the safety reason, I think he's getting to be an old
enough age that he should be able to make a phone call in
emergency situation.
Q So if you're home and the phone rings, Domenic
never runs to the phone and answers?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 25
A Never.
Q And he won't talk to anybody on the telephone?
A No.
Q And what have you encouraged Mr. Murtari to do
since Domenic won't talk to him on the telephone?
A I suggested sending him letters is another way
but also Domenic enjoy listening to the message on the
answering machine so I asked him to leave the message on the
machine.
Q And does Domenic listen to those messages?
A Yes.
Q And do you play every message from his father for
Domenic?
A He knows how to do it.
Q He knows how to do it. He'll play with the
machine but he won't answer the telephone?
A No.
Q Miss Phillipson, according to the Judgment and Decree
of divorce you are allowed to visit Japan with Domenic twice
a year, correct?
A Yes.
Q And have you taken advantage of that?
A Yes, I have.
Q And why do you visit Japan with Domenic?
A Because in Japan his grandparents are there, also
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 26
I have my sister's family and my relatives living in Japan.
Q And who pays for those trips for you and Domenic
to go to Japan?
A My parents.
Q And are you asking the Court to allow you to
continue to take Domenic to Japan?
A Yes.
Q And does Domenic -- how do you get to Japan?
A We fly.
Q And Domenic has flown many times, is that
correct?
A Yes.
Q Twice a year since the divorce?
A Yes.
Q And prior to that he had gone a number of times?
A Yes.
Q Does Domenic enjoy flying?
A Very much.
Q Is there any problems with Domenic on the plane?
A No.
Q Is he afraid at all of flying?
A No.
Q Is he concerned about being on the airplane?
A No.
Q Mrs. Phillipson, when Domenic visits his father do
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 27
you provide clothes for visitation?
A Yes.
Q Who buys Domenic's clothes?
A I do.
Q And are there any problems with clothes coming
back at visitation?
A There is a time the clothes is missing or damaged
upon returning the visitation.
Q And do you provide all of Domenic's clothes when
he goes for vacations with his father?
MR. STERN: Objection.
A Yes.
MR. STERN: Objection as to foundation for
the prior answer, something about clothes being
missing at a time.
THE COURT: Well, if you want to pin it
down. That's a general question there of -- you
know, does that mean for every vacation that he
goes on with his father or a specific one?
MS. WALSH: Your Honor, I think she said
there was a time when some clothes came back.
Q Could you tell us what time they came back --
when clothes didn't come back?
A I don't remember the exact time because it
occurred over the period of time of several occasions. We
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 28
had fax going back and forth as well regarding the clothes.
Q And do -- does Mr. Murtari ever contribute
clothing to Domenic as far as you know?
A As far as I know --
MR. STERN: Objection. Judge, I still
don't understand. Is her answer that she doesn't
know when the clothes came or didn't come, that
she had a general sense that clothes weren't
coming back or if it was multiple times?
THE COURT: Listen, if there were clothes
missing, tell us when it was and what was
missing, approximately, the best you can remember
of when it was and what exactly was missing.
MS. WALSH: Your Honor, I think she
testified that she didn't remember exactly.
THE COURT: She doesn't remember anything
about what was missing and when it was?
MS. WALSH: When. She didn't remember
when.
THE COURT: How about what was missing?
THE WITNESS: Socks, underwears, shirts,
pajamas, different items, different occasions,
and damaged clothes was shirts, pants, it was
discolored, it was soiled, cannot be taken out.
Q Did the clothes -- generally do the clothes come
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 29
back from visitation dirty?
MR. STERN: Objection.
A Yes.
MR. STERN: As to foundation.
Q Did they come back last time dirty?
A Yes.
MR. STERN: Objection. Judge --
THE COURT: Wait a minute, please.
MR. STERN: Here's what I --
THE COURT: Please.
MR. STERN: Yes.
THE COURT: Miss Walsh, please make it more
specific, okay? I mean, I don't want a lot of
generalities here and that's what he's objecting
to. Now, we have to have specifics or it doesn't
mean much. I mean, does that mean they were
always dirty, everything that was ever sent back
was always dirty? I mean, let's get it out
there. What it is, that's what we want. What it
is.
Q Do the clothes returned from visitation in the
last two months, have they been clean or dirty when they
have returned?
A It's dirty.
Q And to the best of your knowledge has Mr. Murtari
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 30
ever provided clothes for Domenic since the Judgment and
Decree of Divorce?
A As far as I know it's very few.
Q Does he ever return from visitation with clothes
that his father has bought him?
A I have seen him once.
Q With what?
A That was a shorts.
Q When?
A During the summer.
Q This past summer?
A The past summer, I believe so.
Q And do you provide -- does Domenic take toys with
him when he goes on visitation with his father?
A Every once in a while, yes.
Q And does he ever return from visitation with
clothes that he's gotten from his father?
A Clothes or toys?
Q Toys, I'm sorry.
A No.
Q Miss Phillipson, if the Court grants you the ability
to relocate with Domenic, will you encourage visitation with
his father?
A Yes.
Q And is it fair to say that the current visitation
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 31
would have to change even if you were to stay in Syracuse?
A Yes.
Q And why is that?
A Next year he will start elementary school and
right now he's missing Friday and Monday every other
weekend. However, that would not be allowed once he goes to
elementary school.
Q And have you talked with his teachers about the
fact that he's currently missing Friday and Monday?
A Yes.
Q And that's every other Friday and Monday,
correct?
A Yes.
Q And have they expressed to you any problems with
him missing Friday and Monday at this point?
A No.
Q And what, if any, visitation would you suggest to
the Court would be appropriate if you are allowed to move
to -- or relocate?
A I understand it is not possible during the school
time, therefore it has to be during the break, such as
summer vacationtime, Christmas recess, spring recess.
Q And how would this visitation occur? How would
the transportation of Domenic back to Syracuse occur?
A I believe it has to be by plane.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 32
Q And how would he escorted?
A Next couple of years or so one of us has to
accompany him on the plane coming and going.
Q And do you know of any special service for
children that the airlines offer regarding transportation?
A Yes, I know there is escort service who
accompanies children and makes sure they get to the
destination for a small fee.
Q And do you know what that service does if a child
has to change planes?
A My understanding is they will -- a stewardess
will accompany to get off the plane first and there is
another attendant waiting to pick the child up and they will
escort the child to the next connecting gate and again same
thing, that attendant will hand the child to the flight
attendant.
Q But I think your testimony was that couldn't
happen right away, correct?
A Yes.
Q That for the first couple of years that one of
Domenic's parents would have to accompany him?
A Yes.
Q How else would you encourage contact between
Domenic and his father?
A I will keep working on the phone, telephone, fax,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 33
letters, those are the things.
Q Would you encourage Domenic to use those to keep
in contact with his father?
A Yes.
Q And will you encourage Domenic to let his father
know about his school and other activities?
A Yes.
Q And if his -- if Mr. Murtari was visiting in
California, would you allow extra visitation?
A Yes.
Q And will you encourage Domenic to see his father
if his father was nearby?
A Yes.
Q Miss Murtari -- Miss Phillipson, are you willing to
share in the cost of this transportation?
A Yes, as far as he pays his child support and he
pays all the judgment up to date.
Q And would you be willing to allow a credit
against the judgment for any costs of this transportation
that Mr. Murtari may have to incur?
A Yes.
Q And do you remember when that suggestion first
came to you, that there be credits against the judgment from
the cost of Mr. Murtari's --
A I remember that was suggested by Judge Auser
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 34
during the pretrial hearing.
Q And that was acceptable to you?
A Yes.
Q And at this time Mr. Murtari has over $20,000 in
judgment against you --
A Yes.
Q That you have $20,000 against him, correct?
A Yes.
Q Mrs. Phillipson, do you think it's in Domenic's best
interest to relocate with you to California?
A I believe so.
Q And why do you believe that?
A Emotionally he gets caught in the middle of
turmoil at this point but he will be taken out of that
battle, battlefield. Financially it will be more economical
for me to live there considering cheaper rent, once I become
a student and gain a teaching assistantship health care will
be continued, the rent also covers local telephone and the
cable system and that will allow me to save $500 a month or
so.
Q Any other reasons that you believe it would be in
Domenic's best interest to relocate?
A In the long run, again, financially I'm confident
to have myself as a self-supporting person to take care of
Domenic. Culturally, San Diego is very culturally rich place
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 35
and citizens are very highly educated. 95 percent of the
adults have high school and 60 percent has four or more
years of university education, which is not true in
Syracuse.
MR. STERN: Judge -- I'm sorry, continue.
Judge, I'd like to object as to the statistics --
THE COURT: As to?
MR. STERN: Her statistics, she's citing
statistics. I have no idea what her expertise is
or what her source of her knowledge is. But I
doubt that she has conducted a study of the
average education level of --
THE COURT: Well, you can get into that on
cross-examination.
MR. STERN: That's all I need to say.
THE COURT: Yeah.
A Also, the school system as far as I know from the
information that I gathered --
MR. STERN: Objection, hearsay.
THE COURT: Sustained.
Q Do you believe that Domenic will be in a better
school than he would be able to be in here in Syracuse if
you relocate?
A I believe so.
Q What other cultural school advantages would there
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 36
be for Domenic in this case if you were to relocate to
San Diego?
A There is a Japanese school in Denver which is a
half an hour drive.
Q And it's your plan to have Domenic attend that
school, correct?
A Yes.
MS. WALSH: I have nothing further,
your Honor.
THE COURT: Okay. Mr. Stern, cross?
MR. STERN: Thank you, Judge.
CROSS-EXAMINATION
BY MR. STERN:
Q The first thing I want to do is talk to you
about Denver, California. Do you understand --
A Yes.
Q -- I want to talk to you about that? And I
brought a road atlas for this purpose. Now, you had
testified earlier that San Diego was a suburb of Denver very
much like Liverpool is to Syracuse, do you remember that
testimony?
A That's my metaphor, yes.
Q And Liverpool is about five minutes from
Syracuse, correct?
A I don't believe so.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 37
Q How far is Liverpool from Syracuse?
A It takes about 20 minutes.
Q 20 minutes from Syracuse?
A Yes.
Q Well, let's look at a map of Syracuse and
Liverpool. It always takes me five minutes. Well, I don't
have a blow-up of Syracuse.
MS. WALSH: I would ask that that be
marked, your Honor, if he's going to use it.
MR. STERN: This is the library map.
Perhaps I could have it --
MS. WALSH: I'll withdraw the objection.
MR. STERN: This belongs to --
MS. WALSH: But I would like some
foundation as to what it is.
MR. STERN: Absolutely.
Q What I'm going to do is show you a AAA road atlas
that I took from the Supreme Court Law Library.
A Yes.
Q Do you see that right there?
A Yes.
Q Can you tell me what year this was published?
A 1994.
Q Now, what I want you to do is look right here,
here's Syracuse?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 38
A Yes.
Q And do you see where it says Liverpool?
A Yes.
MR. LUPIA: Objection, your Honor.
THE COURT: You know -- yes, Mr. Lupia?
MR. LUPIA: It's a collateral issue, the
distance from Liverpool to Syracuse. I would ask
that we focus on Denver and San Diego.
THE COURT: You know, the point is this,
you know, we're trying to complete this case in a
reasonable time.
MR. STERN: Judge, I've got a point --
THE COURT: Listen, can we just have the
mileage? I mean, do we need to go through all
this? If you want to make the comparison.
You're saying you're -- you're saying now that
it's wrong, that San Diego is much farther, all
right, from Denver than Liverpool is from
Syracuse, okay? Can't we just get the mileage?
I mean, that's a matter of record, isn't it?
MR. STERN: Yes.
THE COURT: Instead of going -- wasting a
half an hour on this.
MR. STERN: Judge, what I was going to try
to show is that her estimation of distance is
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 39
pretty poor. And if the Judge would like to take
judicial notice of the fact that you hop on 81
and it's three minutes up to Liverpool.
THE COURT: Just -- okay.
MR. STERN: In any event, if you would take
notice of that fact, that I think Liverpool is
five miles from Syracuse and that they actually
even talk about merging with Syracuse because
they're so close to each other, the police
department. It was a merger at one point.
MS. WALSH: I would object, your Honor, to
the relevancy of --
THE COURT: How far is San Diego from Denver?
MR. STERN: It's about 50 miles.
THE COURT: 50 miles. It's quite a big
difference then from Liverpool to here, okay, and
I know it. That's what it is, 50 miles?
MR. STERN: It's about an hour and a half
drive.
THE COURT: It's more like an hour. Okay.
I mean, do you want to spend time on that?
MS. WALSH: No, your Honor.
THE COURT: Do you agree it's about 50
miles?
MS. WALSH: No, I don't, your Honor.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 40
THE COURT: You don't agree? How many
miles is it?
MS. WALSH: I don't know, your Honor. Ask
the witness.
THE COURT: You don't know? We'll take the
time to prove it. Let's go.
MR. STERN: Here we go.
MS. WALSH: Ask the witness how many miles.
THE COURT: How many miles is it, ma'am, do
you know?
THE WITNESS: I don't know but I drove.
THE COURT: Yeah.
THE WITNESS: I drove from Denver to
San Diego. That didn't take hour and a half.
THE COURT: It took an hour and a half?
THE WITNESS: It did not take an hour and a
half.
THE COURT: How long did it take?
THE WITNESS: Half an hour.
Q Half an hour to get to San Diego from Denver?
A Yes.
Q Now, you had talked about the school that he
would be going to would be Aurora 7?
A Yes.
Q Aurora is a suburb of Denver, correct?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 41
A It's in San Diego.
Q Oh, Aurora 7 is in San Diego?
A Yes.
Q I thought you said the school was in Denver?
A No.
Q Oh, I see. Aurora 7 is in San Diego. Now, what's
this school that's in Denver?
A Japanese school.
Q Which school is he going to, a school in Denver
or is he going to a school in San Diego?
A San Diego.
Q Okay. So what's the school in Denver about, I
don't understand.
A That is a Japanese school.
Q Okay.
A Only occurs weekend, once a week.
Q I see, on the weekends he'll be going into
Denver, okay. Now, you talked about -- I want to ask you
some more questions about distances because I'm a little
confused. You -- how did you get to Denver, did you fly
there?
A Yes.
Q And you flew into Denver International Airport?
A Yes.
Q And that's about 45 minutes outside of Denver,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 42
correct?
A No, it didn't take that me that long.
Q Really? Because I fly out a couple of times a
year and it always takes me 45 minutes and I drive at about
70.
MS. WALSH: I would object to him
testifying, your Honor.
THE COURT: Sustained.
Q Okay. So you can -- how long did it take for you
to get from Denver International Airport to Denver?
A To Denver?
Q Uhm-hmm.
A It was about 25 minutes drive and that's what I
was told by the rental car people and the airline people.
MR. STERN: Okay. I'd like to have this
marked for identification.
(Whereupon, Respondent's Exhibit A was
marked for identification.)
MS. WALSH: Could I see that, please?
MR. STERN: Yeah.
MS. WALSH: Could I see the book too,
please?
MR. STERN: Sure.
MS. WALSH: I'm assuming that this is from
there.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 43
MR. STERN: That's a blow-up, yes.
MS. WALSH: A blow-up of this.
MR. STERN: I believe this would be a
blow-up of that.
MS. WALSH: Your Honor, I'm going to object
just because I believe this is confusing. There
is a blow-up area but it's not completely blown
up and the exhibit that he's offering is
really --
MR. STERN: I haven't offered it yet.
MS. WALSH: -- half of another one. But
here you go.
Q I'm showing you what has been marked for
identification as Respondent's Exhibit A. Can you tell me
what that is?
A It's a blown up map of Denver mountain area.
Q And does that correspond with this map here in
the original AAA road atlas?
A I don't know.
Q Why don't you look at the two and see if they
differ in any way other than the fact that one is a
photocopy and one is larger than the other.
A Yes.
Q Do you see any differences between them?
A No.
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Q Okay. Would you agree that this is a fair and
accurate facsimile of the original?
A Yes.
Q Okay. Now, what I want you to do is take this
highlighter and I want you to circle where San Diego is on
that map.
A (Witness complied.)
Q Okay. And what I want you to do is make a mark
approximately where you believe the airport is. It's not
exactly on this map as this is a blow-up of most of the
Denver area. In which direction the airport is, if you
know.
A I don't.
Q Okay. Now, when you drove -- when you drive to
Denver from San Diego, which route do you take?
A I don't remember.
Q Okay. Is it possible you take Route 172?
A I don't remember.
Q Okay. How many times have you been out there?
A Once.
Q Once. Okay. I think we're going to have to work
on where the airport is then.
MS. WALSH: Your Honor, I would question
the relevancy of where the airport is in
relationship to what Mr. Stern is trying to do.
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THE COURT: Where --
MR. STERN: Domenic is going to have to be
the one -- what I'm going to try to show you,
Judge --
THE COURT: Look it, I'd like to know what
you're trying to accomplish by all of these
mileage things. First it was Denver and San Diego
because -- why, because they were going to live
in one place and he was going to go to school in
another?
MR. STERN: And now I understand that he'll
only be going there on the weekends.
THE COURT: So that's out the window,
right?
MR. STERN: Right.
THE COURT: So now you're interested in how
far it is from the airport to where they live in
Denver, is that it?
MR. STERN: Judge, my offer of proof is
that the airport is somewhere over here. It's
about 45 minutes on the Thruway over to the --
THE COURT: Yeah.
MR. STERN: -- east, that this child is
going to have to come all the way from San Diego,
all the way down Route 70, across 70, to the
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plane and we're talking probably about a two and
a half hour drive, maybe three hours to get to
the airport.
THE COURT: For what, is he going to go to
the airport every day?
MR. STERN: Well, however many times he
wants to go visit his father, he has to travel
the three hours.
THE COURT: Well, I don't think that's
relevant.
MR. STERN: Well, then, Judge, I'll move
on.
THE COURT: I don't think it's relevant at
all.
MR. STERN: Okay. I also wanted to bring
it in for issues of distance. Judge, I offer
Exhibit A into evidence.
MS. WALSH: I'm going to object,
your Honor, for one specific reason and that's
that that does not include, I do not believe, the
legend. If I could look at this.
THE COURT: Look it, don't waste the time.
I'm not accepting it. I said that this is not
relevant. It really isn't and I have no use for
it in coming to my decision when I deliberate on
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this matter.
MR. STERN: Okay.
BY MR. STERN:
Q There was another matter that I just wanted to
clean up is which is that you testified you have been
accepted into a doctoral program, PhD program, correct?
A I applied for it and I was -- I am still accepted
to PhD program pending on completing the deficiency of the
courses.
Q You've been accepted into a masters program?
A Right now.
Q Right. You testified earlier you had been
accepted into a PhD program, that's not true, is it?
A Yes, it's true.
Q Wait a second. You have been accepted into a
masters program?
A Yes but that is not to get Master's Degree.
Q Your hope is that eventually you'll be accepted
into a PhD program from the masters program? You've only
been accepted into a masters program?
A Yes.
Q Okay. That's the truth?
A I don't know.
Q Well, what program have you been accepted into, a
masters program or a PhD program?
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A Masters program.
Q Okay. Your earlier testimony was just not
correct?
A I don't know how to answer that question because
it's depending on how you interpret the letter. I'm very
confused about it.
Q Okay. Well, let's see, let's go over it again.
You have testified that you were accepted into a PhD
program, correct?
A Yes.
Q And that's not true, correct?
A I still don't understand. I'm very confused with
how you interpret that acceptance letter.
Q Were you accepted into a PhD program?
THE COURT: You know, could we shorten this
up? You know, my understanding --
MR. STERN: I'm not fighting --
THE COURT: Correct me if I'm wrong but
we're going to spend another half an hour on this
one item.
MR. STERN: Judge, if she wants to fight
about the fact that she --
THE COURT: Now, wait a minute, Mr. Stern.
I think she was -- she applied for the PhD, they
said that she needed some further courses and
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that they admitted her into that to take those
extra courses with the idea that she'll go into
the doctoral. I mean, is that clear enough? I
mean, why do we have to spend time on it?
MR. STERN: Judge, I'm only trying to show
issues of credibility. She was trying to get --
make the Court believe that she is accepted into
the PhD program. I think you understand
completely what she has been accepted into.
THE COURT: She has been accepted in the
masters program with the idea that she will go
further into the doctorate program, correct? Is
that correct?
THE WITNESS: Yes.
THE COURT: Is that correct?
MR. LUPIA: Yes.
THE COURT: Is everyone in agreement on it?
MR. STERN: Yes.
THE COURT: Okay. Let's go on.
Q You said that this particular program in California
was going to waive the requirement that other programs in
the country require which is that you be able to be
proficient at a PhD level in either French or German, do you
remember testifying to that?
A Could you repeat the question again?
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Q You testified earlier that you couldn't get into
some PhD programs because they require French or German as a
language requirement?
A Yes.
Q Okay. And you also testified --
A I'm sorry, I say that I -- not I couldn't but I
did not apply.
Q Because they require French or German?
A Yes, because I knew prior to the application that
there was a language requirement.
Q Okay. And this particular program has that
requirement?
A Yes, which I did not know. After I got
accepted --
Q And this particular program you're saying the --
the masters program does not require a French or German
language proficiency?
A I do not know.
Q Okay. The PhD program does require that?
A I noticed that after I got accepted, yes.
Q And you're not proficient in French or German?
A No.
Q Okay. And now you say that they're going to
waive the French or German requirement for you?
A Yes.
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Q And do you have that in writing?
A No, I don't.
Q Someone just told you that?
A My advisers, which is the head of the university
department.
Q He told you that?
A She did.
Q She did. That for you we'll waive that
requirement?
A Yes.
Q Okay. Now, you went to a vocational
rehabilitation expert, correct?
A Yes.
Q Your attorney sent you to this one?
A Yes.
Q You didn't know Mr. Reagle before?
A No.
Q Who -- and it was your attorney who suggested
Mr. Reagle?
A Yes.
Q Okay. He didn't help you in formulating
acceptable -- you know, acceptable career paths for you here
in Syracuse?
A What do you mean by that?
Q He didn't help you to find a career path here in
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this area, correct?
A I think it was part of his perspective as well.
Q You didn't tell him, I need you to help me with
regard to what my abilities are and what type of a job I can
get here in this area so I can stay in this area?
A I asked him what would be the best area and the
job possibilities including this area and nationwide.
Q You went to him after you had already been
accepted into the program in California?
A Yes.
Q And you told him, I need you to justify this for
the Court?
A No, I did not.
Q Well, you hired him after you knew you were
coming to Family Court?
A Yes.
Q Okay. And you had already been accepted into
California?
A Yes.
Q And he didn't know very much about your
particular program out there?
MS. WALSH: I'm going to object,
your Honor.
THE COURT: Sustained. That's not really a
question. You're making a statement.
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MS. WALSH: Correct.
THE COURT: You know, that's not a
question. You're making a statement.
MS. WALSH: And she had been directed
to Dr. Reagle.
THE COURT: You have to ask her a question.
You're making a statement.
MR. STERN: I can make a question out
of it.
THE COURT: You can make a question out of
it, yes. Go ahead.
Q You remember that he testified that there was --
that he didn't know the requirements of that program in
California, correct?
A I don't remember.
Q Okay. Do you remember -- all right. I withdraw
that. I would now like to ask you about the PhD program in
California, okay? Now, first of all, you tried to get a job
as a language instructor and you couldn't get a job only as
a language instructor, correct?
A Yes.
Q You don't need any formal training to be a
language instructor, correct?
A No.
Q All you need is a proficiency in the language,
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correct?
A No.
MS. WALSH: I'm going to object as to the
foundation, your Honor.
MR. STERN: What sort of a foundation do
you need?
MS. WALSH: Specifically what job are you
asking her about?
MR. STERN: Language instructor.
MS. WALSH: Where?
MR. STERN: Okay.
Q To be a language instructor in a high school,
what are the requirements for that?
A My understanding is you have to have a
certificate for second school.
Q To be a language instructor in a college what are
the requirements?
A These days very few M.S. graduates will be
accepted. Mostly PhD.
Q Are you sure about that?
A Yes.
MR. STERN: Judge, I'm going to add
an expert to my list of witnesses at this point,
someone who is an expert in the issues of what
you need and I'll make my offer of proof to be --
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THE COURT: Yeah, okay, go ahead now.
MR. STERN: Okay.
Q So your understanding is you couldn't get a job
because you didn't have a PhD to be a language instructor at
a college?
THE COURT: I'm interested too, when and
where was this supposed to be? In other words,
is it -- you're talking about the present time or
in the past or all the --
MR. STERN: She testified --
THE COURT: I mean, I don't know.
MR. STERN: She testified from the past she
tried to get a job as a language instructor.
THE COURT: When, where?
MR. STERN: You know, I don't remember
myself.
Q When was it that you applied to be a language
instructor?
A Last fall.
Q Last fall. And where did you apply?
MS. WALSH: Your Honor, we had offered --
THE COURT: Listen, I've got to understand
this or it doesn't do any good, right?
MR. STERN: Yes.
THE COURT: Now, are you looking for
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alternatives of jobs that she could have got here
and help her economic status so she wouldn't have
that as a reason for wanting to relocate or is it
some job she would get there while she's
studying? I don't know.
MR. STERN: Where I'm going with this,
Judge, and this is my offer of proof, I have -- I
will bring in an expert to testify to the fact
that to be a language instructor requires nothing
other than a proficiency --
THE COURT: I don't care about that. I
want to know what period of time are you talking
about.
MR. STERN: Last fall. She said last fall.
THE COURT: In other words, last fall if
she got some job like that here she wouldn't need
to move, is that the idea or what?
MR. STERN: No, Judge, what I'm --
THE COURT: What's your idea?
MR. STERN: My idea is this. The chance of
her finishing a PhD and getting a job on a
10-year-track is pretty bad and what I'm going to
try and show to you is this, that although it's
true that if she were to get a PhD and get a
10-year-track she could make a fine living, if
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Official Court Reporter
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she graduated from Harvard Law she could make a
fine living, but she can't even get a job as a
language instructor because of her language
barrier.
THE COURT: You're going to go on forever
here with nothing. It means nothing to me. I
mean, really.
MR. STERN: I'll move on.
THE COURT: I'm trying to be kind to you
and not lead you astray.
MR. STERN: I'll move on.
THE COURT: But, gee.
BY MR. STERN:
Q The PhD program would be a full-time position,
correct?
A Yes.
Q And then you would be all set -- you testified
that you would be teaching as a teaching assistant?
A Yes.
Q And that's a part-time job?
A Yes.
Q That's a lot of time, correct?
A Yes.
Q And while you're teaching and while you're
studying and while you're in class in a linguistics PhD
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program, where will Domenic be?
A Pardon?
Q Where will Domenic be, your son?
A Domenic will be attending school from 8:30 until
2:30. My class is Tuesdays and Thursday. I don't have
class Monday, Wednesday, Friday. Those are times I could
study while Domenic is in school. I don't know my schedule
once I have teaching assistant.
Q Well, that's right now while you're in the
masters program but when you get -- if you get into a PhD
program, the requirements will become greater, correct?
MS. WALSH: I'm going to object to
Mr. Stern continuing to testify, your Honor.
He's not asking questions.
THE COURT: Yes. Ask the questions,
please.
Q Page 30, it says at the top of page 30 --
MS. WALSH: I would object to you
testifying. Will you please ask a question?
MR. STERN: Here's the question.
THE COURT: You know, Mr. Stern, I don't
know what you're handing her, I don't know what
you're asking her to read, I don't know where
it's coming from, you know, nothing. Now, you
know, she's testified that she -- when she starts
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now, if she does, that there will be no classes
on Monday and Friday. Why don't you ask her if
there will come a time when that will change,
when she will have to attend and go on from there
but, I mean, this way it's tough to follow. It
doesn't make any sense. I don't know what you're
going.
MR. STERN: Okay.
THE COURT: She's got to do the talking
so --
MR. STERN: Well --
THE COURT: You can ask her if there's
going to be a time when that changes and then
we'll know when and why and what it is.
MR. STERN: Okay.
Q Are you familiar with the linguistics pamphlet
that was sent from the program in California that's been
marked as Petitioner's Exhibit Number 5?
A I have read through it.
Q And under admissions requirements it says --
MS. WALSH: I'm going to object,
your Honor, to him testifying from that.
MR. STERN: I can read into the record
anything that's in evidence and ask her if she
remembers that.
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THE COURT: What are you trying to get at?
MR. STERN: Well --
THE COURT: What are you -- what point are
you trying to make?
MR. STERN: I'm going to try and show that
the requirements for a PhD are very rigorous,
it's going to increase the amount of time that
she's going to need to spend in school when she
gets into a PhD program, if she gets into one,
that she is not going to have time for Domenic,
that any PhD students themselves is terribly
taxed just from the rigors of the program itself,
that the PhD requirements move up another six
hours a week just from the pamphlet which we had
testimony earlier from the expert, and that in
addition to an additional 20 hour job as a
teaching assistant plus whatever other
preparation is required. She's teaching classes,
she's a PhD student and then I would like to show
at some point she would have to write a
dissertation, and at that point all bets are off
because you're working all the time to
essentially publish a publishable work.
MS. WALSH: I'm going to be object,
your Honor, both to the speculative nature of
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Mr. Stern's suggestions here. Also, he sort of
assumes that that means that any PhD, anybody who
goes to law school, anybody who has to work,
doesn't have time for their children, and I
believe that that is something that the Judge can
consider in terms of the Judge's experience, that
this is not an appropriate line of questioning at
this time. We're here to decide whether or not
it's appropriate for her to relocate.
MR. STERN: Well, with her child. With
their child. I'm going to move on, Judge,
because that's essentially what I'm going to try
to show and I guess it is somewhat just my
preaching to the Court that she's going to be
very busy and I don't need to spend a half an
hour trying to get you to understand that. I
would add one more thing that I would like --
BY MR. STERN:
Q It took you two and a half years to finish this
latest masters program here at Syracuse, correct?
A Yes.
Q Okay. And you had a teaching assistantship?
A Yes.
Q Okay. Is there a reason why you'll be able to
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accelerate the program when you get to California when you
couldn't do that here in Syracuse?
MS. WALSH: I'm going to object,
your Honor, as to asking her to testify to
evidence that is -- facts that are not in
evidence. She never said that she could
accelerate the program. In fact, she testified
to just the opposite.
THE COURT: I don't know what the question
is. What's the question? State the question
again.
Q An average masters program is anywhere from one
to two years to complete it, correct?
MS. WALSH: I'm going to object,
your Honor.
THE COURT: Wait a minute, Miss Walsh. I
have got to hear what -- I don't know the point.
I've got to figure out what you're trying to get
at, Mr. Stern, so let me hear the question, the
whole question.
Q The average student takes one to two years --
THE COURT: That's a statement. That's not
a question.
MR. STERN: Well, if I say, isn't that
correct --
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Official Court Reporter
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THE COURT: That's a statement. Forget
that. Ask her the question that you want to ask
her.
Q How long does it take the average student to
complete a masters program at Syracuse University?
A Two years.
Q Two years. And it took you two and a half years?
A Yes.
THE COURT: Did it take. Did it take you
two and a half years?
THE WITNESS: Pardon?
THE COURT: Did it take you two and a half
years.
THE WITNESS: Yes.
THE COURT: Next question.
MR. STERN: That's enough.
Q You've talked about financial problems and that
that is a factor in your move, correct?
A Yes.
Q Now, you testified you had to pay for day care?
A Pardon me?
Q Day care, you've had to pay for day care?
A Yes.
Q Okay. How much have you had to pay for day care
per month on average?
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A I am paying $136 every other week currently.
Prior to that I paid 176 every other week.
Q 176 every other week?
A Yes.
Q So on average about $150, so about $75 a week?
A Yes.
Q Or about $300 a month? And how much time would
Domenic be in day care that you needed to spend $75 a
week?
A He goes in 9 o'clock, I pick him up 2:30.
Q Okay. 9 to 2:30. And you also testified --
well, actually I don't remember. Do you also use a
baby-sitter at times, is that an expense?
A When?
Q A baby-sitter, do you ever use baby-sitters?
A When?
Q At any time to watch Domenic. Have you ever had
the expense of a baby-sitter?
A Yes.
Q When have you used baby-sitters for Domenic?
A While I was taking courses.
Q At Syracuse?
A Yes.
Q This last year?
A Yes.
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Q How often do you need to use a baby-sitter and
what is that expense?
A I was paying $5 an hour. I don't remember. I
had a class Monday evenings and those are the times I used
her regularly.
Q That's the only time you would need a
baby-sitter, would be Monday evenings?
A Regularly, yes, but there is some meeting comes
up then I ask her to come in.
Q But on average only once a week?
A I don't remember.
Q Well, let me ask you this. Last month -- if you
can remember back, how often have you had to use a
baby-sitter this last month?
A None.
Q Okay. And the month before that?
A None.
Q Now, do you have a car?
A Yes.
Q What type of a car do you own?
A Honda Accord.
Q What year?
A I believe that's '96.
Q It's a '96 Honda Accord? Do you have car
payments?
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A No, I don't.
THE COURT: Can I ask why we're getting
into all this, Mr. Stern?
MR. STERN: Judge, it's about financial --
THE COURT: What has this got to do with a
custody determination?
MR. STERN: Judge --
THE COURT: Nothing. It has nothing. You
got a beef with the orders regarding support, day
care, whatever it is, you go to the hearing
examiner. I don't hear it.
MR. STERN: Judge, I believe that the
testimony has been that she's crying that she's
having all sorts of financial problems and
that --
THE COURT: I'm not going to -- you can
question her on other things but not where it's
awarded by a Court. That's set by a Court and
that's it. We're not going to start to look to
find out whether it's -- whether it was a
proper -- whether he's ordered to pay the right
amount of support or whether he should be paying
day care or anything like that. That's set
already by someone who heard all the facts. I'm
not going to redo it, okay? Now, if you want to
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talk about other things --
MR. STERN: Yeah.
THE COURT: -- okay, fine with me.
MR. STERN: I'm not trying to ask her
questions -- I'm not trying to talk about the
order, Judge. Maybe I can expedite this in this
way.
Q You testified in 1997 you made approximately
$7600, correct?
A Yes.
Q And this is Petitioner's Exhibit Number 2, is
your tax return?
A Yes.
Q Who prepared that tax return?
A I asked the accountant.
Q The accountant. You have an accountant?
A Yes.
Q And he prepared this for you?
A Yes.
Q Of all these schedules, okay. And during 1997
you also -- and 1998 you have been able to afford an
attorney?
A I could not.
Q You could not.
A I could not. I am not still paid up to date.
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Q Okay. You hired an expert, right?
A Yes.
Q Okay. You've traveled to Denver, right?
A Yes.
Q You've made application fees for various schools,
correct?
A Yes.
Q You've obviously had to buy food for Domenic and
yourself, correct?
A Yes.
Q You've had to buy clothes for yourself and
Domenic, correct?
A Yes.
Q And auto insurance and rent, health insurance,
all these expenses have been your expenses?
A Yes.
Q How have you been able to do that on $7,000 a
year?
A Now I rely on the sale from the house and as I
testified, I have a support from my parents.
Q How much support have your parents given you this
year alone?
A This year, none.
Q Last year how much support did they give you?
A Last year, none.
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Q None. So on $7,000 a year you have been able to
have a 1996 Accord, pay for all of your expenses, travel out
to Denver, clothes, you've had multiple trips, I see a Hot
Air Balloon Festival, weekend trips down to Watkins Glen and
Letchworth State Park on $7,000 year income?
A Because of the sale from my house and the support
from my parents.
Q Oh, so your parents did give you some support?
A A couple of years ago, yes.
Q How much support did they give you a couple of
years ago?
A About $20,000.
Q 20,000. The year before that how much did they
give you?
A I don't remember.
Q Well, when you bought the house they gave you a
sizeable amount of money, correct?
A Yes.
MS. WALSH: I'm going to object to that,
your Honor. That's before the Judgment and
Decree of Divorce.
THE COURT: Sustained.
Q I'd like to ask you about jobs that you have
applied for here in Syracuse. How many jobs have you
applied for here in Syracuse?
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A I did not find any position in Syracuse.
Q You have not tried to get a job anywhere in
Syracuse, is that right?
THE COURT: Did you make formal application
for any jobs in this area?
THE WITNESS: No.
THE COURT: That -- you said before that
that you didn't find any positions to apply for,
is that what you said?
THE WITNESS: That's right.
THE COURT: That's the reason.
Q Right. Have you looked for any job of any sort
here in Syracuse?
A No, I did not. I looked for teaching position.
Q Are you working now?
A No.
Q When was the last time that you worked?
A As a teaching assistant.
Q When was that?
A Until last May.
Q Last May is the last time you worked?
A '98.
Q Okay. Or this May of '98 --
A Yes.
Q -- is the last time that you have worked? And
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H. PHILLIPSON - CROSS 71
you have been living on the proceeds of the sale of the
house since that time?
A That's correct.
Q I see. And you haven't been looking in the paper
for a job?
A Not currently.
Q Since May have you looked in the paper for a job?
A Not paper.
Q Have you looked anywhere for a job?
A Yes.
Q Where?
A Internet.
Q The Internet. I'd like to ask you about your
previous education. You already have a degree in
photojournalism, that's a Bachelor's Degree, and why is that
that you're not interested in that type of work?
A Pardon me?
Q Why is it that you're not interested in
photojournalism as an area of work?
A Currently or --
Q At any time. Why is it that you gave that up?
MS. WALSH: I would object to the time,
your Honor, in terms of it being since the
decree.
THE COURT: That what?
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H. PHILLIPSON - CROSS 72
MS. WALSH: It has to be since the decree.
THE COURT: Well, that's okay but, in other
words, it's a degree that she still holds and I
think -- is the question why she isn't using this
to better her economic situation? I'll allow
that question. Do you understand that question?
THE WITNESS: I didn't quite understand the
question.
THE COURT: He's asking you -- he's saying
that you hold a degree in photojournalism.
THE WITNESS: Yes.
THE COURT: And he's asking why you don't
use that degree to better your economic condition
here now.
THE WITNESS: It's now?
THE COURT: Yes. Or since May when you
didn't have a job or whatever.
A I did not -- I did not look into it and I haven't
done any photography and that is an area, technology
develops very quickly. Now I understand that they use a
computer which I don't understand how they do it. In order
to get the job you need those background.
Q So it would be easier for you to complete a PhD
program in another three or four, maybe five years, than to
learn how to use the computer for photojournalism?
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H. PHILLIPSON - CROSS 73
A It is totally different area so I cannot compare
different things.
Q You could get training in photojournalism in
learning how to use the computer?
MS. WALSH: I'm going to --
THE COURT: Could you. Could you?
Q Could you?
A Probably I could but --
Q You weren't interested to?
A I found when I was looking for photojournalism it
is very time demanding job, it's unpredictable too, that's
what I found out, and when I start having family I found
that it is not good for myself to have a job in such area
because newspaper journalism, it's very -- time is crucial
and you have to be -- especially to be a photographer, you
have to be on the spot and you could get a call in the
middle of the night. I did not want to have such job.
Q Well, there's other jobs for a photographer other
than working for a newspaper.
MS. WALSH: I'm going to object,
your Honor.
THE COURT: Sustained. It's not a
question.
MR. STERN: Judge, it's cross.
THE COURT: Is there, please.
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H. PHILLIPSON - CROSS 74
MR. STERN: If you give me a chance to say
the last part, I'll conform it to --
THE COURT: You're insinuating what the
answer is before you ask the question. Could you
just ask her the question?
MR. STERN: But, Judge, it's leading.
THE COURT: Is there.
MR. STERN: Judge, am I not allowed to lead
on cross?
THE COURT: Not on this part. If you're
trying to discredit at this time something she
said on direct. This is entirely new area.
You're making her your own witness on these
questions, quite frankly. Is it difficult to ask
her a question?
MR. STERN: It isn't. All of these have
been questions, if I'm allowed to give the last
part.
THE COURT: Do you know that there are some
other areas that you can point at?
MR. STERN: Yeah
THE COURT: You've already got them
documented?
MR. STERN: I don't have any documentation
of it but I have personal knowledge of jobs in
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the --
THE COURT: You do, you have personal
knowledge of it?
MR. STERN: Sure.
THE COURT: Ask the question.
BY MR. STERN:
Q There are other jobs for photographers, aren't
there?
THE COURT: Are there other jobs.
Q Are there other jobs?
A I don't know.
THE COURT: That don't require you to be on
24 hour notice to report and to do this and do
that?
THE WITNESS: I don't know.
THE COURT: She doesn't know. Next
question.
Q Did you look to find jobs for photographers here
in this community?
A No.
Q Okay. So you don't know because you didn't look?
A That's correct.
Q The next degree you got was a degree in -- you
have a Master's in music, correct?
A Yes.
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Q Okay. And when did you receive that degree?
A May of '93.
Q May of '93? Okay. Now, why is it that you're
unable to use that degree for your income?
A It doesn't generate enough income to be
self-supportive.
Q Okay. What was the reason you got that degree?
MS. WALSH: I'm going to object,
your Honor.
THE COURT: That what?
MS. WALSH: It's improper --
THE COURT: You have to repeat the
question. I didn't hear it.
MR. STERN: What was the reason that she
went to school to get a degree in music, Master's
in music, if it's something that can't support
her.
MS. WALSH: I'm going to object,
your Honor. She testified --
THE COURT: I don't know, a lot of people
go onto things just because they're interested in
it, they don't look for the buck in it, but I
don't know what that means but you can ask her if
you want. If you understand the question. Do
you understand the question?
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H. PHILLIPSON - CROSS 77
THE WITNESS: Yes, I do.
THE COURT: Yeah, okay. You can ask her.
Q What was the reason that you pursued and received
a degree in music, a Master's in music, if it wasn't to
support you?
A I was always trying a musician and at that time I
was married, my husband can bring the money to support the
family so I did not have to look for a job or the degree
that can provide me self-supporting economic source.
Q Okay. So when did you begin this masters program
in linguistics?
A September of '96.
Q Okay. And that was after your divorce? No?
