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Appendix
A. State Supreme Court - Findings of Fact
B. State Supreme Court - Judgment
C. Appellate Division - Decision
D. Appellate Division - Memorandum
- Appellate Division - Motion for Reargue
- Appellate Division - Order Denying Reargue
- Court of Appeals - Jurisdictional Statement
- Court of Appeals - Order Denying Review
- State Supreme Court - Issue of Jury Raised
- State Supreme Court - Issue of Counsel Raised
- Appellate Division - Questions Raised
At a Trial Term of the Supreme Court of New York, held in and for Onondaga County at
Syracuse, New York on April 11, 12, 15, 16, 19, 1996 and September 27, 1996 and October 2,
1996.
PRESENT: HON. CHARLES T. MAJOR Justice of the Supreme Court STATE OF NEW YORK SUPREME
COURT COUNTY OF ONONDAGA
ADRIANNE PHILLIPSON MURTARI,
vs.
Plaintiff,
JOHN MURTARI,
Defendant.
FINDINGS OF FACT CONCLUSIONS OF LAW
Index No.: M-705-95
R.J.I. 33-95-3267
The above entitled action having been duly brought on for a Judgment of Divorce in
favor of the Plaintiff and against the Defendant on the grounds of Cruel and Inhuman
Treatment (DRL§ 170(1)), and the Summons and Verified Complaint bearing the notation
"ACTION FOR A DIVORCE" having been filed on May 23, 1995 in the Onondaga County
Clerk's Office and duly served on the Defendant on June 27, 1995 and the Defendant having
served an Answer and Counterclaim and the Plaintiff having served a Reply; and a Note of
Issue and Index Number having been duly filed; and the matter having come to be heard for
a Trial on April 11, 12, 15, 16, 19, 1996 and September 27, 1996 and October 2, 1996
before the HONORABLE CHARLES T. MAJOR, a Justice of the Supreme Court, and the Plaintiff
having appeared with counsel, MAUREEN K. WALSH, ESQ., and the Defendant having appeared
pro se, and the Law Guardian, JOSEPH A. LUPIA, ESQ. having appeared on behalf of the child
and the Court having heard testimony from both parties and having received the report of
the Law Guardian and the Court appointed evaluator, Lois Black, PhD, and having examined
all of the evidence and prior pleadings in this matter and duly deliberated upon the same,
the Court hereby makes and files the following Findings of Facts and Conclusion of Law:
FINDINGS
1. That jurisdiction as required by §230 of the Domestic Relations Law has been
obtained.
2. That the Plaintiff and the Defendant were duly married in Lyons, New York on
November21,1987.
3. That there is one issue of the marriage; to wit: Domenic Kazu Murtari, born February
11, 1993.
4. That this action was commenced by the filing of a Summons and Complaint on May
23,1995 in the Onondaga County Clerk's Office and service of a Summons and Complaint upon
the Defendant on June 27,1995 in the State of New York. A copy of the Affidavit of
Service was filed in the Onondaga County Clerk's Office on July 10,1995.
5. That this matter came to be heard for trial on April 11,12,15,16 and 19,1996 and
September 27,1996 and October 2,1996.
6. That the Defendant has been guilty of cruel and inhuman treatment toward the
Plaintiff and said conduct towards the Plaintiff has rendered it unsafe and improper for
the Plaintiff to cohabit with the Defendant.
- That the Defendant has committed the following acts of cruel and inhuman treatment:
- That on many occasions throughout the marriage, and continuing to the present, such that
it became a course of conduct, the Defendant Husband has been verbally and emotionally
abusive towards the Plaintiff; that during the last five years, occurring with such
frequency that the Defendant can not recall each and every incident, the Defendant has put
the Plaintiff down, attempted to and did make her feel inferior, and is extremely critical
of the Plaintiff's actions, friends, and parenting skills
.