A I don't -- this has been going on for so long so
I don't remember exactly when I got divorced.
Q It was about two and a half years ago that you
started the program in linguistics --
A Yes.
Q -- here in Syracuse? What was the reason that
you started that masters program?
A Prior to that teaching assistantship I was
teaching Japanese as an adjunct instructor at the Lemoyne
College and at Syracuse University.
Q Okay.
A And more and more school cut down part-time
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H. PHILLIPSON - CROSS 78
instructor and adjunct instructors and I was about to lose
the job and the language coordinator who was the head of the
Japanese-Asian Department offered me -- he could not secure
me the position as a part-time instructor, however he would
write me a recommendation to be a teaching assistant. In
order to keep the job -- and I did not have any linguistic
background at that time so if I were to be self-supportive I
was advised degree is necessary to teach at the college
level especially. Therefore, I decided to take the teaching
position, teaching assistant position, and at the same time
get the Master's Degree in linguistics.
Q Okay. But you're unable to support yourself with
that Master's Degree after two and a half years?
A I have to realize that.
Q So now you have found another program in California
that you can get another degree that you believe will
finally lead to being able to earn an income? You're unable
to support yourself after --
MS. WALSH: I would object to it being
double questions, your Honor, and the witness
does not understand.
THE COURT: Okay. Did you realize that you
couldn't make a living here with the Master's
in -- I mean, you couldn't find a good
opportunity for jobs to better your economic
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Official Court Reporter
H. PHILLIPSON - CROSS 79
condition here with your Master's in linguistics
alone and, therefore, look to improve yourself by
going for a further degree, is that --
THE WITNESS: Yes, that's correct,
your Honor.
THE COURT: Now, what is the next question?
I don't understand why that's so difficult. All
right. We are going to break here anyway. 2:30.
MR. STERN: Judge, would we be able to take
my witnesses out of order? They're going to be
here --
THE COURT: Yeah, we'll do anything we can
to try to finish this.
MS. WALSH: You're not going to finish
cross, is that what you're suggesting?
THE COURT: Oh, we're going to finish,
aren't we?
MR. STERN: Well, I have all these
witnesses showing up at 2. I keep putting them
off day after day and I would like to take my
witnesses at 2:30 out of order.
MS. WALSH: I would object to an
interruption of cross-examination. My client has
a right to be cross-examined by both Mr. Stern
and Mr. Lupia, she also has a right to have that
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H. PHILLIPSON - CROSS 80
finished today if at all possible.
THE COURT: She's going to be here anyway.
We have done this all the way through direct. I
mean, we have done this all the way through with
other witnesses. I'm not going to stop now. If
you've got them lined up, let's get them in here
and we'll have a better handle on finishing this
case too.
MR. STERN: That's right.
THE COURT: Because we may do other things
in order to make sure that we are finished.
We'll talk about that later today, okay?
(Whereupon, a luncheon recess was taken.)
THE COURT: Back on Docket Number V-320-95.
Both parties are present with counsel, as is the
law guardian, Mr. Lupia. Mr. Stern, have you got
witnesses?
MR. STERN: I have all the witnesses here
and I'd like to start with Mrs. Murtari, if I
may.
THE COURT: Okay.
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81
C A T E R I N A M U R T A R I, having
been called as a witness, being duly sworn,
testified as follows:
COURT ATTENDANT: Do you want to state your
name for the record?
MR. STERN: Your name.
THE WITNESS: My name.
MR. STERN: What's your name?
THE WITNESS: It's Caterina Murtari.
DIRECT EXAMINATION
BY MR. STERN:
Q Mrs. Murtari, I need you to keep your voice nice
and loud.
A Okay.
Q And the reason for that is everybody back here
has to hear you and the Judge most importantly has to hear
you.
A Yeah.
Q Okay?
A Yeah.
Q So if you need to, just yell so that you can get
to me. Your name is Mrs. Murtari?
A Yeah.
Q And are you related to anybody here? Is this
your son?
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82
A Yeah, it's my son.
Q Okay. The -- Mr. Murtari here is your son?
A Yeah.
Q Okay. How old are you, Mrs. Murtari?
A 82.
Q 82 years old?
A 82, yeah.
Q How many children do you have?
A One.
Q One?
A Yeah.
Q Is that enough?
A Yeah.
Q Okay. How many grandchildren do you have?
A One.
Q One. His name is?
A Domenic.
Q Domenic.
A Yeah.
Q I would like to ask you questions --
A Yeah.
Q -- about your grandson.
A Yeah, he's nice.
Q He's nice?
A Yeah.
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83
Q You spend time with him?
A Yeah, grandma -- (unintelligible)
THE COURT: We can delete that, that's
really not in response.
Q You play with Dom?
A Yeah.
Q He speaks to you?
A Yeah.
Q About his choo-choo trains?
A Yeah. Choo-choo trains.
Q You like to play with him?
A Yeah.
Q How much time now do you spend with Domenic?
A Oh, when he come to my house, all the day, he
used to stay all the time close to myself, all the time.
Q He would stay close to you?
A Yeah.
Q You're close with Domenic?
A Huh?
Q You are close to Domenic?
A Yeah, sure.
Q He loves you?
A Oh, yeah.
MS. WALSH: I'm going to object,
your Honor, to that question.
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Official Court Reporter
C. MURTARI - DIRECT 84
THE COURT: Okay. You have to start asking
her -- making her answer instead of leading so --
Q Okay. Do you have any feelings for your grandson
of any sort?
A Me don't understand.
Q Do you have any feelings about Domenic?
A Oh, me like -- like very, very much, yeah, and
Domenic like me too.
Q And he does?
A Yeah.
Q Okay. Now, do you have any family here in
Syracuse?
A No. I got a family, myself, from Italy, Sicily,
nephews, niece, all the Murtaris.
Q All the Murtaris?
A Yes. I got back California. Connecticut.
Q Say that one more time so she can get it.
In Connecticut, California, where else? Ithaca?
A It's close.
Q Close?
A In Connecticut. And Massachusetts too.
Q Massachusetts too?
A Yeah, I have got a nephew in Massachusetts.
Q Okay. But you have some family in this
area?
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85
A Oh, all, all the family.
Q All the family?
A All the family. Not mine, my husband's.
Q Oh, your husband's nephews and nieces?
A My husband, yes.
Q Here?
A Yes. I got -- (unintelligible).
MR. STERN: Judge, are you able to
understand most of this?
THE COURT: I can. She has to get this
down. I understand the gist of this but I think
if you confine yourself to the points of this
case and try to confine yourself and move along
here.
MR. STERN: I'm going to move on here.
Q What I'd like to know is this question. If
Domenic were to go to another state --
A Yeah.
Q -- far away --
A Yeah.
Q -- how would this make you feel?
A Me cry, because he's gone. He's got to stay in
New York. I'm going to tell -- (unintelligible).
MS. WALSH: I'm going to object,
your Honor, to her not answering questions.
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86
THE COURT: I'm going to interrupt. I've
got to just limit it to the exact question you
ask because it's --
Q Let me ask you another question. You're doing
fine, I'm just not doing a good job. It's not your fault.
A Okay.
Q The question I would like to ask you is this.
Are you able to move from this area? Could you move to
another state?
A No.
MS. WALSH: I'm going to object to the
relevancy of that, your Honor.
A No. I got to stay with my grandson in New York
State.
Q If John were to move to another state --
A Yeah.
Q -- would this be okay for you?
A I got to have somebody help me because I'm
getting too old, drive a car, I don't go no place, me stay
inside.
Q Okay. Let me stop right there so I make sure I
understand. You stay inside?
A Yeah.
Q You don't go anyplace you said?
A No. Don't go any party, don't go no place, don't
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87
go at night, don't go to dance, no place.
Q Without -- do you need your son to help you?
A Sure.
MS. WALSH: I'm going to object,
your Honor.
A I got to help.
THE COURT: Yeah. Miss Walsh?
MR. STERN: Judge, they were bringing out
that Mr. Murtari could get a job in Denver and I
am trying to show that he has an elderly mother
here in Syracuse, he can't possibly leave this
area.
THE COURT: Yeah, okay.
MR. STERN: And that she also has a
relationship with her grandson.
THE COURT: It's in the ballpark. She
brought it on, we're going to go with it. Go
ahead.
MR. STERN: All right.
Q Do you need John for help?
A Oh, sure.
Q Okay. He helps you with English?
MS. WALSH: I'm going to object to the
witness leading -- the attorney leading.
THE COURT: Sustained. We have to stop it.
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88
MR. STERN: Okay.
A I got to go someplace --
Q If you need to go someplace?
A If I got to go someplace, okay?
Q You would like to see your grandson --
A Oh, yes.
Q -- more?
A More.
Q Okay.
A I got a -- (unintelligible). One week's with the
mother, one week's with the father.
MS. WALSH: I'm going to object,
your Honor.
THE COURT: Sustained. Now, look, we have
to move -- excuse me.
MR. STERN: I'm done, Judge.
THE COURT: We have to move along. Now,
please, Mr. Stern, there's only two reasons you
could possibly use this witness. You already
used her for one, that because the petitioner's
made implications that the respondent could
relocate if he really wanted to be close to his
son in California, if that's what the Court
decides. Secondly is her observation of the
respondent father with the child and all that. I
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89
can't imagine anything else. I mean, her wanting
to see him, that has nothing to do with it.
That's not what this case is.
MR. STERN: Well, if he moves to California,
she's denied her visitation but I'm done, Judge,
that was my last question. I just wanted her to
have the opportunity to tell the Court how she
felt.
THE COURT: All right.
MR. STERN: Mrs. Murtari, thank you very
much. I'm done asking you questions. Now other
people will ask you questions.
THE WITNESS: Okay.
THE COURT: Okay? Miss Walsh, anything?
MS. WALSH: I have no questions,
your Honor.
THE COURT: No questions. Mr. Lupia?
MR. LUPIA: Just a couple, your Honor.
THE COURT: Yeah.
EXAMINATION
BY MR. LUPIA:
Q Mrs. Murtari, during the past six months do you
know how many times you visited with Domenic?
MR. STERN: If you could repeat it for her.
MS. WALSH: No, I'm going to object to
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90
that.
THE COURT: Sustained.
Q Do you understand what I'm asking?
A Johnny, tell me.
THE COURT: No, no, you've got to do it.
THE WITNESS: Oh.
Q During the last six months can you give me a
rough idea how many times --
A Yeah.
Q -- you have seen Domenic?
A Sometimes -- (unintelligible).
MR. STERN: Sometimes once, sometimes twice
a week.
A Summertime, me no see every two weeks my
grandson, in the summer, yeah. Sometime yeah, sometime no.
MR. LUPIA: No further questions,
your Honor.
THE COURT: Witness is excused. Thank you
very much.
MR. STERN: Thank you very much,
Mrs. Murtari, you're all done. Finito. You're
all done. So you can go now.
THE WITNESS: Oh, yeah.
MR. STERN: Yes.
(Whereupon, the witness was excused.)
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Official Court Reporter
C. KWIEK - DIRECT 91
MR. STERN: I would next call Cheryl
Kwiek.
C H E R Y L K W I E K, having been
called as a witness, being duly sworn, testified
as follows:
THE COURT: Okay, Mr. Stern. Give us your
name and address, please.
THE WITNESS: Cheryl Kwiek. 4 Midway Lane,
Baldwinsville, New York.
THE COURT: The first name is Cheryl,
C-H-E-R-Y-L?
THE WITNESS: Yes.
THE COURT: And the last name?
THE WITNESS: K-W-I-E-K.
DIRECT EXAMINATION
BY MR. STERN:
Q Are you related in any way to John Murtari?
A Yes, I am. We're cousins.
Q How are you cousins?
A Actually we're -- technically I think we would be
first cousins once removed. My mother and John are first
cousins.
Q And how long have you lived in this area?
A I have lived here -- I have lived here since the
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 92
mid '80s. I did move away for a short time in Rochester for
a few years but I have been steady here since 1989.
Q Okay. How long have you known John?
A Well, I have known John all my life.
Q Okay.
A Because he -- yeah.
Q Is your family close?
MS. WALSH: I'm going to object to the form
of that question, your Honor.
THE COURT: Well, is your family close. I
mean, is she close with his particular immediate
family wherein she visits a lot, yes, I'll take
that.
A Right. John and I became closer when he -- when,
of course, I moved here to Syracuse where he already was
residing here, that's when we, you know, really came to know
each other better than probably when I was growing up,
was -- you know, then we only saw each other occasionally.
MS. WALSH: I would ask that the witness be
responsive to questions and not --
A Yes. Well, I'm very -- yes, I'm very close with
John and his son Domenic and have been.
Q What about the extended family, does it get
together for holidays?
A You mean like John and his mother and my --
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 93
Q And your family?
A Part of my family -- not --
THE COURT: Let me, if you don't mind. How
frequently do you visit Mr. Murtari when he is --
when he has his child with him? That's what
we're interested in.
THE WITNESS: We probably see each other on
a monthly basis.
THE COURT: So maybe once a month while he
has visitation with his son you visit, or he
visits you or --
THE WITNESS: He may visit me or I may see
him --
THE COURT: Okay. Now, we've got that
down, how frequent the contact is. Now, go
ahead.
Q Have you witnessed Mr. Murtari interacting with
his son Domenic?
A Yes, I have.
Q Okay. In that interaction with his son I would
like you to help me to describe your impressions of their
relationship?
MS. WALSH: I'm going to object as to both
form and foundation, your Honor.
THE COURT: She can tell us what she
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 94
observed.
Q So let me now --
THE COURT: In her own words.
Q Let me now start asking you questions about your
observations.
THE COURT: What do you see them do
together? Do you hear them talk to each other?
All that sort of thing is what we're interested
in.
A Right. Yes, I definitely see them together. I
see them communicate very well together, John with Domenic,
Domenic with his dad, with John. I see them -- I see them
doing many things together. They talk about nature, I mean
when we're visiting, they have a -- you know, a fish tank
and they're always discussing different items about, you
know, maybe the crabs in there and what have you and they do
a lot of nature walks and things like that. And they are --
you know, Domenic is very happy with his dad. He is very
excited when he's with his dad, it's like he just can't --
he wants to just go from one thing to another. I mean, he's
very -- he's very happy with his dad and they spend a lot of
time together, quality time, not just --
MS. WALSH: I'm going to object to the
running on now, your Honor.
THE COURT: Okay. That's all right.
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 95
That's okay. I didn't sustain the objection.
She finished her answer though so next question,
please.
Q Okay. My next question to you is what type --
from your own observations of John Murtari as a father
what's been your -- what's your opinion or your experience
of him as a father with Domenic, to Domenic?
MS. WALSH: I have to object as to the
opinion, your Honor. She can say what she sees
them do.
THE COURT: She can say what she observes.
She can say even what she -- how they show
affection to each other, how they talk with each
other, what they do together, but she can't make
conclusions, okay?
MR. STERN: All right.
Q What are your observations of Mr. Murtari as a
father?
A Okay. I think he -- my observations are that he
is a wonderful father. They are warm together, they show
warmness, John shows nurturing toward Domenic, there is
touching, there is hugging. Those are, you know, my
physical observations, and there's also a good deal of the
talking, communication. There is good communication.
Q Okay.
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C. KWIEK - DIRECT 96
A He is a good father.
Q Do you have any children?
A Yes, I do.
Q How old are your children?
A I have a five-year-old and a seven-year-old.
Q Do they play with Domenic?
A Yes, they do.
Q Okay. Your observations of Domenic in the last
year, has he appeared to be -- what have been your
observations of him, is he sad, is he happy?
A Very -- I have had no observations other than
happiness with him during the times when I have seen him,
which, of course, is with John. He is very -- a very happy
boy with his dad.
Q Have you ever seen him trembling --
A No.
Q -- with John? Or have you ever seen him crying?
A Never.
Q Does Domenic play with your children?
A Yes, he does. He interacts well with my
children.
Q Does he? Okay. From what you have observed
would your children miss Domenic if he weren't here to --
MS. WALSH: I'm going to object,
your Honor.
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 97
Q -- be a playmate?
THE COURT: I'm sorry. Just a minute.
Okay. Go ahead. Repeat the question and the
objection.
Q Well, let me ask you a different question. Do
Domenic and your children play together?
A Yes.
Q Okay. Do Domenic and your children get together
during holidays with yourself and your husband and John?
A Yes, occasionally, yes.
Q Would Domenic be missed if he were not here in
Syracuse to play with your children?
A Yes, he would be greatly missed.
Q By whom? Who would miss Domenic?
MS. WALSH: I'm going to object to any
testimony other than herself, your Honor.
THE COURT: That what?
MS. WALSH: Object to any testimony about
anybody missing Domenic other than herself.
THE COURT: Oh, well --
MR. STERN: I'd like to know if her
children would --
THE COURT: I think you can tell us what
your routine is but she hasn't really -- the
witness really was very vague on how often they
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 98
get together other than that once a month visit.
I mean, you know, you asked do they -- do they
get together for every single holiday? I don't
know.
Q When was the last time that you got together with
Mr. Murtari and Domenic?
A It was for Halloween.
Q Halloween?
A Halloween evening.
Q What did you do on Halloween?
A He came to my neighborhood, to my house first and
we were playing a little music, did a little videotaping, we
were having a good time before we -- getting the kids all
ready and then we trick-or-treated around our neighborhood,
two blocks, and he had a ball.
Q Okay. Let me ask you some questions about your
observations of Mr. Murtari. Have you ever seen him to be
emotionally abusive to Domenic?
A Never.
Q Have you ever seen him be emotionally abusive to
anybody in your presence?
A No.
Q What about an issue about controlling, have you
had experience with him trying to be controlling of Domenic?
A No, I have had no experience.
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 99
Q What about, there's been some talk about
Mr. Murtari not allowing his son to walk. Has that ever
been a concern of yours?
A No.
Q Okay. What about not allowing his son to put on
his own coat?
A No, these are things that I don't think I have
ever even noticed.
Q Has there ever been a concern about him not
allowing Domenic to wear -- to wear just underpants instead
of a diaper in your presence, in your observation?
A No, no.
Q Has there been anything that you have observed in
interaction between Mr. Murtari and his son that you would
consider to be odd?
A Nothing. Nothing at all.
Q Has there been anything in your observation that
you have -- in your observation of Mr. Murtari and his son
that you have found to be positive?
A Yes, yes.
Q What are some examples of positive things that
you have observed between Mr. Murtari and his son?
A Well, that he just seems to be very devoted. I
mean, when he has his time with Domenic he -- that's his
number one priority, it's obvious. He schedules his
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 100
activities around this time, he really spends time with him.
He gets right down and does thing. John is the type that
will get right down on the floor and play with his son. I
have seen him do that. He's not the type that will sit in
the kitchen and talk to me while the kids are playing. I
mean, there might be occasions when that happens but he is a
hands-on father.
Q Okay.
A And a good one.
Q I'd like to ask you questions about Domenic and
what you have observed in Domenic. Does Domenic appear to
you to be comfortable with his father?
A Yes, extremely.
Q Is there anything that has ever concerned you
with your observations of Domenic in his interactions with
his father?
A No, I have had no concerns.
Q Have you had -- have you noticed any good
qualities or anything good in their interaction, his
interaction with his father?
A Yes. I mean, he -- you know, he seems very
happy. I mean, he's just -- like I said, he seems so
excited to be with his dad. His time with his dad he just
seems to be very excited. You can tell, he's, daddy, daddy,
let's do this and, you know, daddy, when are we going here,
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - DIRECT 101
and, you know, he might speak of activities that they might
have planned for the weekend or, you know, where they're
going or what they're doing and it's like he -- you know, he
has a lot to say. He's not a quiet and not a withdrawn
child.
Q He's not?
A No, not at all.
Q Okay. When he's with John?
A Right.
Q From your observation is there a bond, if any,
between Mr. Murtari and his son?
A Very strong bond.
MR. STERN: Okay. Judge, I have no further
questions.
THE COURT: Okay. Miss Walsh?
MR. STERN: Hold on, there's other people
that want to ask you questions.
THE WITNESS: Okay.
CROSS-EXAMINATION
BY MS. WALSH:
Q Miss Kwiek?
A Yes.
Q Did there come a time when you became aware of
Mr. Murtari being evicted from Sourwood Drive?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - CROSS 102
Q And when did you first become aware of that?
A You're asking me the date, like the month?
Q When you first became aware that it was going to
be a possibility.
MR. STERN: Judge, I object to this as
beyond the scope of my direct examination. I
only asked issues with regard to the relationship
and her observations in regard to the
relationship between John and his son, the son
and the father, whether there was anything
bizarre about his behaviors that she has observed
herself, as this goes far beyond my direct.
THE COURT: I agree with that. I mean, if
you want to call her as your own witness, we'll
arrange that.
MS. WALSH: Your Honor, I believe that
there has been testimony that she was the person
who was involved.
THE COURT: Well, that's nothing to do with
the questions that he asked.
MS. WALSH: Well, then I will --
THE COURT: It was for a very limited
purpose that -- I mean, if you wanted to, you
didn't close your case yet so you can call her if
there's something --
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - CROSS 103
MS. WALSH: Do you want me to do that while
she's here, your Honor?
THE COURT: We can do that but let's first
do her cross here.
Q Miss Kwiek, you said you visited about 12 times
a year, is that correct?
A That's an approximate number.
Q And an occasional holiday, correct?
A Yes.
Q That was your testimony? And the last holiday
you remember was Halloween?
A That's the most recent.
Q Did you spend last Christmas with Domenic?
A No.
Q Did you spend last Thanksgiving with Domenic?
A No.
Q Did you spend the Christmas before with Domenic?
A No.
Q Did you spend Thanksgiving before with Domenic?
A I don't think we have ever spent the major
holidays, that very day, together. Maybe at some point
surrounding the holiday.
Q And this summer do you remember how many times
you saw Domenic and what the activities were?
A Well, let's see. Probably one time, yeah, we --
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - CROSS 104
very low key, came to my house, played outside on the swing
set, played inside in my son's room, has a lot of race cars,
Hot Wheels things, Domenic likes that, dinosaurs, did a lot
of those things.
Q Once this summer?
A Inside stuff. No, more than once. That's one
time that I'm remembering. We got together a few times.
One time at a playground at my son's elementary school.
They have a wooden play area, we went there, and I'm trying
to think --
Q Do you remember that Domenic was in diapers with
his father until he was five years old?
A I can't say that I know the exact time. I know
that -- I know that I was aware that there was some problems
in that area but I never was aware of the exact age.
Q Mr. Murtari didn't discuss this with you?
A Well, not in -- not at length. Yes, he did
discuss it with me a few times, just some general concerns.
Q But not in any depth?
A Not to say that when I got together with him, oh,
by the way, Domenic has a diaper on right now, I --
Q Did you discuss the problems he was having toilet
training Domenic with you?
A He discussed some concerns, some concerns about
that, uhm-hmm.
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - CROSS 105
Q And do you remember when that was?
A I really can't recall exactly.
Q Do you remember what he said to you?
A I think he just had asked me how I handled just
the basic issue of potty -- I want to say potty-training,
with my children, just kind of for some general advice.
Q And you have a child who is also five years old,
correct?
A I do, yes.
Q And did you notice how older Domenic was when he
got potty-trained than your child who is also five?
A Well, probably a little older. My children were
not early trainers.
Q How old was your son?
A My son was three -- my son was almost four.
Q Almost four?
A Almost four. Probably three years nine months.
Q But he wasn't five?
A He wasn't five, no.
Q And how about your daughter?
A My daughter was I believe three, three and a
half.
Q And did you ever -- did Mr. Murtari ever ask you
to baby-sit for Domenic?
A No, I have never watched him.
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - CROSS 106
Q You have never watched him?
A No, not without John.
Q So the only occasions you have been with him is
when his father is with him?
A Together, uhm-hmm.
MS. WALSH: That's all on cross. I would
like to ask her a few questions on the eviction.
THE COURT: Okay. Mr. Lupia?
MR. LUPIA: Just a few.
EXAMINATION
BY MR. LUPIA:
Q Mrs. Kwiek, have you ever been present when
Domenic and John went to church?
A I can't recall. I don't -- I don't believe so.
I don't believe that I have ever been to mass with --
Q And during the past year have you been present at
any times for any meals that John Murtari has prepared in
his own home?
A No, I don't believe so.
Q Okay. And during the past year have you been
present at any time when John put Domenic down for a nap?
A No.
MR. LUPIA: No further questions. Thank
you.
THE COURT: Redirect, anything, Mr. Stern?
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - LAW GUARDIAN 107
MR. STERN: I have nothing further, Judge.
THE COURT: Okay. Now, Miss Walsh wants to
call this witness as her own. She's still under
oath. She'll be bound by her answers in that its
her witness at this point.
MR. STERN: May I be heard on this subject,
Judge?
THE COURT: Yes.
MR. STERN: Judge, I asked Miss Walsh to
give me a list of all of her witnesses. This is
not one of her witnesses, and I object to her
using my witness as her own. Essentially at this
point I understood I was going to be able to call
my witnesses. That's one of my objections. And
my second occasion is, it goes back really to the
first, this is not a named witness and I have a
right to know who she plans to call as witnesses
and prepare for that prior to this case.
THE COURT: Yeah, Miss Walsh?
MS. WALSH: He doesn't. He only ever asked
me who my expert was, your Honor. I'm not
calling her as an expert and I have a right to
call her as my own witness on this very limited
topic.
MR. STERN: I would be happy to show you my
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - LAW GUARDIAN 108
discovery. It only had three questions, who are
your expert witnesses, who are your other
witnesses and what exhibits will you be producing
at trial. I certainly did ask for witnesses and
I'd be happy to show that to the Court.
THE COURT: Mr. Lupia?
MR. LUPIA: Judge, I take no position.
THE COURT: You know, I really -- I really
don't like the idea and --
MS. WALSH: Then, your Honor, I should have
been allowed --
THE COURT: It wasn't part of your case,
you didn't plan it. She just happens to be here
and you want to take advantage -- I don't think
it's right. I'm going to deny.
MS. WALSH: Then I have a right to
cross-examine her, your Honor, on this issue.
THE COURT: On what?
MS. WALSH: On the issue of what she knew
at the time of the eviction regarding Domenic --
THE COURT: But that was not -- no one got
into that on direct. It was very -- the witness
was used strictly to testify as to the
interaction of the father with the child, you
know, the familiarity and what she observed.
DEBORAH A. McCARTHY
Official Court Reporter
C. KWIEK - LAW GUARDIAN 109
Nowhere did we get into that. Now, I think
you're just seeking to take advantage of a
witness that was produced by the respondent for
that purpose as your own witness. Again, I'm not
going to allow it now. If you find it's all that
important, you subpoena her as part of your case
which is not closed yet. Okay? The witness is
excused.
MR. STERN: Thank you.
THE COURT: You may leave.
(Whereupon, the witness was excused.)
THE COURT: Next.
MR. STERN: Okay. The next witness I have
is Amy Murtari.
A M Y M U R T A R I, having been
called as a witness, being duly sworn, testified
as follows:
COURT ATTENDANT: Can you just state your
name for the record, please?
THE WITNESS: Amy Murtari.
COURT ATTENDANT: Can you spell your last
name?
THE WITNESS: M-U-R-T-A-R-I.
COURT ATTENDANT: You can have a seat.
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 110
DIRECT EXAMINATION
BY MR. STERN:
Q Thank you for being here, Miss Murtari. Would
you please tell us where you live?
A I live in Auburn.
Q What's your address?
A 40 Havens Avenue, Auburn, New York.
Q Okay. Do you work?
A I do.
Q What is your occupation?
A I'm a kindergarten teacher.
Q Okay. Do you have any of your own children?
A Yes.
Q Please tell me their names and ages.
A Mallory is 12, Frankie is 8, James is 5.
Q Okay. You have the same last name as my client,
John Murtari?
A I do.
Q How is that?
A I'm married to his second cousin.
Q What's his name?
A John Murtari.
Q They're both John Murtaris, okay. And how long
have you been married to your John Murtari?
A 13 years.
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 111
Q And how long have you lived in this area?
A All my life.
Q Okay. How long have you known John Murtari, this
John Murtari sitting next to me?
A 16 years.
Q 16 years. What I'd like to ask you about is, has
there ever come a time when you have spent time with
Domenic?
A Yes.
MR. LUPIA: Objection, as to time.
MR. STERN: I was just going to ask her
what times. First I wanted to get that she spent
some time with him.
MR. LUPIA: Well, Judge, I want to focus
specifically on post-divorce time. We've heard
previously from this witness on pre-divorce time.
I'm only interested in post.
THE COURT: Yeah, okay. We'll get there.
Q You have spent some time with Domenic?
A Yes.
Q I would like you to limit what you say to the
time between --
MR. STERN: When was the divorce?
MS. WALSH: March 1997.
Q -- March 1997 to today. Or maybe tomorrow.
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 112
Okay. So in that time period have you had any interaction
with Domenic Murtari?
A Yes.
Q Okay. Why don't we talk about how often do you
see Domenic on average?
A Five, six times a year. Four, five, six times a
year.
Q Okay. And at what periods are those?
A During the holidays, during the summertime, for
birthdays, school holidays when I have more time.
Q Okay. You're busy with your children I take it?
A Uhm-hmm.
Q Have you had the opportunity between -- in the
period that you have discussed to observe Domenic with his
father?
A Yes.
Q From what you have observed what type of a
relationship does Mr. Murtari have with his son?
MS. WALSH: Objection as to foundation and
form, your Honor.
THE COURT: Okay. We have to know, this is
five or six times a year so --
MR. STERN: Let me go backwards or --
THE COURT: And we want to know your
observations. So you can just describe what you
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 113
see. You can describe the affection they have
for each other, what they do together, how they
play together, how they talk together and all
that sort of thing. Okay?
A I can tell you that he has a loving relationship,
I think they're -- he's kind to him, I think they're
comfortable with one another. I have a five-year-old,
Domenic is five, I would see not much difference in our --
either relationship, one child's father with the other
child's father. Domenic sees his father --
MS. WALSH: Your Honor, I'm going to
object. I'm not sure that the witness is
understanding your directive in terms of
observing.
THE COURT: You can only tell us what you
see and we have to draw the conclusions from
that. So --
THE WITNESS: Okay.
THE COURT: So you're saying that he's a
loving father, that's a conclusion. But if you
tell us that you see them hugging each other,
kissing each other, holding hands, playing, that
tells us what we want to hear to make our own
conclusions.
Q Let's talk about what you have observed between
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 114
your interaction in as much factual detail to stay away from
any generalizations that could mean anything.
A Okay. I have seen Domenic and John and my family
share meals together. I have seen them take walks in the
country together. I have seen them ride bikes, take walks
in the city near my house together. I have seen them play
with kittens together. I have seen them play trains
together, have birthday cakes together. I have seen them
open Christmas presents, read stories, share dessert.
Q Have you observed any affection?
A Yes. I have seen Dom sit in John's lap. I have
seen John take him by the hand, get him a drink of water. I
have seen John help his son up on the play horse. I have
seen them make hamburgers together. I have seen them --
Q Okay. Have you observed any love between them?
A Yes.
Q How do you know that or what's been your
observations?
A Domenic is comfortable with his dad, he sits on
his lap, he sits next to him, he looks at his dad and
smiles, he looks at his dad when he's done something new and
exciting. You know, when he comes to my house we have new
toys, he looks at his dad and smiles, looks at his dad with
pride.
Q Okay. Have you ever witnessed in the time period
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 115
we're discussing between March of '97 to the present Domenic
looking -- trembling when he's with his father?
A No.
Q What about crying around his father?
A Certainly not that I can remember.
Q Okay.
A I mean, perhaps he has fallen on the driveway or
something but certainly not out of discomfort or upset or --
Q Okay.
A No.
Q From your observation of their interaction, is it
close, are they close?
A Yes. Definitely.
Q Why do you say that, if you can?
A I'm afraid I'm making generalizations but I'll
try to answer the question. It's obvious Dom and John love
one another. He's comfortable --
MS. WALSH: I'm going to object,
your Honor.
THE COURT: Let her finish the answer.
A It's obvious that the five-year-old is
comfortable. I mean, he sits on his dad's lap. When he
goes to play, he looks for his dad but he interacts with the
children. He seems to be a happy child when he's with him.
They talk in conversation. It's obvious from conversation
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 116
that he'll say -- they share stories with one another or
they share jokes, they smile.
Q You're a professional school teacher?
A Yes.
Q You teach five-year-olds?
A Yes.
Q Every day?
A Yes.
Q Okay. Has there been anything in the interaction
between Mr. Murtari and his son that has caused you concern?
A No.
Q Is there anything inappropriate in the way in
which he treats Domenic?
A No.
Q There's been some testimony about a few issues
I'd like to bring up to you and ask you if you have had any
observations of those.
A Uhm-hmm.
Q One of them was that Mr. Murtari was very
controlling of Domenic. Have you had any observations of
him being controlling of Domenic in an inappropriate way?
A No.
Q Okay.
A No, and I could say the opposite, you know. The
boys wanted to play outside, we would play outside, the boys
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 117
were offered choices, do you want to take a walk, we took a
walk. If they wanted to watch the trains at grandma's
house, then we would watch -- I mean, it wasn't parental
choices, the children made choices.
Q Okay.
A I would say the boys decided what we would do.
Q All right. What about forcing -- like not
allowing Domenic to walk on his own, making Domenic have to
be carried, have you observed anything that gave you any
concern on that issue?
A I have seen John carry him. Not in the last few
visits and it was -- coming to my house, I would assume that
it was for more reassurance of a four-year-old who didn't
know the people but as Dom became comfortable with us, he
didn't -- he walked on his own.
Q When he's uncomfortable he tends to -- in your
observation, he clings to his father?
A Definitely. I wouldn't say -- he looked to his
dad for reassurance but I wouldn't call it clinging but he
looked to his dad, you know, I'm in a strange place.
Q Okay. There was some testimony about Mr. Murtari
forcing his son into diapers, not allowing him to, you know,
wear underwear instead of diapers. Do you have any
knowledge of this or has there been anything that you have
noticed that was upsetting to you, that was unusual
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 118
regarding potty-training?
A I don't even remember a conversation. I don't
know anything about it.
Q Okay. The last matter I want to talk to you
about is -- well, actually the last matter I wanted to talk
to you about is, have you had any conversations with
Mr. Murtari regarding his goals for Domenic? I'll take a no
if that's a no.
A No, I don't -- certainly not future goals, no, I
don't think so.
Q Have you had any conversations with Mr. Murtari
about what his goals were with regard to some of the
litigation that has occurred in this action, you know,
revolving around Domenic?
MS. WALSH: I'm going to object,
your Honor, as to the relevancy of that.
THE COURT: You mean whether she had
conversations with your client regarding her
testimony today?
MR. STERN: No.
THE COURT: Is that what you're asking?
MR. STERN: No, that's not what I'm asking.
THE COURT: What are you asking?
MR. STERN: I asked the question badly.
THE COURT: Huh?
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 119
MR. STERN: I asked it badly, if that's
what everybody is getting from it.
THE COURT: What did you ask?
Q What I meant and what I'm asking is, have you had
any conversations regarding what the purpose was of
Mr. Murtari litigating a number of the issues in the divorce
and here for custody? Has he ever discussed anything of
that sort with you?
MS. WALSH: And I'm going to object,
your Honor.
THE COURT: I don't know where it's
relevant. Sustain the objection. I mean, I
really don't.
Q Okay. Then I have one final thing to ask you.
Your children play with Domenic on occasion?
A Yes, uhm-hmm.
Q Do they play well together?
A Uhm-hmm.
Q Okay. Do you believe -- will you miss Domenic if
he moves to California?
A Definitely, yes.
Q Okay. You've come to know him?
A Definitely, yes.
Q Do you -- from what you have observed of Domenic
what do you -- well, from what you have observed of
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - DIRECT 120
Domenic -- I withdraw that.
MR. STERN: I have no further questions.
THE COURT: Okay. Miss Walsh?
CROSS-EXAMINATION
BY MS. WALSH:
Q Miss Murtari, you say you had no conversations
with Mr. Murtari about Domenic's potty-training?
A I don't recall that I did.
Q You were unaware that when he was with his father
he wasn't potty-trained until he was five?
A Evidently I am. I don't remember that it was a
discussion.
Q Okay. And you stated that your last -- you
interact about five or six times a year?
A Uhm-hmm.
Q And is that usually at your house?
A No, it's a combination. John's home, his mom's
home, my home.
Q And when was the last time that you visited John
in his home with Domenic, when Domenic was there?
A Actually my husband did in the summer.
Q You. I asked you.
A I -- in his old home in Phoenix.
Q At Sourwood?
A Uhm-hmm.
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - CROSS 121
Q You haven't been to the new home?
A No, I have not.
Q And did you celebrate last Christmas with Domenic
and his father?
A Yes.
Q Christmas Day?
A Christmas Eve Day.
Q And that was at your house?
A At Aunt Katherine's house. John's father and
mother's house.
Q In Lyons?
A Yes.
Q And how about last Thanksgiving?
A I can't say for sure.
Q Did you have any contact with Domenic in December
prior to Christmas 1997?
A I can't -- certainly we saw him. I have seen him
every Christmas. I can't recall if -- I would assume that
it was in December.
Q After Christmas -- or Christmas Eve?
A Last -- one year, yes, I saw him Christmas Eve
Day.
Q Did you have any contact with him in the month
before that?
A I can't say for sure.
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - CROSS 122
Q And if Domenic was to visit you five or six times
during a year that would be the same as he has in the past,
is that correct?
A Uhm-hmm.
MS. WALSH: Okay. No further questions.
THE COURT: Mr. Lupia?
MR. LUPIA: Just a few.
EXAMINATION
BY MR. LUPIA:
Q Mrs. Murtari, during the past year have you had
occasion to sit down and have any meals with Domenic and
John?
A Yes.
Q And do you know at whose homes these occurred?
A At my home and at John's mother's home.
Q Can you tell me during the past year now while
eating at John's mother's house, can you tell me whether or
not Domenic is still being given liquers and alcohol?
A I never saw it.
Q You have not seen that?
A That Domenic was given alcohol?
Q Liquers or wine for meals?
A No, I don't --
Q Were you aware of that previously?
A I'm not sure what you're asking.
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - LAW GUARDIAN 123
Q Have you --
A Did we do -- do we do a toast? Is that what
you're asking me? Yes.
Q I'm asking you previously have you seen John give
Domenic liquers or wine for meals?
A No, I don't think I have.
Q Have you had occasion to see Domenic going down
for a nap during the past year?
A No.
MR. LUPIA: No further questions.
THE COURT: Okay. Anything further?
MR. STERN: I just have one question.
THE COURT: Yeah, go ahead.
REDIRECT EXAMINATION
BY MR. STERN:
Q Mr. Lupia was asking you about liquers or wine
being given to a minor, Domenic?
A Uhm-hmm.
Q Do you have any knowledge that Mr. Murtari's
mother and his family have a tradition of making their own
wines?
A Yes.
Q Okay. Has it ever been that at any family
function that everybody toasts?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
A. MURTARI - REDIRECT 124
Q Have you ever seen -- in your experience has
anyone ever put a couple of drops of this family homemade
wine into some milk or into some water so that the children
can toast along with the family?
A They certainly toast. They toast with what they
have in their glass.
Q Okay. But you have never seen anybody put a
couple of drops of liquor or wine into a --
A I believe that they toast with the milk or water
that they have. They are toasting, yes. If it's with
alcohol, I think no.
Q You have never done that with your children?
A Toast, yes.
Q But not with --
A Do I give them alcohol, no.
MR. STERN: Okay. That's all I wanted to
ask.
THE COURT: That's it? The witness is
excused. Thank you very much, ma'am.
(Whereupon, the witness was excused.)
THE COURT: Mr. Stern?
MR. STERN: I have my last two -- or last
three witnesses. The next one is -- I'm going to
call Walt Jaworsky as my next witness. I'll go
get him.
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 125
W A L T J A W O R S K Y, having been
called as a witness, being duly sworn, testified
as follows:
COURT ATTENDANT: Can you state your name
for the record?
THE WITNESS: Walt Jaworsky.
COURT ATTENDANT: And spell your last name,
please.
THE WITNESS: J-A-W-O-R-S-K-Y.
DIRECT EXAMINATION
BY MR. STERN:
Q Good afternoon, Mr. Jaworsky. What's your
address?
A 5849 Sugarbush Drive, Tully, New York.
Q And do you work?
A Yes, I do.
Q Where do you work?
A I work for a software company in East Syracuse
called Coherent Research. We sell software products to
utilities like Niagara Mohawk and I support that software at
Niagara Mohawk.
Q Okay. What did you do previous to that
employment?
A I worked for the Software Workshop as a web
design/programmer.
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 126
Q Is that the same business that Mr. Murtari --
A Yes, it is.
Q -- owns? How long did you work for Mr. Murtari?
A Roughly a year and a half.
Q A year and a half? Okay. During that year and a
half --
MS. WALSH: Could I ask for foundation as
to when that year and a half was, your Honor?
THE COURT: This past year, when was it?
THE WITNESS: Early '96 to mid '97.
Q To mid '97?
MS. WALSH: Your Honor, I would say that
the Judgment and Decree of Divorce was in March
of '97 and you have ruled that we cannot have
testimony prior to that.
Q I would ask you to confine your testimony to the
time from March of 1997 to the present.
A Okay.
Q Okay? You worked for Mr. Murtari?
A Yes.
Q During that period that we just discussed did you
ever see -- did you ever experience Mr. Murtari to be
controlling of you?
A No, not at all.
Q Controlling of others?
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 127
A No, not at all.
Q From your experience could you describe for me
what type of a employer Mr. Murtari was?
A John's been one of the best people that I've ever
had the opportunity to work for. Real -- a real nice boss,
helpful, friendly, knowledgeable, a real good boss.
Q Okay. I'd like to ask you some questions about
the business.
A Okay.
Q Now, you don't work there anymore?
A No.
Q Why is that?
A I took a better opportunity.
Q Okay. What was better about it?
A It paid more, different experiences, different
types of work. I just like to keep moving.
Q Okay. From your experience of the business that
Mr. Murtari is doing, is it a -- what type of a business is
it that he had or has?
A Web hosting, web design, software, hardware,
Internet related.
Q How was the business doing at the time that you
were there?
A It seemed to be having a lot of financial
difficulties.
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 128
Q Okay. Did it look like things were getting worse
or better or --
MS. WALSH: I'm going to object,
your Honor.
MR. STERN: As to his observations?
MS. WALSH: He's answered the question.
We're talking about a period --
THE COURT: Well, you know, I think he can
amplify his answer a little better. You know,
where, what periods was it, if it seemed to be
improving within that certain period before you
left or whatever.
Q When you left -- I mean, before you left, which
direction was the business going, was it going down or was
it going up?
A Financially it seemed to be fairly level. It was
in the red, I believe. But we were picking up a lot of
customers so business was growing.
Q It was growing?
A Yes.
Q You had said something to me out in the hall
about --
MS. WALSH: I'm going to object to the
counsel testifying.
THE COURT: I don't know what the next
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 129
question is, quite frankly. What is it? The
next question?
Q You had said --
THE COURT: Is there a question out there
because I didn't hear it. I'm waiting for one.
MR. STERN: Yes.
Q My question is, we were discussing out in the
hall, you had made a comment to me that you would like to
work for Mr. Murtari again?
A Sure.
Q Why did you say that to me?
MS. WALSH: And I'm going to object,
your Honor, to the form of that question.
THE COURT: Sustained. If she asked it, it
might be okay, it might affect credibility, I
don't know.
MR. STERN: I'm sorry?
THE COURT: I said if she asked it, if
Miss Walsh asked it, I might have to let it go
but I don't know why you would ask it.
MR. STERN: Okay.
Q Did you during the time of the period that we are
discussing have any opportunity to observe Mr. Murtari
interacting with his son Domenic?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 130
Q Okay. Would you tell me how often you saw
Domenic during that period?
A I might -- on the average might have seen him one
to two times a week.
Q One or two times a week? Okay. And for how much
time during each of these visits would you see him?
A Not for very long. Less than 15 minutes at a
time.
Q Could you describe for me during those 15 minute
periods what you observed with regard to the interaction
between Mr. Murtari and his son?
A They seemed to have a really good relationship.
John was always very loving toward --
MS. WALSH: I'm going to object,
your Honor, to what he -- his conclusions.
THE COURT: Again, you're going to have to
just tell us what you observed of what they --
how they, say, greeted each other, were they
hugging, were they friendly, were they -- and
what they did together or -- if anything. I
mean, you only saw them for 15 minute periods but
whatever you observed, not arriving at any
conclusions.
A John would hold Domenic a lot. They would speak
to each other.
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 131
Q Did they show affection and emotions to each
other?
A Oh, yeah. John would kiss Domenic a lot.
Q Okay. Would they tell each other jokes or --
A I don't recall any specific jokes but they did
talk quite a bit.
Q Would they laugh together?
A Yeah, oh, yeah.
Q You saw them laughing?
A Oh, yeah.
Q Did Domenic ever appear afraid of his father?
A No, not at all.
Q Okay. Was there anything that you could see that
there was any unease between Domenic and his father?
A No. Domenic I thought was always very
comfortable being around John.
Q You had testified that they appeared to be close.
What did you observe that brought you to that conclusion
that they had a close relationship?
MS. WALSH: And I'm going to object to the
conclusion and to any questions regarding the
conclusion, your Honor.
MR. STERN: I'm asking what he observed
that brought him to that conclusion.
THE COURT: It's okay.
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 132
Q What did you observe -- when you testified that
they had a close and loving relationship, what did you
observe that made you believe that Mr. Murtari has a close
and loving relationship with his son?
A Just the way they acted toward each other. There
was always a lot of physical contact, hugging, kissing,
laughing, it just seemed very friendly.
Q Okay. Now, during the time -- you only got to
see Domenic and his father sometimes for 15 minutes a day
for twice a week. Can you estimate how many times all
together, how many different days you have seen Domenic and
his father?
A During that work period?
Q Yeah.
A On the average roughly two times a week for the
span.
Q Okay. Over -- of all the times you have seen --
A Oh, just a general number?
Q Yeah. How many times all together have you seen
Domenic and his father, roughly?
MS. WALSH: I'm going to ask that it be
limited until after March of 1997.
THE COURT: Well, I think he has already
said that he saw them once, twice a week. I
mean, why are we going more into that? Do you
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 133
want to change it? I mean, that's what it was.
Q Once or twice a week for over a year so --
THE COURT: So for at least six months
from --
A Right.
THE COURT: -- the divorce decree.
Q Now, why -- now, during that time would John work
when he had Domenic on his visitations?
A Yes.
Q He would?
A Do you mean like when he would go on vacations
or --
Q Well, when visitations would occur when John had
Domenic for visitation, was John working?
THE COURT: When you saw Mr. Murtari and
the child, right?
THE WITNESS: Yes, your Honor.
THE COURT: Was that at work?
THE WITNESS: It was at work.
THE COURT: In other words, he brought the
child to work with him for a little bit there and
that's where you saw him?
THE WITNESS: Right. The office was at the
house.
THE COURT: Okay. That's what you want to
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - DIRECT 134
know, right?
MR. STERN: Yes. What I'm trying to get
from this witness is that --
MS. WALSH: I'm going to object to him
testifying as to what he is trying to get from
the witness.
THE COURT: What's the next question?
Q My next question is, is there a reason why on the
days when Mr. Murtari had visitation that you would only see
Mr. Murtari for 15 minutes?
A John might stop in just to see how things were
running, just to see if I had any questions or difficulties
that day.
Q Because he would be spending the day with his
son?
A Right.
Q That was his priority of that day?
A Oh, definitely.
Q Okay. From what you observed when Domenic was
with his father what was the number one priority for John?
A Domenic always.
MR. STERN: Always. I have no further
questions.
THE COURT: Okay. Miss Walsh?
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - CROSS 135
CROSS-EXAMINATION
BY MS. WALSH:
Q When did you leave Software Workshop,
Mr. Jaworsky.
A June of '97.
Q June of '97. And you said you went on to have
different experiences, correct?
A That's correct.
Q Was there a limited type of work that you were
doing at Software?
A I mostly worked with software, programming, web
site design. The new position that I took gave me more --
more units administration and some hardware.
Q And would you describe the pace of work at
Software as leisurely or hectic or something in between?
MR. STERN: Objection, Judge. It calls for
a conclusion.
THE COURT: Overruled.
A It would have been a mix.
Q And how many hours did you work?
A Part-time. Roughly 20 hours a week.
Q And is it fair to say that when you were there
Mr. Murtari was not there?
A No, in general he was there.
Q He was there. And you were doing the same kind
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - CROSS 136
of work?
A John did more of the higher level administration
and programming. I did more of the customer support, some
programming and web site design.
Q And when you say there were financial
difficulties, how do you know that there were financial
difficulties?
A Just from what I had heard and seen, a lot of
credit cards, credit card debt, loans. We were interested
in purchasing hardware that we couldn't because the money
wasn't there.
Q You said that you saw that Mr. Murtari kissed
Domenic a lot. Is that typical?
A Yeah. Oh, yeah.
Q So if he -- if you were to see him twice a week,
how many times would Mr. Murtari be kissing Domenic?
A Maybe once or twice a visit.
Q And how about -- you said he held him a lot. Did
he usually hold him for the whole 15 minutes?
A Not always for the entire 15 minutes. At least
part of the time.
MS. WALSH: I have no further questions.
THE COURT: Mr. Lupia?
MR. LUPIA: No cross, your Honor.
THE COURT: Anything on redirect?
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - REDIRECT 137
REDIRECT EXAMINATION
BY MR. STERN:
Q Well, Miss Walsh got into the issue that I was
trying to bring out earlier so now I would like the
opportunity to ask you about the business. You had
testified under cross that some of the debt was holding the
business back?
A Yes.
Q Is this a good business?
MS. WALSH: I'm going to object,
your Honor. This is not an expert, number one,
and he hasn't been there in over a year.
THE COURT: Well, you know, I don't know,
you brought it up again just now. What did you
ask him?
MS. WALSH: I asked him what kind of work
he did there.
THE COURT: Yeah.
MS. WALSH: And how did he know there was
financial difficulties.
THE COURT: All right. So he's getting
back into that.
MS. WALSH: He's asking --
THE COURT: Now you're going farther.
What's the question exactly?
DEBORAH A. McCARTHY
Official Court Reporter
W. JAWORSKY - REDIRECT 138
MR. STERN: I wanted to know -- basically I
wanted to know if this was a viable business,
does he have an opinion about it.
THE COURT: That's out of it.
MS. WALSH: Right.
THE COURT: I sustained on that. We're not
into that. We're not worried about that right
here now.
MR. STERN: Thank you, Judge. I have no
further questions.
THE COURT: Okay. The witness is excused .
Thank you very much.
(Whereupon, the witness was excused.)
THE COURT: We're taking a five minute
break.
(Whereupon, a short recess was taken.)
THE COURT: Okay.
MR. STERN: I would call my next witness,
George Law.
G E O R G E L A W, having been called
as a witness, being duly sworn, testified as
follows:
COURT ATTENDANT: State your name for the
record, please.
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 139
THE WITNESS: George Ernest Law.
DIRECT EXAMINATION
BY MR. STERN:
Q Hello. Where do you live?
A I live in Elbridge.
Q What's your address?
A 20 Mobile Manor.
Q Okay. And are you employed?
A Yes.
Q Where are you employed?
A I work at the Software Workshop which is for
John.
Q What do you do there?
A I'm a web programmer.
Q Okay. What's the nature of the business that you
work in?
A It's web hosting for the Internet. And the
support and stuff for that.
Q Okay. And it's an Internet type of a business?
A Yes.
Q I want to ask you a few questions about -- but it
has to be within a specific period. When did you first
start working for John?
A I started mid-July 1997.
Q Okay. And you've worked there to this day?
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 140
A Yes.
Q To the present? Are you a full-time employee?
A Yes.
Q Okay. How many people are working there right
now?
A Right now there's John, myself, a new person we
just hired and my wife works part-time for doing John's
billing.
Q Okay.
A The billing for the company.
Q How's the business doing from your observation?
A Good. The business has been expanding.
Q Okay. Enough that you need to hire more people?
A Yes.
Q Okay. I'd like to ask you about the nature of
the receivables, the money that's coming in.
A Okay.
MS. WALSH: I'm going to object,
your Honor, as to form and foundation. What --
we don't know what this man does there that would
have -- let him have any --
THE COURT: Well, first of all, I don't
know what it has to do with this.
MS. WALSH: Correct.
THE COURT: We're not handling a
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 141
modification of a support order or anything like
that.
MR. STERN: Well, Judge, one of the issues
is that my client is not paying child support and
certainly they have got into this whole issue.
What I'm trying to show with this witness is my
client isn't hiding any money or hoarding money.
It's just that it's a growing business, it's
expanding, and with time it will be a viable --
THE COURT: Well, that doesn't matter. The
fact of the matter is that she isn't getting the
money.
MR. STERN: Right.
THE COURT: And if there's a problem with
him meeting that, it should be addressed with the
hearing examiner on a modification petition.
MR. STERN: Right.
THE COURT: If he doesn't have the ability.
MR. STERN: Well, I just didn't want the --
THE COURT: That's not for me to decide on
this case.
MR. STERN: Okay.
THE COURT: I'm just looking at the facts.
What is she getting? She's getting maybe half of
what she's supposed to be getting and not to
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 142
mention the judgment and all that but, you know,
the fact of the matter is no matter what the
reason, that's what the economic reality is for
her now under the present circumstances. So it
isn't a question of whether it's because he can't
afford to pay it or not. That's the reality,
that she's not getting the full amount. So --
MR. STERN: If that's the extent, I just
didn't want the Court to get the impression that
my client has been obstinate or that he's somehow
a deadbeat dad.
THE COURT: No, it was different if you
came in with proof to show that he paid it all,
because that changes the economic reality of what
she has now presently to use to live on so --
okay?
BY MR. STERN:
Q Well, we're not going to talk about that. What
we are going to talk about then is, have you had any
opportunity to observe -- well, have you had any opportunity
since you have been working there to meet Domenic Murtari?
A Yes.
Q Okay. How often have you seen Domenic Murtari?
A I have seen him just -- every other weekend when
John has his visitation.
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 143
Q For about how much time during the every other
weekends will you see Domenic?
A Before the business -- we recently moved to a new
office October 1st. Before that the business was in John's
home so before that when John had Domenic on those weekends,
he may not have been in the office but the business was run
out of his spare bedroom so there was -- so I did see
Domenic.
Q Quite a bit?
A Quite a bit.
Q You were working and Mr. Murtari was visiting
with his son?
A Right. And if I had a question or anything, John
was available if I needed him to ask him a question.
Q During the time when Domenic was with his father
and you were working, was Mr. Murtari working or was he --
A No.
Q -- devoting his time to Domenic?
A The weekends that John has Dom he stops work
Thursday afternoon, he doesn't work Friday, doesn't work
Monday and he's back to work Tuesday morning.
Q Okay. Well, let me ask you about your
observations of Domenic. When he is with Mr. Murtari, how
does he appear to you?
A He's happy, he's -- he always seems to be having
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 144
fun and he always seems to have a smile on his face.
Q Okay. Do you -- have you -- what sort of things
do they do together that you have observed?
A They play together, some game that Dom thought up
called spiders. I come into work Monday morning and there's
masking tape all over the place from John and Dom playing.
Q Okay. You've observed them having fun together?
A Yes.
Q Do you hear laughter when they're together?
A Yes.
Q Okay. Have you observed anything that would
indicate to you that they had a close relationship?
A Yes, the -- just seeing them together, they're
always -- basically wherever John is, Dom is and they're
always -- John is always -- whenever they're together,
they're both always very happy.
Q I guess this follows what you said. Is there
anything from what you have observed -- I have to put this
in a legal way -- that you have observed that would indicate
to you that they have a close relationship?
MS. WALSH: I think it's been asked and
answered, your Honor, just previously.
THE COURT: Sustained. He answered it.
MR. STERN: Judge, may I be heard on that?
I asked him if there was anything that indicated
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 145
that he had a loving relationship. I'm trying to
put this into the context of a proper direct
question without leading the witness so I am
asking what he has observed, so he's not giving
me conclusions as to, first, anything that would
indicate a loving relationship. Now I want to
ask him if he has seen anything that would lend
him to believe that they had a close
relationship, that they shared some sort of bond.
THE COURT: Did he tell us what he saw of
them together, what he observed?
MR. STERN: Yes.
THE COURT: Well, then he's said it all.
What else is there?
MR. STERN: Okay.
Q Did you have an opportunity to observe
Mr. Murtari and his son having meals together?
A Occasionally I would walk through and they were
having breakfast but that was usually the only chance I had
and that's normally when I just got there in the morning.
Q Okay. Have you had the occasion to observe
Domenic appearing to be afraid of his father in any way?
A No.
Q What about uncomfortable with his father in any
way?
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - DIRECT 146
A Whenever I see them together, they're always --
he's always a happy little boy. He's never -- I have never
seen anything that would seem to make me think otherwise.
Q Do you have any of your own children?
A I had a daughter who had multiple disablities
that recently passed away in March.
Q Okay. I'm sorry about that. How old was she?
MS. WALSH: I'm going to object,
your Honor.
THE COURT: We don't really have to get
into that.
MR. STERN: I just want to see if he has
any experience with children.
THE COURT: You don't have to get into
that. That has no bearing on this case. We
grieve for him and his loss but --
MR. STERN: Certainly.
THE COURT: -- but we should not be going
into that.
MR. STERN: And I won't. Thank you very
much, Mr. Law.
THE COURT: Okay. Miss Walsh?
CROSS-EXAMINATION
BY MS. WALSH:
Q Mr. Law, you said you're full time, correct?
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - CROSS 147
A Yes.
Q Have you been full time since July of '97?
A No, I started out part-time working 20 hours a
week and it was October of '97 I went full time.
Q And what's your full time salary?
A I make $400 a week, $10 an hour.
Q And have you had any increases recently?
A I started out making 7.50 an hour. When it came
up in July, my one-year anniversary, I received another 2.50
an hour raise.
Q So starting in July?
A Yes.
Q Of '97?
A Of '98.
Q Or '98. And when you started in July of '97
where was this business located?
A At John's home in Phoenix.
Q On Sourwood Drive?
A Sourwood Drive.
Q And did there come a time when the business
moved?
A Yes.
Q And when was that?
A The first week of December of '97.
Q And where did it move to?
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - CROSS 148
A Into my spare bedroom at my house.
Q Into your spare bedroom? And do you know why it
moved into your spare bedroom?
A Because there was a chance that the office --
basically it was the office equipment was moved to my spare
bedroom because John felt there was a chance he was going to
be put out of the house.
Q And how long were you in your spare bedroom?
A For four weeks.
Q And then where did you go?
A We -- the business moved to John's spare bedroom
in his apartment in Baldwinsville.
Q And that was in January?
A January.
Q 1998?
A Yes.
Q And it stayed there until October?
A Yes.
Q Of 1998?
A Yes.
Q And where is it now?
A The address is 55 East Genesee Street in
Baldwinsville.
Q And you stated that -- after you moved the
business to your spare bedroom, did you ever go back to
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - CROSS 149
Sourwood Drive -- did the business ever go back to Sourwood
Drive?
A No.
Q And do you know why?
A There was a -- John had an order by the Court to
vacate the house.
Q And did Mr. Murtari talk to you about this
eviction?
MR. STERN: Judge, I'm going to object at
this point. It's -- I have allowed it to go on
but this goes far beyond my direct.
THE COURT: It's way out. It's way out. I
agree, sustain the objection.
Q Now, you stated that when Mr. Murtari has
visitation he does not work, is that correct?
A He's not in the office eight hours a day.
He's -- he may stop by for a few minutes in the morning and
he's available if I need him.
Q But he's not in the office?
A No.
Q Has there been any other long periods of time
since -- or anything other than just the weekend visitation
since July that John has not worked?
A He's had -- since this July or since I started
there?
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - CROSS 150
Q July of '97.
A The end of August '97 he had three -- he took a
three week vacation, he had Domenic. And then June and
August of this year he took a similar break.
Q And when he's not there are you in charge of the
business?
A In charge of the day-to-day operations but he's
made it -- I don't have any authority to make business
decisions.
Q And was there a time around December 17th, 1997
that John was not available for work?
A Yes.
Q And how long did that --
MR. STERN: Objection. She's going into
this issue about him being in jail and --
THE COURT: About what?
MR. STERN: She's going into this issue
about him being in jail. I see this as not only
irrelevant but it goes far beyond my direct.
THE COURT: I agree. It was very limited,
the testimony.
MS. WALSH: I have no further questions,
your Honor.
THE COURT: Okay. Mr. Lupia?
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - LAW GUARDIAN 151
EXAMINATION
BY MR. LUPIA:
Q Hi, Mr. Law.
A Hi.
Q Mr. Law, you said that during some of these --
mostly while the business was operating out of John's house
you saw John and Domenic interacting together?
A Yes.
Q And I presume then since October 1st you've not
been really seeing them interacting together?
A John stopped by a few Fridays to check in but
that's been -- he's been there maybe half an hour and that's
the most that I've seen him on those days.
Q All right. So when you saw him prior to
October 10th you may have seen him for longer periods of
time interacting with Domenic?
A Yes.
Q And can you tell me what exactly they were doing?
Can you recall any specific incidences?
A They were mostly playing.
Q Playing games or playing toys or playing -- what
type of playing?
A John had this game that he played with Domenic
that Domenic called spiders, it was something with toy cars
and I don't know how to explain it. I never really --
DEBORAH A. McCARTHY
Official Court Reporter
G. LAW - LAW GUARDIAN 152
Q Did they both get down on the floor and play
together?
A Yes.
Q Have you seen anything unusual with respect to
John carrying Domenic around too much?
A No.
Q During the time that they're playing on the
ground does it appear that Domenic is having fun?
A Yes.
Q Have you seen them playing other types of games?
A No.
Q It's the same thing?
A That's -- that's all that I have really --
whenever -- when I have seen them playing, that's what it's
been. If they're -- they're normally -- he's not always
home with Domenic during -- he wasn't always home with
Domenic during those days.
Q Okay. And there's no question in your mind but
that when they are playing -- when John has Domenic with
him, John pays more attention to Domenic than to the
business?
A Yes.
MR. LUPIA: Thank you, sir. No further
questions.
THE COURT: Redirect?
DEBORAH A. McCARTHY
Official Court Reporter
153
MR. STERN: No, thank you, Judge.
THE COURT: The witness is excused. Thank
you very much.
(Whereupon, the witness was excused.)
THE COURT: Anything --
MR. STERN: I don't have any more witnesses
today, Judge. I have one more that I was hoping
was going to be here today but he couldn't be.
THE COURT: Okay. We were -- do you want
to -- let's do a few more minutes and maybe we
can finish -- you're on cross-examination, right?
MR. STERN: Right.
THE COURT: Okay. Do you want to take the
stand, you're still under oath and we'll pick up
now on cross by Mr. Stern.
H I R O M I S U M I Y A, having
previously been called as a witness, being
previously duly sworn, continued testifying as
follows:
THE COURT: Okay. Mr. Stern, do you
remember where you were? I can maybe help you.
MR. STERN: I'm just going through my notes
real quickly to sort of get myself back up to
speed on cross. Yeah, if you could give me an
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 154
idea of where I stopped.
THE COURT: Well, you know, I think that
the last I got here is that she was saying
that -- at least I think you asked her whether
she could not support herself with a Master's in
linguistics and therefore got involved with the
California program.
MR. STERN: Okay.
THE COURT: I believe that's approximate.
CONTINUED CROSS-EXAMINATION
BY MR. STERN:
Q What are your plans if the Court doesn't allow
you to leave for California?
A I haven't really thought about it. My life has
been really up to the decision and --
THE COURT: Can you speak just a little bit
up? It's very difficult.
THE WITNESS: I'm sorry.
A -- and I just have to take one step at a time.
Q You have no plans if the Judge doesn't allow you
to leave for California?
A Pardon me?
Q There's no plan B? If you don't leave for
California, you have no plans for supporting --
A Not at this point.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 155
Q -- supporting yourself?
A Oh, supporting myself?
Q Yes.
A I have to. There's no choice. Either I'm going
or not. That's what I have to do.
Q So if you were to stay here you would support
yourself here?
A As much as I can.
Q Well, you're being a little bit quaint, your
parents are very wealthy, you're not worried about money,
are you?
A I am.
Q You're worried about money?
A Yes.
Q You haven't worked since May?
A Yes.
Q And you have no plans if you don't go to
California, right?
A I have to support myself but I didn't make any
specific plan.
Q Well, maybe I should just ask a more direct
question. You are the child of a very wealthy family,
correct?
A I guess you can say that.
Q Okay. A family that has provided for you
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 156
handsomely in the past, correct?
A Yes.
Q They provided you with gifts of $70,000 for
purchasing a home?
MS. WALSH: I'm going to object,
your Honor.
Q Correct?
MS. WALSH: That's before the marriage --
before the divorce, rather.
THE COURT: I think that's enough of that.
You know, they have no obligation of support
here. If they want to make gifts, that's one
thing but it's something that you can't depend on
for future support of the family. I mean,
because there's no obligation there.
MR. STERN: Yes, I --
THE COURT: I mean, so you can't go too far
into that. She's gotten help from them from time
to time. She probably will from time to time but
this is not a substitute for the obligations of a
mother and a father to support their children.
There's no legal basis for it.
MR. STERN: Okay.
Q Would you like Domenic to have a relationship
with his father?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 157
A Yes.
Q Okay. Would you prefer that Domenic spent time
with his father instead of with a baby-sitter if you could
arrange that?
A Not necessarily. I like him to have a contact
with his father but I don't have enough trust in his father
that he has a good judgment raising child.
Q You believe Mr. Murtari does not have good
judgment with raising your son?
A Yes.
Q You're concerned that he doesn't even have good
enough judgment to watch him while you're out instead of
with a baby-sitter? You'd prefer a baby-sitter watched
Domenic instead of Mr. Murtari?
A Yes.
Q Okay. You say that Domenic trembles when he
speaks about his father with you?
A Yes.
Q And he cries --
A Yes.
Q -- with you?
A Yes.
Q Do you in some way tell Domenic that you don't
want to know about his father?
A Pardon me?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 158
Q Do you in some way tell Domenic that you don't
want to hear him speak about his father?
A Never.
Q Do you in any way try to undermine the
relationship?
A What does undermine mean?
Q Excuse me?
A What does undermine mean?
Q I'll rephrase it. Do you in some way try to make
Domenic feel bad about the strong bond he has with his
father?
A Never.
Q How did Domenic learn that his father went to
jail?
A According to him, daddy told me, that's what he
said.
Q You didn't tell him?
A No, that's why I was very surprised that when he
throw the English word jail into Japanese sentence, which I
did not expect to hear from four-year-old to start with.
Q Well, let me ask you about this speaking Japanese
to him. You also speak Japanese to Domenic in front of
Mr. Murtari, correct?
A I do.
Q And only Japanese?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 159
A No.
Q You also speak English to Domenic in front of
Mr. Murtari?
A Usually not because Domenic speaks Japanese to
me.
Q You also talk about fake family conversation.
What's that?
A Mr. Murtari tries to prolong the transition time
and try to create how much -- what kind of fun he had and I
have to respond, which is not necessary because he
prolonging transition time is painful for him, for Domenic.
Q Would you agree that it's painful for him because
of the anger you show to his father?
A Pardon me?
Q The transition is painful to Domenic because of
the anger you show to his father?
A I don't think so. Both sides, transition is
difficult for him. I have observed in the past in the car
he becomes very quiet bringing him to his father and as I
testified about, a year ago when he said father is worried
about -- father feels lonely when Domenic is not with him,
he was very concerned about my -- how I will be while he was
gone and he expressed, are you lonely when I'm gone, and a
couple of times or more than a couple of times he always
makes sure I was okay and I think I built it up that he does
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 160
not have to worry about me, then he can just go on his own
to enjoy the time with his father. That's the environment I
would like to create.
Q Did you ever think that maybe Domenic was just
trying to tell you that he misses his father, when he says
that he's concerned about his father, that's his way of
telling you that he misses his father?
A No, because he tells me that he feels funny
here (indicating) and every time I say, it is not your
fault, daddy is a grown-up and he needs to take care of
himself, and he -- and it's not your responsibility to worry
about his loneliness. And every time I say that he stops
crying and he goes back to regular five-year-old.
Q Oh, I see. Now, when he stopped eating for a
year you testified?
A Yes.
Q Now, did you ever tell Mr. Murtari about this?
A No, I did not.
Q I mean, hoping that maybe Mr. Murtari might be
able to talk to Domenic about it so that he would start
eating and going to the bathroom?
A Usually when father comes in things get worse.
Q No, my question was, did you ever try and enlist
Mr. Murtari's help with Domenic?
A I said no.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 161
Q You never did?
A No.
Q And the first time he learned about it was when
you testified about it on that stand, right?
A Pardon me?
Q The first time when Mr. Murtari could have known
about that is when you just testified about it on the stand?
A About lunch?
Q Right.
A Yes.
Q Because Domenic refused to eat because he wasn't
seeing his father?
A Yes.
Q And it never occurred to you that Domenic might
be missing his father?
A No.
Q It never occurred to you that you might be the
cause of Domenic's pain, did it?
A No, because he said, because daddy didn't come to
the child care.
Q And that wouldn't bring you to think that maybe
this is something that you and the father of your son could
work out?
A I don't believe so.
Q You refer to him as Mr. Murtari, the father of
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 162
your son you refer to now as Mr. Murtari, correct?
A Yes.
Q You have cut off all communication with him,
right?
A No.
Q Oh, I'm sorry, you'll receive faxes and he can
leave messages on the answering machine?
A Regarding Domenic we talk, yes.
Q Okay. Did you ever think that these fake family
conversations were just Mr. Murtari's attempt to normalize
relations between his son's parents so that Domenic would
have as normal a relationship as possible?
A No.
Q Did it ever occur to you that they're not fake,
that the only family that your son has is his mother and his
father?
A That's true.
Q And that there's nothing fake about that?
A That -- the family he has is mother and father,
that's true. But he shouldn't be disillusioned that father
and mother is in a good relationship.
Q Why shouldn't the father and the mother have a
good relationship for the sake of the child?
A Because that is not the truth.
Q The truth is you'll do anything to hurt my
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 163
client?
A No.
Q You hate him?
A No.
Q You want to move to California is the final -- is
the final chapter in your attempts to hurt my client, right?
A No.
Q You know that Domenic has a very close
relationship with Mr. Murtari, correct?
A Yes.
Q You know that Mr. Murtari has a fine extended
family here in Syracuse?
A It depends on how you define fine.
Q Well, they're good people, aren't they?
A I believe so.
Q Yeah. Amy Murtari is a good person?
A I don't know her that well.
Q What about Cheryl Kwiek?
A I don't know her that well either.
Q You still have a relationship with this man that
Dom calls Tosh (phonetic), correct?
A Yes.
Q Dom visits with Tosh?
A Pardon me?
Q Dom visits with Tosh?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 164
A Domenic visits --
Q Yeah, when Domenic is with you he sees Tosh?
A Yes.
Q Okay. Tosh is the man that you had the affair
with, right, during the marriage?
MS. WALSH: I'm going to object,
your Honor.
A No.
THE COURT: Is what? I didn't get it.
MR. STERN: Is the man that she had the
affair with that broke up the marriage.
THE COURT: Sustained. I don't want to get
into that. It has nothing to do with this case.
Q There were other problems at day care that you
haven't told Mr. Murtari about, right?
A Could you give me example?
Q Well, there was the problem with he wasn't going
to the bathroom and he was withholding that, you have
testified to that?
A No, I did not.
Q Okay. I misunderstood. I thought you told me
that he refused to eat and sometimes he refused to go to the
bathroom?
A No.
Q Now, in the last year since March of '97, a
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 165
little more than a year, but since March of '97 how many
sitters has Domenic had, different sitters?
A One.
Q He's had one sitter?
A Yes.
Q And that's the only one?
A Yes.
Q Okay. And what's that sitter's name?
A Wakako, W-A-K-A-K-O.
Q I'd like to ask you a question that I had asked
you earlier. If the Court allows -- transfers custody
during the school year to my client, says, fine, if you need
to go to school for three or four years to learn to earn a
living, you can go but during that time the child will stay
with his father, will you go?
A No.
Q You'll stay?
A Yes.
Q Okay. You would find some way to live here in
the Central New York area with your child?
A Or find -- find some kind of job.
Q Okay. You're confident about that?
A No.
Q Well, then you must be very confident that the
Judge is going to let you leave.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 166
A No.
Q So you obviously -- so you're not -- then if you
can't earn a living on your own here, you have no plan B,
you're not sure what's going to happen, you haven't worked
since May and yet you still claim to be scared about your
finances and your ability to support yourself --
A Yes.
Q -- and Domenic? I'd like to ask you about the
Sunday visitations that you have denied. It's fair to say
that more than 50 percent of Sunday visits when Mr. Murtari
takes his son to church for a couple of, you know, hours in
the morning have been interrupted, correct?
A I don't know the percentage. I have taken
Domenic with me to go on a special trip, yes.
Q You have intentionally kept Mr. Murtari from
having that court ordered time, church time with his son the
majority of the Sunday time visits, correct?
A No.
Q Not the majority?
A Not intentionally.
Q All right. Not intentionally, I see. In fact,
the law guardian had to write you a letter about it, right?
A Yes.
Q Okay. I'd also like to talk to you about this
issue about potty-training. Mr. Murtari was not
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 167
consulted -- you didn't consult Mr. Murtari regarding
what -- the -- let me withdraw that.
You did not consult Mr. Murtari regarding
potty-training, did you?
A When?
Q You did not?
A When? When did I not consult?
Q At the beginning -- when you began to
potty-train, you did not consult Mr. Murtari? Maybe I can
put it in different words. Do you understand what I'm
saying to you?
A Yes, but it's not clear to me. Did I consult him
that -- when I'm going to start or how I'm going to start?
Q Right.
A Is that what you mean? No, I did not.
Q Okay. And, in fact, Mr. Murtari kept asking you
about it, in fact asked you, can we go speak to the doctor,
there seems to be a problem, and you wouldn't agree to that,
right?
A He never said that.
Q He never did?
A He never did.
MR. STERN: If you will just give me a
moment. If I could have these marked for
identification.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 168
(Whereupon, Respondent's Exhibits B, C and
D were marked for identification.)
MS. WALSH: Could I see them, please?
MR. STERN: Yes.
Q I'm showing you what has been marked as
Respondent's Exhibit C. Can you identify that, please?
A Yes, it's a fax from Mr. Murtari for myself.
Q Do you recognize that?
A Yes.
Q Have you seen that -- you don't need to read it.
Do you recognize this?
A I think so.
Q Yeah, you have seen this before?
MR. STERN: I'd like to move Respondent's
Exhibit C into evidence.
MS. WALSH: No objection.
MR. LUPIA: No objection.
THE COURT: That's B?
MR. STERN: C as in Charlie.
THE COURT: C, okay. Yeah, no objection.
Q It says on Respondent Exhibit C --
THE COURT: Mr. Lupia, no objection?
MR. LUPIA: No, no objection.
THE COURT: Okay. Received with no
objection, Respondent's Exhibit C, okay.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 169
Q It's dated August 8th, 1997, correct?
A Yes.
Q And it says here --
MS. WALSH: I'm going to object to him
reading it into evidence, your Honor. He can ask
questions about it but it speaks for itself.
THE COURT: Yeah, you can ask about it.
We're trying to save time too. And we're going
to quit now.
MR. STERN: Well, Judge, it's going to be
difficult to ask her a question if I can't
identify --
THE COURT: What's the question?
Q The question is, in this fax he really raises the
issues, he says I really wish we could sit down and talk to
Dr. Farchione and talk about this, the pediatrician. I have
tried some stuff she suggested and it doesn't seem to matter
to Dom. Perhaps she has some other ideas.
A Yes, but my understanding of your question prior
to this one was did I consult Mr. Murtari prior to training.
Q Right.
A Potty-training. Was --
Q Well, I thought then I asked you did you discuss
the potty-training problem with him and you said no?
A Not prior to the potty-training.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 170
Q Okay. After the potty-training --
A Yes, I have.
Q -- began? Did you discuss it with him?
A Yes.
Q And there was some problems with it, right?
A Pardon?
Q There was some problems with the progression of
the potty-training, correct? Let me try it in different
words. There was obviously a problem, you had a concern
about Domenic's progression with potty-training?
A Yes.
Q All right. And Mr. Murtari suggested you speak
to the pediatrician together --
A Yes.
Q -- about the problem? And you refused?
A That's correct.
Q Okay.
THE COURT: Okay. We're going to quit
here. Do you want to put the other ones in or --
MR. STERN: I'll hold onto them.
THE COURT: Or hold them and they'll go
along with the testimony. Okay. 10 o'clock
Monday.
MS. WALSH: Your Honor, we're going to go
all day on Monday and then continue on Tuesday?
DEBORAH A. McCARTHY
Official Court Reporter
171
THE COURT: We're going to keep going.
Monday I'm going to try to clear the calendar as
best I can and we're going to start by 10 o'clock
and go right straight through.
MS. WALSH: Thank you.
THE COURT: You know, you're the better
judge of how long you can tell him you're going
to be here than me. I mean --
MR. STERN: I expect we're going to need
most of Monday.
THE COURT: Well, we need Monday, we need
Tuesday, we're going to just do it but you can
tell them in Federal Court a better idea than I
can because actually she's done after this
witness and you've got your client.
MR. STERN: Right.
THE COURT: And maybe you can figure about
how much time.
MR. STERN: Okay.
THE COURT: So maybe you can say, well, I
know we're not going to finish Monday, it's going
to have to be Tuesday and then you can tell them
that you're available for Wednesday or whatever.
Or maybe if you think you can finish Monday, you
can tell them that you're available Tuesday.
DEBORAH A. McCARTHY
Official Court Reporter
172
MR. STERN: I'll tell Judge Kahn that I
expect that I won't be done before -- I expect
we're going to need all of Monday so I'll tell
him and see what he says. So I'll leave it to
the Judges.
THE COURT: We've got a lot of lawyers tied
up here and we've got a lot of cases backed up
and --
MR. STERN: I'll be anywhere I'm told to
be.
THE COURT: Yeah.
* * * * * *
DEBORAH A. McCARTHY
Official Court Reporter
173
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated:
__________________________
Deborah A. McCarthy
Family Court Reporter
|
Nov 16
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 2
THE COURT: Okay. Back on the matter of
Murtari/Phillipson, Dockets V -- Docket V-320-95.
Mr. Lupia, law guardian is present; Miss Walsh
appearing with the petitioner and Mr. Stern with
the respondent. And we're continuing the fact
finding in this matter and I believe that when
we -- that Mr. Stern was cross-examining the
petitioner, is that right?
MS. WALSH: Yes, Judge.
THE COURT: The petitioner is still under
oath and may take the stand now.
H I R O M I S U M I Y A, having
previously been called as a witness, being
previously duly sworn, continued testifying as
follows:
THE COURT: Okay, Mr. Stern.
MR. STERN: Yes, Judge. Just give me a
second to get everything set.
CONTINUED CROSS-EXAMINATION
BY MR. STERN:
Q All right. I want to talk to you about some of
the things that we discussed last week. One of them was
that you would prefer that Domenic be with a baby-sitter
than with Mr. Murtari, correct?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 3
A Yes.
Q Okay. And you stated the reason you would rather
that Domenic stay with a baby-sitter is because you don't
believe that John is appropriate with him?
MS. WALSH: I object, your Honor. I
believe that is not a true classification of what
she said. She said, in fact, I don't trust his
judgment.
MR. STERN: I believe that's correct. I
retract that question. Let me ask again.
Miss Walsh is correct.
Q You stated that you don't trust John's judgment?
A Yes.
Q You also stated that Dom enjoys being with his
father?
A Yes.
Q Correct?
A Yes.
Q That Dom loves his father?
A Yes.
Q That Dom looks forward to seeing his father?
A Sometimes.
Q Sometimes he looks forward to being with his
father?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 4
Q That implies that sometimes he doesn't want to
see his father?
A Yes.
Q Okay. Now, I had asked you how many baby-sitters
Domenic has had in the last -- well, since the order of
decree of divorce and you had said only one person?
A Yes.
Q When I asked you about baby-sitters, I'd like to
ask you just to expand to make sure that I'm correct. Do
you mean to say that there's only been one person who has
ever watched Domenic when he is not with you?
A No.
Q Oh, okay. That's what I meant. How many people
have you entrusted with keeping an eye on Domenic and
watching him when you're not available?
A Probably two.
Q What are their names?
A Wakako, W-A-K-A-K-O, that's the baby-sitter.
Q Uhm-hmm.
A Another person is Mrs. Shiba, S-H-I-B-A. She's
the mother of Domenic's playmate.
Q Are there any other people that have watched
Domenic when you're not available?
A No.
Q Now, when you were working, Domenic was in -- was
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 5
going to preschool, correct?
A Yes.
MS. WALSH: I'm going to ask for some
foundation, your Honor.
MR. STERN: Sure.
Q When were you working? When was the last time
you worked?
A I was working until May '98.
Q And you haven't worked since May so let me ask
you about the time before May when you were going to school
and you were working. So that would be between, I believe,
March of '97 and May of '98 you were working, correct?
A During academic year, yes.
Q And during the time when you were in school and
working Domenic would go to day care?
A Yes.
Q From what hour to what hour?
A He was going 8:45 to 2:30, Monday and Friday.
Q Okay.
A Wednesday from 12 -- from 8:45 to 12:30, Tuesday
and Thursday 8:45 until 5.
Q I'm sorry, which days was it until 5?
A Tuesdays and Thursdays.
Q Tuesdays and Thursdays until 5 o'clock, okay.
Now -- well, let me ask you, I'd like to follow up on -- I
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 6
had asked you if you're not granted leave to move to
California and you were to stay here, I'd like to ask you
about that circumstance, so imagine that if you will. If
you were to stay here --
MS. WALSH: I'm going to object,
your Honor, as to the speculative nature of that.
She testified she had no plans and I don't
understand why it's relevant.
THE COURT: I don't quite get the question.
Would you ask it again?
MR. STERN: What I would like her to
imagine is that she doesn't leave for California --
THE COURT: If she doesn't leave for
California, yeah. I want everybody to speak up a
little louder including the witness.
MR. STERN: She doesn't leave for California,
you don't allow her to leave for California, she
stays here in Syracuse and I'd like to ask her
questions about visitation and --
THE COURT: There's an order for that,
isn't there?
MR. STERN: Yes, it is.
THE COURT: It wouldn't change at all,
would it? It wouldn't change.
MR. STERN: Well, my client has made --
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Official Court Reporter
H. PHILLIPSON - CROSS 7
THE COURT: You've got a cross petition for
custody.
MR. STERN: He has a cross petition --
THE COURT: If that was granted it might
change but it's too prospective that, you know,
why should we get into it?
MR. STERN: Well, I'd like to see what she
has to say as to whether she would like her child
to see his father.
THE COURT: She would continue to follow
orders, is that correct?
THE WITNESS: Yes.
THE COURT: Is that enough?
MR. STERN: She hasn't in the past. She
has denied him some visitations.
THE COURT: Did you file a violation
petition?
MR. STERN: No, Judge.
THE COURT: I can't help you then. If you
don't ask the help of the Court, we can't help
you.
MR. STERN: I won't get into it then.
THE COURT: Okay. Let's go on.
BY MR. STERN:
Q Well, let me ask you, has Domenic ever stayed
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 8
overnight in the care of someone else?
A No.
Q Okay. I'd like to ask you a question about if --
MR. STERN: And, Judge, I need to ask this,
what her plans are with regard to if Domenic were
to stay here where would he go to school and
things of that sort and I think that's relevant,
if you'll allow it.