b. That throughout the course of the marriage and continuing to the present, the
Defendant has been extremely jealous of the Plaintiff and has on many occasions falsely
accused the Plaintiff of being unfaithful; that in December 1994, the Defendant without
the Plaintiff's knowledge or consent enclosed a form letter in Christmas cards to friends
and family stating that the parties were having difficulties and were going to be getting
a divorce causing the Plaintiff great embarrassment.
c. That throughout the course of the marriage, the Defendant has repeatedly threatened
the Plaintiff with Divorce if she did not do things exactly his way or if she did
something that he did not approve of such as visit her family or further her career or put
gift money from Plaintiff's family in a sole account.
d. That commencing in the Fall of 1991 and continuing until the Spring of 1992, the
Defendant repeatedly told Plaintiff that he no longer loved her and Defendant doubted that
he wanted to continue to be married; Defendant repeatedly told Plaintiff that if he had to
do it over again, Defendant would not marry the Plaintiff.
- That on many occasions since the birth of the child, DOMENIC, the Defendant insisted
that it was "his time" with the child and forced the child to leave the
Plaintiff even if the child was upset, screaming, and wanted to stay with the Plaintiff;
that on one such occasion, on or about September 23, 1994, the Defendant grabbed the child
who was screaming and reaching out to the Plaintiff and when the Plaintiff reached out to
the child, theDefendant forcibly pushed the Plaintiff against the wall stating Plaintiff
was lucky that the Defendant had self control.
f. That on or about December 24, 1994, the Defendant verbally threatened the Plaintiff
stating that "bad things will happen" and "I will come to your room in the
middle of the night."
g. That throughout the course of the marriage, the Defendant refused to socialize with
friends of the Plaintiff and forced the Plaintiff to cancel social engagements or leave a
social event early.
- That the parties have not engaged in a sexual relationship since March 1994.
8. That as a result of the aforesaid acts Plaintiff has been rendered emotionally
distraught, and suffered physical and mental pain and anguish, and has experienced
nervousness, stress, emotional anxiety, and sequelae therefrom, and the conduct of the
Defendant has been such that it is unsafe and/or improper to continue the marriage or
allow cohabitation with the Defendant.
9. Based on the extensive history of this litigation, this Court will retain
jurisdiction on all matters including modification and enforcement of custody, visitation
and child support.
10. Based on all of the evidence presented at trial including the recommendations of
the Court Evaluator Dr. Lois Black, PhD. and the Law Guardian, Joseph A. Lupia, Esq. and
my review of the various items of evidence introduced into evidence including the two
videotapes produced by the Defendant of his interaction with the child Domenic, the Court
finds that it is in the best interests of the child Domenic to grant sole legal and
physical custody to the Plaintiff Mother, Adrianne Phillipson Murtari.
11. It is clear to the Court that the Defendant Father has great love for his son and
should have substantial and liberal visitation. For reasons that the Court was unable to
determine, the Defendant insists on control and domination of the child Domenic, as well
as the Plaintiff. The Defendant does not understand the feelings or concerns of other
persons, as observed by the Court throughout the trial, and all other related proceedings
and as further described by Dr. Lois Black in her report.
12. The Defendant's visitation shall take place on alternate weekends from Thursday at
5:00 p.m. to Monday at 7:00 p.m. The Defendant shall transport Domenic to school on the
Monday following the weekend he has visitation, when Domenic starts kindergarten.
Additionally, the Defendant shall have five (5) weeks of exclusive visitation during the
summer, but no more than three consecutive weeks at any one time; every Easter from Good
Friday at 1:00 p.m. until Easter Sunday at 6:00 p.m.; every Christmas from Christmas Eve
Day at 9:00 a.m. through December 26'h at 9:00 a.m.; every Father's Day from 9:00 a.m.
until 7:00 p.m., and Memorial Day, Labor Day and Thanksgiving in odd years, President's
Day, Fourth of July and Columbus Day in even years, from 9:00 a.m. to 7:00 p.m. Defendant
shall be permitted to take Domenic to church on all Sundays and is allowed two hours to do
so, to be computed between the hours of 8:30 a.m. and 11:30 a.m., except when the
Plaintiff has Domenic during her summer vacation schedule to Japan or other trips to Japan
or on other special occasions in which the Plaintiff is out of town.