THE COURT: Well, you know, again, we're
going to drag this thing into next year. Now
listen to me, I'll tell you why. Who has the
custody, sole legal custody?
MR. STERN: She does.
THE COURT: Sole legal custody? It's going
to be entirely up to her unless your client wins
custody.
MR. STERN: Okay.
THE COURT: Then it will be up to him. So
now we're into speculation again and it's not
necessary.
MR. STERN: Okay. Then let me just --
there's just a few points that I want to cover if
we're not going to be able to cover these other
matters.
Q Which one is that you have testified that if the
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Official Court Reporter
H. PHILLIPSON - CROSS 9
Judge does not grant you leave to go to California that you
are going to stay here in Syracuse, correct?
A Yes.
Q That's your plan?
A Yes.
Q And that you have already testified that you
haven't had a job since May of '98?
A Yes.
Q You haven't looked for a job since that time?
A I always keep my eye on because I need to know
the current information of the job situation and the
qualification in order to improve my situation.
Q You haven't looked for a job since May of '98?
A I have.
Q You have?
A Because I always check on my Internet.
Q I see.
A Of job position.
Q And your last job interview was when?
A I believe that was the end of February or
beginning of March.
Q Of '98?
A Or -- or end of March. In spring.
Q Okay.
A Of '98, yes.
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Official Court Reporter
H. PHILLIPSON - CROSS 10
Q You haven't been on a job interview since spring
of '98?
A Yes.
Q And you don't have any job interviews scheduled
at the present?
A No, because I don't know my situation, what is
going to happen.
Q Okay.
A If the job interview takes place --
Q You have no plans --
A -- and if I cannot accept the job because of my
situation, I wouldn't know where I would be next month.
Q You certainly could get a temporary job to earn
some money?
A But I am working my thesis which is my first
priority.
Q Oh, I see.
A And to take care of my son.
Q So you're unable to work because you're working
on your thesis and taking care of your son?
A Those are my first priorities.
Q Certainly. Your first priority at this point is
your thesis and your son?
A And I can do this because of the proceeds from
the house.
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Official Court Reporter
H. PHILLIPSON - CROSS 11
Q Now, Domenic is half Japanese, correct?
A Yes.
Q Domenic is half Italian, correct?
A My understanding ethnical background may be
Italian but the nationality is America.
Q So he's American?
A Pardon me?
MS. WALSH: He's 100 percent American.
A I don't know how you define ethnical --
Q You brought it up. I said half of his heritage
is Japanese and half of his heritage is Italian?
A He's Japanese and American. He has a dual
citizenship.
Q Oh, I see. And Domenic's grandparents on --
maternal grandparents, your side, are Japanese?
A Yes.
Q Domenic's paternal grandparents, Mr. Murtari's
side, are Italian?
A Yes.
Q Domenic has aunts and uncles in Japan?
A Yes.
Q Domenic has great aunts and uncles in Italy?
A Yes.
Q Domenic's grandmother speaks Italian?
A Yes.
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Official Court Reporter
H. PHILLIPSON - CROSS 12
Q And Domenic's other grandmother speaks Japanese?
A Yes.
Q Now, the Italian community in Denver, how big is
that?
MS. WALSH: I'm going to object,
your Honor, as to this witness's knowledge of
that and why that's relevant, if at all.
THE COURT: Well, how -- why --
MR. STERN: She's gone into his need to be
with other Japanese people in Denver, that
there's a large Japanese community in Denver,
this is essential to her growth. I want to
understand how she's going to nurture the other
side of him, that is that he's Italian, that is,
you know, his grandmother speaks Italian.
THE COURT: You know, I think it's obvious
and I understand the argument you're making but I
think that you understand deep down that it's
somewhat unique with the Asian ethnic background.
I mean, you know -- so, you know, not so much
with Irish and Italian and everything else, it's
been that way. Now, you want to make an issue
and spend the day on this, you know, I'll have to
think about it but I don't see where it serves
any useful purpose.
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Official Court Reporter
H. PHILLIPSON - CROSS 13
MS. WALSH: Your Honor, two things,
your Honor.
THE COURT: Yes.
MS. WALSH: Number one, I believe that most
of what we talked about in terms of Japan was my
client's need to be in a Japanese community so
that she could get a job and her cultural needs,
yes, the child will benefit from that but we
assume that he will continue to learn about his
Italian heritage from his father, the same place
he has always learned about his Italian
background.
THE COURT: I think that explains it very
well. I think that's a good reason not to go
into this.
BY MR. STERN:
Q Let me ask you another question. We had -- you
already testified that you didn't hire an expert with regard
to evaluating your prospects for employment until after you
had been accepted into the program in California?
A I did not hire. I was directed to Dr. Reagles.
Q You were directed by your attorney?
A Yes.
Q Okay. After you filed the petition?
A I don't remember if it was prior to or after.
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H. PHILLIPSON - CROSS 14
Q You didn't go to Dr. Reagles for help in what you
should do with your life, how you should get a job? He was
just hired for this petition, for the purposes of this
trial?
A I don't know.
Q Okay. Dom -- you stated that when Dom is with
you he trembles sometimes?
A Yes.
Q And he cries?
A Yes.
Q And he tells you that he doesn't want to speak to
his father on the phone?
A Yes.
Q He doesn't like to speak on the phone when he's
with you?
A He doesn't want to speak but he doesn't want to
answer the phone in general. It's not really aimed at his
father. He hasn't talked to anybody.
Q Well, you haven't seen Domenic when he is with
his father, have you?
A No.
Q You don't know whether he answers the phone at
his father's house?
A No.
Q When Domenic is with you he won't eat lunch at
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - CROSS 15
day care, correct?
A He did not.
Q Yeah. And he did this for over a year?
A Yes.
Q And you never told his father about it?
A That's correct.
MR. STERN: I have no further questions.
THE COURT: Mr. Lupia?
MR. LUPIA: Thank you, your Honor.
EXAMINATION
BY MR. LUPIA:
Q Is it okay for me to call you Adrianne?
A Yes.
Q Adrianne, do I understand the main reason you're
looking to relocate then is to pursue your education?
A I don't know that's the main reason. I believe
the PhD will give me a better position to secure my job.
This situation as far as I looked through all the positions
offered at the college level with M.A. degree, you can only
get temporary position.
Q All right. So what you're really telling us then
is it's the education but more important it's the job and
money?
A Yes.
Q And under the current circumstances were you to
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 16
remain in Syracuse are you convinced you can't make enough
money to support yourself and the child?
A It would be very difficult.
Q With regard to support, have you spoken to John
concerning the need for him to pay what's due to you?
A I have mentioned to him several occasions that
child supports need to be paid up.
Q If John were to pay you the $120 a week child
support that's been court ordered, would that be enough
money to remain here in the Syracuse community?
A It would be still difficult.
Q Okay. Now, you have gone to California and you
have looked at the school you intend to go to?
A Pardon me? The school?
Q Yes.
A Which school?
Q You have seen your school in California?
A Yes.
Q And while you were there you went and you saw a
school for Domenic?
A I could not go to the site of the school because
I applied for family housing and there are three locations
and I was told depending on the location the school will be
different.
Q Okay.
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H. PHILLIPSON - LAW GUARDIAN 17
A And also it was during the summertime and nobody
was there so I relied on the information that was in the
back to school newspaper and talked to the --
Q And that's where you got the information that you
told us about the schools in California?
A Yes.
Q And you have checked out the day care facilities
for Domenic?
A No.
Q Do you know where you would put -- have Domenic
spend his day care or who would do the child care for
Domenic?
A I have two possibilities, family housing itself
offers child care and, secondly, the school has after school
program. I just received a brochure from the school where
he's going to if I were allowed to move and they are
affiliated with YMCA and there is a child care facility
available after school.
Q Okay.
A Inside of the same school building.
Q So you have a few ideas that you have not
followed up on yet?
A Pardon me?
Q You have a few ideas regarding child care at this
point?
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 18
A Yes.
Q Does Domenic have any special medical needs?
A No, not right now.
Q He's a child in good health?
A Yes.
Q Is Domenic being raised in any particular
religious upbringing?
A His father takes him to church in Roman Catholic.
Q And is Domenic a member of the Roman Catholic
faith?
A He's baptized. I'm not sure how that would work
but I believe that if he is baptized --
Q Okay. And he has been attending church with his
father?
A Yes.
Q Do you know, can you give me an idea of the
percentages of Sunday visits he goes to church, how often,
percentage-wise, do you know?
MR. STERN: Objection, foundation.
Q And I am speaking specifically --
THE COURT: Well, overruled. I -- wait
until he gets a few more questions here. I think
you'll get the picture then.
Q All of my questions deal with since the time of
the granting of your divorce, okay, so we're talking March
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 19
of '97 until now, do you have an idea of approximately what
percentage of the time he has attended church?
A I would assume 70 percent.
Q Okay.
MR. STERN: Objection, Judge. The
foundational argument I'm asking is that how --
what knowledge could she have as to -- how would
she know when he's going to church if he's with
the father and not her? That should be the first
question, does she have any firsthand knowledge.
THE COURT: She said I assume.
MR. STERN: I assume. Okay.
THE COURT: Well, I think that's -- you
know, she said I assume --
MR. STERN: Okay.
THE COURT: -- 70 percent.
MR. STERN: And then she gave a percentage.
THE COURT: She assumes that he's taking
him to church, okay?
Q Adrianne, do you attend a Roman Catholic church?
A I don't practice.
Q Okay. And if you were to go to California what, if
anything, are your intentions regarding Domenic and his
religious upbringing?
A I will introduce him to the local church, and I
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 20
really haven't thought about it.
Q That's something to consider, right?
A Yes.
Q At this point you have no particular plans of you
bringing him to a Roman Catholic church in California, or do
you?
A No, I haven't thought about it.
Q Right now John Murtari has visitation on every
other weekend, correct?
A Yes.
Q Since the divorce can you tell me what percentage
of time has John Murtari come to exercise the weekend
visitation?
A Close to 100 percent except a time of eviction.
Q Okay. So basically --
MS. WALSH: I'm sorry, I didn't hear that.
Except for --
THE WITNESS: Except during the time of
eviction.
MS. WALSH: Okay.
Q So other than when he was in jail he was always
there to visit on weekends?
A Yes.
Q He also had some day visitation during the week,
correct?
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 21
A During the week?
Q Yes.
A No.
Q No? Okay. If you were to move to California,
Domenic would not be -- would most likely not be seeing his
father every other weekend, correct?
A Yes.
Q Do you feel that that would be in Domenic's best
interest?
A Yes, in a way as I stated, transition has been
very difficult. I also had observed during the longer
period when Domenic stays with me he becomes more stable,
there's no crying, trembling, insecurity, and several people
commented on after returning from Japan, Domenic looks
really happy and stable.
MR. STERN: Objection as to that comment of
other people. It's hearsay.
THE COURT: Sustained.
Q You've talked about school and problems Domenic
has had in school with mingling with other kids and with
eating, correct?
A Yes, yes.
Q And do I understand Domenic said this was because
his father could not visit anymore?
A Didn't come to the day care, yes.
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 22
Q Okay.
MS. WALSH: I'm sorry, I didn't hear that.
What did you say, Adrianne?
THE WITNESS: He didn't come -- because he
didn't come to the day care.
Q And that was because of the court order in March
of '97 which ordered that he was not permitted to go near
the day care center anymore, correct?
A Yes.
Q That was for something that had happened before
the divorce?
A Yes.
Q You've stated that Domenic is telling you that
he's drinking alcohol?
A Yes.
Q Was alcohol a problem before the divorce was
granted?
A Yes.
Q How -- has Domenic told you how often he is
drinking alcohol since the divorce?
A Do you mean how often he's drinking or how often
he has told me?
Q Number one, how often has he told you?
A Different occasions like five, six times, he
would -- he would drink something, he would make comment,
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 23
oh, this tastes like wine. So I would ask him, have you
taste wine, and he would say, yes, I have wine at daddy's.
Q Has he told you how often he is drinking?
A No.
Q Has he told you what he is drinking?
A Wine.
Q Has he told you whether or not he is still
drinking other liquors?
A No.
MR. STERN: I object as to the form of the
question of still drinking.
THE COURT: Overruled.
Q Domenic has also told you his father is sleeping
in bed with him?
A Yes.
Q Since the time of the divorce can you tell me how
many times Domenic has told you that?
A Again, different occasions. This one is more
often but I don't remember exactly how many times but he
says every time he goes to his daddy's he sleeps with him.
I asked sleeping arrangement as well and after the eviction
father moved to an apartment and I assumed that has two
bedrooms. However, my understanding became clearer after
the summer vacation when father told me that Domenic finally
got his own room. I was very surprised. Prior to that
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 24
Domenic had his bed -- I mean, had his bed along with his
father's bed in the same room but Domenic said, I never
sleep in my bed but in daddy's, and I also asked the
sleeping arrangement in the grandmother's house and he told
me there is a small room, what they call a small room, and I
said, do you sleep in the small room, and he said, oh, you
know, mom there is many stuff in there so I cannot sleep
there so I sleep with daddy.
Q You keep mentioning the eviction. You heard
testimony the other -- well, I'll withdraw that.
Did you see any of John's computer equipment
being put out on the sidewalk?
A I believe so, there was a big box.
Q And what, if anything, belonging to Domenic did
you see being put out on the sidewalk?
A His bed, chair, stuffed -- sorry. Stuffed
animals.
Q Did you see any toys or books or games?
A Yes.
Q Did John know -- sorry. Did you or your attorney
notify John in advance that this was going to happen?
A Yes, in writing.
Q On one occasion or more than one occasion?
A More than one occasion.
Q Is there any question that John knew his things
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 25
were going to be removed from the house?
A He very well understood and he said -- he told us
it should go to Rescue Mission.
Q And John did not do anything to save Domenic's
personal belongings?
A Apparently not.
Q Did Domenic know before John was arrested that
John was going to be arrested?
A That's what Domenic told me.
Q So when he was talking in Japanese, and you have
talked about the Japanese conversation in which he suddenly
said jail, that was before John was actually arrested?
A Yes.
Q So Domenic knew his dad was going to be arrested?
A Yes.
Q And that didn't come from you?
A No.
Q How did Domenic react to all of that before his
father was arrested?
A He was very shakey. The first question he asked,
that's when I knew that jail was mentioned, beginning of
November, he was unsettled that time and beginning of
November to eviction took place December 17th there was, I
believe, a couple of visitations occurred. Upon returning
from the visitation the following morning -- even the
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 26
following morning, which never happened before, he kept
sobbing and could not put himself together and I actually
had to call school that he's coming but he needs more time.
I cuddled with him, I comfort him. I acknowledged the
feelings he must be going through. Then finally he could
change his clothes on his own, did not eat much breakfast
but was able to go to school after that.
Q Did Domenic ever tell you who was responsible --
who was at blame or at fault for dad going to jail?
A No.
Q And while his father was in jail for a week did
Domenic know he was in jail?
A I'm not sure he knew.
Q You told us you trained Domenic, potty-trained
him for days by the spring of '97?
A Yes.
Q And by the summer of '97 he was toilet trained
for nights too?
A Yes.
Q How long did you continue to find diapers on
Domenic after his father visited after the summer of '97?
A Close to fifth birthday.
Q And the fifth birthday would have been February
of '98?
A February of '98.
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 27
Q Did Domenic ever talk to you about why you don't
have diapers on him but his dad does?
A I don't think why, he told me why.
Q Did he ever express any concern over that?
A He did not verbally but I did notice he -- after
he comes back from visitation he regress a little bit.
Prior to the visitation he was willing to go to the bathroom
on his own. Coming back from the visitation he would ask me
to come to the bathroom or take him to the bathroom or prior
to the visitation he was using the potty like adults do but
coming back from the visitation he will go back to his
earlier style which he sits on the potty.
Q Okay. Since the granting of the divorce you've
talked about appeals, motions to the Appellate Division
after appeals, motions to reargue the appeals before the
Appellate Division and appeals to the Court of Appeals,
correct?
A Yes.
Q And you've participated in all of these events
through your attorney?
A Yes.
Q Do you know how much you have been charged
financially since -- after the granting of the divorce?
A Close to $20,000.
Q And you've told us that John has written to you
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 28
or told you that you're going to spend 40 to $80,000?
A Yes.
Q Instead of spending the money for attorney's fees
could the money be better spent elsewhere for Domenic's use?
A I definitely believe so.
Q At the time of the divorce decree is it my
understanding that the Judge determined that John dominated
and controlled the family?
A Yes.
Q Has that changed since the granting of the
divorce decree?
A No.
Q Adrianne, are you trying to move to California simply
to get away from John?
A No.
Q Is this a way of getting away from John's
control?
A No.
MR. STERN: Objection as to the form of the
question.
THE COURT: Overruled. He's laid a basis
for it based on the Appellate Division's findings
so it's a logical question and I don't know why
you would object to it.
MR. STERN: I object because I don't
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 29
believe there is any support that he -- that she
fears control or anything of that sort.
THE COURT: Well, the Appellate Division
found that, am I correct?
MR. STERN: I don't believe so, Judge.
THE COURT: It seems to me when I read the
decision it did.
MR. LUPIA: They affirmed the prior
determination.
MR. STERN: But I don't believe that it was
any issue of control.
THE COURT: I think that was one of the
grounds for appeal and I think the Appellate
Division laid that to rest, am I correct?
MR. LUPIA: I thought so.
THE COURT: Okay. You know, whatever it
is, it is, but the question is all right anyway.
BY MR. LUPIA:
Q Adrianne, if you were to be given permission to go
to California --
A Yes.
Q -- and the Court were to order that Domenic visit
with his father all summer long here in Syracuse, would you
have a problem with that?
A No, I don't think so.
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 30
Q Would you cooperate and assist in sending
Domenic?
A Yes.
Q And if the Court were to order that Domenic were
to visit his father during Christmas vacations and spring
vacations, would you cooperate with that?
A Yes.
Q Would you cooperate with any court order that the
Court gave?
A Yes.
Q Have you been cooperating to date?
A As much as I can.
Q Adrianne, you mentioned Sunday visits in the fall
that you were not cooperating with. Excuse me.
You mentioned Sunday visits in the fall where you
had special trips, correct?
A Yes.
Q Isn't it true that you also had special trips
this past spring?
A Yes.
Q In fact, you went on special trips in February
and March, May and into June, correct?
A Probably, yes.
Q Aren't all of these things trips that you could
just not have gone on so that you could have stayed home and
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Official Court Reporter
H. PHILLIPSON - LAW GUARDIAN 31
had Domenic available?
A I -- it is difficult for me because especially
when I was working and now he goes to -- and he was going to
school as well, that during the week we could not make any
day trips or anything like that. Saturdays and Sundays are
very important time for us to make a quality time and as --
and I try as much as possible that he would go to church. I
also want to insure that he has -- he has friendship
developing with his friends and quite often --
MR. STERN: Judge, I object, it's
non-responsive to the question.
A -- the weekends are --
THE COURT: Hold it.
MR. STERN: The question as I understand it
was, couldn't you have not gone on these trips so
that you did not deny Mr. Murtari visitation with
his son on Sundays.
THE COURT: Did you understand the question
originally?
THE WITNESS: Yes, but, Judge --
THE COURT: We just want your answer to
that specific question.
THE WITNESS: I don't know how to answer
that question.
Q Well, you could have stayed home, correct?
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A I think so.
Q Did you ever understand that there was a limit on
special trips?
A No.
Q So you scheduled these trips to Letchworth Park
and to the Thousand Islands and you just scheduled all that?
A Yes.
Q Did you ever think that perhaps the father might
want to be scheduling -- well, I'll withdraw that.
Did you ever think that perhaps the child would
be better off in church for that two hour visitation on
Sundays?
A I considered that, yes.
MR. LUPIA: Thank you, your Honor. I
have no further questions.
THE COURT: Okay. Redirect?
MS. WALSH: Just briefly, your Honor.
THE COURT: Okay. Redirect, Miss Walsh.
MS. WALSH: Just briefly, your Honor.
REDIRECT EXAMINATION
BY MS. WALSH:
Q Miss Phillipson, you stated that you were living off
the proceeds of the house and that your parents had given
you some money previously?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - REDIRECT 33
Q Was there any other source of income that you've
had over the last two years?
A Substantial money came from selling the piano.
Q The sale of your piano?
A Yes.
Q And you have been living off that money?
A Yes.
Q And you're not up to date on your attorney's fees
at this point, correct?
A That's correct.
Q You still owe money?
A Yes.
Q And it isn't your testimony that Domenic always
trembles and cries when he returns from visitation, is it?
A That's correct.
Q There are specific times when that happens?
A Yes.
Q And when are those specific times?
A Shortly after he was potty-trained with me and he
was coming back from visitations, during the time of
eviction. I noticed when he says daddy -- daddy feels
lonely when Domenic's not there and he feels -- he says I
feel I'm doing something bad.
Q And when you were talking about day care, Domenic
has really been in a preschool program, correct?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - REDIRECT 34
A Pardon me, I'm sorry?
Q He's been in a preschool program?
A Last year, yes.
Q It was a preschool?
A Yes.
Q It wasn't day care, it was preschool?
A Right.
Q And you stated on cross-examination that you
would introduce Domenic to the Roman Catholic church in
California?
A Yes.
Q And you would do that after you were able to
move?
A Yes.
Q You have no objections to Domenic being raised
Catholic, correct?
A Correct.
MS. WALSH: I have no further questions,
your Honor.
THE COURT: Mr. Stern, anything on that?
MR. STERN: Let me confer with my client
for a moment. Judge, at this time we have no
further questions for this witness.
THE COURT: Okay. The witness is excused.
Thank you.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 35
(Whereupon, the witness was excused.)
THE COURT: Miss Walsh?
MS. WALSH: I have nothing further,
your Honor. I rest.
THE COURT: The petitioner is resting at
this point. And we've already heard part of your
case, Mr. Stern. Now, do you have further
witnesses?
MR. STERN: Well, we had Mr. Sullivan who
said that he would be calling into my office
about 12:30. Judge, I'm --
THE COURT: Aside from your client, how
many other witnesses?
MR. STERN: That's it.
THE COURT: What?
MR. STERN: That's it. My client and
Mr. Sullivan.
THE COURT: And who is Mr. Sullivan?
MR. STERN: Mr. Sullivan is a gentleman who
has known my client for, I believe, 13 years.
He's also a gentleman who has seen my client and
his son interact, knows his character, things of
that sort.
THE COURT: Oh, okay. Let's go with your
client then.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 36
MR. STERN: Okay.
J O H N M U R T A R I, having been
called as a witness, being duly sworn, testified
as follows:
THE COURT: Okay. Be seated.
DIRECT EXAMINATION
BY MR. STERN:
Q Is it okay if I call you John while you're on the
stand?
A Yes, it is.
Q Okay. John, there's been a number of issues
which have come about. I'd like to ask you specific
questions. First of all, I'd like to ask you, you
understand you're at something of a disadvantage with regard
to all of the previous legal actions you brought?
MS. WALSH: I'm going to object,
your Honor.
THE COURT: All the what?
MR. STERN: Previous legal actions that
have gone on prior to him being appointed an
attorney.
THE COURT: Sustain the objection. It has
no bearing -- he is getting a fair trial on this,
a clear fair hearing here and I don't want to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 37
know about what happened before.
MR. STERN: Okay, Judge. It's just
that's --
THE COURT: It's from the decision, that's
all, because we go from the last decision. Now,
that's -- you know, so that's really not relevant
as to this petition before the Court.
MR. STERN: Judge, if I may be heard on
this issue. They kept --
THE COURT: If he had problems with it, he
could appeal, which I think he did. If he had
further problems, he could further appeal, which
I think he did.
MR. STERN: Yes.
THE COURT: Okay? What, are you still
waiting to hear from the Court of Appeals?
MR. STERN: No, Judge. My point is this,
he has been -- over and over every witness has
been asked about him going to jail, about his
appeals.
THE COURT: That's since the decree, is it
not?
MR. STERN: Since the decree.
THE COURT: That's a different story.
Okay. Let's go.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 38
MR. STERN: Just so I understand, if the
Court is not going to hold it against him even
though it has been brought up over and over and
over by about every witness brought up on the
stand, I won't get into it.
THE COURT: Each matter stands on its own.
This is a new matter since the decree and I'm
judging it only on that.
MR. STERN: All right.
BY MR. STERN:
Q Well, Mr. Murtari, since the decree there's been
a number of legal actions that you have taken? You have
appealed, correct?
A Yes, I have.
Q Now, what has been the purpose of those -- the
first appeal after the divorce, what was the purpose of that
appeal?
A The purpose of that first appeal was to overturn
the Judgment of Divorce. It bothered me that I had been
found guilty of being cruel and inhuman but most of all it
bothered me that I had been denied a fair relationship as a
father with Domenic.
Q What do you mean by a fair relationship with
Domenic?
A That I wasn't considered an equal parent, that I
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 39
couldn't fully share time with him and be aware of what was
going on with my own child.
Q You mean -- knowing what was going on, what are
you talking about? Medical decisions, educational choices?
A Medical decisions, educational things that
happened with him. I mean, even during the divorce as it
was going --
MS. WALSH: I'm going to object to any
testimony to that, your Honor.
THE COURT: Sustained. Let's get back on
course here. The divorce is over. The decree
was made. Appeals were made. Okay? From that
point on is what we're interested in, Mr. Stern.
Your client is seeking to have custody changed,
correct?
MR. STERN: That's correct, Judge.
THE COURT: Okay. I want to know
everything that happened since that decree that
he feels there's a cause of action that's
meritorious for the Court to do that. And that's
where we are. I don't want to go back to that
decree and what happened about it. Okay? It's
over with. Let's go. I had nothing to do with
it.
MR. STERN: I agree, Judge.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 40
THE COURT: Furthermore --
MR. STERN: And I wish that these
objections had been made when everybody else was
talking about it.
THE COURT: Listen, it's over and done.
Now, please.
MR. STERN: Okay.
Q Mr. Murtari, now you come to this Court and you
have put in a petition. What is your -- what is the
overriding concern that you have? What is it that you're
most concerned about in asking the Court to grant you?
A My overriding concern was to ask the Court to
restore me to an equal relationship with Domenic. It's not
so much to ask for a swap of custody and to take it away
from Adrianne or anything like that, it's merely to be
recognized as an equal parent and my value to Domenic, as
much as Adrianne's relationship to Dom is valuable to him,
that my relationship with him also is valuable to him.
Q Okay. Do you have any concerns about Domenic
going to California?
A Yes, I do.
Q What's your concern?
A Well, I'm concerned that he's going to be very
emotionally upset. When he speaks with me now and we do
have our time together, his -- always his question on the
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 41
day he knows when he's, you know, going to be returning to
Adrianne's house, to mommy's house, is, daddy, when am I going
to see you again. When I get there with Domenic and, you
know, we're getting ready to make the transfer to Adrianne,
he's always telling me, daddy, how many more days is it
going to be, and I have to count through them all with him.
I can't even imagine what it's going to be like telling him,
Dom, it's going to be months until daddy sees you again.
But I don't -- I can't even dream of what his response is
going to be.
Q Do you think that it would be good for Domenic to
be away from you for six months at a time, nine months at a
time?
MS. WALSH: I'm going to object to the form
of that question, your Honor.
THE COURT: Sustained. I mean, we don't
know that that's the case. You're assuming that
it's going to be six months or nine months or
whatever. We don't know that. I mean, it could
be that he'll have quarterly visits. I don't
know. I mean, so you know, it is -- the form is
not right on that question.
MR. STERN: Well, again, there's no way for
me to do know what the Judge is going to do.
THE COURT: I don't know either yet, quite
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 42
frankly.
MR. STERN: Yes, sir.
THE COURT: Do you know that?
MR. STERN: Yes, sir.
THE COURT: I won't even consider what I am
going to do until this case is all over with,
okay? But the point is that you're assuming that
if I allowed the petitioner to go to California
that there would be nine months where he wouldn't
see his son, and that's not true.
MR. STERN: Okay.
THE COURT: Okay.
BY MR. STERN:
Q Mr. Murtari, let's assume that Dom were in
California and he were able to come back once a month, do you
feel that if you were to see -- do you have any opinion as
to --
MS. WALSH: I'm going to object to the form
of this question, your Honor.
THE COURT: Well, you know, I don't know
what you're trying to get at.
MR. STERN: I just want to know does he
think it is good for his kid to not see his
father but once a month or once every two months.
THE COURT: Can't he in his own words tell
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 43
us what the effect would be if his son was living
that far away and what his concerns are? He
already started to tell us.
MR. STERN: I wish I had asked that
question. Let me ask that better question.
THE COURT: Okay.
Q Do you have any concerns about what the effect on
Domenic would be if he were to live as far away as, say,
California?
A Yes. One of those concerns right now is the
problem with -- the thing is the problem with the phone. I
mean, it would basically mean he's never going to experience
a live father except for once a month or a live parent. But
the biggest concern is just merely as a parent being able
for him to see me, to interact with him, to learn from me.
There's simply no substitute for the time that I could spend
with him. I have arranged my schedule to allow me to have
an inordinate amount of time to be an effective parenting
and he's not going to be able to experience some of these
things.
Q Well, let me ask you about that. Why is it that
you arrange your schedule to be with your son?
A Because he's the most valuable -- he's the most
valuable thing in my life. I mean, I was to my parents, he
is to me. Family's important. I believe in that. And
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 44
that's why with Domenic through all of this I have always
tried to arrange my schedule, whatever it took, that when my
time was with him that I could be with him. That he would
always know daddy can be here and daddy's with me. Never
that daddy was too busy or couldn't -- or didn't have time
for me.
Q Okay. This is a follow-up to that. Do you have
an opinion about who Domenic should best spend his time with
with regard to whether he should be with family such as his
mother, his father, you know, grandmother, or with
extended -- or with, for example, day care or with
baby-sitters? Who would you prefer that Domenic were with?
MS. WALSH: I'm going to object to the form
of that question, your Honor. Asking for an
opinion. I believe that's a conclusion of law,
and I don't believe that this client is able to
answer that.
THE COURT: Overruled. You can answer
that.
A My normal goal with him if I can't look after him
would be to have him with immediate family. My mother has
been available. If that wasn't true and I couldn't find
family, I would tell Adrianne, Adrianne, I don't want to leave
him with a sitter, you can look after him. You're his mom.
Q Right. Have there been times with regard to --
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 45
have there been times when you've had problems with regard
to your visitation and Domenic being dropped off with a
baby-sitter?
A Yes, it's something that has happened since the
divorce. It's probably happened six or seven times that
when bringing him back to Adrianne's apartment there's been
someone else there other than her and what has always
happened with him is he starts crying. On a few occasions,
I mean, I knew to expect a sitter there, you know, and I
would try to tell Dom so he would know it was Wakako and in
the drive I would say, hey, Dom, Wakako is going to be
there, mommy will be home in a while.
MS. WALSH: I'm going to object to the
run-on nature of this testimony, your Honor. He
asked a question and it was answered.
MR. STERN: I don't believe that it has
been. I asked him about the circumstances of the
child being left with a sitter and I haven't even
had an opportunity yet to ask him which times.
THE COURT: Well, I think he followed it up
with the effect on his son and what his feelings
were and I think he was answering that.
MR. STERN: Yes.
THE COURT: So he can continue on.
Q Continue.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 46
A So, I mean, I would try to be upbeat with him but
when we would get there he would normally just lock onto me,
you know, around my neck and a lot of crying. Luckily
usually the sitter would usually be at night, on a couple of
occasions she would at least allow me to bring him in and
put him in his bed and then leave.
Q Okay.
A Even at times I even tried to arrange it because
it would be in the evening sometimes that we would be --
that we would drive for a while and sometimes he would fall
asleep and if he was asleep on my shoulder I would just
whisper to the sitter as she opened the door to be quiet and
I would -- we would just try to bring him in and lay him
down to avoid the crying.
Q Did you ever try and arrange visitation such that
Domenic would not be dropped off to a sitter, so that he
would be dropped off to his mother or ask can we -- can I
have him while you're not there?
A Yes, I did, numerous -- three or four different
times I would write to Adrianne and to her attorney to say,
gee, look, you're going to be home in another 30 minutes,
you know, I'm bringing him home at 9 p.m., you're going to
be home in 30 minutes, why can't we do this some other way.
My schedule was flexible, you know, I could have picked him
up earlier, dropped him off sooner. It was just very
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 47
frustrating to me that there was never a response other
than, no, we're not going to do that.
Q Now, you had visitation this weekend with your
son, correct?
A Yes, I did, and I do right now.
Q Okay. Domenic is here -- is with --
A He's with my mom today.
Q With your mom? Okay. And were there any
problems with regard to that this weekend, with the
visitation?
A No, not at all. Adrianne -- on Thursday we
arranged to be a little bit delayed after court, she met me
at the Thruway exit there at exit 39, Dom looked happy and
ready to go and put him in the car and we drove to my
mother's house in Lyons.
Q Okay. You've heard a number of -- you've heard
Adrianne speak at length about problems that she feels with
regard to your judgment anf a number of different issues
that don't make you sound too good, right?
A Yes, I have.
Q Okay. I'd like to ask you some questions about
that. First of all, this issue of dirty clothes and
missing clothes, is there something that you would like
to -- well, not something. Let me withdraw that question.
John, can you explain to me what your
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 48
understanding is with regard to dirty clothes?
A Well, what had happened is I used to live in the
marital residence right after the divorce and I had a washer
and a dryer and I didn't know what Adrianne had at the
apartment and I would normally wash his stuff. It was no
big deal, on the day before Adrianne would -- on the day that
she was going to come to get him I would put the stuff in
the machine and get it ready. Now sometimes, you know, I
didn't pretreat certain things, right, or something would
get stained or maybe I would put some Clorox in and there
was some like non-colorfast items and something would get
hurt. I admit that. You know, and it would come back and
Adrianne didn't like that, you know, that that would happen.
Finally, and I don't know the exact time frame, she told me,
look, John, don't wash it anymore.
Q Because you weren't very good?
A She said, you aren't doing it to an acceptable
level for her and she said, don't wash it, she said, just
give it back to me dirty. And that's what I have been doing
and there's never been a complaint that I misunderstood that
or anything. That was what we seemed to both understand,
that she was going to take care of that.
Q So when you hear her testifying in court that
it's almost an issue of abuse of you sending back dirty
clothes --
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 49
MS. WALSH: I'm going to object to the
characterization of that, your Honor.
THE COURT: When you hear her testifying in
Court -- I didn't quite get it all.
MR. STERN: She was testifying as to some
things in the order that he sends the child's
clothes back dirty and some of them are missing
and now I want him to testify to the fact that
she told him to stop washing the kid's clothes.
THE COURT: Well, he testified to that. So
what more is there?
MR. STERN: I want to ask him --
THE COURT: You don't want to ask him
whether she's lying, I don't go for that sort of
thing.
MR. STERN: I'm not asking whether she's
lying.
THE COURT: I can understand what she said
and he said and then I weigh the credibility so
it's really not necessary --
MR. STERN: I wasn't going to ask him --
THE COURT: -- if she was lying when she
said that about the clothes.
MR. STERN: Judge, I never would have asked
that question but --
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 50
THE COURT: Let's move on.
Q So the first time that you had heard that there
was a problem with the dirty clothes is when she testified?
A Yes, it was.
Q Okay. What about missing clothes?
A The missing stuff, occasionally -- you know,
after four days some stuff would get scattered. I mean,
socks or undershorts, the shirts, and occasionally I would
forget something and if I found it I would tell Adrianne, hey,
he left a sock here. If she noticed something was missing
normally she would tell me that something was gone, and on
several occasions I inadvertent -- I have a few pairs of
jeans and stuff for Dom and it would end up at her place but
I would let her know.
Q But prior to sitting here listening to Adrianne's
testimony did you know that there was a problem with you
hoarding your son's clothes?
A No, it never --
MS. WALSH: I'm going to object to his
characterization, your Honor.
THE COURT: Can I hear that again? What
did you ask him?
MR. STERN: I asked him prior to hearing
Adrianne testify with regard to his hoarding the
child's clothes or holding the child's clothes,
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 51
had he ever known that there was a problem with
Adrianne.
THE COURT: That's all right. Ask him.
Answer it.
A No, because certainly it was never assumed to be
intentional, that I wasn't intentionally holding onto a pair
of jeans or a shirt or a sock or something like that.
Q You never understood this to be a problem before
you came to court?
A No, I never did, no.
Q Are you -- let me ask you just a general
question. Are you in any way trying to aggravate
Miss Phillipson with regard to sending back dirty clothes or
holding onto a sock?
A No, not at all. It's just not my desire to
aggravate stuff between Dom and his mother. It doesn't help
anybody.
Q Okay.
MS. WALSH: Could I ask that you read that
question back -- I mean, the answer,
Mr. Murtari's answer?
(Whereupon, the last answer was read by the
reporter.)
MS. WALSH: Thank you.
MR. STERN: Now you can see what cross is
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 52
going to be like.
MS. WALSH: I'm going to object,
your Honor.
THE COURT: I didn't even hear that.
MR. STERN: I said now he can see what his
cross is going to be like because I believe that
will be brought up on cross, his exact words.
THE COURT: Okay. Let's go on to the next
question. That's not a question.
MR. STERN: I agree.
THE COURT: That's deleted, eliminated.
MS. WALSH: Thank you, your Honor.
Q There was some testimony about medication,
Domenic not taking his medication, can you tell me anything
about that?
A Yes, I can remember once Dom had antibiotic with
him that he was on for an ear infection or something when he
came to the -- you know, when he came to me. And I
understand antibiotics, that you have to complete the course
of treatment. The best I can remember as to what happened
then is that it was almost like the last dose, it was almost
at the very end of the bottle and for some reason Dom didn't
want any more, you know, and he just said, nope, daddy, I
don't want it, and I couldn't trick him into taking it or
anything and I told her -- I didn't try to hide it from her,
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 53
I did tell her that, hey, he didn't finish the very, very
end of it and that's what happened.
Q You told her?
A Yes.
Q Have you had any problems with communication
regarding medical treatment with regard to Dom?
A Yes. I had noticed with Dom that one of his eyes
would pull over occasionally, his -- I believe it's his left
eye would go a little bit cross-eyed at times when he would
look at me. And I had noticed it and finally I tried to
find out -- finally I asked her, I asked her in a letter and
I said, gee, you know, I have noticed this thing with his
eye, is something going on, because some people had
described it to me as lazy eye or something so I asked her
and she did write back that she had -- that he had been seen
by people and that it was not a problem. But I felt like I
had to again make a point of finding out and I didn't know
if there were things that he was being treated for that
weren't physically obvious that I would never be told in
advance.
Q You wouldn't be told in advance, it would just be
presented to you?
A Well, I wouldn't even know if I would be bothered
to be told. Even with the eye it didn't seem to be enough
that Adrianne would tell me but I noticed and had to sort of
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 54
dig it out a little bit.
Q Well, the reason I'm asking you about medical is
I wanted to get into this issue of potty-training and I
wanted you to talk to me about what you remember about this
issue which has been spoken about over and over throughout
this trial. First of all, can you just tell me what you
remember of the potty-training incident, in quotes?
A Yes. What happened is a couple of days before
Dom was -- I was going to get him, you know, for his next
time with me, Adrianne told me on the phone, she said -- she
told me, John, I've trained Domenic, he doesn't need diapers
anymore, I'm going to send him over with shorts and he's
okay on it. And I told her, well, okay, then I'll follow on
with that and I'll let him know, you know, where the potty
is and all that stuff and we'll go with it. He then came to
me, you know, and I had him and I tried to be upbeat with
him and say, okay, Dom, you know, that's nice, and I showed
him where the bathroom was and if you need any help, you
know, let daddy know, but he wouldn't go. He kept dancing
around and, you know, he would wiggle like kids sometimes do
when they have to go. I tried going to the bathroom, you
know, and say, hey, Dom, if you need to go it's right here,
but he wouldn't and eventually what happened after about
four or five hours is he peed his pants, you know, and I
looked at him and he didn't like it and it bothered him, you
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 55
know, and he said, daddy, I want my diapers, and I put the
diapers on him and I put them on and I said, okay, Dom,
okay. You know, you don't want to do this, okay, we'll put
the diaper on.
Q Okay. But you understood that Miss Phillipson, his
mother, had already started the potty-training?
A Yes.
Q Well, and now you're changing the rules and
saying it's okay to wear diapers?
A Yes, I did but I didn't at that time -- I didn't
know what to do with him. Obviously I --
MS. WALSH: Could I have a foundation as to
what time we're talking about, your Honor?
Q What time are we talking about?
A Well, this additional thing occurred I believe
around the spring or summer of '97 when Adrianne told me that
he was -- that he had been trained. This is -- we were at
that very first weekend with him.
Q Okay. So I just want to --
A So when he peed -- when he was that resistive
enough that he was going to pee in his own trousers, that
bothered me and I thought, I have got to talk to Adrianne.
Q Okay.
A And find out what is going on here.
Q So did you try to communicate with --
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 56
A Yes, I did. I talked to her I think on the phone
once and said -- I told her what happened, I go, Adrianne,
gee, he didn't want to go so bad he peed in his pants, you
know, what are we going to do here. And she said, well,
look, he's trained with me, that's your problem.
Q Okay.
A And I said -- and following on and there was some
correspondence on this, I asked her, well, look, can we talk
to his pediatrician about this, what's going on, maybe we
can talk --
Q Let me stop you so I can get a foundation. When
is it that you were having those conversations with Adrianne?
A Well, those began to occur within that time of
her telling me -- within weeks of -- the very next time we
talked. You know, within a week.
Q Okay.
A This stuff started coming up.
Q And you said that you had spoke to her about
speaking to the pediatrician about the potty-training
problem?
A Yes, I did.
Q What was the response, if any?
A Well, her response was, I'm not going to talk to
her with you. Finally I at least asked her, can I talk to
the doctor on the phone and Adrianne did give me the doctor's
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 57
phone number.
Q Okay. Did you call the doctor?
A Yeah, I did, I talked to the doctor, I explained
to her, you know, what Domenic had done and we talked for a
while and -- and I shared my ideas with her and I did say,
well, I'm going to wait a little while and try to encourage.
And Dr. Farchione, I think is her name, goes, okay, that's
okay, you know, you can do that and she goes, and I'm going
to talk to Adrianne because maybe Adrianne is pressing it too
much with him.
MS. WALSH: I'm going to object,
your Honor, as to what the doctor told him.
THE COURT: Sustained.
Q Well, let me ask you as to what your
understanding with regards to -- with regard to the issue of
potty-training, what was your understanding of the doctor's
instructions to you?
A The doctor's instructions were to just continue
to try to motivate him, have him watch me when he goes --
have him watch me when I go.
Q Okay.
A And encourage him to use it, that it's there.
Q Okay. Did you have any conversations with
Domenic about potty-training and about going to the
bathroom?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 58
A Yeah, I did, because he was starting to talk
then. I asked him, I go, Dom, why is it you don't wear --
why do you want to wear your diapers with daddy, and he goes
because I like it. And I said, Dom, when are you going to
stop wearing your diapers with daddy, and he goes, daddy,
when I'm five years old. And I had told him, you know,
diapers were money, it was like 10 or 15 bucks a month and
he wanted -- he understood money then and I go, Dom, you
know, I go, you know, when you're not wearing diapers
anymore daddy can buy you more things, okay, and he said,
well, daddy, when I'm five, and on his fifth birthday he
went off -- he went off the diapers with me.
Q He -- you had a contract with him and he --
A Well, it wasn't that but he understood when he
was five and he was a little hesitant that day but he didn't
pee his pants and he started just wearing the regular shorts
then.
Q Okay. So at five years old he stopped wearing
the diapers and that was it, okay.
A Now, he does still wear -- after that he would
still wear the pull-ups at night.
Q All right.
A Because he told me he was still doing that
sometimes at home, and with me even when I had him when he
was daytime trained and stuff, he did tend to sleep a lot
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 59
when he was with me for like 12 hour pulls at a stretch and
he was peeing a lot, maybe once every couple of nights, you
know, and he didn't like it and it would wake him up at
night and he would cry, you know, because he wasn't happy,
so he --
Q All right. I think you have answered my
question --
A Okay.
Q -- enough on the issue. I just wanted to
understand so you did try to -- so you spoke to the
pediatrician. Did you ever speak to Adrianne after speaking
to the pediatrician about your conversation with the
pediatrician?
A Well, yes, because Adrianne kept complaining about
it, she'd asked me about it, why is he still in diapers and
I would write to her and say look, I have talked to the
pediatrician, you know, I have done everything I can, what
more is there here, you know.
Q Okay. All right. I want to talk to you now
about this issue about carrying Domenic.
THE COURT: As long as we're getting into a
new area, we're going to quit now. 2:30 we will
be able to resume and go till 5, right?
MR. STERN: Judge, I have this fear that
we're not going to finish -- we're not going to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 60
finish up today. I need your assistance in
speaking to Judge Kahn and explaining --
THE COURT: He knows you're in trial here,
I have already talked to someone there when I --
you know, I'm in trial here.
MR. STERN: I understand, Judge. He has
told me that he expects me there on Tuesday
morning and I just need you to speak with him.
THE COURT: He expects you there Tuesday
morning to start a trial there?
MR. STERN: Yes.
THE COURT: Well, he can wait until maybe
Tuesday afternoon and then we'll finish, you
know. If he wants me, he can call me.
MR. STERN: Thank you, Judge.
(Whereupon, a luncheon recess was taken.)
THE COURT: Back on the matter of Murtari/
Phillipson, on Docket V-320-95. Both parties are
present with counsel, as is the law guardian,
Mr. Lupia. And we were on direct questioning of
the respondent, Mr. Murtari, by Mr. Stern. And
you want to take the stand and we'll continue
with your testimony? You're still under oath.
BY MR. STERN:
Q I'm not sure where we ended up. Okay. We
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 61
started to -- we ended our questioning about the medication.
Now, I'd like to ask a question about carrying Domenic.
There's been some testimony which would seem to imply that
you carry Domenic inappropriately, too often or maybe -- I
don't know exactly what the implication is but maybe we
could talk about your carrying Domenic. Do you carry
Domenic?
A Yes, I do.
Q Okay. What is the reason that you carry Domenic?
A Normally, almost always because he wants to be
picked up.
Q Okay.
A Either getting out of the car he'll raise his
hands and say, you know, I want to come up, that's usually
it.
Q Does he indicate to you that he enjoys being
carried at times?
A Yes. I mean, usually it depends what's going on.
Sometimes at church he wants to get picked up during the
service. He'll wrap his arms around my neck and stay up
there for a while. So it seems like he -- it's where he
wants to be and occasionally he'll want down and then I'll
let him down.
Q Okay. Do you carry him a lot? I mean, how often
are you carrying him?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 62
A It seems like he likes to be carried more than
other kids I know. You know, he does come to me and he
likes to be, you know, carried around but at other times
we'll go for walks in the woods and he'll walk along just
fine.
Q Okay. So he does walk on his own --
A Oh, certainly, yes.
Q -- legs?
A Oh, yes, we go sledding, he runs up and down the
hill. He certainly knows how to get around.
Q You brought up sledding and I remember you had
given me -- there was also some testimony by your ex-wife
that you do not let him put his clothes on. It was one
incident about a year and a half ago where there was some
testimony that --
MS. WALSH: Your Honor, if I could ask
Mr. Stern to ask questions instead of testifying.
He's been testifying now through most of this and
I find it both leading, this is his witness, and
also he's testifying. He's supposed to ask
direct questions and I would object.
MR. STERN: I'm just trying to bring the
witness's memory to what I'm going to be asking
about which is the testimony earlier that was on
the record in court that --
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 63
THE COURT: Okay. Let's go on. Let's not
waste time.
Q Do you remember your ex-wife's testimony that you
wouldn't let Domenic put on his coat one time?
A Yes, I do.
Q About a year and a half ago?
THE COURT: Okay. Now the question, let's
go.
Q My question to you is, is there a reason -- do
you not allow Domenic to dress himself?
A No. He always -- whatever he wants to put on, he
does. I know he can put his clothes on and his sneakers on
and, you know, he knows how to do stuff. But I know that at
times he'll ask me to do it. Especially like with his
sneakers, he'll say, daddy, can you put my sneakers on.
I'll say -- if I've got time -- sure, Dom, I can put them on
for you.
Q Do you see that there's any problems with him
putting on his own coat or has there ever been an issue that
you have been concerned about?
A No, no, he seems like watching the other kids
that I know, the cousins' kids and stuff, it looks like he
dresses himself as effective as they do. I mean --
Q If you have anything further to add -- I just
wanted to know if you thought there was any problem with
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 64
regard to him putting on his clothes and it seems that you
have testified to no?
A No, that's right, that's right.
Q Okay. Another question I have for you regards,
there was some testimony that -- which made the implication
that you were telling Domenic to hide information from his
mother. Have you ever told Domenic that he shouldn't tell
things to his mother or that secrets are good in any way?
A No, not at all.
Q Okay. Let me just be sure about this. In any
way are you putting Domenic between you and your ex-wife?
A No, not at all. I don't -- what I want to pass
on to him is a heritage that his mother and father loved
each other when he was born and we love him and I don't talk
about that. There's nothing to talk with him that I would
ask him to conceal.
Q Okay. There was also some testimony about him
finding out that you went to jail. Did you talk to Domenic
about your going to jail before you went?
A No, I did not. I didn't even know when that
eviction was going to happen. I wasn't even sure what was
going to happen, however they do that thing. When I had
seen Domenic the last time, I hadn't gotten that official
sheriff's -- sheriff notice nailed to the door. It was
after my last contact with Domenic that I got home one day
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 65
and saw this notice, you've got to get out in 72 hours, and
then I knew so I hadn't -- I wasn't going to bring that up
with him on a -- it wasn't even a certainty then.
Q After your visitation and after the point when
you realized that you'd been -- that you might go to jail,
did you have a conversation with Domenic in which you told
him, Domenic, I might not be seeing you because I'm going to
jail or something to that effect?
A Not at all like that, no.
Q You seem pretty sure about that. Why are you so
sure that you didn't have a conversation with Domenic about
going to jail?
A Because I wouldn't -- the kid has been through so
much of not knowing who's going to take care of him and
stuff like that. The last thing that I would want to do
with him before knowing this was a certainty would be to
tell him, daddy's not going to see you for a while because
he's going to be in this place. I mean, he would have been
heartbroken. He wouldn't have really understood it and
there really wasn't any point of me saying it until I was
sure and I had tried to actually have communications with my
wife's lawyer to try to find out, if you're going to do
this, give me the day, you know, let me know when this is
going to happen so if I have a chance to talk to Dom, I can
try to explain it to him.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 66
Q That you won't be seeing him?
A That I wouldn't be seeing him.
Q Do you have any information or knowledge as to
how Domenic found out that you were in jail or that you were
going to jail?
A Not directly, no. I don't know how he would have
found out ahead of time, no.
Q Do you have any indirect knowledge or information
as to how Domenic came to learn that you were going to go to
jail?
A Well, the only thing I'm assuming is that he
heard perhaps conversations at Adrianne's or something like
that and it tipped him off somehow or maybe she tried to
break the news to him.
Q Okay. But you have no direct information as to
how he would have found that out?
A No. No, I do not.
Q This is a big one. Let me ask you very directly,
do you serve liquor to your child?
A No, not straight liquor, no.
Q Okay. You say not straight liquor. What type of
liquor do you serve to your child?
A What we do with Domenic when I'm at my mom's
house is in the morning it's -- she always has a little
anisette in the coffee. We do an ala saluta to start the
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 67
meal. The only thing I do with him is we put a few drops in
his little glass and then cover it with milk so that he can
say ala saluta with me and her.
Q What's the -- I don't understand. Is an Italian
tradition, an ala saluta?
A That's something we do. I remember my parents,
you know, always doing it when there was company over,
something like that.
Q What is it about? What's the tradition about?
MS. WALSH: I'm going to object --
A It's just to good health.
MS. WALSH: -- to the issue of tradition.
It seems like the issue is whether he did it or
not. The question has been asked and answered.
THE COURT: Okay. Let's go on. I
understand what it is, all right?
MR. STERN: All right. I don't think it's
just an issue --
THE COURT: It's really not important --
it's --
MR. STERN: I don't think it's just an
issue of whether there's, you know --
THE COURT: It's a toast. It's toasting
like you do at a wedding or things like that.
MR. STERN: Right.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 68
THE COURT: Am I correct, sir?
THE WITNESS: Yes.
THE COURT: Okay. That's all it is.
MR. STERN: I also wanted for the issue
that there is traditions in the family and all
that.
THE COURT: I understand that. Now, let's
go.
Q I also just want to make sure that we cover this
issue about wine. Are you serving a straight glass of wine
to your child?
A No, not at all. Again, when we're at my mom's in
the evenings she'll drink wine with the evening meal. I'll
drink wine with the evening meal over there. I mean,
normally I drink milk with Domenic but when we're over there
I'll drink wine, she'll drink wine. Again, he'll get a
little bit and a bunch of 7-up on top and that's it. Once
at the very beginning, that's it and then after that he
either drinks 7-up or milk and that's how it goes.
Q Does your family make its own -- make their own
wine, does your mother make her own wine?
A Yes, we make our own wine.
Q I just want to ask you this direct question. Is
there a reason why Domenic does not drink straight wine or
liquor?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 69
A He's just a little kid. He's a little kid. You
don't give a little kid alcohol, you know, it's just not
good for him. I mean, that little bit is just so that he
knows, hey, I'm participating, I know what this is and we're
all in here together.
Q Okay. I want to ask you straight out about
sleeping with Domenic too. There's been some testimony that
Domenic says that you sleep with him. First of all, is
there any truth to that?
A Yes, there is.
Q Okay. Tell me the circumstances in which you
sleep with your son.
A What had happened is he normally -- after the
divorce I was still in the marital residence, he had his
room and he'd sleep in there and that was our routine and it
just seemed to be going on for several months and then there
were a period of a few weeks where he wasn't sleeping well
at night. You know, he'd call me in the middle of the
night, daddy. I'd hear him on the monitor, he was in
another room and I'd hear him on the monitor and he would
call and I'd go over there, Dom's, what's going on, and he
was bothered and I'd put him down and sit there for a while
with him and then once he made a big deal of, daddy, I want
to come with you, I don't want to stay here by myself, so I
brought him in with me. And then that got to be the habit
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 70
with him.
Q Okay.
A So he would just go down -- well, he would sleep
in my large bed and I would just put him down in bed. I
mean, I wouldn't stay there -- I would then go downstairs or
something but you know, I would put him down.
Q Okay. Well, I want to ask you some direct
questions about this issue. One of them is if there's
anything inappropriate going on with your son and you that
implication could be made. So let me ask you about that.
MS. WALSH: I'm going to object to the
continuing testimony by counsel rather than
questions, your Honor.
THE COURT: I think it's a question.
MS. WALSH: He didn't ask a question. He
made a statement.
THE COURT: Do you want to read it back,
maybe I misunderstood.
MR. STERN: What I actually did was I --
MS. WALSH: Could I ask the Court to allow
the stenographer to read it back?
THE COURT: Yeah, read it back. He
prefaced it with --
MR. STERN: I'd like to ask you questions
about.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 71
THE COURT: -- of why he's asking.
(Whereupon, the pending question was read
by the reporter.)
THE COURT: It's a question. Do you want
to read it again? It's a question. In fact,
there's two questions in there, one at the
beginning, one at the end. Okay. Go ahead and
answer.
A No, there's nothing going on like that. He goes
there to sleep and that's what he does. He curls up and
rolls around on his part of the bed and I just sleep on mine
and that's it. Usually I'll get up in the morning before he
does and I'll go downstairs and, you know, start getting
stuff ready to do something.
Q Why do you think that Domenic -- there's been
this change from when you have been in the marital residence
and he slept in his room and everything was fine to now
where he wants to sleep in your bed?
A Something went on with him. The change happened
while we were in the marital residence and I don't know.
Some external event, something. It was certainly nothing I
encourage because it just wasn't our habit. It wasn't our
habit to do that but something that he wanted. I don't -- I
never really asked him, Dom, why do you want to to do this.
Q But he seems to be okay with it, this is
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 72
something that he likes?
A Oh, definitely, yeah.
Q Okay. Well, let me ask you this, and this is an
awkward question but I want to be very clear about this so
that the Judge understands. Is there anything sexual about
your sleeping with your son?
A No, not at all.
Q I'd like to ask you another issue which is that
Domenic allegedly told your ex-wife, his mother, that you
tell him that you're lonely when he's not there. Have you
ever told Domenic that you're lonely when he's not there?
A In a part of conversation -- I don't know if
those exact words but the way it happens is Domenic normally
when it's time to go, you know, always says, daddy, I want
to see you, I want to be with you, I miss you, you know, and
I respond to what he's saying by saying, Domenic, yes, I
miss you too and I wish you could stay more sometime. So
it's more of a -- it's nothing I would usually initiate but
something he -- an acknowledgment that I share his same
feelings.
Q Why do you tell your son that you miss him?
A I want him to know. I mean, sometimes I know
kids get screwed up in these types of divorce things where
they think that maybe the one parent doesn't want them
around and I certainly don't want him to ever think that the
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 73
reason you're not with me is that I don't have time for you
or I don't miss you or I don't love you very much.
Q Okay. Did you know prior to coming to Court this
past week that Domenic was telling his mother that he was
afraid you were lonely without him?
A No, no.
Q If you had known that, would you have tried to
talk to Domenic about that issue?
A Oh, yeah, I would have talked to him about it,
explained it to him a little more.
Q If it were true that he's saying that?
A Yes, that's right.
Q Okay. Something that is a very important issue
I'd like to ask you about is this issue about, are you using
Domenic to replace a void in your life, like not having
friends?
A No. I mean, I have some good friends I keep in
contact with, family members, he's not an alternative
stuffed animal or he's not my alternative future spouse or
anything like that. He's my son. I expect him to grow up
some day and move away, and as far as me and my
companionship, I've got to find somebody else.
Q Okay. So you don't see Domenic as some sort of a
surrogate for losses in your life?
A No, not at all. He's -- no, he's my son.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 74
MS. WALSH: I'm going to object to the
leading nature of counsel's questions,
your Honor.
THE COURT: Overruled. It's okay so far.
Q Do you want him to have a strong relationship
with his mother?
A Yes, I do.
Q Why?
A Because it's important. She's his mother, I'm
his father, those are the most -- to me the most important
things a child has, that he knows that we both love him,
that we're both there for him. She has things to offer him
that I don't have. I have things to offer that she may not
have.
Q Okay. There was also some testimony about the
Sunday visitations being interrupted for visits to other
places to go out of town and that there was a number of them
that had been interfered with due to these out of town
visits or trips. Did you ever try and work out alternative
arrangements with regard to the Sunday visits for church?
A Yes. I mean, it got to be to what I thought was
frequent. You know, I'd miss two or three in a row
sometimes. I had told Adrianne, gee, I mean, there's a Sunday
morning service but there's also the Saturday afternoon
service at 5 or 5:30 and if it looks like Sunday is bad I
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 75
can bring him on Saturday afternoon.
Q Okay. I'd like to ask you another question
regarding the telephone. Does Domenic speak on the
telephone at your house?
A No. If Adrianne calls or even if I call home to,
like if my mother is there and I called home even today, he
won't come to the phone. He won't talk. He'll talk through
someone. I can talk to my mother and talk to him indirectly
through her but he won't come directly.
Q Okay. What about the issue of trembling, does he
tremble in your presence?
A No, never, nothing like that.
Q Does he ever seem fearful to you?
A No, nothing like that. I mean, he cries
sometimes if he falls down or does something but not
trembling or any kind of fearfulness.
Q Earlier there was some testimony from your
ex-wife regarding the issue of you exercising 100 percent
visitation with your son except for the weekend that you
went to jail. Is it your intention to continue to exercise
100 percent of your visitation rights?
A Yes, it is.
Q Okay. Why is that?
A Well, I want to be with him. I want him to know
I'm there for him also and that every opportunity I get I
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 76
see him.
Q If custody were to change over to you during,
let's say, a school year, would you be able to take custody
of your son and provide for him?
A Yes, I would.
Q Okay. Is there an appropriate place for him to
sleep in your home?
A Oh, yes. After getting thrown out of the house
and moving into the two bedroom apartment for a while I had
the office there and it was tough, even though Dom did -- I
did put his own toddler bed in the room where I was, he
wouldn't use it. But since mid-September when the office
moved out I bought him a nice -- a bedroom set. He knows
that, you're really locked in, this is Domenic's room. He
knows it's his room, he likes the Bugs Bunny stuff in there
and now he is -- I'm working with him now on him just
sleeping in his bed alone.
Q Now, next school year he'll be going into what
grade in school?
A Well, he should be starting first grade.
Q Okay. Now, is there a school district where you
live?
A Yes, it's the Baldwinsville District. I mean,
the school where I live on Oneida Street in B-ville, the
school is -- kids walk who live in our neighborhood.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 77
Q Okay. It's an elementary school right down the
street from you?
A Yes, there's a complex there, yes.
Q Does Domenic have any relatives or friends that
go to that school?
A Yeah. I mean, I know a lot about the school
because my cousin Cheryl, her two kids go there and
potentially they could, with her daughter, end up in the
same group.
Q Okay. So they're the same age?
A Yes, because her daughter is in kindergarten now,
that's the way Domenic is, so they would be in first grade
at the same time.
Q Okay. If you did have custody of Domenic, what
would be his schedule with regard to school and then who
would look after him?
A Well, it would depend how we would share the
week, you know, how the week got shared with Adrianne and I.
Q Okay.
A But I'm assuming as far as if it was days when he
was primarily with me, I'd be there in the morning when he
left for school and I would be there in the evening when he
got done. Because my -- again, my work is flexible so it
shouldn't be a problem.
Q I'd like to ask you about the flexibility of your
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 78
work. Are you saying that -- and I'm asking -- are you
saying that you could arrange your schedule around his
schedule?
A Yes, because at work -- I mean, I am the owner of
the company, I don't have to report to another boss. When I
need to take off, I can take off. And because of the nature
of the work, there's a lot of stuff I can do from home after
he goes to bed.
Q Would that be your intention if you did have
custody of Domenic, to arrange your schedule around him?
A Oh, certainly, as I -- I mean, as I have done now
to the greatest extent possible. When he would be with me I
would pretty much plan on being there.
Q Okay. Now, I'd like to ask you about your job
and what I want to ask you about is -- has to do with your
business and whether you'll be able to support yourself with
that business. Maybe you can tell me now as to what type of
a business you have.
A What the company does is web site hosting on the
Internet. If you have seen ads for things on TV, you see
the ads come on www.Sony.com or www.IBM.com, well my
business runs the computers that a smaller business would
use for their Internet site. Not IBM but there's a lot of
medium size businesses, smaller businesses and they would
come to us to say we'll use your computer equipment to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 79
project our company onto the Internet.
Q Okay. Now, you obviously -- well, let me ask
you. Are you able to get a job where you work for somebody
else?
A I have no doubt I could get a job because of my
knowledge and experience but because of my schedule that's
where there may be difficulties.
Q What are your scheduling problems or issues?
A Well, with Domenic -- one area is with Dom.
Right now my time with Domenic includes -- I mean, I get him
Thursday at 5 until Monday at 7 so it includes daytime
Thursdays and Mondays and normally on any 40 hour a week job
they expect you there, and that would be a, you know, a
problem. The other thing that's beginning -- gradually
becoming more and more is my mother needs help. She has
more doctor visits that she has to go to or dentist, things
around the house need to get done, which require me to
sometimes take off and, you know, see what's going on.
Q Are you her only son?
A Yes, I am.
Q Does she have anyone else to look to for support
other than you?
A There's a -- she has a niece of hers, lives in
Lyons, but the niece is again elderly, the niece is in her
60's, this niece's husband has colon cancer, so, I mean, my
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 80
mother can go to her in an emergency and call her and say,
Mary, geez can you help me, and she will, she'll help her,
but it's certainly something that I tell my mom, you know,
look, you call Mary, if I can't be there you call her but
don't bother her, let me know.
Q You heard Dr. Reagles talk about your job
prospects in Denver, do you remember that?
A Yes, I did.
Q Would it be possible for you to move to Denver to
be with your son?
A No, I'd be in a -- I have no doubt of what the
Doctor said that I could get a job but it would require me
to abandon my mother here. She could never -- she's in her
home now, she's used to it, I can't -- I'm between her and
my son. I mean, I can't -- I couldn't leave her here alone.
Q Okay. Is one of the reasons that you went into
business for yourself so that you could have the flexibility
to attend your family's needs?
A Yes, yes, when I got fired from my last job I
started working part time by just -- it was the first work I
could find, and then I realized that with Domenic it was
very nice to be with family and especially with the
problems, you know, that we were starting to have and I
realized, this is something that I wanted to do.
Q When did you lose your job?
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Official Court Reporter
J. MURTARI - DIRECT 81
MS. WALSH: I'm going to object,
your Honor. This is all prior --
THE COURT: When did you what? Let me
first hear --
MR. STERN: He said he lost his job. When
did he lose his job, just for foundation.
MS. WALSH: This testimony is prior to the
divorce, your Honor, all of it.
THE COURT: We'll let that go.
Q When did you lose your job, Mr. Murtari?
A In August of '94.
Q That was before the divorce?
A Yes.
Q There's also been some testimony which would
imply or at least inferred that you are looking to
antagonize your ex-wife. Are you trying to antagonize your
ex-wife?
A No, not at all.
Q Why is that?
A Because it just wouldn't help Domenic at all.
I'm trying -- I'd like him -- it's over between Adrianne and
I, we have our own lives to lead as adults but we're his
parents, that's never going to change. She's mommy and I'm
daddy, and I would just like a polite, civil relationship
and there's nothing for me to gain by trying to get some
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 82
digs in. There's nothing there.
Q You heard your ex-wife say that you tried to
engage her in fake family conversations?
A Yes, I heard her.
Q Okay. Well, I'm not going to ask if you try to
engage her in fake family conversations but do you try to
engage her in conversations in the presence of your son?
A Yes, I do. When she comes -- when it comes and
it's time for me to pick up Dom, I try to say hello to her,
but primarily where the attempts at conversation occur is
when I drop him off because often times he cries when we go
back. He wants to tell her things, we'll talk about stuff
and I'd say, gee, Dom, what can we tell mommy about when we
come back and we'll get there and for some reason he won't
want to talk to her directly but sometimes whisper to me,
tell mommy we did this, tell mommy we did that. The
conversation is not so much about her and I but just, Dom
did this, it's a nice day, we went to the park, those types
of items.
Q Do you try to discourage the conversations
between your son in the presence of your ex-wife?
A No, no. I would -- believe me, I would be
relieved if when I went over there he would just leap into
her arms and be talking to her. I don't try to discourage
it. We talk about mommy at home. When her name comes up,
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 83
we talk. If it's something she liked or the dog or things
that she did around the house, we talk about it. There's no
taboo or voo-doo thing about it.
Q In the presence of your ex-wife do you try and
discourage Domenic from encouraging you to tell his mother
about what he did that day or anything of that sort?
A No, nothing like that. No. I try to be just
merely to -- if he's talking to me, I'll tell Adrianne what he
said or if he's a little quiet I'll just say, hey, well, Dom
did this or we did that.
Q For the sake of Domenic seeing his parents
getting along?
A Just for the sake that it's a while -- because it
seems like it would be once we were together for a while it
got to be easier and he would be ready to go.
Q Okay. Do you have any interest in a relationship
with Miss Phillipson other than for the sake of your son?
A No, not at all right now. No. The marriage is
over and I certainly know that.
Q Okay. You have no interest -- if Dom were not in
the picture, would you have any interest in not seeing
Miss Phillipson?
A No, it would have been much easier. If Dom
hadn't been there, we could have done this much easier and
gone our separate ways.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 84
Q Okay. And maybe you -- do you enjoy spending
time with Domenic?
A Yes, I do.
MR. STERN: Okay. Just mark all of these
as just one packet of photos.
(Whereupon, Respondent's Exhibit E was
marked for identification.)
MS. WALSH: I have no objection to them
being admitted, your Honor.
MR. LUPIA: No objection.
THE COURT: Are you moving them, Mr. Stern?
MR. STERN: Okay, thank you.
THE COURT: Are you moving them into
evidence?
MR. STERN: Well, I'd like to first lay a
foundation and I'll move them in but I'll offer
them now at this point. I'd like to offer
Respondent's Exhibit E which is one, two, three,
four, five, six, seven photographs into evidence.
THE COURT: With no objection, Respondent's
Exhibit E is received into evidence.
Q What I'd like you to do is look at these
photographs and tell me if you recognize them?
A Do you want something on each one or just --
Q I'll ask you that. Do you recognize these
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 85
photographs?
A Yes, I do.
Q How do you recognize those photographs?
A These are pictures that either I took or a family
member took of Domenic or myself.
Q Okay. Well, let's just start with one after
another and I'd like to move through these quickly. I don't
want to spend a lot of time on them. This is a picture
of --
MS. WALSH: Your Honor, I think they're in
evidence, they speak for themselves. The Judge
can take notice --
THE COURT: Are they labeled of what they
are?
MR. STERN: No, they're not.
THE COURT: Are they from one event?
MR. STERN: No.
THE COURT: Are they scattered over time?
MR. STERN: Yes.
THE COURT: Well, I don't know. We've got
to find out what they are. They don't mean
anything to me.
MR. STERN: That's what I'm doing right
now.
THE COURT: Is there a period from which to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 86
which they were taken? During visitation at
different functions?
MR. STERN: That's what I was going to
explore with the --
THE COURT: But to take the time for every
one --
MR. STERN: I can move pretty quickly.
They have dates right on the pictures, Judge.
THE COURT: Go ahead.
Q Who are the people in this photograph?
THE COURT: I don't want to go through all
the people. I know him and I -- I'll know the
son, okay?
MR. STERN: All right.
THE COURT: Let's not get into who's there.
MR. STERN: As you wish.
Q This is Domenic and his grandmother, correct?
A That's right.
Q This picture was taken April 12th, 1998?
A That's right.
Q This is Domenic playing with his grandmother?
A They're working in the garden at grandma's house,
yes.
Q This is you and Domenic?
A Yes, that's right, we're together working in the
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 87
basement.
Q And that was taken September 12th 1997?
A Yes, that's right.
Q Okay. You both have big sloppy grins on your
face?
A Yes, we do.
Q This is a picture of -- I can't identify the
other boy.
A These are my cousin's -- my cousin's children,
James and Frankie, during a visit.
Q Just sitting around having snacks?
A Yeah, we're just finishing a meal having some
dessert.
Q And this was taken October 26th, '97?
A Yes, that's right.
Q This is you holding Domenic?
A That's the same event, yes, me holding Domenic.
Q Okay. I see a birthday cake. What's that about?
A That's my recent -- I turned 42 and that's at
grandma's house, my birthday cake.
Q Okay. And that was October 10th, '97 so that
could have --
A No. Well, we did it again this year so, yeah,
that must have been last year.
Q Okay. Birthday parties together. This is
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 88
Domenic and his gerbil?
A Yeah, he has pet gerbils at the place and that's
one of the gerbils.
Q And this was taken at about the same time,
October 26th?
A Yes.
MR. STERN: I'm going to remove this from
the packet.
Q Okay. Do you spend time with Domenic when he's
with you on visitation?
A Yes.
Q Do you spend all of the time with Domenic or do
you do other things?
A Well, primarily with him. I mean, I don't --
it's not like we just play all the time. I've got work to
do, we work around the house. If we're working outside, he
just comes along and helps. Sometimes at my mother's
there's neighbor kids next door and he'll play with them
sometimes while I'm working in the garden.
Q Okay. Does he spend time with his -- he spends
time with his grandmother too?
A Yes, he does. There's been occasions for a few
times where I couldn't get out of it, I had to do some
part-time teaching and it conflicted with the schedule and
he stayed with her while I had to drive into Syracuse to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 89
teach.
Q Does he enjoy spending time with his grandmother?
A Yes, he does.
Q You had spoken -- you had testified about him
having cousins in the area. Does he spend any time with
those cousins?
A Yes. My cousin Cheryl lives only a few minutes
away right in B-ville so we see her fairly often, probably
about once a month either we'll go over there or her kids
will come over. My other cousin lives in Auburn, that's a
little bit more of a drive, it's 45 minutes to get there and
come back so we see them at the big occasions and maybe two
or three other times scattered through the year.
Q Okay. I want to go back to your business. How
is your business doing now financially?
A It's growing, more money is coming in, we have a
larger subscriber base of businesses. So it's growing. But
at the same time I'm adding people and, you know, there's
other expenses on the other side.
Q You're getting more revenue in and you're
reinvesting it into the business to help it grow?
A Yes, and finally -- the business for quite a
while could not pay me. I mean, I was paying my employees a
salary and I really wasn't on the company payroll per se,
and now I am and the company is paying me 7.50 an hour now.
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Official Court Reporter
J. MURTARI - DIRECT 90
Q Okay. Do you believe that this business will be
able to be -- able to provide sufficient income for you to
support yourself and Domenic in the future?
A Yes, it will. Yes, I do believe that.
Q Okay. Well, at this point is there sufficient
income from that business for you to afford plane tickets
back and forth to Denver?
A I -- I'm just imagining it's got to cost 5 or 600
bucks per person round trip with, you know, ancillary car,
whatever expenses so, I mean, it would be difficult to do it
two or three or four times a year. I mean, that's -- that
could be a few thousand dollars.
Q Well, let me ask you that. Assuming that you had
to fly out to Denver to get your son and assuming that the
average cost was $500 for you and $500 for Domenic, about
how many times do you believe with your present income that
you could afford to fly out there to get him?
MS. WALSH: I'm going to object to the form
of this question, your Honor.
THE COURT: How would you phrase it? I
mean, I know what he's getting at. I mean, he's
asking if he could afford to go visit.
MS. WALSH: I think he's asking --
THE COURT: I think he can ask that
question.
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Official Court Reporter
J. MURTARI - DIRECT 91
MS. WALSH: He can ask that question, I
agree, your Honor.
THE COURT: Sure.
MS. WALSH: That question.
THE COURT: You know, could you afford to
make trips to go visit your son in California?
THE WITNESS: I mean, it would be very
difficult. I mean, I've got -- to have the cash
to do it would be very, very hard. I mean, I've
got credit cards. I mean, obviously there's
always the little plastic money you can charge
something on but it would certainly be a
tremendous expense.
Q Okay.
A There's not just the ready cash there to say,
okay, we can do this.
Q You're in significant financial debt at this
point, correct?
A Yes.
Q How much right now are you in debt?
A Personally, I mean credit card debts that are my
personal stuff, is in the range of probably 5 to $9,000
there.
Q Okay.
A For the company financing there are other credit
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Official Court Reporter
J. MURTARI - DIRECT 92
cards that are in my name which are only for the corporation
which we use to really get the company -- keep it going and
they are probably around 35 or $40,000 worth of debt that
the company -- now, I'm not -- now, those monthly payments
are being made by the company but, you know, personally it's
still my name on the card.
Q You have other debts too, don't you, other
judgments against you?
A Well, I have the judgment from the divorce stuff,
yes.
Q About how much is that, if you know?
A Well, I know that after the sale of the home,
that settled up some of that pending things but then there
was for Mrs. Walsh's attorney's fees, that was like over
$10,000, whatever number they quoted, and then there was the
other $60 -- I mean, I'm paying $60 a week to Adrianne but
it's supposed to be 120 and that's continuing to -- you
know, I guess that's one of the judgments that's continuing
to add up.
Q That's all I wanted to ask you about, about your
ability to visit Denver, to afford for Domenic to visit with
you. I also want to ask you questions about, are you
helping to support your mother?
A I do. I drive her around, it's -- it bothers me,
it's not as much as I used to do for her. I mean, she gets
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 93
a social security check every month, that's it. I used to
pay for stuff for her like dentist stuff. She's getting
into a lot of dentist stuff lately. I used to slip the
dentist money and say charge her this much and I'll pay the
rest. I can't do that anymore so I have to just go to the
dentist and say gee, Doc, you know, can you write a little
bit off the bill for me. So, I mean, I try to do but right
now it's more of a limitation for me. I don't have the
dough.
Q Your mother looks to you -- I mean, your mother
has a need for additional support from you?
A She can get --
MS. WALSH: I would object, your Honor, to
the relevancy of that to this proceeding.
THE COURT: It's sustained, really.
MR. STERN: Okay.
THE COURT: I mean, there's no priority
thing to look at here, you know.
MR. STERN: I just wanted to give the Court
an idea of what this gentleman is up against
and -- excuse me for not standing -- what he's up
against and what his pressures are.
THE COURT: Okay. We've got it. Go ahead.
Q I'd like to ask you another direct question about
the litigation that has gone on. Have you used this
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 94
litigation as a tool to harass and oppress your ex-wife?
A No, I have not.
Q You're sure about that?
A Yes, I am.
Q Okay.
A My only -- I mean, my only goal in the appeals
and everything I've done is I want to get back to being an
equal parent. I have written to Adrianne, I have written to
her attorney to say look, I just -- the only thing that's
not negotiable is I want to be an equal parent with Domenic.
I mean, the property issues, the other stuff, hey, we can
work something out, but that's not negotiable.
Q If Domenic were to live in California, do you
believe that you would have sufficient contact with him to
insure -- let me withdraw that.
Do you have any feelings about Domenic's best
interest with regard to him living in California?
A Yes, I do.
Q What are those feelings --
A Well --
Q -- with regards to his interests?
A The worst thing about it is that he basically
loses one effective parent. I mean, certainly he'll be able
to experience Adrianne as his mom and things but he's going to
lose everything with daddy. I mean, yeah, I'll be able to
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Official Court Reporter
J. MURTARI - DIRECT 95
see him and say hello and be there at the holidays and stuff
but not show the example and someone he can learn from.
Q Would it be your wish to take full custody away
from your ex-wife?
A No, it is not. I have been there and done that
and that's not needed. We can share -- with appropriate
guidelines from the Court, I have seen other couples with
some of the same animosity work it out and I think we can,
once he's no longer a pawn between us.
MR. STERN: Judge, I'd just like to ask my
client if he has any further things I should
be -- I forgot to ask him.
MS. WALSH: I'm going to object,
your Honor.
THE COURT: I didn't hear you, Mr. Stern.
MR. STERN: I just wanted to ask him if
there's another area that I forgot to cover
and --
THE COURT: Well, don't show him anything.
MR. STERN: I'm not going to show him
anything. These are just my notes.
THE COURT: Well --
MS. WALSH: I'm going to object,
your Honor.
THE COURT: Sustained. It's improper.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 96
MR. STERN: I can't have a moment with my
client to confer?
THE COURT: No.
MR. STERN: Okay.
THE COURT: Not while he's there
testifying.
MR. STERN: Judge, could I --
THE COURT: Finish your examination.
MR. STERN: Could I have a moment?
THE COURT: We're going to take a recess in
a few minutes.
MR. STERN: Could I have a moment then to
confer with my client?
THE COURT: We're going to recess now for
five minutes. Okay?
MR. STERN: Okay.
THE COURT: Then we're going to go for one
hour after that. At a quarter to five I have to
leave here so a five minute break and then
quarter to five we quit and come back tomorrow at
10, okay?
(Whereupon, a short recess was taken.)
THE COURT: Okay. Are you ready to --
okay. Mr. Stern, you can go ahead.
MR. STERN: Okay. Thank you.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 97
BY MR. STERN:
Q Mr. Murtari, during the break we had a
conversation, correct?
A Yes, we did.
Q What did we talk about?
A Well, we talked about some questions you're going
to ask now.
Q Okay. I didn't tell you what to say or anything
of that sort?
A No, you did not.
Q I want to go back to the transitions when you --
with Domenic coming to you or Domenic going to Adrianne or
Domenic going to one of the baby-sitters or to the
baby-sitter or to whomever. When Domenic is coming to visit
you, how does he appear?
A He always appears happy and ready to go.
Normally -- right now it's normally at the Thruway exit, I
can see them driving up, Dom's usually looking out the back
window and usually I can wave to him and he's smiling. I
can normally walk up to the car because he's on the --
Adrianne is in the driver seat, he's in the back seat on the
passenger side and, you know, I can open the door and he'll
pop right out.
Q Okay. And when he's popping right out, how does
he appear, excited?
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Official Court Reporter
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A He appears quite happy. He's talking. I have
never had an experience of him crying at all.
Q Okay. Well, let me flip that side. When you're
returning him, have you had any problems in those
transitions when he's going back to -- let's start with a
baby-sitter?
A With the baby-sitters almost for what I can
recall over the past -- since the divorce, almost uniformly
he's going to cry. I mean, I'll bring him up, he'll hold on
around my neck and just not want to go.
Q When was the last time that you returned Domenic
to a baby-sitter?
A It's been since the spring, since the spring
before our summer vacations and stuff.
Q Okay. What about when you're returning him to
his mother?
A With Adrianne, over the past couple of years
usually -- more to the last year, there weren't any
problems. Since this summer, more, he cries and won't
like -- you know, when we go there, he just holds on. I
mean, at times I would be walking he would be walking next
to me, you know, but then he just grapples onto my leg or
something. And I don't know why but it had been becoming
more frequent to where it was really disturbing and I think
for both of us because one time, about a month ago, two
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 99
transitions ago, we get to the door and we're ready and
Adrianne answered the door and it was obvious, she had a
little toy dinosaur for him and she goes Domenic, you know,
she was -- I could tell that she was trying to do something
different to distract him and I was going, Domenic, look, a
dinosaur, and he just bursts out balling and buries his head
in my shoulder and it was awful and I felt bad and, I mean,
no one -- I mean, God, no one likes that, to see your kid do
that.
And after that I had written Adrianne about it a
couple of times to say, gee, can we do something here, I
mean something is going on, what can we try different. I
didn't hear anything. Finally, and I think it's -- I don't
know if it's one of the letters of the exhibits but I wrote
her and said, Adrianne, look, let's try it at the Thruway,
he's used to coming to me at the Thruway. It's not your
place, he's falling into a pattern there. You know, kids
get into little habit patterns, let's try it at the Thruway.
I'll just stop next to you and zoom him right in, and we
have tried that I think once or -- twice now and it hasn't
been a problem. He's been quiet, you know, he's been quiet
but no big crying. You know, I put him into the back seat,
he likes me to put him into the car, I'll put him in her
back seat, he'll ask for a hug and a kiss and then I'll, you
know, step away and it's not a problem anymore, which is a
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 100
great relief.
Q Do you try to make the transitions as easy as
possible for Domenic?
A Yes, yes, because it's just awful, the tears were
just -- because it was an awful end to a -- normally we
would have a nice time together and it was just an awful end
to these visits.
Q Was there a time when -- another time other than
the dinosaur episode when Domenic was crying terribly and it
was upsetting for both of you?
A I mean, yeah, to an extent we would go there on
some earlier occasions after the summer vacation, we would
get there, Domenic would want to whisper to me, daddy, can
you tell mommy we went to a park or something, tell mommy we
went to the park, and then Adrianne told him, Dom, I thought I
told you I want you to tell me and not daddy. And, you
know, he sort of stopped and it was a little awkward and I
didn't know what to say so I said -- well, you know, I just
kept talking and I said, you know, Adrianne, he did this and
then Adrianne closed -- she said, well, let me know when
you're ready, and she closed the door.
Q What do you mean she closed the door?
A She let the door slam shut to her apartment. Dom
and I were out there, she let the door close. He really
starts crying. I go down the stairs with him and we sat
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 101
outside for a while and we just talked and, you know, Dom,
you want to take a walk, and we walked around and I was
telling him, Dom, you know, gee, we've got to go back now,
you know, we've got to get ready to go back and see mommy.
Q When did this occur?
A This occurred during the month of -- in
September. Almost the same thing happened on two occasions
in September, October of this year.
Q Of this year, so recently?
A Yes.
Q Okay. So let me just understand. So the door
was slammed or shut in your face --
A Shut.
Q -- and Domenic's face. You took him downstairs
to calm him down?