13. The Defendant shall be allowed reasonable telephone contact with Domenic when at
the Plaintiff's residence, and the Plaintiff shall be allowed reasonable telephone contact
with Domenic when he is at the Defendant's residence.
14. The Court finds that it is in the best interest of Domenic to travel with the
Plaintiff to Japan for four (4) weeks each summer, since Domenic is one-half Japanese, and
exposure to his maternal grandparents and the Japanese culture will be beneficial to him.
Plaintiff must notify Defendant by May 15' of each year as to when the summer Japan trip
will occur. In addition, the Plaintiff may visit Japan with Domenic on special occasions
once each year, but not for longer than ten days and the Plaintiff must give the Defendant
thirty (30) days notice.
15. If the parties cannot agree upon transportation for visitation, the Plaintiff shall
deliver Domenic to the Defendant at the beginning of visitation, and the Defendant shall
return the child at the end of the visitation.
16. The Court further finds that the Defendant is disruptive at the child care center,
and is ordered restrained from visiting the child care center at any time. Once Domenic
starts Kindergarten the Defendant is no longer restrained so long as any visits are not
disruptive and he has the permission of the school authorities.
17. Based upon the evidence, the Court finds that the marital residence located at 2404
Sourwood Drive, is marital property, made up by the contributions of both parties,
including a substantial gift to both parties from the Plaintiff's parents. The exhibits
received and sworn to by the Plaintiff's parents were not overcome by the testimony at
trial. If the marital property is sold, each shall be entitled to one-half of the net
proceeds. The house has an appraised value of $160,000.00, and a mortgage of somewhat less
than $76,000.00. The Court estimates closing costs, including real estate commissions to
be approximately $12,000.00. The Defendant has the option of purchasing the house from the
Plaintiff for the gross sum of $37,000.00 within Sixty (60) days of receipt of a certified
copy of the Judgment and Decree of Divorce and, if he does not choose to purchase the
house, then the Plaintiff shall have thirty (30) days to exercise her option of purchasing
the house from the Defendant for the gross sum of $37,000.00. To exercise their respective
option, the parties must provide written notice to the other party by certified mail with
return receipt requested. If either party is unable to obtain financing of the purchase
within forty-five (45) days of exercising their respective option, their option shall be
null and void. If neither party exercises their respective option to purchase the house,
then the house shall be placed on the market for sale, and sold within six (6) months, or
then sold at auction, and the net proceeds to be divided equally between the parties.
Defendant remains responsible for mortgage, taxes, insurance, utilities, repairs and
maintenance until he vacates the premises.
18. The Court finds that Defendant is capable of earning income in excess of $40,000.00
per year and, as such, the Defendant shall pay child support in the sum of $120.00 per
week, retroactive to October 1, 1995, plus a pro-rated share of child care and uncovered
medical and dental costs for Domenic. The Court finds that the Plaintiff has an earning
capacity based on her education and present employment of $26,000.00 per year. The Court
determines the pro-rated share for child care and uncovered medical/dental expenses for
the child to be 40% for Plaintiff and 60% for Defendant. Defendant shall receive a credit
of $1,900.00 for child support paid on October 2, 1996.
19. The evidence shows that the Defendant has voluntarily chosen to decrease his income
in an attempt to start his own business and to be in a position to spend more time during
the day with Domenic. At the present time, his business income is unable to support his
family obligations. The Defendant rejected job opportunities in the Spring of 1995, to
continue this business which has proven to be an inadequate source of income. At this time
the Defendant teaches part-time at Onondaga Community College and performs volunteer work.