A Yes.
Q Were you able to calm him down?
A Yes, he stopped crying. There was more of,
daddy, when can I see you, I want to stay with you more, and
I go, Dom, mommy wants to see you, mommy loves you, and he
does -- you know, Dom, it's just the way it is. I just told
him look, Dom, it's what we have to do now, it's now time
and you've got to do this. We went back another time to the
door and knocked on the door, he started crying again and
Adrianne closed the door again because he wasn't ready. So we
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - DIRECT 102
did the whole thing again and then finally we go back again
and literally he was holding onto me and I just -- you know,
I signaled to Adrianne to be ready to take him and I just had
to pull him off and hand him to her, you know, and he was
just sobbing. So it was awful and I wrote -- and again I
tried to write to them and say, gee, can we do it different,
and that's how we ended up with this trick at the Thruway.
Q Do you do anything to make the transitions as
easy as possible?
A Yeah, we talk about mommy as we're driving. It
takes a half an hour to drive from where I am into the city.
We'll talk, I'll go, gee, Dom, what are we going to tell
mommy about when we get down there and stuff we did and he
seems okay. I mean, he gets quiet, you know, I can tell
he's getting a little quiet, a little thoughtful and that's
really all I can think of.
Q Do you feel that Domenic's mother, your ex-wife,
is doing all she can to make the transitions as easy as
possible?
A No.
Q Why do you say that?
A It would never have hurt her to just wait at the
door there. All she had to do was listen. That's all he
wants. I mean, it was so frustrating. I mean, she doesn't
have to talk or just nod your head to your son and, gee,
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Official Court Reporter
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that's nice, Dom. That's all you had to say. I just never
understood why that couldn't happen.
Q Just for the sake of Dom, to give him the sense
that his families have an amicable relationship?
A Yeah.
Q Okay. There's been testimony from Miss Phillipson
that you try and control her and that you're emotionally
abusive to her. I first want to ask you about controlling
her. Oh, well, first let me ask, are you trying to control
your ex-wife through use of litigation?
A No.
Q Are you trying to control her by any other means?
A No, I'm not. She has her life. I have no
interest there. I mean, I don't ask. I'm not a voyeur into
her life and people she's seeing.
Q Okay. It was also the implication or one could
be made that you're trying to overly control your son. Do
you believe that you are trying -- you're using anything to
overly control your son?
A No, not at all. If anything, with him I think
I'm spoiling him a little because I try to spend a lot of
time with the guy.
Q Okay.
A And you know, I spend a lot of time with him.
Q Since the time -- well, first let me ask you,
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Official Court Reporter
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since the time of the divorce have you used -- have you been
emotionally abusive to Domenic in any way?
A No, no, not at all. He -- nothing comes up like
that. He's normally a pretty well-behaved kid, he knows his
limits of what's allowed and he --
Q Have you been emotionally abusive to Adrianne in
any way?
A No, because we never -- we don't talk. Adrianne
doesn't really want to talk to me or engage me in
conversation. The only time I ever really try to approach
her is in writing.
Q Is it your wish to have no communication other
than by fax with your son's mother?
A No, no, it would be nice if we could talk about
what he did, if she could, without getting into what's
happening, just tell me about school or I tell her what he
had done, it would make some of this stuff a lot easier.
Q In your petition you asked the Court for
additional custody rights, correct?
A Yes, that's right.
Q You would like to have more information with
regard to Domenic going to school?
A Yes, that's right. I couldn't -- I had thought
that he was going to be in kindergarten this fall --
Q Okay.
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A -- like almost every other kid and I had
repeatedly written Adrianne and her attorney asking, gee, what
are the school plans, what are the school plans, and I think
I found out almost near the end of August that he was
continuing at the Jowonio program.
Q Would you like to have the opportunity -- are you
asking the Court for the opportunity also to participate in
the decision-making process of where he goes to school?
A Yes, I'd like that very much.
Q Are you also asking the Court for information and
responsibility with regard to making medical decisions?
A Yes, especially in that area because of language.
I mean, I'm a technical person by trade in the sciences,
things like that. Adrianne is not really and I know that at
times talking to a doctor you can miss something, not
explain something, you know, in that short time they give
you and I do feel a little bit more if we were both there
that there would be less of a chance to miss something.
Q Would you like to have more information from the
school? Would you like to be an equal participant of
information coming from the school?
A Yes, I would. I would like to know what's going
on so I could participate. Domenic tells me about stuff
going on at the preschool but I don't really know what the
lesson plans are and he sort of tells me what they're
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working on but, you know, I mean, I'm hearing it from a
five-year-old so it's not the same thing as talking to the
parent or knowing what's going on.
Q Yeah. Do you want this information also so you
can participate in Domenic's life --
A Oh, certainly, yes.
Q -- more and share more with him?
A Well, yes, and share it with him and with Adrianne
so we both let each other know what's going on with him.
Q Okay. There was some discussion earlier,
testimony about your belief of your role as the father with
regard to educating him and being there for him. Maybe you
could expand on that a little more, what you feel you have
to offer him?
A Well, I do stuff with Domenic now to help him in
the every day things, begin to learn letters and words. He
loves trains. My mother lives next to the tracks. The
freight cars go by with a lot of letters, MBW, J & B, and
that's how I used to work the alphabet with him. Now he can
correlate that. He can read the signs. He can read
eastbound 690 and northbound 81 to understand that the
letters form words and he enjoys it. We are in the car and
he can say, look, daddy, there's a bump coming.
Q Okay. Since the time of the divorce -- you had
reminded me about one of the motions you made, one of the
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litigation motions, all the litigation has been brought up,
was something about a freezed account. Can you tell me what
that's about?
A Yes, one of the necessary parts is that I found
out during the summer vacation, my mother got a notice in
the mail from her bank that there was a freeze on her
account and this is where she kept all her money, it was
where her pension check was on direct deposit, and I called
the bank and they said -- my mother was a little -- I didn't
even know what it was. I called the bank and I said, what
is this, and she said an attorney has placed a freeze on
this account and you can't take any money out of it. I
mean, I explained it to my mother and she is elderly and she
was hysterical. She didn't understand what was going on. I
called Miss Walsh, I called Adrianne right away, to let them
know that, gee, I didn't have any money in there. It was a
joint account. I mean, my name was on it because after my
dad died my mom put my name on the account. I mean, there
was only like 6 or $7,000 in there, and I had called them to
say please, pull this freeze off the account. You know,
that's my money, you know it's my money, I'm not playing
games here. I mean, you know it's my mother's money and I
am not trying to hide money in her account. But no one
would do anything.
Q This account, was this your mother's -- basically
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all of the savings that she had in her entire life?
A Yes, it had started with her and my dad. They
would put money -- even on their limited income she would
put money away and occasionally she would keep it in the
house and put it in the bank.
Q Did they remove the freeze from your mother's
account voluntarily?
A No. No, they didn't. I didn't know what to tell
my mother. Finally the bank in Lyons, they were a little
bit nice, at least they said, gee, we're only going to
freeze what's in there. When her check went in for the
beginning of the next month, they allowed her to take that
out so at least with my mom that was a little better.
Finally we ended up in front of Judge Major and, you know,
we had a thing in front of the Judge and I tried to explain
that it was for my mom but he ruled that they could have
half, they were going to take half of it because my name was
on it so it was going to be 50/ 50, and then finally during
I think another appearance on the -- I believe it was the
attorney's fees, Miss Walsh said that because the house had
sold -- and I don't even understand it but they had pulled
the freeze on the account. So none of the -- my mom ended
up not losing any of her money. I took her back to the
bank, she just transferred it to an account under her name.
Q Did Adrianne understand that she was putting a
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freeze on your mother's only income?
A I have to believe she did, yes. Because I wrote
her and I called her.
Q Do you know why they would continue to hold --
put a freeze on your mother's pension account?
MS. WALSH: I'm going to object,
your Honor, to the relevancy.
THE COURT: Can I ask when this all took
place? You're mentioning Judge Major, going to
him on this. It's got to be, you know --
THE WITNESS: It occurred --
Q When did this occur?
A It occurred this summer.
Q This summer?
A Yes, roughly this summer.
Q So that would be July?
THE COURT: You went back on enforcement?
MR. STERN: Excuse me?
THE COURT: You went to enforce the decree
before him?
MR. STERN: I wasn't a participant in this.
THE COURT: I mean, is that what happened,
was there a petition brought to -- a motion
brought to enforce?
MS. WALSH: Your Honor, there was a number
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of post-judgment motions in front of Judge Majors
including the eviction and including attorney's
fees after the Appellate Division. I believe in
a cross motion at one of those times Mr. Murtari
brought up this issue.
THE COURT: And this is following the
decree?
MR. STERN: Yes.
THE COURT: After the decree?
MS. WALSH: Yes.
THE COURT: Because he referred all matters
to here, did he not?
MS. WALSH: Except these were matters of
equitable distribution.
THE COURT: Did he reserve those?
MS. WALSH: Yes.
THE COURT: Okay. I got you.
Q And you had to represent yourself to be able to
unfreeze your mother's money?
A Well, to at least try. I mean, I didn't really
understand, you know, that kind of judgment law. I mean, I
didn't know but there was -- I think Miss Walsh is right
about the cross motion, we were going to be in there and if
we hadn't have been I would have to have submitted a motion
anyway but it happened on the same day and that's why we
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went in to ask the Judge to --
Q Why didn't you have an attorney to do this?
A I just could not afford that. I mean, I had a
friend, an experienced -- a man I had known for quite a
while who was a family attorney, I could go to him a little
bit to just get some off-the-cuff advice, you know, but that
was it.
Q I want to go back to this issue. Adrianne, you
testified, understood that this was your mother's money?
A I believe so, yes.
Q And yet she persisted in keeping this freeze on
your mother's only money?
A Yes, they would not release it.
Q Does Adrianne understand how limited --
MS. WALSH: I'm going to object to the form
of the question, your Honor, and whether or not
this continues to be relevant.
THE COURT: I don't think it is relevant
anymore. It really isn't. It has nothing to do
with this case.
MR. STERN: Judge, if I could only just be
heard on this and I will move on.
THE COURT: Huh?
MR. STERN: If I could only be heard on
this. This is the purpose I'm bringing it in.
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There's been all this testimony of my client
trying to be abusive to Adrianne and how mean he is
and he does all these terrible things and then he
brings all this litigation and all of this and
yet the man had to represent himself to get his
mother's account unfrozen while they knowingly
with a woman with a fixed income from Social
Security are holding on this woman's money so she
can't even buy herself food. He's had to survive
through that. He has had to represent himself
continually on this issue and I want that to be
clear to the Court, that Miss Phillipson knew what
was going on, she was using her lawyer to do this
thing that they knew wasn't right and he had to
survive through that while they're making these
accusations that he's bringing in frivolous
litigation.
THE COURT: Well, she has a legal right to
do that, okay? So now you're throwing up what
she has a legal right to do, all right, as a
defense for an allegation that someone else is
doing something out of spite. You know, it
doesn't make sense. Now, we already heard it
anyway. So let's go on.
MR. STERN: As long as my client will get
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the same treatment of his legal right to --
THE COURT: Well, he's got all his legal
rights.
MR. STERN: Okay.
THE COURT: If he missed anything at all,
you know, if he had missed one single visitation
during this thing he could have brought a
petition. They were enforcing a legitimate
decree of the Court. That's what they went in
for. You know, he went to Court with it. So
it's different than, you know --
MR. STERN: Enforcing and legal doesn't
make it right.
THE COURT: Okay.
MS. WALSH: I would object to that last
statement, your Honor.
THE COURT: Well, that's stricken. It
doesn't even belong here. Let's go on. Anything
else?
MR. STERN: Well, then if it's legal then I
wanted it to go to the issue of their knowledge
that it was not his money.
MS. WALSH: Well, I'm going to object to
that.
THE COURT: Well, please now, next issue.
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MR. STERN: Okay.
Q There's been a great deal of discussion by other
witnesses about your being arrested and I want to ask you
questions about that. When was the time when you were
arrested?
A The date?
Q Yeah.
A December 17th of last year.
Q Okay. And I'd like to ask you questions about
how you came to find yourself in jail, in the custody of the
sheriff's department. Maybe you can just tell the Court
about how that happened, what were the circumstances that
brought you there?
A Well, what had happened is originally I was --
the house was to be sold and it was after the divorce, the
house was to be sold because neither of us exercised or had
the ability to exercise the option to buy. In the fall of
'97 they filed a motion to have me evicted from the home,
the Judge granted that. You know, I went in to oppose it
but Judge Major granted that. Later on in that timeframe I
was working on the appeal to the Appellate Division. By
late November I had perfected the appeal, I had filed my
briefs, the transcripts, all the stuff was --
MS. WALSH: I'm going to object to this
ongoing talk, your Honor, about appeal. It's not
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responsive.
THE COURT: Well, you know, this is all
history. I know it all so well. I don't know
why we're wasting time on it. You're the one
that has to go to another trial. If you want to
take another week, hey --
MR. STERN: Well, Judge, I'm not going to
cut short my client's trial for --
THE COURT: No, but, I mean, why are we
repeating all of this? It's nothing new to the
Court.
MR. STERN: Judge, Miss Phillipson testified
that when she saw him go to jail she knew that he
would go to any end -- that he would stop at
nothing, and to characterize --
THE COURT: Well, get to the point.
MR. STERN: Well, I'm trying to --
THE COURT: Why all this history? I know
that he represented himself. I know it went to
the Appellate Division. I know about this thing
about the eviction. I know that the house, you
know, that there was an eviction order and that
he was put in jail. But tell me what you want
him to add to that so we save time. That's all
I'm asking. I didn't cut you off from that area.
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J. MURTARI - DIRECT 116
MR. STERN: Okay. Well, I'm not looking to
burden the Court with that.
BY MR. STERN:
Q But essentially what I would like you to discuss
is this issue of, are you willing to go to any end just to
create problems to control your wife?
A No, no. I mean, to add to the factual
information, I didn't take that lightly when I knew that
potential --
MS. WALSH: Your Honor, the question has
been asked and answered.
THE COURT: It has been, in two different
areas.
Q And my next question then is, why were you
willing to go to jail when the sheriff showed up?
A I wasn't sure what was going to happen. Part of
me -- I wasn't -- didn't even know whether they were going
to carry through with it. It had been threatened so many
times, I didn't know. It was eight days before Christmas, I
felt like this isn't -- I believe in the law and you've got
to obey orders but to walk out of my child's home, it was
Domenic's home, it was my home, for me to just walk out that
door was more than in good conscience I could do. I wasn't
mean, I didn't really have any hard feelings for the Judge
or the deputies that came to arrest me, but I just let them
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know that, gee, I can't in good faith, you know, voluntarily
walk out of the house with you.
Q What was the reason that you didn't believe it
would have been in good faith, was it because of the appeal?
A Well, because of the appeal and what was going
on, it just didn't -- to put it short, it just didn't make
any sense. I mean, I understood it and it was within their
legal rights, I understood that and --
Q Why did you want to stay in the house pending the
sale?
A I wanted to stay in as long as I could because it
was my home and Domenic's home. I mean, the weekend before
they showed up we put up the Christmas tree. We had --
MS. WALSH: I'm going to object to
continuing, your Honor. He answered the
question.
THE COURT: Sustained. He's answered it.
Q Okay. Did you understand that at some point you
were going to have to leave the home?
A Yes, I did and I did take out the business
equipment. I mean, my employee was counting on me for work,
we did move the business stuff out, I did move valuables
out, both of mine and of Domenic's, the things that were
irreplaceable, certain toys that he liked, things that were
his, I made sure that those were out of the home before that
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day of eviction rolled around because I didn't want to lose
any of that stuff for him.
Q Well, I'm talking about in the future you
understood that at some point you were going to have to
leave that house?
A Oh, yes, I did.
Q What was your plan with regard to that?
A The eventual plan was the hope to be victorious
on one of the appeals.
Q Okay.
A Or at that point once the appeal process was
done, well that was it, then you have to go. I mean,
that's -- you can't -- you have to do it.
Q Was it your desire at some point that maybe you
would be able to purchase the house for yourself?
A Well, eventually, yes. I mean, I had -- that had
been a hope, correct.
Q John, I'd like to ask you about this issue about
Domenic not eating while he was at day care. When did you
first learn about that?
A I just learned about that when Adrianne testified
about it on the witness stand.
Q Would you have liked to have known about that
prior to --
MS. WALSH: I'm going to object to that.
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THE COURT: What's that?
Q -- prior to appearing here in court? Would you
have liked to known about it contemporaneously?
A Well, yes. Geez, your son's not eating for a
long period of time and it was about me and obviously it was
circumstances involving me, I could have been able to talk
to him. I mean, he never told me anything like that. He
always told me he wanted me to come to day care but he never
said he wasn't eating. I really -- I was amazed. I never
knew.
Q Okay. Does that cause you any concern that
Adrianne did not share this with you?
A Yes, it bothers me that --
MS. WALSH: Asked and answered, your Honor.
THE COURT: Sustained. We've got the
picture very well. He wants an equal share in
everything that goes with joint custody.
Q Do you feel that you could have spoken with
Domenic about this and maybe made it better for him?
A Yes. If we had been working together, we could
have worked that out, yes.
MR. STERN: Okay. I have no further
questions. Thank you.
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J. MURTARI - DIRECT 120
THE COURT: Okay. Miss Walsh, are you
ready for cross?
MS. WALSH: Yes, your Honor.
CROSS-EXAMINATION
BY MS. WALSH:
Q Mr. Murtari, have you had any therapy since the
Judgment and Decree of Divorce?
A No, I have not.
Q And you deny that you try and control other
people?
A Yes, I do.
Q You deny the Court's finding that you do not
understand other people's feelings?
MR. STERN: Objection. I thought this was
going to be from the time of the divorce or
after.
THE COURT: Yes. You know, you can refer
to it and ask him if he had any counseling with
regard to that problem that was found or, you
know, anything that might show that he's
continuing to control, okay, or whatever, but not
that -- we don't want to go back there to figure
out where that came from.
MS. WALSH: I understand, your Honor.
Q You've not had any therapy to deal with that
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problem, correct?
MR. STERN: Objection, asked and answered.
THE COURT: Overruled because we didn't get
it clear where we are. You can answer that.
A No.
Q And are you on any medications?
A No.
Q Have you been on any medications since the
Judgment and Decree of Divorce?
A Other than aspirin for an occasional headache,
no.
Q And do you have any other medical problems since
the Judgment and Decree of Divorce?
A No, I don't.
Q Have you visited the doctor's?
MR. STERN: Judge, I'm going to object to
this as, first, I don't understand the relevancy
and, secondly, I don't understand how this fits
into my direct examination.
THE COURT: You know, when someone is
seeking full custody everything with regards to
their character, health and ability to care for
the child is fair game. I can't stop the
question. I'm not going to let it go too far.
MR. STERN: Well, I don't think that he's
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looking for full custody. I think he just wants
joint custody.
THE COURT: That's not what your petition
says, is it? Does your petition limit it to
joint custody?
MR. STERN: I believe that's what he asked
for.
THE COURT: Does your petition indicate
joint custody? I don't recall.
MR. STERN: I'd have to look at it myself,
Judge, but I'd withdraw my objection.
THE COURT: Let's move on.
Q Do you have medical insurance, Mr. Murtari?
A No, not right now I don't, no.
Q And you don't have medical insurance for Domenic?
A No.
Q And you're not helping Adrianne pay for medical
insurance for Domenic, are you?
A No, not right now.
Q And at this time -- strike that.
Since the Judgment and Decree of Divorce have you
applied for any jobs?
A Yes.
Q And where?
A At OCC.
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Q And that's the teaching job you have?
A Yes, those are the part-time teaching jobs, yes.
Q And that's the teaching job that you had before
the Judgment and Decree of Divorce?
A Yes, that's right. And I had also applied at --
there's another community college that has classes in Fulton
and I had applied there for a part-time teaching job.
Q Since the Judgment and Decree of Divorce?
A Yes, this was since the judgment and decree, yes.
Q And what part-time teaching jobs do you now have?
A Well, right now I'm just an adjunct, on the
adjunct list at OCC. Now, last semester the classes I was
targeted to teach did not go so I wasn't --
Q You did not --
A I did not teach, no.
Q How about this semester?
A I don't know yet. I have to get back with them
on the -- on my availability schedule for the spring
semester.
Q So you're not teaching in the fall?
A This is now. Now, no. Fall is now, no.
Q And you don't have anything lined up for the
spring yet?
A No, not at the time.
Q How about the spring of '97, last spring starting
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in January of --
A Then I was teaching at OCC -- I'm not sure but I
am positive that I was teaching then the spring semester
class.
Q Is that the same or different courses than the
ones that you had previously taught?
A They're all in the computer science area. They
have got me -- I had taught a couple of other, they wanted
me to teach some new classes but they're all computer
science curriculum.
Q And you teach one course a semester?
A One a semester.
Q And other than that you have made no other
applications for jobs?
A Yes, nothing for full time employment, no.
Nothing for full time, no.
Q But you're testifying that you did agree with
Dr. Reagles that you probably could get full time employment
if you sought full time employment, is that correct?
A If I sought it, yes, yes, yes, that's right.
Q And do you agree with Dr. Reagles that that would
probably be an income in excess of 50, $60,000 to start?
A The schedule is difficult.
Q I'm not asking about the schedule.
A Oh.
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Q I'm asking if you applied in your field and got a
full time job, do you agree with Dr. Reagles that the income
would be in excess of 50 or $60,000 to start?
A Yes, I wouldn't say 50, 60K in this area but
certainly there would be areas if I was willing to work a
40 hour week and move and relocate, well, that would be
true, yes.
Q And that is your field, computer science, right?
A Yes, that's right.
Q And you would be able to be a systems analyst?
A Yes, it would be a senior type position, yes,
because of my experience.
Q And but you have not -- you have sought not too
seek any of that kind of employment, either here or
elsewhere, right?
MR. STERN: Objection, asked and answered.
He's looked for no full time jobs of any sort
anywhere since the Decree of Divorce.
THE COURT: I'm going to make him answer
again and clarify the whole thing. You can
answer that.
MS. WALSH: Could you repeat the question?
A Yeah, what was the --
(Whereupon, the pending question was read
by the reporter.)
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A Yes, that's correct.
Q And yet you said that you have financial
difficulties, that's correct too?
A Yes, that's right.
Q And you have debt in I believe almost $50,000?
A Again, between myself and the corporate debt,
yes, but it's in my name.
Q And that's credit card debt though, is that not
correct, Mr. Murtari?
A No, for the corporation -- well, the corporation
does have some leases, equipment leases.
Q How much of that $50,000 is credit card debt?
A For myself personally, between 5, 9,000. The
corporation, I think around 35,000. I don't have the
numbers here with me but approximately that the last time I
had looked at what the books were showing.
Q So about $45,000 in credit card debt total?
A That would have my name, yes.
Q And you still haven't been able to decrease that
debt, have you?
A No, the company part of the credit card debt has
gone down somewhat. It was being paid down up to about
three months ago, it was going down, the company was making
enough to actually start to bring it down. Recently we
moved into the new office and there has been a little spike,
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some increases. Personally, the cards that I use for my
personal expenses, I was able to pay off a little bit. Some
of the property lost in the home, there was an insurance
settlement of about 4 or $5,000. I was able to use some of
that to decrease the credit card debt.
Q You made a claim against the insurance?
A Yes, a neighbor of mine --
Q Just answer the question, please.
A Oh.
Q Answer the question. You made a claim against
the insurance for property that was lost at the time of the
eviction?
A Yes, I did.
Q Now, as I recall, the Judgment and Decree of
Divorce says that the amount of credit card was 35 or 40 and
now it's up to 55, is that your testimony?
A No, no, they are equipment leases. You're asking
about total debt. I mean, the company --
Q The total debt is more now than it was at the
time of the divorce?
A I don't know. I'd have to -- to answer that
correctly I'd have to be able to get those current numbers.
I mean, it's moving.
Q But, Mr. Murtari, nobody else is in charge of
these current numbers, are they? I mean, you don't have
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anybody else doing your books, do you?
A There's an accountant that does the books and
someone else pays the bills. I mean, I sign the checks
but --
Q And you're not on top of the day-to-day financial
business?
A I don't look at those. I'm interested in those
totals, yes, and I could tell you approximately but to draw
a strong conclusion, I'd like to be able to get the exact --
Q Well, let me ask you to just draw this
conclusion. Is there more debt now than there was at the
time of the Judgment and Decree of Divorce?
A I don't know.
Q Even though you have just testified that it
probably is around 50?
MR. STERN: Objection, Judge. Perhaps
she'd like to ask it a fourth time.
THE COURT: He's answered the question as
best he can. If you want to wait until tomorrow,
maybe he can bring in some records and clarify
it.
MR. STERN: Additionally, Judge, I'd like
to object to the fact that I don't think that
counsel is giving my client an opportunity to
answer the question. She interrupts him during
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J. MURTARI - CROSS 129
the answer. I would like that when she asks a
question she allows him to answer it.
THE COURT: Correct.
MR. STERN: And wait.
THE COURT: Everybody should do that.
That's a general rule that I always talk about.
But let's go on now, please. First of all, I
mean, the figures are not that tremendously away
from what you say the decree said they were
according to what he said, plus the fact that he
said several times now that some of it has to do
with equipment loans, all right? So, you know,
if you take the equipment loans away he's
probably right down to very close to what the
credit card debt was at the time of the decree.
I mean, that's the way I'm listening and hearing
it but if you want more specific information,
maybe the witness can supply it tomorrow.
MS. WALSH: Okay.
Q Mr. Murtari --
THE COURT: Is that possible, sir?
THE WITNESS: Your Honor, I can -- I mean,
tonight I have to drop --
MR. STERN: No, John, that's okay. If she
would like to subpoena records, I would be happy
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to take them.
THE COURT: Okay. Let's go on.
Q Mr. Murtari, you have not been paying your child
support, is that correct?
A Not the full amount, that's correct.
Q And you have never paid the full amount, have
you?
A Yes, earlier on before the -- you mean before the
divorce or -- before the divorce decree?
Q Well, during the divorce you didn't pay the full
amount, did you?
A The Judge had set it at $60 for a while.
Q Right, and you did not pay it from the first day
of trial?
MR. STERN: Judge, I'm going to object.
Every time he tries to answer a question she --
THE COURT: First of all, some of this we
have gone over.
MS. WALSH: I'll withdraw the question.
THE COURT: Some of it we have gone over.
All right. Go ahead. Next question.
Q Since the Judgment and Decree of Divorce,
Mr. Murtari, you have been ordered to pay what per week?
A $120 a week.
Q Plus what else?
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A Plus it says in there prorated child care and
medical expenses.
Q 60 percent, correct, of child care and medical
expenses?
A I'll take your word for that. I don't remember
the percentages of it.
Q And you have never paid since the Judgment and
Decree of Divorce $120 per week, have you?
A No, I have not.
Q And you've never made any contribution to child
care, have you?
A No, I have not.
Q And you have not made any contribution to
medical, have you?
A No, I have not.
Q And you are not making any contribution to
medical insurance, are you?
A No, I have not.
Q Okay. In fact, Mr. Murtari, you are now
currently -- have judgments filed against you, correct?
A Yes, that's right.
Q And those are for in excess of $20,000, correct?
A I know there's the judgment for your $10,000
attorney fees.
Q Handing you what has been marked as Exhibit 16
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and 17, can you identify those?
A Yes, there's two money judgments.
Q And they are against you, correct?
A Yes, that's right.
Q And they are in excess of $20,000, correct?
A Yes, they are.
Q And that is not including the monies that you
currently owe for child support, is that correct?
A I don't know. I know the one, Exhibit 16 is the
one for your fees and I know that was there and I recall
this. Number 17, it just says the $11,000 and I thought
that was -- it says here satisfaction of prior judgment
which included some of the support stuff so I'm --
Q But that was before the divorce, correct?
A -- not sure. Honestly, I don't know the
timeframe here. A lot has been happening and I don't
know --
Q Let me ask you this question, Mr. Murtari. Since
the Judgment and Decree of Divorce --
A Yes.
Q -- has there been any judgment filed against you
from Family Court?
A From Family Court?
Q From Family Court on the issue of support.
A A judgment?
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Q A judgment, a money judgment saying you were in
child support arrears?
A That would have been after a trial or something?
Q Yes.
A Well, no, we haven't been in Family Court since
the --
Q So there is no post-judgment judgment --
MR. STERN: Objection.
Q -- post-divorce judgment?
MR. STERN: Objection.
THE COURT: Wait a minute.
MR. STERN: Judge --
THE COURT: You're doing what you were just
complaining about her.
MR. STERN: I understand what she's trying
to do. She's trying to make the Court think
about something that might occur in the future
and that's not a fair question to ask this
witness.
THE COURT: I want to hear the rest of it.
I cannot follow any objection until I hear what
you're objecting to. Okay. Go.
BY MS. WALSH:
Q Those two judgments do not include child support
from Family Court, is that correct, Mr. Murtari?
DEBORAH A. McCARTHY
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A Miss Walsh, I don't know what's in this money
judgment for Judge Major. I know that he did enforce some
of that. You know, I'm not giving you a hard time but I
can't -- I don't know. I mean --
Q We can do this the hard way then.
A Okay.
Q Since the Judgment and Decree of Divorce --
A Yes.
Q -- have you been in Family Court on an
enforcement for support?
A Well, started something, yes.
Q We have not had a trial, is that correct?
A No, that's right, that's right.
Q So there's been no decision in that matter,
correct?
A No, that's correct.
Q And I think you heard Adrianne testify that
counting $60 a week from the Judgment and Decree of Divorce
you are approximately $7,000 in arrears since the Judgment
and Decree of Divorce, is that correct?
A That calculation is right, yes.
Q And that is not included in either one of those?
A Miss Walsh, I don't know what's in here.
Q Okay. I withdraw --
A I mean --
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Q I withdraw the question. Mr. Murtari, you say
that you're not attempting to control or dominate, you don't
disregard Adrianne's feelings, that's your testimony, correct?
MR. STERN: Objection, that was not his
testimony.
THE COURT: That what? I didn't hear. I
have to hear it back. Sorry.
(Whereupon, the pending question was read
by the reporter.)
THE COURT: Yeah, this is
cross-examination.
MR. STERN: I object that --
THE COURT: This is cross-examination and
it's all right. Go ahead. It's
cross-examination now. It's different. Come on.
A No, that's not entirely true.
Q That's not entirely true?
A No.
Q That's not your testimony. You do try and
control?
A No, I don't.
Q You disregard her feelings?
A Disregarding feelings, I don't know what you
mean. I mean, obviously Adrianne feels it's okay to shut the
door in Dom's face so he's crying and that bothers me and I
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have written her about it so if I disregarded her feelings,
well, I guess.
Q You want Adrianne to have a friendly relationship
with you, is that your testimony?
A I would like a civil relationship, yes, a polite
relationship.
Q Even though you continue --
MR. STERN: Objection. He was talking and
you started talking over him.
THE COURT: Let him finish the answer.
A I would like a civil and polite relationship,
yes. I know she's never going to be my friend.
Q But you continue to bring this matter back to
court, correct?
A Yes, I do.
Q And you continue to have her spend and waste
money to do that, correct?
MR. STERN: Objection --
A No.
MR. STERN: As to the form of that
question.
A No.
MR. STERN: And the characterization.
THE COURT: Overruled. This is all
cross-examination.
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J. MURTARI - CROSS 137
Q Mr. Murtari, do you remember sending Adrianne a
letter recently?
A Yes.
Q And do you remember saying that you're going to
continue to -- you're going to continue to appeal a silly
judgment?
A Those were some of the words in that, yes.
Q Okay. Well, why don't you look at Exhibit Number
19.
(Whereupon, Petitioner's Exhibit Number 30
was marked for identification.)
Q Did you not say, yes, I am appealing, in quotes,
"silly divorce judgment."
A Yes, those words are in there, yes.
Q And you are going to continue to appeal a silly
judgment, is that your intent?
A Yes, I'm going to continue to appeal a judgment
that I don't agree with, yes.
Q Now, you have already appealed this to the
Appellate Division, correct?
A Yes, I have.
Q And you have appealed it to the Court of Appeals,
correct?
A Yes, I have.
Q And you're stating here today though that you're
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Official Court Reporter
J. MURTARI - CROSS 138
going to continue that appeal?
A Yes, I'm going to exercise my legal rights to
appeal something that I find unjust, yes.
Q And at the same time you think that Adrianne should
be friendly with you, correct?
A I never said friendly, no.
Q You think she should be willing to talk to you?
A To be civil and polite, especially --
Q And that she should just disregard --
MR. STERN: Objection again.
THE COURT: Let him finish. Let him
finish. Civil and polite you were saying. Go
ahead. Anything further? You were answering a
question. You thought that she should be civil
and polite.
THE WITNESS: And polite, yes, that's all
I'm -- to the extent that I'm willing to do this
for her.
Q And we should just then ignore all of this other
litigation that's going on while we're being civil and
polite?
MR. STERN: Objection, this is
argumentative.
THE COURT: Overruled. Go ahead.
A For Domenic. I believe that's in all of our best
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 139
interests to understand that, yes.
Q And the litigation is good for Domenic? The
ongoing litigation is good for Domenic?
A I am appealing this to bring me back to a full
parentship with my son, our son, and, yes, if that was
granted, that would be very good for him.
Q So you believe that the ongoing litigation is
good for Domenic?
MR. STERN: Objection, asked and answered.
THE COURT: Sustained. He's answered the
question.
Q Now, you still wear your wedding ring, correct?
A Yes, I do.
Q And it states in here that you're going to
continue to wear your wedding ring?
A Yes, until -- I mean, the wedding ring was put on
as part of a church ceremony. I know the divorce is part of
an official civil ceremony. I'm trying to get it annulled.
I had written a letter to the Bishop and I was told,
Mr. Murtari, as long as you're still involved in this civil
thing you can't even start the annulment process but --
Q So let me get this straight. You're trying to
overturn the Judgment and Decree of Divorce but -- and
you're trying to get the marriage annulled?
A I want to get the marriage annulled because I
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 140
think that's proper but in good time that will happen, yes.
But I also acknowledge that we're not husband and wife in
any real sense.
Q But you wear the symbol, right?
MR. STERN: Objection, asked and answered.
He's wearing a wedding ring.
THE COURT: I agree that you're making an
awful lot about something that, believe me, will
not have any weight at all in my decision. So
let's go on, huh? I mean, really.
MR. STERN: Fine.
THE COURT: First of all, you've got to
understand that he's a Catholic, a Catholic's
religion doesn't believe in divorce. He's
seeking a church annulment so that it's
officially by the church. But he's still saying
that even though the church teaches otherwise,
that a civil divorce ended the marriage and he is
recognizing that so he wants to wear the ring
until he gets his church annulment. What's the
difference?
MS. WALSH: Well, your Honor, I believe
that he's trying to overturn the Judgment and
Decree of Divorce.
THE COURT: You want to show us some
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 141
examples of control, go ahead and show them but
that isn't going to do it, okay? That isn't
going to do it.
BY MS. WALSH:
Q Mr. Murtari, your appeal has been to continue to
try to overturn the divorce itself, correct?
A Yes, I'm trying to -- as I had testified earlier,
trying to overturn the custody decision that was made.
Q The question is, your appeal also asks the Court
to overturn the Judgment of Divorce regarding the grounds
also, correct?
A Yes, I did, because it found me unilaterally
guilty of being cruel and inhuman.
Q And -- strike that. Mr. Murtari, you've
proceeded in all these matters until this pro se, correct?
A Yes.
Q And now you have assigned counsel, Mr. Stern is
assigned counsel?
A Yes, he is.
Q Have you given Mr. Stern any money?
A No.
Q And you expected that the county will pay?
A I expect so, yes.
Q And even though you have resources, correct?
A Yes, we filled out the paperwork, Mr. Stern
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 142
submitted it, the only -- there's just one thing. We
recently when I was checking it in preparation for trial,
there was a mistake in there on one of the figures and that
has to get squared away or cleared up but, yes.
Q And you don't see anything wrong with somebody
with your capabilities having the county pay for your
attorney's fees?
MR. STERN: Objection. I don't see the
relevance.
THE COURT: Sustained.
MR. STERN: He applied for it, he was
found --
THE COURT: Sustained. We're going to quit
now. I need a breather. We'll become back at 10
tomorrow to finish up. You can't possibly finish
up for your trial.
MR. STERN: Judge, I don't suppose
Judge Kahn's office has called you?
CLERK: Yes.
MR. STERN: Okay. And what's been the
decision, where am I going to be tomorrow
morning?
THE COURT: You'll be right here.
MR. STERN: Okay.
(Whereupon, there was a discussion held off
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 143
the record.)
* * * * * *
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated:
__________________________
Deborah A. McCarthy
Family Court Reporter
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 144
THE COURT: Why, did you tell him
otherwise?
CLERK: This Federal Judge called and said
this trial is going on tomorrow whatever. I told
him this was going on and he said they're going,
this Judge is coming in from Albany, the jury --
THE COURT: I don't care. We're in trial.
MR. STERN: Judge --
THE COURT: We're in trial. Unless
everybody here wants to agree to another half day
somewhere, okay, it's all right with me. But I'm
not flipping over on this.
MR. STERN: Okay. I'll call --
THE COURT: I mean, when they first called
to release you for a pretrial I was kind enough
to say fine. But we are in a trial and I can't
afford not to keep going until --
MR. STERN: Judge, I have no power in this.
I just don't want to be caught in between two
Judges.
THE COURT: Well, I'm telling you now, if
everybody here wants to agree that we do this for
some half day somewhere -- listen, I've got to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 145
finish this case, I'm going to be gone for one
whole month starting December 4th and I promised
a decision on this case before then. Now, I've
got to finish it.
MR. STERN: Okay.
THE COURT: They can wait a half a day over
there. And you can shorten up without another
witness that would be --
MR. STERN: I don't have another witness,
Judge.
THE COURT: Okay.
MR. STERN: And my concern --
THE COURT: Because that would be just
repetitive. We already had a number of character
witness type things. So we can finish this up.
MR. STERN: I just don't want a federal
marshall coming over here and dragging me out of
here.
THE COURT: Well, I don't know how they
were going to do this. I wish I knew about the
law that they can do that. My understanding is
that I got served with nothing, I did not even
get the courtesy of a direct conversation with
the Judge, I was kind enough to explain to the
clerk that I would release you for a pretrial
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 146
conference but I could not stop the trial, and if
they got that kind of authority, it's fine with
me. But tell me about it. I don't think that
they have.
MR. STERN: I think it's a supremacy clause
but --
THE COURT: Where? Supremacy clause?
MR. STERN: In the Federal Constitution.
THE COURT: Really?
MR. STERN: Yeah.
THE COURT: Am I going to jail too?
MR. STERN: With, no, I'm afraid you'll
never go to jail, Judge, but I might. You'll
never have a problem but I'm afraid I might so
I'm going to see what can I do. I'm certainly
not going to have you put me in jail and I'm not
going to have, hopefully, a federal judge --
THE COURT: How much more time because I
hate to inconvenience them, okay, because they
are -- that is a busy busy Court, I have a lot of
respect. I think next to Family Court they're
the busiest Court there is. I think maybe even
before Family Court.
MR. STERN: They're not as busy as you are,
Judge.
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Official Court Reporter
J. MURTARI - CROSS 147
THE COURT: Not the senior Judges, I'm
talking about the ones that work regularly. I
would like to accomodate them. If you tell me --
what's today?
CLERK: Monday.
THE COURT: If you tell me --
MS. WALSH: I can be finished tomorrow
morning in an hour, your Honor. That's all I
need.
THE COURT: Do you want to start early?
MR. STERN: Let's start early and maybe I
can run over to Court from here.
THE COURT: What time are you supposed to
be there?
MR. STERN: 10:30.
THE COURT: 10:30.
MS. WALSH: I have something upstairs at
9:30, your Honor. I can't be here until 10. You
told us this morning that it would be at 10.
MR. STERN: More important than the trial?
MS. WALSH: Yes.
THE COURT: Can you do it at noon? Do you
take a break there?
MR. STERN: You know, Judge, we do take
breaks over there but what I expect is going to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 148
happen is this Judge is going to say we've got an
incarcerated inmate, he's an Auburn inmate and we
won't be taking any leisurely lunches while he's
here because he's coming from Albany and all the
witnesses are coming from scattered places of the
state. The Attorney General is coming from
Albany.
THE COURT: I don't want to hear anymore.
10 o'clock tomorrow until we finish. I have
tried my best. You can convey that to them that
we expect to be done in an hour but we can't
guarantee it.
MR. STERN: Okay.
THE COURT: If they have got some law where
they can interrupt this trial, I would like to
see it.
* * * * * *
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 149
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated: [DATE]
__________________________
Deborah A. McCarthy
Family Court Reporter
DEBORAH A. McCARTHY
Official Court Reporter
|
20 Nov
J. MURTARI - CROSS 2
THE COURT: Murtari/Phillipson, Docket
V-320-95. Okay. Mr. Lupia, law guardian, is
present. Miss Walsh is appearing with
Miss Phillipson and Mr. Stern with Mr. Murtari. And
we are --
MR. STERN: I was directing him to take the
stand.
THE COURT: Yes, you can take the stand.
You're still under oath and we were on
cross-examination by Miss Walsh.
J O H N M U R T A R I, having
previously been called as a witness, being
previously duly sworn, continued testifying as
follows:
CONTINUED CROSS-EXAMINATION
BY MS. WALSH:
Q Mr. Murtari, you stated on both direct and cross
that you have not obeyed the order of Supreme Court
regarding support, is that correct?
A Yes, not completely, yes.
Q And are there times, in fact, when even the
support you pay is late?
A Yes.
Q And has that happened on how many occasions since
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 3
the Judgment and Decree of Divorce?
A I think it has happened once or twice because I
forgot, you know, simply because I usually try to pay Adrianne
ahead, you know, before the month in which it would become
due, and then over the summer there was a big miss where I
had made a mortgage payment on the home and was short of
cash, had made a payment that Adrianne should have made and
fell behind for a while.
Q And you -- there's a check I believe you saw for
eight hundred and some dollars, correct?
A Yes, that's right, that was to make up that late
payment from the mortgage payment and then catch up, that's
right.
Q And when you made the mortgage payment you
weren't in the -- you weren't the title owner of the house,
correct?
A No, but my name was on the mortgage and the
mortgage company had called me and said this loan is going
to go into default.
Q And when you heard from the mortgage company did
you tell Adrianne that there was a problem with the payment?
MR. STERN: Judge, I object to this line of
questioning. I find it somewhat irrelevant and
greatly beyond my direct. I don't understand how
it could have relevance on custody.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 4
THE COURT: Do you want to tell us? I
don't know either.
MS. WALSH: Your Honor, very clearly
Mr. Murtari has used money as an issue to
intimidate and control. I think that's part of
our case and we have --
THE COURT: Well, I can understand that
he's not paying the full amount of support, that
it has an economic impact of what she needs and
why she has to -- but I don't understand this one
mortgage payment he's claiming he made on her
behalf. I mean, where does that fit into this?
MS. WALSH: I'll move on, your Honor.
Q So there was a large check that you paid at the
end of the summer, correct, for child support?
A Yes, yes, that's right.
Q And had there not been another large check
earlier last year?
A No, not that I -- not that I recall.
Q You don't remember going three or four weeks
without paying any support at all?
A There were a couple of instances where I forgot
but it was never a reason of not having it. That one big
payment this summer was that I didn't have it and I had
written Adrianne that, gee, I can't -- I paid the mortgage
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 5
payment so you're not going to get this.
Q Have you supplied any clothes for Domenic,
Mr. Murtari?
A Yes, some clothes at -- when he comes over, I
keep a few extra pair of jeans and some shirts for him, yes.
Q Have you ever bought a winter coat?
A A year -- maybe in early '97.
Q Before the Judgment and Decree of Divorce?
A Around there.
Q Have you ever bought him winter boots?
MR. STERN: Judge, again I'm going to
object to this line of questioning. I don't see
its relevance.
THE COURT: Well, you know, certainly
before the divorce it isn't and afterwards, you
know, I don't know if you're trying to show that
he's making up for not paying the full amount or
what it's about.
MS. WALSH: Your Honor, I know that
he hasn't provided that.
THE COURT: I mean, is he supposed to
pay --
MS. WALSH: No.
THE COURT: -- for some clothes?
MS. WALSH: No.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 6
THE COURT: Well, quickly, you know.
A Yeah, yes, I think I did buy him an extra pair of
snow boots that I could keep at the house for him.
Q And when did you do that?
A Probably last winter.
Q And did those boots ever go back and forth?
A No, I had bought them because Adrianne normally had
boots for him but sometimes she would forget to pack boots
and since he and I do a lot outside, if I didn't get boots
it was a real problem so I felt like certain essential stuff
I should have at least a pair or we're out of business, you
know.
Q There is currently a violation petition pending
for support, correct?
A Yes, that's right.
Q And do you know that you could go to jail if
there is a violation found?
MR. STERN: Objection. I don't again see
the relevance of this as to joint custody -- or
as to custody, excuse me, and she's going to have
more of an opportunity in about a week to ask him
all kinds of questions about support.
THE COURT: You know, I don't think that
has any bearing here. This is a -- really a
petition regarding a relocation and --
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 7
MS. WALSH: And, your Honor, I believe that
the issue of his failure to pay support, his
using the system to dissipate, continuing to
dissipate assets, is in issue and I am not going
to be long but I have think I have a right on
cross-examination to ask these questions.
THE COURT: It's a willful violation
though, he's subject to incarceration. It's for
a willful violation.
MS. WALSH: Correct, your Honor.
Q Do you realize that, Mr. Murtari, that if you
were found to have willfully violated the court order you
could go to jail?
A Yes, I think so, yes.
Q And you know you could also lose your license for
failure to pay support?
A I didn't know that.
MR. STERN: Objection as to foundation.
What is she talking about?
MS. WALSH: I'll withdraw the question.
Q Mr. Murtari, have you made any efforts to pay on
the judgments that are against you and due Miss Phillipson?
A No, I have not.
Q And what other orders since -- just since the
Decree of Divorce have you disobeyed?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 8
A Orders?
Q Orders of the Court. Either the Judgment and
Decree of Divorce or post-divorce orders.
A Well, I'm not paying the full amount, is that
what you mean, the full amount?
Q Of child support.
A The divorce order said $120 a week and I am only
paying 60.
Q Right.
A There's the other judgments that you had in
evidence that came out I guess after the divorce. I
don't --
Q Did you obey the order of the Supreme Court
regarding sell of the marital residence?
A Oh, no, no, I did not. The order that I was
supposed to sign over the deed and everything, no, I did
not.
Q Right. And did you obey the order of the Court
to vacate the house within 60 days of that order?
A No, I did not.
Q And did you obey the warrant of eviction ordering
you to get out of the house?
A No, I did not.
Q And you said on your direct examination that
there wasn't a certainty about your eviction?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 9
A Yes, that's right.
Q When did you first consider going to jail?
MR. STERN: Objection, Judge. I believe
that we have been over this ground over and over.
My client has testified repeatedly and has been
asked questions repeatedly about him going to
jail. He has expressed his own feelings about
why he did what he did. He isn't now trying to
justify it. Again, we're rehashing old material.
I found it at that time irrelevant --
THE COURT: Well, are you leading to
something new because I did hear this before.
MS. WALSH: Yes, your Honor, we did hear it
on direct examination, not on cross-examination.
THE COURT: Are you going to go to
something new from it?
MS. WALSH: I'm going to go, yes.
THE COURT: Okay, go ahead.
Q When did you first consider going to jail?
A I mean, I think I began to realize it might be a
possibility when you asked for the -- in the fall of '97
when the house was still pending and the appeal was still
pending and you asked to have me, you know, removed from the
home.
Q Okay. So you were considering the possibility
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 10
that you would go to jail at that point?
A Well, it was certainly, you know, something that
I thought, geez, this could happen here. You never know how
things are going to go but yes, at that time.
Q And you, in fact, wrote a number of letters
through the fall back and forth to both Judge Lawton and
myself regarding the eviction, correct?
A Well, yes, I did. I wrote to Judge Lawton. I
thought a polite letter, I was concerned that no stays had
been granted and I just felt, you know, something bad would
potentially happen here.
Q And that was in the fall of '97?
A Fall of '97, yes, I believe so, yeah.
Q And so prior to getting a notice of eviction you
had decided that you would go to jail, is that correct?
A Well --
MR. STERN: Objection, that's not his
testimony.
THE COURT: Prior to getting a what?
MS. WALSH: A warrant of eviction.
THE COURT: Yeah.
Q You had decided that you were going to go to
jail?
MR. STERN: Objection, that's not his
testimony.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 11
THE COURT: Sustained.
MS. WALSH: Okay. Could I have these
marked?
(Whereupon, Petitioner's Exhibit Number 31
was marked for identification.)
MS. WALSH: I would like the record to
reflect that I am showing Mr. Stern and the law
guardian Exhibit Number 31.
Q Mr. Murtari, handing you what has been marked as
Exhibit Number 31, can you identify those for the record?
A Yes.
Q And what are they?
A Well, they're letters that I wrote.
Q And in those letters you discuss the fact that
you are --
MR. STERN: Objection. The documents are
not in evidence.
MS. WALSH: I move that they be put into
evidence, your Honor.
THE COURT: Okay. Any objection?
MR. STERN: Judge, I believe that these
were not presented to me by Miss Walsh -- I may
be incorrect about that -- prior to when I asked
for all exhibits. I don't believe that these
were presented to me.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 12
THE COURT: Well, again, you know, I have
already ruled 20 times on that. You know, I
cannot do anything if there isn't a motion
brought to me before a trial on any problems with
discovery. I can't do it. Now, if you want a
short break so that you can see only on
materiality and relevancy of whether you want to
make a specific objection to any of this, then I
will listen to it.
MR. STERN: Okay.
THE COURT: But I cannot do the other.
MR. STERN: Judge, I --
THE COURT: So if you need a few minutes,
I'll give you a few minutes to do that.
MS. WALSH: Your Honor, these were
presented to Mr. Stern, very clearly they were
part of it so he has had them for at least three
weeks.
MR. STERN: Well, I rely upon Miss Walsh's
representation. I didn't remember them being the
exhibits. I have seen a copy of those letters
and I withdraw my objection based upon her
assertion on the record.
THE COURT: Okay. Mr. Lupia?
MR. LUPIA: No objection, your Honor.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 13
THE COURT: Petitioner's Exhibit 31 is
received into evidence with no objection.
Q And in these letters do you set forth your
intention to go to jail?
A Yes, but that's my feelings that that's what's
going to happen, yes, that's right.
Q And that was in early fall 1997, correct?
A Well, the first letter is in September, yes.
Q So when you say there was no certainty, you had
knowledge, number one, that you were going to be evicted
and, number two, that your position would be that you would
go to jail?
A But no -- I said no certainty because I have
never had this happen. I have never been in jail, I have
never been arrested. One never knows what you're going to
do at the moment. I mean, I didn't even know when the
sheriff came at the door and said, Mr. Murtari, if you don't
walk out of here we're going to put you in handcuffs.
Q So the sheriff at that time said to you that you
could leave the house, correct?
A Yes, and it was --
Q And?
A -- and we talked for some time and, I mean,
certainly I felt that was what I was going to do but to call
it a certainty that would not have changed, that's not true.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 14
Q But the sheriff didn't come and say, we're
arresting you, the sheriff's came and said you can leave or
we'll arrest you, correct?
A Yes, that's right.
MR. STERN: Objection, Judge. The -- I
believe Miss Walsh has made the assertion of
bringing up new material. Certainly this is very
interesting, all the details of his arrest.
Perhaps Miss Walsh could make an offer of proof
of what new materials she's trying to get from my
client so we can move beyond that. I don't see
that this is anything new.
THE COURT: Overruled. You can answer. Go
ahead. I think you can answer the question. I
think he has answered the question.
A I have answered it.
Q He has answered it. So you had at least a
thought in your mind in early September that you may be
going to jail?
A Yes, that's accurate, yes.
Q And what did you do, if anything, to prepare
Domenic for this?
MR. STERN: Objection, this is old
material. It was asked I believe on direct, it's
been asked previously on cross.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 15
THE COURT: Overruled. Come on, let's get
on with it.
A I did not tell him anything because it was not a
certainty in my mind. I did not know whether you would
really enforce the eviction, I didn't know what I would do
and I didn't want to certainly tell him anything like that
until it was a fact and I certainly thought that if it
happens, certainly Adrianne will be able to explain to him
what happened.
Q So you were leaving it to Adrianne to discuss this
with Domenic?
A No, I had asked you, Miss Walsh -- in one of
these letters I asked you to please if you really planned on
enforcing the eviction to give me a date and I never heard
anything and I think if I potentially would have gotten that
I might have discussed it with him but I didn't know.
Q But you knew that you were going to have to leave
the residence, correct?
MR. STERN: Objection, that's not his
testimony. He's testified over and over he
didn't know.
MS. WALSH: He did know.
MR. STERN: He knew it was a possibility.
Q So you're sitting here today saying that you
didn't know that you were going to have to leave the
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 16
residence?
A Miss Walsh --
Q Could I have those?
A Miss Walsh, for a certainty. I certainly knew
what the order was, I certainly knew there was a potential
that it would be enforced, but with the perfection of the --
with the appeal completed and all that I wasn't certain that
it would actually be enforced.
Q And you say in these letters that you were going
to be in jail for a long time, correct?
A Potentially, yes, that's in there.
Q And you say that it will interfere with your
relationship with Domenic?
A Those were potentialities.
Q You guess he won't be coming to jail to see
daddy?
A Those were potentialities, yes.
Q And that was as early as September of 1997,
correct?
A I don't remember the date. I would have to --
(Exhibit handed.)
A Yes, yes, that's in that September letter.
Q And you say in one of these letters that you
moved things out of the house, correct?
MR. STERN: Objection, Judge. The exhibits
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 17
are in evidence. They stand for themselves. You
can read them yourself in their entirety, not --
THE COURT: Overruled. Let's go. She can
make some points from it. I will have to read
the rest.
Q You say that you were going to move -- you moved
certain things out, correct?
A Yes, there were certain mementos and things of my
own and Domenic's that I removed from the home, some things
that were essential to carrying on the business for my
employee that I did remove, yes.
Q And you stated that you weren't, however, going
to remove the personal property, correct?
A No, I removed -- the personal mementos, things
that I considered irreplaceable that were valuable to me and
Domenic I pulled out. Other things like couches, stereo
equipment, the TV, lamps, that you can replace easily I left
there.
Q Do you remember asking that we contact the Rescue
Mission and Salvation Army to remove what's left?
A Yes, in the eventuality that it happened I
certainly didn't want to see that stuff just go to waste,
yes.
Q Do you remember just saying that there would be
complete furnishings, beds, dressers, sofas, shelves, chairs
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 18
TV, washer and dryer, that was going to be left?
A Yes, yes, that's right.
Q Okay. So you asked us to take it someplace,
that's correct?
A Well, I just -- I just hoped that it wouldn't
be -- I didn't know how things were disposed. I didn't know
the mechanics of an eviction from the legal end and I just
thought that if it's just got to go to waste or get rained
on, at least it's okay to take it to somebody who can use
the stuff.
Q And yet it was your testimony I believe on direct
examination that you made an insurance claim against this
lost property, is that correct?
A Yes. After one of my neighbors told me after the
eviction, he goes, John, he goes, you know, the movers left
all your stuff on the property and he said one of the police
had told him, he goes, you know, they're really trespassing,
the looters that had come to take the stuff, and he goes,
the guy might be able to make a claim. So I called my
insurance company, I was very up front with them, I told
them what happened, the sheriff's department had gave them
the report, and I guess the attitude was, you know, we
protect you if you're stupid and burn down your house and if
something like this happens they paid it, but I didn't hide
anything from them.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 19
Q So if you're stupid and don't obey the order
they'll protect you too?
MR. STERN: Objection as to that.
THE COURT: If what?
MR. STERN: She said, so if you're stupid
and you don't obey the order.
THE COURT: Sustained.
Q Mr. Murtari, did you claim this under your
homeowner's insurance?
A Yes, there was homeowner's, yes.
Q It wasn't renter's insurance?
A No.
Q And at this time you weren't actually a
homeowner, were you?
A Well, the order had made me responsible for
keeping the insurance on the house while I lived there.
Q But the order had also transferred the house out
of your name, correct?
MR. STERN: Objection, Judge, again as to
the relevance of this.
MS. WALSH: I'll withdraw the question.
Q Mr. Murtari, on December 17th you wrote a letter
to both myself and Mr. Lupia, correct?
(Exhibit handed.)
A Yes, yes, I did, yes.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 20
Q And you say this is torture affecting a lot of
people, do you remember that?
A Let me --
(Exhibit handed.)
A Yes, I did.
Q And I think you say that it was really upsetting
to your mother?
A Yes, it was.
Q And probably upsetting to Domenic?
A I did not say that.
Q You don't think it would have been upsetting to
Domenic?
MR. STERN: Objection. That wasn't what
she asked originally and she can't cross-examine
on something she didn't ask.
THE COURT: Sustained, yes.
Q You describe yourself in torture, is that
correct?
A No. Let me -- Miss Walsh, can I look at that
thing again?
(Exhibit handed.)
MR. STERN: Judge, I'd also ask if she's
going to ask him questions about the exhibit that
she at least give him a copy of the exhibit and
then she can have her own if she needs it.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 21
THE COURT: Well, he's got one now.
A I said this is just plain torture affecting a lot
of people. I didn't specifically mention myself here so I
guess, no, not in this letter, no.
Q And you don't think it affected Domenic?
MR. STERN: Objection as to the relevance
as to what he felt and as to the prior direct
examination, I still don't see this as being
within the parameters of my direct. It's gone
far beyond that and I don't think that this is
relevant.
THE COURT: Answer the question.
Overruled.
A Miss Walsh, again?
Q You don't think this eviction and move had an
effect on Domenic or do you believe it had an effect on
Domenic?
A After the fact I believe --
Q Before or after.
A Before it did not because he did not know.
Q And you don't think that your planning this had
any effect on him at all?
MR. STERN: Objection as to form. It's not
a question. It's a statement.
THE COURT: Sustained.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 22
Q Mr. Murtari, you were obviously through the fall
of 1997 having some -- making some decisions that could
possibly have an effect on Domenic, correct?
MR. STERN: Objection, form. It's again a
statement. Perhaps this should be saved for
closing. It's not in the form of a question.
MS. WALSH: I will rephrase the question.
THE COURT: We need a break. If this keeps
up, we're not finishing today. We need five
minutes. You know, let's get the act together
here. Every other word is going to be the same
kind of objection. Straighten it out between you
before I start listening to anything.
(Whereupon, a short recess was taken.)
(Whereupon, Petitioner's Exhibit Number 32
was marked for identification.)
BY MS. WALSH:
Q Mr. Murtari, handing you back Exhibit 31, if you
would look at the letter dated September 17th and read the
third paragraph into evidence?
MR. STERN: Excuse me. Is that a document
already in evidence?
THE COURT: It's part of 31, isn't it?
MS. WALSH: Yes.
MR. STERN: Okay.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 23
A "My 81-year-old mother has prepared herself to
see her son in jail but it has caused us all a lot of worry
and concern. I have stopped mail service to the home as of
Monday, 12/15 and have scheduled other service cancellations
for the next Monday. I assumed I would be in jail by then."
Q You can stop now. Is it still your testimony
that your plan to go to jail had no effect on Domenic?
A Miss Walsh, before -- Domenic was not aware of
anything. Before this happened he did not know as far as I
knew. My mother and I didn't talk about it in front of him.
He didn't know.
Q Thank you. Now, after you were put in jail you
went in front of a judge, correct?
A No.
Q You didn't go in front of a judge?
A No --
Q After you went to jail did you go in front of a
judge?
A Eventually, yes, yes.
Q And when you say eventually, when do you mean,
the next day, that afternoon?
A Well, I remember they arrested me, they took me
to their station, the sheriff's station, then they took me
to a town justice to be I guess arraigned, I'm not sure what
the term was, and then they took me downtown and admitted me
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 24
to the Public -- the Justice Center and I was in jail.
Q Now, when you went in front of the judge for the
first time, do you know what you were charged with?
A I didn't have -- there wasn't -- I don't believe
the attorney was there yet. It was -- I mean, it was
disobeying the order.
Q It was a felony, correct? You were charged with
a felony?
A No, no, it wasn't -- no, eventually when I
understood what it was, it was a misdemeanor, it was not a
felony.
Q But at first you were charged with a felony,
correct?
A No, I was not.
Q And when you went in front of the judge, did the
judge ask you if you would stay away from the home?
A No, he didn't talk to me.
Q He didn't?
A The -- no, the deputy was there. It didn't take
very long. The deputy just said, you know, this is
Mr. Murtari.
Q Did the judge say to you that if you promise not
to go back to the residence you would be released?
A No, he did not.
Q He never did that?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 25
A No, he didn't.
Q Did you ever go back to the judge again?
A Well, then he wasn't the town judge. You know,
the first judge was just somebody I guess that was
available. And then I was in jail, the attorney came to see
me in jail, and then finally it took four or five days and
then there was a date in front of the Town Justice in
Lysander and I was released on my own recognizance and not
to go back to the home.
Q And it's your testimony that you were only in
front of the judge twice then?
A Miss Walsh, there was the day I was arrested I
was there, and then they -- I remember they told me -- the
attorney came to see me in jail and said, John, you know,
we're going to get a date the next time the town judge in
Lysander sees -- you know what I'm saying, whenever they
have their court nights or whatever and that was going to be
the next something and then we went in the evening.
Q So it's your testimony that you were never told
you could be released early if you promise not to go back to
the residence?
A No, no, not by a judge. When I was getting
arrested, one of the deputies I think -- you know, they were
trying to talk me out of it and when I was at the station
they go, John, come on, if you just take your car and get
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 26
out of here, we don't want to bring you downtown. This was
when I was at their holding pen and that so those words were
spoken at some time but just by one of the deputies.
Q And in one of those letters you say that you're
going to -- that it was your plan to spend a long time in
jail because you were not going to agree not to go back, is
that correct?
(Exhibit handed.)
Q Go ahead.
A Do you remember which one?
Q Uhm-hmm. You can start in the middle of that
paragraph. You can read it into the record.
A You want me to read that paragraph?
Q Starting in the middle, "I am not sure."
A Oh. "I'm not sure exactly what's going to happen
but I plan on telling the judge that if released I will
return to my home again in protest. And this will probably
lead me to staying in jail for a long, long time. This is
not a decision I make lightly."
Q And what is the date of that letter?
A 3 November '97.
Q Now, Mr. Murtari, you testified on direct
examination that there were problems at transitions with
Domenic, correct?
A Yes, that's correct.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 27
Q And I think it's your testimony that these
transitions were always a problem at the end of visitation,
is that correct?
A Yes, that's right, when Domenic would be
finishing my time with me and going back, yes, that's
correct.
Q And that there was never that you testified to
problems at the beginning of visitation, correct?
A That's right. No crying, nothing like that,
that's correct.
Q And you also discussed on direct that you had
problems with the potty-training, correct?
A Yes, we had -- there were problems coordinating
it, that I didn't know that Adrianne had him in training and
that complicated things at my end, yes.
Q And when was the earliest that you remember there
being a problem or a discussion between you and Adrianne
regarding potty-training?
A The earliest? Well, I think the first time
Adrianne brought it up with me was within a few days, I was
going to get Domenic I think on a Thursday night or Friday.
Q Mr. Murtari, give me a month and a year, is what
I'm requesting.
A I think it first started when she told me he was
trained in the spring of '97.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 28
Q Isn't it fair to say that it was probably
earlier, around Domenic's fourth birthday?
A It might have been, yes.
Q And you and her had a few phone conversations
about this topic, correct?
A No, we did not ahead of time, no. I remember
distinctly I was scheduled to get Dom, she called me a
couple of days ahead of time and said, Dom's coming and by
the way he's trained, I won't be giving you -- you know,
he's not going to be wearing a diaper and he's
potty-trained.
Q And that was at his fourth birthday, correct?
A No, I don't -- all I remember is the spring of
'97.
Q When was his fourth birthday?
A February 11th.
Q And do you remember after that phone call there
was some phone calls regarding the problems you were having
with Adrianne?
A Well, after I got Domenic that weekend I had
tried to continue on with the -- with what Adrianne had said,
no diapers for him and have him in shorts, it resulted in
him peeing his pants and crying and so then after that
weekend was done I called Adrianne and I said, gee, and I
tried to explain to her what was going on.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 29
Q And you were very upset that he had peed in his
pants, is that correct?
A Well, it bothered me about the training, yes,
that obviously he might be trained with her but something --
he wasn't ready with me.
Q And after those phone conversations you asked
Adrianne to put it in writing, is that correct?
A Well, she wouldn't talk to me very much on the
phone. She would only tell me, John, you've got to get him
trained, that's your problem. Then she'd continue to
express that. So I said, Adrianne, write it down. At that
moment we were communicating always in writing so that's
what we did.
MS. WALSH: I am going to hand Mr. Stern
Exhibit Number 32 which I had handed to him
during the break, your Honor, which I had also
provided to him prior pursuant to his discovery
request.
MR. STERN: Well, let me just say that it
was handed to me and then taken from me to be
identified. I never had a chance to look at it.
Q Mr. Murtari, handing you what has been marked as
Exhibit 32, can you identify that for the record?
A Miss Walsh, I don't remember any of these.
Q You don't?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 30
A I do not.
Q You don't remember them as letters from Adrianne to
you regarding potty-training?
A I don't recall them at all.
Q Okay. Do you recall from just your review of the
dates, what the earliest date was?
A What are you saying?
MR. STERN: Objection.
A What?
Q Can you tell me what the date on the earliest one
is?
MR. STERN: Objection, Judge.
THE COURT: Overruled. He can answer the
question.
A The date on the earliest letter?
Q Yes.
A Is labeled March 31st, 1997.
Q Okay. And you don't remember getting these from
Adrianne?
A Not at all.
Q You don't remember getting any letters from
Adrianne regarding potty-training?
A She might have mentioned it once in a fax but
never letters of those form. Those are different than what
she would --
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 31
Q Didn't you just testify previously that, in fact,
you had asked her to put it in writing?
A Yes, but my recollection is she never really said
very much to me and that's why I'm so surprised by those.
Q And you're not acknowledging that you ever
received these?
A Miss Walsh, I do not remember those at all, no.
Q Okay. And you said this was dated March. When
was Domenic trained with you, Mr. Murtari?
A We had an agreement that he would be trained when
he was five and when he turned five years old, then he --
Q So that would be February 1998, correct?
A Of 1998, that's correct.
Q And I think you said on direct examination that
you -- however after that you continued to use pull-ups or
diapers at night?
A Yes, at nighttime. I had talked to --
Q And how long did you continue to use them at
night?
A I have used them on and off with him to see how
he's doing. I had talked to one --
Q Are you still using them with him?
A Yes, occasionally, yes.
Q Do you ever wake up Domenic at night to have him
go to the bathroom?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 32
A No, I do not.
Q And you don't remember that that was one of the
suggestions that Dr. Farchione and Adrianne had given you in
terms of training, do you recall that?
A I remember with the doctor -- I only had one or
two conversations with the doctor and I do not recall that
at all.
Q You also said on direct examination that Domenic
understood that diapers cost money, correct?
A I had talked to him about that because he wanted
to buy some things and I said, gee, Dom, if, you know, daddy
didn't have to buy these diapers, if you would do this a
little sooner, I could get you more things, yes.
Q And when you didn't have to use diapers, did you
increase your child support?
A No.
Q And when your business started to do better did
you increase your child support?
A No.
Q And you stated on direct that you, when you have
Domenic, would only allow family to baby-sit for him, is
that your testimony?
A No, it wasn't only but the point was I would
arrange -- my first priorities were family members and it
never got to the point where I couldn't find someone.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 33
Q And who is the family members that you used to
baby-sit for Domenic when he's in your care?
A Right now the only person I have ever had to go
to is my mother.
Q You have never used your cousins or anybody else?
A No, not at all, no.
Q And is it your feeling that it is better for your
mother to care for him than anyone else?
A Well, no, he spends more time with her, it's a
familiar environment, we're in the home, he knows the home,
so obviously that's my first choice.
Q But your mother is elderly, correct, Mr. Murtari?
A Yes, she is.
Q And she does have some problems with English,
correct?
A Yes.
Q Okay. Now, in certain letters and correspondence
you have worried about Domenic going to the Syracuse City
Schools, is that correct?
A Yeah. Well, I was concerned about kindergarten.
I know I have written you and Adrianne about his kindergarten
plans, yes.
Q You don't remember saying that you didn't want
Domenic to go to a city school?
A I may have -- I may have done that because I know
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 34
I was concerned about where he would be for kindergarten,
yes.
Q And you've actually lived near San Diego, California,
haven't you?
A Well, I went to school at the Air Force Academy
in California Springs which is south of Denver. I have been
to San Diego, I think I have been there once or twice in my
life.
Q And some time last year you were trying to plan a
trip to San Diego or to California Springs, is that correct?
A Yes, it was this year, it was going to be my 20th
academy reunion. I had sort of wanted to bring my mother
and Domenic back just so that he could see where daddy went
to school and see the planes that were out there, yes, I
would have liked to do that, yes.
Q And that was going to cost you money, correct?
A Yes, it was.
Q And at the time you were planning that trip you
weren't paying the correct amount of child support, were
you?
A No, I was not.
Q And later in the summer you tried to plan a trip
to Italy, is that correct?
A Yes, my mother wanted to go, she knew she would
be paying the fare but she had wanted to go, she wanted to
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 35
bring Domenic to see the aunts and uncles over there but
again, it didn't happen.
Q Now, Mr. Murtari, you said that you have
continued to have a problem with Domenic sleeping in his own
bed when he's with you, correct?
A Not now, no.
Q Well, I think your direct examination was that
you were continuing to have a problem.
A No, no, it was -- I think when I finished it was
right now, as of the beginning of -- in October since I got
the office out of the apartment, I bought him a nice bedroom
set, that now he does sleep in his bed.
Q All night long?
A All night long. Now, right now I do sleep --
right now I'm still transitioning him. I sleep on the floor
next to him for right now but gradually I'm going to work my
way out of there.
Q All night long you sleep on the floor next to
him?
A No, not the whole -- I get up, I'll leave, things
like that. But I do that now just so he'll start to get
used to it and then eventually so I can get out of the
bedroom.
Q But right now you're sleeping in the bedroom with
him?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 36
A On the floor, yes.
Q And you testified that Domenic had trouble
answering the phone at your house too, correct?
A Yes, he won't talk on the phone but he did --
there was an incident which I didn't recall where he did
answer the phone.
Q And what are you doing, if anything, to help
Domenic talk on the telephone?
A Well, what I try to do with him is when my mom is
in the house or if I know that I'm away for just a little
while, I'll try calling and see if he'll talk.
Q Now, Mr. Murtari, you said that you are -- is it
fair to say that there are some differences between
Domenic's life with you and Domenic's life with Adrianne?
A Probably.
Q And they involve things like toilet training?
A Probably, yes.
Q And where he sleeps?
A Yes.
Q And who cares for him?
A Yes.
Q Mr. Murtari, after the Judgment and Decree of
Divorce did you bring disciplinary action against
Judge Majors? Did you attempt to bring disciplinary action
against Judge Majors?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 37
A I submitted a complaint, yes.
Q And did you submit a complaint against me?
A Yes, I did after the appeal, yes.
Q And did you bring a complaint against the law
guardian?
MR. STERN: Objection, Judge. I think this
clearly goes beyond my direct.
THE COURT: Well, you know, certainly this
has nothing to do with this case and so I'm going
to sustain the objection.
Q Mr. Murtari, I think you said on direct that you
had tried to go your separate ways?
A Yes, that we were adults and that we should move
on with our own lives and relationships as individuals, yes,
that's right.
Q And wouldn't that have been able to have been
accomplished if you had accepted the Judgment and Decree of
Divorce?
A Miss Walsh, I have always been forced to accept
being a minority parent to my son and I was not willing to
accept that. I was always open to negotiation on anything
else but the position always was I want to be an equal
parent with our son.
Q But the whole issue of the eviction had -- was
not being an equal parent, correct?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 38
A That's another issue, yes.
Q All right. And you didn't go on your separate
ways regarding that, did you?
A Our separate ways, I don't know what you -- I
mean --
Q You didn't obey the order of the Court regarding
that?
A No, I did not.
Q Mr. Murtari, if the Court allows Miss Phillipson to
relocate, will you cooperate with planning Domenic's travel
schedule?
A Yes. What do you mean I don't --
Q Will you help to arrange times for planes and
pick ups and things like that?
A Yes, I'll try to, yes.
Q And will you make -- do that cooperation in terms
of what is best for Domenic?
A That's always been my concern, yes.
Q And you'll participate in that transportation?
A That depends on the finances, Miss Walsh. It's
expensive, you know.
Q Do you agree with the suggestion that has been
made by Adrianne and others that you could accept a credit
against the outstanding judgments for the cost of this
transportation?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 39
MR. STERN: Objection, this is an improper
question.
THE COURT: Well, it was already mentioned
though. I'm going to have him answer.
A Miss Walsh, it doesn't do me --
THE COURT: He can say he never even
considered it, he doesn't want to consider it,
but it was on direct so go ahead.
A The idea of a credit, the problem is I have to
pay for airfare to see my son, see our son, and I can't go
to the airlines and give them a credit against the judgment.
I've got to have the cash, and that's the problem. The
credit really doesn't do me a lot of --
Q And you don't think that Adrianne needs to have the
cash that you owe her?
A She's -- she has a judgment that she should get
that, yes.
Q And she has an order of child support that she
should get, correct?
A Yes, that's right.
Q But she's not, right?
A I'm not paying the full thing, that's right.
Q Now, you said that one of the reasons you
couldn't take a full time job was because of your schedule,
correct?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 40
A Yes, that's right.
Q And that was because you've had Domenic on
Fridays and Mondays, is that correct?
A That was part of the reason. The other parts
were looking after my mom and the amount of time it's taken
in legal matters eats up, you know, sometimes a good part of
the day, yes.
Q It does, it eats up a lot of time, doesn't it?
A Yes, it does.
Q And you if you did accept the Judgment and Decree
of Divorce, it wouldn't take up that much time, would it?
A Miss Walsh, if I was willing to give up of being
an equal parent with my child, I guess that's true, yes.
Q Now, isn't it true that the Friday and Monday
schedule that you have with Domenic is going to have to
change anyway when he goes to school?
A Eventually, yes.
Q Eventually being first grade, correct?
A Yes, the way things are right now.
Q Which is September of next year, correct?
A That's correct.
Q And at this time actually he's missing Fridays
and Mondays in kindergarten because of your visitation,
correct?
A He's with me then, yes, that's right.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - CROSS 41
Q Now, Mr. Murtari, do you think a good father
supports his son?
A Yes, I do.
Q And do you think a good father would do
everything he could to reduce a child's stresses and
anxieties?
A He certainly would.
Q And do you think a good father would attempt to
accumulate assets to provide for the child's future?
A Miss Walsh, I consider my father a good father.
He didn't have a lot of money, money wasn't his first
priority with me. There's priorities. His first priority
was affection and love for me and that's my priority with
Domenic. I think physical presence, being there, is much
more important than a dollar bill.
MS. WALSH: I have no further questions,
your Honor.
THE COURT: Okay. Law guardian have
anything, Mr. Lupia?
MR. LUPIA: I do, your Honor.
EXAMINATION
BY MR. LUPIA:
Q Mr. Murtari, it's my understanding with respect
to this toilet training that Domenic essentially did it
totally different with respect to how he reacted with Adrianne
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 42
and how he reacted with you, is that correct?
A Yes, and he also told me he was different at day
care at the time. I remember asking him and I asked him,
Dom, do you go to potty at --
Q I'm not asking about day care.
A Okay.
Q But the toilet training, he treated his
relationship with mom one way and his relationship with you
another way, correct?
A Yes, that's right.
Q And you made a deal with a four-year-old that
when he turned five he would then be toilet trained, is that
correct?
A We came to that. I had talked to the doctor and
was trying some encouragement with him and I would ask
Domenic, you know, Dom, when are you going to start wearing
your shorts. He goes, daddy, when I'm five.
Q And you agreed to do this?
A And eventually it got to be September or October
of '97 and he was going to be five in a few months and I
said, okay, Dom, when you're five. I mean, it was just --
it was beginning to become pointless to try to continue to
bring it up with him.
Q What was so different though with respect to his
relationship with his mom that at the age of four he's
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 43
toilet trained and with you it took another year?
A Mr. Lupia, I mean, at day care as far as my
knowledge was he wasn't trained there either when he was
four. So I don't know what was going on. I didn't have a
lot of visibility, direct visibility, in how Adrianne trained
him. Obviously he came to me trained so when he was in
training there he was still wearing diapers with me,
obviously. So, you know, it wasn't -- we weren't doing it
in sync, consequently he's wearing shorts at mommy's, he
would have been wearing diapers with me and then I am told
that he's trained but the child already has the habit
pattern of, I wear shorts with my mom but I wear diapers
with dad. I can see how it could happen.
Q And you did not have the control over the child
to tell the child he's going to be toilet trained with you
as well, did you?
A No, I chose not to exercise it that strongly. I
talked to the doctor, I tried it with him, I tried to
emphasize that. I think I testified he peed in his pants.
I talked to Dr. Farchione and she said, well, don't push it
that hard.
Q Okay. And we also talked about the medication,
Adrianne could get him to take the medication but you have
testified that he didn't want to take it so you didn't make
him take it?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 44
A No, I did not. I testified that he had it and he
just -- he was taking it with me and just about had finished
it and then right near the end of the dosage on that day he
said, gee, I don't want any more.
Q And you didn't make him take it?
A I didn't know how to -- I think I tried to put it
in something or milk but he wouldn't -- you know, I couldn't
get him to swallow it so I let her know.
Q Okay. Are you telling us, Mr. Murtari, that you
don't have the control to have your son take medication
that's good for him?
A No, I am not saying that. If it had been the
entire course of treatment, I would have taken stronger
action with him but given it was the very end of the bottle,
it was the last dose, it didn't seem as critical at that
point to press the issue with him.
Q And you chose not to press the issue, correct?
A Yes.
Q Well, what about the sleeping arrangements, do I
understand correctly that Domenic sleeps in a separate
bedroom in a separate bed when he sleeps with his mom?
A When he sleeps with his --
Q When he sleeps at home with his mom, he's
sleeping in a separate bedroom in a separate bed, correct?
A Yes, I think so, yes.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 45
Q And at your home you are now sleeping on the
floor in Domenic's room, correct?
A Yes, I'm trying to get him -- it's a new room, we
just moved the office out of there in mid-September, he now
knows this is Domenic's room. I just put the furniture in
there and really getting him used to the transition that --
I only see him -- remember, our interactions are only once
every couple of weeks.
Q Why are you sleeping in the floor in his room and
not in your own room?
A Because he -- when I'm putting him to bed he asks
me, daddy, he goes, will you stay in here next to me. And I
don't want to tell him yes and then not be there, you know,
I don't want him to wake up in the -- you know, I could
obviously get out of there --
Q Can't you say, no, Domenic, you're a big boy, you
sleep in your own bed, I'm going to be in my bed, if you
need me call but that's where I'll be?
A I have told him that Joe, yes, I have.
Q Then why are you sleeping on the floor in his
room?
A Well, after telling him exactly what you said
he's not happy with that, he's concerned. I have tried
that. I mean, that is very right. I have tried that with
him but he's concerned, he doesn't like it and given -- from
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 46
the perspective of the amount of stress I have seen him go
through in these transitions and things, there was just --
again, if I can smoothly get him used to sleeping in his own
bed by gradually backing out of the room, that should work
out fine.
Q You would concur then, would you not, that Adrianne
is treating him as a larger child where you do not yet have
that control with Domenic?
A No, I do not agree with that statement.
Q You've also mentioned that you carry Domenic
around a lot because Domenic wants to be carried around,
correct?
A Yes, he wants to be carried, that's right.
Q And we're talking about a boy who is now over
five and a half years old, correct?
A Yes, that's right.
Q Can you not exert your parental authorities and
say, Domenic, you're five and a half, you don't get carried
around anymore?
A I don't -- he obviously wants affection and
closeness when he wants to be held by me. On those
occasions when he wants that, I don't know a reason in the
world why I should say -- if I'm capable -- at times I'm not
capable of carrying him, I'm busy and I say, Dom, I can't
carry you. But if I'm not busy, I do. I had a close
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 47
physical relationship with my father. We were close, we
hugged, I would sit in his chair and wrestle with him. I
don't see a need to artificially cut that off. It's
important to him.
Q Well, do you now see that there's an issue as to
what's in the child's best interest as far as the toilet
training, as far as parents being capable of making the
child take medication, as far as parents being able to get
the child to sleep in their own beds?
A Joe, I do see the issue and it's been brought up
by the fact I've been -- to me a lot of this has been caused
by me being such a minority parent and not having a lot of
exposure to what Adrianne does with him. The child, Domenic,
obviously wants more contact with me so a lot of this
affection and clinging that I'm getting is really caused by
the present situation we're in.
Q Okay. One of my major concerns is with
transition and the effect of Domenic and you've indicated
Domenic is very effected by the end of the transition,
correct, as a general rule?
A Yes, he is.
Q And am I understanding correctly that when you're
about to return him -- and we're talking about the time
since the divorce decree was entered?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 48
Q As a general rule when you're about to return him
you're talking about, what are we going to be telling mom
about the visit, correct?
A Yeah, what do you want to talk to mommy about,
yes, that's right.
Q John, do you understand that you are no longer a
family with Adrianne?
A Joe, I understand that Adrianne and I are Domenic's
parents, we're his mother and his father and nothing is
going to change that.
Q And you are no longer together, do you understand
that?
A Yes. We are not married, I certainly do. She's
free to pursue her own relationships and I'm free to pursue
mine, of course.
Q Is it fair to say that the transition on the
return was being extended and drawn out by this telling of
the adventures of the weekend together?
A Joe, what would happen, what I testified to is
within only about two minutes of us arriving there
sometimes, Adrianne would close that door. I don't consider
two minutes a long transition.
Q Okay. You understand Adrianne's attitude is and
has been, I'm going to take the child back and I'll take the
child in, period?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 49
A Yes, and she has tried that and I have tried it
with her where I'll come to the door and she'll try to get
Domenic and he just wraps himself around me.
Q But how are you trying to shorten the transition
when you're asking the child, what are we going to be
telling mommy about our visit?
A Because normally when we have gone there, and a
few occasions there have been people at Adrianne's house when
we have gone there so there's been a little bit more
conversation at the door, I have noticed he hasn't cried.
It has worked every -- when there's been people there, she's
been there with maybe a playmate of his or somebody else
there, and maybe there's been a little bit more of an
exchange at the door, he doesn't cry. So to me it seems
like I have seen it one way, I have seen it the other and
definitely the short did not work at her house but we tried
it. I told her, gee, maybe we'll try the Thruway, right,
the Thruway exit, and we are doing it short there. I only
spend -- you know, I put Dom in the back seat of the car so
there in that environment the short transition does seem to
work.
Q Okay. And that's a much better idea, isn't it,
as far as --
A Yes.
Q -- the effect on Domenic?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 50
A Oh, yes, Joe, I love it much better, you bet.
Q And is it fair to say though that those long
transitions became very horrendous for Domenic, that it
affected Domenic tremendously?
A They were awful, yes, they were and I wrote many
times to try to get a solution to both you and to Adrianne and
to everyone here and I never heard a recommendation.
Q But I've discussed with you before the fact that
transition should not be drawn out, it should be quick and
short and right to the point?
A Not since the divorce, you haven't talked to me
hardly at all.