The time spent on volunteer work, no matter how commendable, could be better used
producing income to support his financial obligations to the family. The Defendant must
adjust his priorities in order to adequately provide for his family. The Court therefore
finds that Defendant is able to work and obtain other employment, and, considering his
experience, education and the Central New York job market, at a salary in excess of
$40,000.00 per year. 20. The Defendant has further dissipated marital funds by withdrawing
money from the G.E. Savings Plan, from the U.S.A.A. Mutual Fund, and sold a Honda vehicle
for a total amount of $36,428.00, for which Plaintiff shali receive credit for one-half
(1/2) that amount and Plaintiff is granted a Judgment for the amount of $1 8,214.00
against the Defendant. In addition, the Defendant has incurred credit card debt in the
amount of $40,000.00, primarily used in starting his business. Part of the debt so
incurred was in violation of the Order of this Court. The Defendant shall hold the
Plaintiff harmless for any and all portions of this debt.
21. In regard to personal property, the Court finds that Exhibits (A) are accurate and
supported by the evidence and are awarded to the Plaintiff and Exhibits (B) are awarded to
the Defendant. The Court, however, does not wish to disturb Domenic any further and, as to
those items listed as Domenic's, they shall remain where they are at the time of this
Decision. Plaintiff may remove her items from the marital residence on adequate notice to
Defendant of at least ten (10) days.
22.The Defendant's pension at General Electric shall be divided in accordance with the
formula set forth in Majauskas v. Majauskas, 61 NY 2d 481.
23. Since both parties are well educated and have earning capacity there will be no
award of maintenance to either party, nor shall the Plaintiff be entitled to receive any
interest in Defendant's present business or Defendant's property in Lyons, New York, in
which Defendant's mother has a life estate.
24. Defendant shall not be entitled to any interest in the Plaintiff's Master's
Degree,which the Plaintiff obtained during the course of the marriage, as Plaintiff was
working at the time and contributing to the household.
25. The Defendant has caused the Plaintiff to incur unnecessary legal expenses while
representing himself. Accordingly, Plaintiff is awarded 83,000.00 in attorney fees.
26. That the Plaintiff has taken all steps within her power to remove any and all barriers
to Defendant's remarriage.
27. That no Decree of Divorce has been obtained by either party against the other in this
state, or in any state or territory of the United States, or in any foreign country or in
any other Court of competent jurisdiction, nor is there any other action pending for such
relief.
28. That the Defendant is not currently in the military service, nor was he in the
military service at the time of the commencement of this action.
CONCLUSIONS OF LAW
FIRST: The Plaintiff, Adrianne Phillipson Murtari, is entitled to a Judgment of Divorce
against the Defendant, John Murtari, dissolving the marriage heretofore existing between
the parties, pursuant to §170(1) of the Domestic Relations Law of the State of New York,
to wit: Cruel and Inhuman Treatment.
SECOND: That this Court shall retain exclusive jurisdiction of this matter including
modification and enforcement of child support.
THIRD: The Plaintiff shall have sole legal custody of the child Domenic subject to the
Defendant's right to the following visitation: alternate weekends from Thursday at 5:00
p.m. until Monday at 7:00 p.m.; (the Defendant shall transport the child to school on the
Monday following the weekend he has visitation after the child starts kindergarten); five
weeks in the summer, but no more than three consecutive weeks; every Easter from Good
Friday at 1:00 p.m. until Easter Sunday at 6:00 p.m.; every Christmas from Christmas Eve
at 9:00 a.m. until December 26 at 9:00 a.m.; every Father's Day from 9:00 a.m. until 7:00
p.m.; Memorial Day, Labor Day and Thanksgiving in odd years and President's Day, Fourth of
July and Columbus Day in even years from 9:00 a.m. until 7:00 p.m. The Defendant shall be
permitted to take Domenic to church on all Sundays and is allowed two hours to do so, to
be computed between the hours of 8:30 a.m. and 11:30 a.m., except when the Plaintiff has
Domenic during her summer vacation schedule to Japan or other trips to Japan or on other
special occasions in which the Plaintiff is out of town.