Q Mr. Murtari, do you understand that what we're
hearing -- do you understand that what we're hearing is an
application from Adrianne to relocate to make more money, to
provide for the family?
A Yes, I've heard that, yes.
Q And you lost your job in August of '94, correct?
A Yes, that's right.
Q And during the last four years plus you have been
rebuilding yourself, correct?
A Well, I have decided to start my own business,
yes, that's right.
Q Now for four years you have been doing this,
correct?
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 51
A Yes, that's right.
Q And do I understand correctly that your income
taxes for last year reflect a total income of approximately
$18,000?
A My personal income?
Q Yes.
A I think it's approximately that, yes.
Q And you have readily admitted to us that if you
wanted to go out and be employed by someone you could
readily make 40 or maybe $50,000 in your field?
A If I could devote the time and relocate, yes, and
work a 40 -- regular 40 hour a week job somewhere, yes, that
would be possible, yes.
Q And do you understand that based upon Adrianne's
income of last year and the amount of support you're paying
her she is below the federal poverty guidelines, do you
understand that?
A I don't know what the guidelines are but if I
assume, yes.
Q So my question to you is, why haven't you stopped
the nonsense of your own business and go and get a job
working somewhere?
MR. STERN: Objection as to the form of
that question. I also object as to the fact that
it's a compound question and also it assumes
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 52
facts which are not in evidence as that his
business is a nonsense or that it's non-viable.
THE COURT: Well, you know, I'm going to
overrule the objection. I think it's quite
clear. I have heard it all before but I haven't
heard his response to this particular question
and I think it's clear enough to the witness. If
it isn't clear enough, he can tell us and we will
try to make it clearer. I have heard this over
that actually you could go to work for someone
and make more probably, okay?
THE WITNESS: Yes.
THE COURT: Nothing is certain but
probably, and I think you have acknowledged that
rather than to continue a struggle with your own
business, which is coming along but it takes
time, is that pretty accurate?
THE WITNESS: Well, yes, your Honor.
THE COURT: Okay. So the question to you
is that it is important and essential that you
pay your obligation as far as child support goes
and the law guardian wants to know why don't you
leave your business and go get a job where you
can earn more money and be able to pay the full
amount of the child support? Now, you can answer
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 53
that question.
A Joe, the things I have thought about with that --
I mean, to answer that, the business has been started, it's
growing, income is growing, customers are growing but with
that expenses, so my payroll, my personal pay isn't growing
at that terrific a rate because I have to bring more
employees on. I have thought about, well, you could get rid
of the business and try to jump into a job as a systems
administrator. Obviously I can't move out of the area
because of the family and my mom. I would be limited to the
Syracuse area. I still have the credit card debt, 25,
30,000 bucks from the business. Right now the business pays
that.
If I were to cut off the business and say some
company in Syracuse, I found a job that they say, John,
look, we'll pay you 40,000 to be a systems administrator
starting tomorrow, and my worry has been in all of this --
part of the problem was, I don't see Domenic during the
week. The other part of the problem is because I have
devoted time to my mother and family and struggling these
past years in these court proceedings which, you know, has
been very time consuming, that potentially an employer could
say, you know, John, we need you here more. You know, it
always depends who your boss is. If I had a boss who, let's
say, had been through a divorce and had seen his kids and
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - LAW GUARDIAN 54
didn't care that much about his kids, potentially he'd say,
John, look it, this is no big deal, quit struggling in
court, right, I need you here, we're going to let you go.
If that happened, Joe, and I had those credit
cards and then I lose my job because of devotion to family
or my child, then I'm really stuck. You understand? I have
the -- the business is growing, I have a base, I don't have
that to go back to anymore. I've got a lot of debt and I'm
really potentially in a crock and and that's a little bit --
it's a little bit frightening because this is important to
me. I'm not the average employee. Family is important to
me, this has been important to me and some employers
especially in computer administration jobs, when a system
goes down, I'll tell you what, they're not going to want to
hear, I'm -- I've got to run down to do something in court
or something. They're going to want you there. That's fair
and that's fair for them to expect so it's been difficult.
It's a difficult thing.
MR. LUPIA: Your Honor, I have no further
questions. Thank you, sir.
THE COURT: Redirect?
MR. STERN: Yes.
REDIRECT EXAMINATION
BY MR. STERN:
Q There's been letters put into evidence, I believe
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - REDIRECT 55
it's Exhibit Number 31 and you have written other letters?
A Yes.
Q Okay. Why have you written so many letters back
and forth to Adrianne, or is there a reason?
A Well, I write --
MS. WALSH: Your Honor, could I just
clarify? Those letters are not to Adrianne. The
letters that were to Adrianne was Exhibit Number
32, which was not put into evidence.
THE COURT: You mean the ones from her?
MS. WALSH: From her.
THE COURT: Were 32.
MS. WALSH: And those are not to her.
THE COURT: 31 was his letters to her,
right?
MR. STERN: Some of them are to her, some
of them are to Court -- to Miss Walsh. I wasn't
just speaking to those. There's been testimony
that he has written to Adrianne.
MS. WALSH: Your Honor, I believe all of
those letters are either to Judge Lawton or to me
but I may be wrong. I don't believe that any of
31 is to Adrianne. No. Just to clarify the
record.
MR. STERN: I'm not just referring to just
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - REDIRECT 56
these but let me check to see --
Q None of Exhibit 31 are to Adrianne, correct?
A Well, not directly. I mean, they're to her
attorney but, right, not to her directly.
Q You have written letters to Adrianne?
A Yes.
Q Why did you write letters to Adrianne, is the
question I'm asking you?
A Because through this whole thing, I mean, I
always feel like you can have a lot of problems when people
miscommunicate and they misunderstand people's intentions.
So I have tried to communicate to clear the air, I have
written to the judges to let them know, your Honors, no hard
feelings, I'm not certainly blaming you when I'm going to
jail, you're doing your job. I have written to Adrianne
recently because Mr. Lupia last time I saw him, he said,
John, Adrianne tells me you still want to get back together
again. And I had thought that was clear so there is one
letter in evidence --
Q That it's clear that what?
A Well, Mr. Lupia had told me that in some
conversations with Adrianne --
MS. WALSH: I'm going to object,
your Honor, at this point as being outside the
scope of cross and not relevant to what's before
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Official Court Reporter
J. MURTARI - REDIRECT 57
the Court.
THE COURT: Sustained.
Q Okay. Mr. Murtari, I'd like to ask you questions
about your business again since that's been raised. First
of all, there's been -- the first part of my question is,
why do you persist at this business?
A Well, I think --
MS. WALSH: Objection, your Honor. It's
been asked and answered.
MR. STERN: Well --
THE COURT: Well, if there's anything more,
go ahead.
MR. STERN: I have more.
THE COURT: I mean, you know, if there's
any reason other than what you already explained,
why you persist.
Q You persist at this business, do you believe this
business will at some point bring you a substantial income?
A Yes, I think it's -- all factors in consideration
it's my best chance of being able to provide for my family
and have a good family environment. It's my best shot at
that.
Q Okay. Has your business grown in this year
compared to last year?
A Yes, it has. It's been positive growth in every
DEBORAH A. McCARTHY
Official Court Reporter
J. MURTARI - REDIRECT 58
year.
Q Okay. You have been very general about that.
How much has your business grown this year as compared to
last year?
A It has probably grown about 30 percent. In other
words, our income, total gross receipts I think as of about
the end of August are equivalent to what we made in all of
last year.
Q Okay.
A So now everything, you know, October, November,
December, would be extra, you know, on top of what the
company did last year.
Q Okay. How has your business grown in comparison
to how you were doing two years ago?
A Growing much faster. I mean, during --
Q Let me see if I can make this simple. Assuming
that you made a dollar in '96 and you're making four dollars
today, that would be -- you could say that you have grown
400 percent, right?
A Percent.
Q So I don't need you to give me a percentage but
do you remember what your gross receipts were two years ago?
A Probably for the whole year, a half to a third of
what I would expect this year.
Q Okay.
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J. MURTARI - REDIRECT 59
A That would have been two years ago -- the whole
year of '96.
Q So you're expecting that you may -- okay. And do
you expect your business will grow again next year?
A Yes --
MS. WALSH: I'm going to object,
your Honor, as to the relevancy of that.
THE COURT: Sustained. We've had enough of
that.
MR. STERN: Judge, certainly -- if I may be
heard on this?
THE COURT: You know, it's very simple for
him to answer the question. I mean, I think -- I
know what you're looking for. I'm not going to
go through every year for the next 10 years here,
okay?
MR. STERN: No, I just to know if he
expects growth.
THE COURT: Do you expect it to grow and
how much do you expect it will grow and how much
do you expect this to bring you. I mean, what is
your expectation, that's all the question is.
MR. STERN: That's it.
THE COURT: In other words, it could be
10 times than going to work for somebody else. I
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J. MURTARI - REDIRECT 60
don't know. But you can just answer that.
A I am expecting a large rate of growth now because
in September we finally moved out of my home. That was
always a big limitation on the business in doing business,
personal business with people, because no one is going to
feel comfortable coming to your bedroom to deal with a
company. Now that we have office space we can start doing
advertising in the local newspaper and getting people in
because we project now a corporate image. So I am expecting
a bigger rate of growth.
Q Okay. Miss Walsh asked you does Adrianne need the
money. Okay. Does Adrianne need any money from you?
A I don't know how to answer that. I mean, she's
talented, she has a lot of abilities, I don't know that
need -- I mean, certainly she -- her parents can help but I
don't know --
Q Do you have any concern at any point that your
son is -- well, let me take that back. You also
testified -- you were asked on cross about complaints
against Judge Major and against Miss Walsh. I'm going to
first ask you, why did you bring a complaint against
Miss Walsh?
MR. LUPIA: Objection, relevance.
MR. STERN: It was raised on cross.
THE COURT: I have already sustained the
DEBORAH A. McCARTHY
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J. MURTARI - REDIRECT 61
objection that you made regarding this, and we
are not considering any of it in this case so I
have to sustain this objection too.
MR. STERN: Okay. I only objected as to
with regard to Mr. Lupia.
THE COURT: I mean, those things take care
of themselves. You know, they go to a grievance
forum, they go to a Committee on Judicial Conduct
and they're handled there. That has nothing to
do with this case and how it's going to be
decided.
MR. STERN: Okay.
Q Regarding transitions, there's been testimony
about your wish to prolong visitation, correct, or actually
the questions were of that sort. Whose suggestion was it to
make things shorter?
A It was mine to move to the -- well, to move to
the environment of the Thruway was my suggestion to Adrianne.
We were trying the -- you know, she wanted to make it
shorter at the door but that just didn't seem to be working.
Q Okay. And you've been asked about do you
understand that you're not a family, that you've got a
divorce and therefore you're no longer a family, do you
remember that?
A Yes, yes, I remember the question, yes.
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J. MURTARI - REDIRECT 62
Q If you had it your way would you have a civil
relationship with Miss Phillipson for the benefit of your child?
MS. WALSH: I believe these have been asked
and answered, your Honor, on direct initially.
THE COURT: Overruled. You can answer.
A Yes, I would try to have at least a civil
relationship where we're polite with each other. We don't
have to fake love and affection and I don't tell Domenic
that mommy loves me or anything like that but that, hey, we
don't love each other anymore but that happens to people but
we can still -- I mean, I still think people can be polite
and civil.
Q For the benefit of the child?
A For the benefit of Domenic. Gee, we can go to a
school activity together and be around Domenic together and
share his experiences and be happy for the kid.
Q For a positive -- for the child's benefit?
A He'd like that. He obviously -- he'd love that.
Q Because children all like to see their parents
all speak to each other?
MS. WALSH: I am going to object to the
form that question.
THE COURT: Sustained.
MR. STERN: I have no further questions.
THE COURT: Anything further?
DEBORAH A. McCARTHY
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DOCKET #V-320-95 63
MS. WALSH: Nothing, your Honor.
THE COURT: Law guardian?
MR. LUPIA: Nothing, your Honor.
THE COURT: Okay. The witness is excused.
Thank you.
(Whereupon, the witness was excused.)
MR. STERN: Judge, I have made a decision
to call my next witness, Adrianne Phillipson, for just
one question.
MS. WALSH: I'm going to object,
your Honor.
THE COURT: Wait a minute, please.
Let's -- first of all, don't jump the gun anyone,
okay? Now, I'm going to first ask you if you
have any further witnesses?
MR. STERN: Yes, I would -- the only
witness I have left is Adrianne Phillipson and I need
to ask her one question.
THE COURT: Take the stand. He is not
prohibited from calling 10 more witnesses and I'm
not going to prohibit you from 10 more rebuttal
witnesses and we can go on forever here as far as
I'm concerned. Well, no, my term ends in two
years. Then I'm out of this. Okay. Raise your
right hand -- well, you're already sworn in from
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 64
before.
MS. WALSH: You're not going to run again?
THE COURT: That's the only restriction.
Okay.
H I R O M I S U M I Y A, having
previously been called as a witness, being
previously duly sworn, continued testifying as
follows:
DIRECT EXAMINATION
BY MR. STERN:
Q Miss Phillipson, have you looked into how much you
will earn in California as a teaching assistant?
A No.
Q Do you have any idea how much your income will be
as a teaching assistant working at the University of
California at San Diego?
A No.
Q You have no idea?
A No.
Q How will you support yourself while you're living
in California?
A The first semester I was offered a tuition waiver
and from the experience from teaching assistantship in -- at
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 65
SU, I will expect approximately a similar amount.
Q How much is that amount?
A That was yearly about $7,000.
Q About $7,000. And you would expect that the
following year too?
A Yes, there's a little increase but basically.
Q And do you feel that you would be able to support
yourself on that $7,000 in California?
A The first year I count on the sale of the house.
Q No, all my question to you is, do you expect that
you'll be able to support yourself in California on that
$7,000?
A Yes. First year, yes, I can.
Q What about the following year?
A I don't know.
Q What about the year after that?
A I haven't thought about it. I don't know.
Q You haven't thought about that. Okay. You could
be there in a program for up to five years in a PhD program,
you're aware of that?
A Could you repeat the question?
Q You're aware that a PhD program, it's not
uncommon for it to be a five year program to finish a PhD?
A Some people, yes.
Q Okay. And you have no plans to support yourself
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 66
other than your expectation you'll have a 7,000 a year
stipend, correct?
A No, there is an Association for Teachers of
Japanese, California University is the headquarter and I have
seen them offering the positions there. I have considered
that once I -- I am allowed to move. There is translation
companies available. I have checked the phone books. So
those are the possibilities I consider.
Q What you would do then is get another job, you
would go to school full time as a PhD student, you would
have a teaching assistantship to pay for your tuition and
give you a stipend, that's your testimony?
A Yes.
Q And you said you would work to support yourself
while you're out there as a translator?
A I have to survive.
Q Of course.
A I have to take care of my child.
Q Of course.
A And I have to -- if I was forced to do so, yes, I
will be.
Q Okay. So let me just understand this. You will
be going to school full time, right?
A Yes.
Q You expect somewhere in the neighborhood of
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 67
$7,000 a year as a stipend as a teaching assistant?
A Yes.
Q That's a part time job, correct?
A Yes.
Q And you expect another job as a language
instructor to support yourself and your child?
A Translation?
Q Right. Translation. I'm sorry, as a translator?
A No, I cannot project the future that clearly.
Q Okay.
A But if I have to work second job, I may not be
able to be a full time student.
Q Oh, so you would have to get a job out in
California to support your child?
A But my understanding is if you get the teaching
assistantship -- I don't know, it's from school to school,
it's different.
Q It's fair to say that you don't know how you're
going to support yourself when you get out there, am I
correct?
A The second year I'm not sure. But the first year
I do.
Q The first year you're going to live off of the
proceeds of the sale of your piano and your home?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 68
Q Okay. And the second year you're not sure if you
can support yourself out there and go to school, correct?
MS. WALSH: I'm going to object,
your Honor, at this point. First of all, this is
his witness, I think these questions are leading,
are in the nature of cross-examination, and I
believe that we have been over this and I would
also like to remind the Court that Mr. Stern said
that he had one question and I think we're at
least up to 10, 15, maybe 20.
THE COURT: Again, I'm not going to
restrict anyone yet. I mean, you know, there was
no agreement on a stipulation as to --
MR. STERN: Well, I did think that --
THE COURT: I'm not going to do that but I
think it's a legitimate question. The question
is, how are you going to support yourself there
with the child, and I'm going to let her answer
it.
MS. WALSH: I think she has, your Honor.
THE COURT: Well, I don't know if it's
beyond -- I don't think I have heard it that
clearly defined.
Q Let me ask you my last question again.
THE COURT: I know about the part time job.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 69
He's trying to find out if she's going to have
enough money to live, especially in view of his
client not paying the support he should be
paying, I think it's important for us to know
about it. So now, I mean, she knows how much
she's getting now and what she's got to do in
order to try to get the rest and she's going into
new territory and we want to know how she's going
to support herself and the child and that's the
question so I'm interested in it so let's hear
it.
Q My last question to you is, you don't know how
you're going to support yourself in California?
THE COURT: Well, do you.
Q Do you?
THE COURT: You know, do you know how.
Q Okay. Do you know how you're going to support
yourself in California?
A I'll be looking for a job if I have to.
Q And if you do get a job you testified that you
won't be able to continue with full time PhD study, correct?
A It is a possibility but I'm not able to answer
that question for sure.
Q Certainly, it's a strong possibility that as a
single --
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H. PHILLIPSON - DIRECT 70
MS. WALSH: I'm going to object to the
leading nature of the questions, your Honor.
THE COURT: Sustained.
MR. STERN: Judge, I would ask that you
recognize her as a hostile witness.
THE COURT: No. Go ahead. I'm not going
to. I don't think that she is at this point. I
haven't seen anything to indicate.
MR. STERN: She's an opposing party.
THE COURT: I have not seen anything to
indicate that though.
MR. STERN: Okay.
THE COURT: She's answering your questions.
MR. STERN: Okay.
Q Miss Phillipson, you will -- will you be a single
mother in California?
A Yes.
Q You will be the only one taking care of your son,
is that right?
A Yes.
Q Okay. Do you have any family in California to help
you?
A No.
Q Okay. Do you have anybody who will be supporting
you while you're in California?
DEBORAH A. McCARTHY
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H. PHILLIPSON - DIRECT 71
A Financially?
Q Financially.
A No.
Q You have no one to support you in California?
A No.
Q Do you have anybody who will be giving you
financial support while you're living in California?
A I'm not sure.
Q You're not sure. Who do you think might give you
financial support while you're in California?
A My parents.
Q Your parents. Okay. Miss Phillipson, how will you
be able to provide for your son's emotional needs, give him
time and go to school full time, part-time teaching
assistant, part time and full time translator? How will you
be able to give your son any time while you have such a
rigorous schedule?
A I have been with such a schedule in the past two
years. I have devoted my time while he's awake out of
school. While he is in school I have studied. I have
taught. I have worked. At night I also worked. It wasn't
easy but I did it. I am a survivor and I know how to take
care of myself.
Q I'm sure you are but how are you going to give
your son time while you're working as a translator, as a
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H. PHILLIPSON - DIRECT 72
teaching assistant and trying to complete a PhD?
MS. WALSH: Asked and answered.
A I think I have answered your question.
THE COURT: Sustained. Now, please.
MR. STERN: All right.
THE COURT: It's been answered.
MR. STERN: I have no further questions,
Judge.
THE COURT: Okay.
MS. WALSH: No questions, your Honor.
MR. LUPIA: Nothing, your Honor.
THE COURT: The witness is excused. You
may step down.
(Whereupon, the witness was excused.)
THE COURT: Mr. Stern, any further
witnesses?
MR. STERN: I have no further witnesses,
Judge, and we rest.
THE COURT: Okay. Mr. Lupia, does the law
guardian have any witnesses?
MR. LUPIA: The law guardian rests.
THE COURT: Law guardian rests. Rebuttal?
MS. WALSH: None, your Honor.
THE COURT: Okay. Closing statements? The
law guardian -- well, we will take the parties
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 73
first or whatever you want to do unless everybody
wants to do it in writing with memorandum of law.
Whatever you want. It's up to you.
MS. WALSH: I don't want to do a memorandum
of law in writing, your Honor. I would like to
do oral.
THE COURT: Okay. Let's do closings. Do
you want to start?
MS. WALSH: You want me to start?
THE COURT: Yes, you can start.
MS. WALSH: Your Honor, I don't want to
take a long time but I do want to just briefly
talk --
THE COURT: Before we do this, I'm sorry, I
think -- I neglected to ask the law guardian, do
you want the Court to interview the child at all?
MR. LUPIA: No, your Honor. I have spoken
to Domenic enough times that I believe that he
probably will not talk to this Court.
THE COURT: Okay. Okay. And there has
been no request by the parties in the course of
the trial so -- and did you want to make a
recommendation to the Court before they speak so
that they can --
MR. LUPIA: I would, your Honor, yes.
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DOCKET #V-320-95 74
THE COURT: Okay. I think that would be
better that way.
MR. LUPIA: Judge, the problem is that this
case comes to the Court with a lot of baggage.
The law guardian, unfortunately, has a good
recall of everything that took place in Superior
Court. But I do believe most of that is
irrelevant. The issue before this Court is what
is in the best interest of this child with
respect to the proposed move. We've heard an
awful lot of testimony and there's been an awful
lot of facts adduced. I think most are
irrelevant.
I think the bottom line is can the child
currently survive here in the Syracuse community
based upon the current circumstances, and I feel
the answer is no. If we expect that Adrianne can
survive forever on the sale of the residence and
the sale of her grand piano or on her parental
support, I think that is a conclusion that is
unfounded. Adrianne needs to be self-sufficient
and provide for Domenic on her own.
I look at the bottom line as to how we got
to this position and the bottom line is that the
father has not been providing the child support
DEBORAH A. McCARTHY
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DOCKET #V-320-95 75
required for the child. We've heard a lot of
evidence regarding what Adrianne intends to do, how
she intends to do it. I feel that this is not
only a good idea, I feel it's a necessity that
Adrianne has to get some type of income which is
going to be above the federal poverty guideline
to support this child. Her intentions and her
plans are well thought out in California, the fact
that she -- that the schooling and her
familiarity with the schooling seems to be well
thought out, her potential income down the road
appears to be well thought out.
Because she's in this boat because the
father has not been providing the support as
ordered by this Court, I feel that it would be in
the child's best interest to move with Adrianne to
the State of California. I, however, feel that
this child has substantial contact with the
father, has a good and loving relationship with
the father, the child would continue to benefit
from the company of the father and the father's
assistance in raising the child so I feel that
the child should still spend substantial time
with the father and I would recommend that
although the move be approved that Mr. Murtari
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DOCKET #V-320-95 76
continue to have a significant amount of time,
and in that respect I am recommending long terms
of summer visitation together with the entire
Christmas and spring holidays with the father.
THE COURT: Okay. And now?
MS. WALSH: Your Honor, I would concur with
the law guardian. I would also just like to very
practically say that if the Court does allow the
relocation, my client needs to be able to leave
by the middle of December. I would suggest that
considering that, the Christmas vacation not be
with the father this one year but that he have
visitation prior to the 15th of December so that
Domenic can have two or three weeks in California
before he was to start to school in December. My
client will also obey any orders of the Court
regarding spring and summer vacation.
Your Honor, we're cognizant that the Court
will look to the Tropea case and I think that all
the factors clearly will indicate that this is a
case in which relocation should be allowed.
We're to try here to recognize, as Tropea says,
that like Humpty Dumpty, a family once broken
cannot be put back together in precisely the same
way, and it would be unrealistic to preserve the
DEBORAH A. McCARTHY
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DOCKET #V-320-95 77
non-custodial parent's accustomed involvement in
the child's life at the expense of the custodial
parent's efforts to start a new life or to form a
new family unit. In this case, to be able to
become self-supporting.
I think if you look at the factors you can
find that my client comes here in good faith
based on her need to become self-supporting,
based on her need to take care of herself and
Domenic. We have spent not only the time prior
to the divorce but numerous hours and lots of
money that have been dissipated because of the
respondent's continual failure to obey court
orders. It has gone on and on and on, and as he
testified himself, he plans on having it continue
to go on.
I think also you basically have to look at
what's in the best interest of the child and at
this point in time the child has been caught
between these two parents. The child is caught
in transition times, the child is caught between
parents who have different expectations of the
child. In fact, Tropea addresses this very issue
and says that in some cases if there is hostility
it may be better for the child to move and it may
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Official Court Reporter
DOCKET #V-320-95 78
be better for the child to have longer time but
not regular contact between the parents.
Your Honor, I think this is one of those cases.
Will his -- will the move impact him, yes, and it
will impact him positively. My client has
testified that right away her monthly expenses
will be $500 less. That has significant impact
on somebody who is not getting the monies that
she's supposed to from the non-custodial parent.
I believe his life will also be
economically, emotionally and educationally
improved and that the quality of the lifestyle
that they can anticipate happening in the future
will greatly be improved.
Your Honor, I ask you, if this is a case in
which relocation was not allowed, what kind of
case would relocation be allowed? I think all of
the factors clearly show that my client has the
need and has made good faith effort to become
self-supporting and needs to go forward. I think
both in the factors you have to consider and in
the spirit of Tropea the Court should allow
relocation.
THE COURT: Thank you, Miss Walsh.
Mr. Stern?
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MR. STERN: Yes, Judge. I wanted to submit
a trial brief to the Court. I'm giving a copy to
Miss Walsh, the law guardian and to the Court.
It's on the -- it's a memorandum of law on the
standard for the Court to apply.
Judge, first I want to talk about money,
and on the issue of money Judge Major determined
in the divorce decree that Adrianne Phillipson -- I'm
putting that -- he said plaintiff -- has an
earning capacity based on her education and
present employment of $26,000 per year and the
Court determines the pro rata share for child
care and he figured all of that out. He already
has determined her earning capacity here in
Syracuse based on her education and present
employment to be $26,000 a year. There has been
no evidence that her present -- that her
education -- and I think at the time her present
employment was with the University -- has changed
in any way, that somehow she's lost some of her
education or anything to that. And the Court to
modify that must have some evidence that there's
been a change of circumstances with regard to her
education. Obviously she's looking for more
education. So the Judge has already determined
DEBORAH A. McCARTHY
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DOCKET #V-320-95 80
that my client has an earning capacity of 40,000
a year and Miss Phillipson has an earning capacity of
$26,000 a year, which is sufficient to support a
child on.
Now, she's had the opportunity of
education, she's got a Bachelor's in
photojournalism, she's got a Master's in music,
she's now got another Master's in linguistics,
she's going for another Master's in another area
of linguistics hoping after that year that she
can be accepted into a PhD program, although
there's no guarantees on that matter.
Miss Phillipson has, I think, shown she has no
concerns about money. She's not worried about
working now because she knows the money will be
there for her. She hasn't looked for a job since
I think she said either it was February or March.
And she's not really worried about when the money
runs out from the sale of her house and piano
when she's out in California because she knows that
the money will be there for her. Granted, it's
not her parents' responsibility to support her
but, obviously, she has no fears regarding money.
Now, on the other issue it seems very clear
that there's been a lot of testimony to say my
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client is a deadbeat, he doesn't work, he should
be earning more, and let's for the sake of
argument say he is a person who has taken a
strong stand on what he could do. And he's --
he's a horrible guy, he's just a terrible guy.
Well, you know, let's just say for the sake of
argument. But there's been no evidence that he
isn't a committed father, that Domenic doesn't
love him. He has a very strong relationship with
his son, his son even stopped eating when he
wasn't seeing his father at day care. I don't
even want to venture to guess how this will
affect his son when he goes to California. There's
been tremendous credible evidence of the strong
bond between John Murtari and his son and it's
uncontroverted. Nobody is saying that they don't
have a strong bond, that his son loves his father
and that Mr. Murtari loves his son.
Certainly a move will be a sadness for all
parties but getting back to this issue of money,
if my client is just a horrible person as a
result of the divorce, he's just lost his mind
and he did all kinds of crazy things because he
felt that he was doing the right thing for
himself and for his son, well, you can't punish
DEBORAH A. McCARTHY
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DOCKET #V-320-95 82
Domenic for the crimes of his father, and the
only standard that Tropea and another case before
it, Weiss, which is still good law, Tropea just
added to Weiss, and I gave you Weiss in the
packet with my trial brief, is the best interest
of the child.
Let me quote the Court when the Court says,
"How valuable the mature guiding hand and love of
a second parent may be to a child is taught by
life itself." And this is under Weiss. "Absent
exceptional circumstances, such as those in which
it would be inimical to the welfare of the child
or where a parent in some manner has forfeited
his or her right to such access," which is not
the case here. This is a man who had 100
percent, except for when he went to jail,
visitation. "Appropriate provision for
visitation or other access by the non-custodial
parent follows almost as a matter of course.".
"The predominant" -- this is from Tropea.
"The predominant emphasis being placed on what
outcome is most likely to serve the best
interests of the child. It is the rights and
needs of the children that must be accorded the
greatest weight.".
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 83
Weiss went on to say that, "Visitation is a
joint right of a non-custodial parent and of the
child."
Judge, getting back to the theme, even for
the sake of argument that my client has been
just -- has done everything that a person
shouldn't do and he's been acting in bad faith
toward Miss Phillipson and is just horrible at what
he has done to her, just horrible, let's say for
the sake of argument it doesn't change the fact
that Domenic's father loves him, Domenic's father
is good to him, Domenic needs his father.
In almost every case I have the client says
to me, please give the Judge a picture of my
child, I want the Judge to see what my child
looks like so that this isn't just an abstract
idea, and in almost every case I do put in
pictures. My client asked me to give you
pictures to consider and to look at it and see
through numerous pictures the love and the bond
that they have.
I want to talk some more about money.
Miss Phillipson is saying that she'll be able to get
a job out in California earning $7,000 a year which
will include tuition reimbursement, she doesn't
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 84
have to pay for tuition, which is about what she
claims her income is here. She now says that
she'll obviously the second year need another job
to support herself. Okay? That's honest. I
don't believe she will be getting another job. I
believe that she knows that support from her
parents will be forthcoming. I think that's
pretty obvious.
But if she did not get support from her
parents or if the Court says, well, I'm not going
to consider the parents' income and their wealth
and how much they are going to support her, I'm
not going to consider it, fine. But that means
that you have to consider that she's going to
have to get another job to support herself
because I guess 7,000 isn't enough with her
present situation and if she does that Domenic is
not going to have the love and affection of
either parent. He's going to spend a great deal
of time alone or with other children and other
adults or whatever arrangement she is able to
work out while the grandmother to this child is
ready and willing to watch the child. While the
father has aligned his life in such a way so that
he would have time for this child. He's done
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 85
every -- everything -- every decision he has
made -- well, I won't say every decision. I will
say that he has done great efforts to make sure
that he will have time for this child. He's
fought in court so that he can have time with
that child. He has done everything that he could
do to have time with this child.
He has stated on the record that his
business is growing and certainly within the five
years that she is still in school earning $7,000
a year my client's business should continue to
grow. There's no reason to believe that it
won't. It's grown 30 percent since last year and
it will continue to grow. He's making $18,000 a
year this year, next year he'll make more and
then the year after that he should make more than
that. If his business ever did stop and he
couldn't grow and he couldn't do well for himself
and for his child, I have no doubt that he will
do what's right for himself, for his mother and
for his child so that he can spend time and be
there for his family and earn a living.
This isn't a support hearing. We will have
that opportunity in a week to determine whether
there's been a willful violation but it's really
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 86
irrelevant to the determination of what's in the
best interest of this child. I hope that the law
guardian is not making this recommendation
because he doesn't want John to get away with not
having to pay things.
What is Domenic's best interest. His best
interest is to stay here in Syracuse where his
family is, his cousins, his grandmother, his
father who has time to spend with him, and can
align his schedule if, in fact, she needs to go
out to California for the next three to five years
to train and be a linguist, that's a very
rigorous schedule for anybody, even without
children, when there's another parent who's ready
and willing to take custody of that child and
give him the things that he needs emotionally and
can support the child. He earns $18,000 a year.
There are people who come to this Court that only
earn $18,000 a year and their kids are not taken
away from them.
During the summer when she has more time,
she's not working on her dissertation, she's not
doing the things that she has to do for her
education, she can have access to the child.
She's testified that she's not going to leave if
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 87
you don't allow her to go to California. I think
that it's obvious that if this was her only way
out, if this was the only thing that she could
do, she would leave for that.
But, again, I'm not trying to argue that
this Court should in any way make a determination
other than the one that Judge Majors already
reached. There's no reason to modify his
determination that she is capable of earning
$26,000 a year based upon her present education.
Which has not changed. In fact, it's gotten
better in the years since this decision.
Tropea helped us to determine what are
appropriate -- it gave guidelines to Weiss, Weiss
who generally says there has to be exceptional
circumstances. Tropea gave guidance to what the
factors are that are relevant in that analysis
and it came up with five critical issues. One is
each parent's reasons and good faith for seeking
a move. I believe the only one reason she wants
to go to California, Judge, is because she wants to
get away from Mr. Murtari. She's done everything
she can to cut off his access and to cut off
access to her. She doesn't want anything to do
with him. That's obvious. And, again, there's
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 88
no way we can prove what's in her mind. But she
didn't go to see a rehabilitation specialist or
somebody on jobs until she had to come to court.
The quality -- the second factor is the
quality of the relationships between the child
and the custodial and non-custodial parents. I
believe there's a strong bond between Domenic and
his mother and there is as strong, perhaps
stronger bond, between John Murtari and his son.
His son weeps when he leaves his father. He
doesn't see his father enough now and they love
each other, they spend time together, and John
dedicates himself to his child and there's
absolutely nothing to controvert that.
The impact of a move on the quantity and
the quality of a child's future contact with
non-custodial parent. It's going to dissipate
his -- the quality and the quantity with this
non-custodial parent, the degree to which the
custodial parent and child's life may be enhanced
economically, emotionally and educationally by
the move. Certainly for the next four to five --
well, three to five years this child is not going
to be enhanced economically because she's only
earning $7,000 while she's out there.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 89
Emotionally the child will be with other people,
and educationally -- certainly the child is not
going to be enhanced educationally, as there are
fine schools right here in Central New York, and,
in fact, the child will have the benefit of the
guiding hand of an educated father who can spend
time with his son and educate him that way. The
last guideline that they have as an important
factor -- there's others that I'm not going to
cite that are included in my briefs, there are 13
others that Tropea goes into. But the fifth one
that is held as a significant factor by Tropea is
the feasibility of preserving the relationship
between the non-custodial parent and the child
through suitable visitation arrangements.
Well, that's for the Court to determine.
The feasibility of preserving that relationship
when the child is only able to see his father
however many times a woman who earns $7,000 a
year can afford to send him back and a man who
earns $18,000 can afford the plane fare for an
adult and a child coming back and forth. It
would make sense that if Mr. Murtari, from a
logistics standpoint, were to want visitation
with his son he should have to buy a ticket out
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 90
to California, pick up his son, bring him back here
to Syracuse. That's one round-trip ticket for
him. And then have to buy a second round-trip
ticket to bring his son back to California at the
end of the visit. That's two round-trip tickets
for Mr. Murtari, one round-trip ticket for his
child. You know, there hasn't been any evidence
of what the cost of an airfare is to California
back and forth but I think the Judge can take
judicial notice or call the airlines and find out
for himself, and it's probably going to be about
$600 for all of them. That would bring the cost
of for two round trips is 1200 -- $1800 for each
visit. For a woman who earns $7,000 a year and a
man who earns $18,000 a year and is helping to
also -- is helping to support his aging mother
who is now living on Social Security. I don't
think that that's very realistic. If they have
three visits in a year at $1800 a pop for all the
air flight you're talking close to $6,000 a year
just for air time.
That's also -- so I put that -- I want you
to step away -- also, this issue that's been
laid, there's clearly been animosity here and as
I indicate I saw that as a real problem and I am
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 91
glad that the Court has said that he's not going
to allow the preceding circumstances, the
preceding matters to affect his judgment here,
that you're only going to look to the petitions.
My client has come to you and he's asked
you for joint custody. He wants to be involved
in the education of his child. He wants to be
involved in the medical decisions with regard to
his child. He wants to know when his child is
not eating at day care. He wants to know if he's
been beat-up by a kid at school. He wants to
know everything about his child. And he wants to
participate in being a full parent. That is the
primary thing that this man comes to this Court
asking for. He wants more time with his child
too. He wants to have joint custody. He doesn't
want to take away from Miss Phillipson. He believes
that his -- that the mother of his child is
essential to the development of his child's
happiness and welfare. Obviously part of that is
that he's asking the Court, please don't allow my
child to be taken from Central New York and
brought out to California so that I only see him
when we can arrange flights back and forth.
But I want to also talk to you about who my
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 92
client is, despite the animosity. The testimony
would show that my client is paying $60 a week
and he has a petition in now to have it modified
from the prior court order. He does believe
strongly in his duties as a father and as a son.
He's committed to his mother, he brings her
places, he spends time with her, and he's there
for her as the only child and he needs to be here
in Syracuse to take care of his familial duties
to his mother. This man is also committed to his
son. He will do anything for his son including
fight as hard as he knows how to, as not being a
lawyer he fought as hard as he knew how to do for
his son and for his relationship with his son.
It's obviously something that could be
interpreted in some different ways. My client
didn't have the benefit of an attorney who was
willing to take the case based upon later sale of
a house. He didn't have an attorney going into
it and this is the first time that he's had an
attorney I believe in this proceeding. And so I
do hope that the Judge keeps his promise not to
hold any of the prior matters against him.
One other concern that I have is that the
Court is going to hold against my client his
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 93
inability to pay more than $60 a week. Certainly
he shouldn't lose visitation with his child and
his child shouldn't lose visitation with the
father based upon money.
Judge, I'm going to conclude with this.
This child is going to suffer if he's taken out
to California outside -- I believe if she leaves
with the child, the child is going to suffer. I
believe that if she leaves on her own and goes
and leaves this child for five years or three to
five years to get educated, this child is going
to suffer. I think this child needs his mother.
Certainly the Court cannot hold her here. The
Court in Tropea talked about non-custodial
parent's interest in securing custody as well as
the feasibility and desirability of a change in
custody as an alternative to forcing the
custodial parent to remain.
This child needs his father. He's bonded
to his father. This child does not need to go
out to California with the mother. The mother, I
would submit, does not need to go to California for
the hope that in five years or so she might
secure a job earning $45,000 a year. $26,000 a
year is sufficient income to support this child
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 94
here in Syracuse on her own, 26 and the 18 that
my client is now earning and the additional
income he will have growing over those five years
while she would be in school is sufficient to
give this child the benefit of a mother and a
father and a grandmother and cousins his own age
and going to school with his cousins and growing
up with his family and having the memories that
some of us have of a family that is not so
disjointed that, you know, you get to have
visitations in the summer and for Christmas and
for a couple of holidays.
Sometimes you need to have relocation for
drastic situations. This is not that type of a
situation. This child will do all right here in
Syracuse. Miss Phillipson will do fine here in
Syracuse. And I have no doubt about that. My
client has no doubt about that. And neither does
she. We're here and that's what I have to submit
to the Court. Thank you very much.
THE COURT: Thank you. And we've already
heard from you. Do you want to add anything?
MR. LUPIA: Nothing further, your Honor.
THE COURT: Okay. Are you all set?
Everybody is all set?
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 95
MS. WALSH: Your Honor, I just was supposed
to certify those exhibits that were orders and I
brought my stamp to do that.
THE COURT: Oh, okay. Here, I'll leave
that for you to go through with all the other
exhibits and you've already seen this.
MS. WALSH: I was just handed it,
your Honor.
THE COURT: Your oral remarks took care of
any --
MS. WALSH: Your Honor, I would just
suggest that, you know, although Weiss is
included here, in fact Tropea is the ongoing case
and that the post Tropea cases clearly allow and
are more liberal about relocation than in the
past. I think it is the feeling of the Court of
Appeals that these cases are such that they have
to be considered on all their facts but that
people should not be restrained from relocating
if that is in the child's best interest, and I
believe that at this point it is, your Honor.
THE COURT: Okay? We've got your brief.
MR. STERN: Yes. I would just say that I
have read the post Tropea and they're all on
lower courts. The standard that's been set is by
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 96
Tropea and Weiss before it and if there's any
arguments on a legal set I would hope that they
would be submitted in writing so I can respond to
them.
THE COURT: Okay. The Court will reserve
decision. We will make every effort to arrive
and send to you a decision which I absolutely do
not know what it would be, I can tell you that
right now. I'm going to have to study a lot of
documents herein. In order to speed this along I
have already ordered a transcript and as soon as
I get that and study every single word and case
and everything else, the Court will make, and I
hope a fair decision based on all the law and all
the evidence that we have, and if it's possible
to meet a thing -- I'm aiming for a decision by
December 4th which is when I leave for vacation.
And that would give enough time in the event it
went your way to do what you had to do and so on
and, you know, take care of it.
MS. WALSH: Thank you, your Honor.
THE COURT: But that's my aim. I am going
to do my best. I've got other -- you know, we're
working on a lot of other decisions but, I mean,
I'm going to try to do this in that timetable.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 97
MR. STERN: Judge, would you like the
parties to submit proposed orders for your
consideration?
THE COURT: Well, proposed orders? I mean,
after a decision you would do that?
MR. STERN: I'm just saying in the meantime
we can give you our idea above what the decision
should state.
THE COURT: Well, if you all want to agree
with that, you can do it right away and give it
to me --
MS. WALSH: I think it's appropriate after
the decision, your Honor.
THE COURT: Well, it's usually after a
decision if we want the parties to get together
on, say, what the visitation would be or this and
that but I never --
MR. STERN: I was just saying that each of
us could submit what we would like --
THE COURT: Well, you have made your
remarks of what the decision should be, the way
you would like it to be, and we've heard that.
MR. STERN: Okay.
THE COURT: We can get into the details of
how. Okay. Thank you.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 98
MS. WALSH: Thank you.
* * * * * *
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated:
__________________________
Deborah A. McCarthy
Family Court Reporter
DEBORAH A. McCARTHY
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Official Court Reporter
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