FOURTH: The Plaintiff shall always have New Year's Eve and New Year's Day and shall be
entitled to take the child to visit Japan for special family occasions and for four weeks
every summer with notice to the Defendant.
FIFTH: The Defendant shall pick up the child at the beginning of visitation and the
Plaintiff shall pick up the child at the end of visitation and the parties shall have
reasonable phone contact with the child when the child is at the other party's residence.
SIXTH: The Defendant shall pay to the Plaintiff as and for child support, the sum of
$120.00 per week retroactive to October 1, 1995 plus his pro rata share of child care and
medical costs including the cost of insurance and uncovered medical and dental expenses.
The Defendant's pro rata share is 60% and the Plaintiff's pro rata share is 40%. The
Defendant shall receive a credit of $1,9000.00 for child support paid on October 2, 1996.
SEVENTH: The Defendant shall have the option of purchasing the marital residence
from the Plaintiff for the sum of $37,000.00 and if he does not choose to exercise his
option within sixty (60) days of receipt of a certified copy of the Judgment and Decree of
Divorce then the Plaintiff shall have thirty (30) days to exercise her option of
purchasing the house from the Defendant for $37,000.00. If neither party exercises there
respective option then the house shall be placed on the market for sale, and sold within
six (6) months or then sold at auction and the net proceeds to be divided equally.
Defendant shall remain responsible for the costs of the marital residence including
mortgage, taxes, insurance, maintenance and repairs as long as he resides therein.
EIGHTH: The Plaintiff shall be entitled to a Judgment for Eighteen Thousand Two Hundred
and Fourteen Dollars ($18,214.00) representing her share of marital assets that have been
dissipated by the Defendant.
NINTH:. The parties shall distribute their personal property pursuant to the attached
Exhibit "A" and Exhibit "B". Upon ten (10) days notice to the
Defendant, the Plaintiff shall be entitied to enter the marital residence premises during
the Defendant's occupancy to remove the items listed in Exhibit "A". Those items
listed as Domenic's shall remain where they are at the home of this decision.
TENTH: The Plaintiff shall be entitled to a Majauskas share of the Defendant's
pension at G.E..
ELEVENTH: Neither party shall be entitled to receive maintenance from the other.
TWELFTH: The Defendant shall hold the Plaintiff harmless for any and all portions of
the credit card debt he has incurred.
THIRTEENTH: The Plaintiff shall be entitled to a Judgment for Attorney's Fees in the
amount of Three Thousand ($3,000.00) Dollars.
FOURTEENTH: That either party shall have the right to resume the use of his or her
premarriage or any other former surname.
FIFTEENTH: That the Plaintiff has taken all steps solely within her power to remove any
barriers to the Defendant's remarriage
.
E N T E R
CHARLES T. MAJOR Justice of the Supreme Court
At a Trial Term of the Supreme Court of New York, held in and for Onondaga County at
Syracuse, New York on April 11, 12, 15, 16, 19, 1996 and September 27, 1996 and October 2,
1996.
PRESENT: HON. CHARLES T. MAJOR Justice of the Supreme Court STATE OF NEW YORK SUPREME
COURT COUNTY OF ONONDAGA
ADRIANNE PHILLIPSON MURTARI, Plaintiff,
vs.
JOHN MURTARI,
Defendant.
JUDGMENT AND DECREF OF DIVORCE
Index No.: M-705-95
R.J.I. 33-95-3267
The above entitled action having been duly brought on for a Judgment of Divorce in
favor of the Plaintiff and against the Defendant on the grounds of Cruel and Inhuman
Treatment (DRL§ 170(1)), and the Summons and Verified Complaint bearing the notation
"ACTION FOR A DIVORCE" having been filed on May 23, 1995 in the Onondaga County
Clerk's Office and duly served on the Defendant on June 27, 1995 and the Defendant having
served an Answer and Counterclaim and the Plaintiff having served a Reply; and a Note of
Issue and Index Number having been duly filed; and the matter having come to be heard for
a Trial on April 11, 12, 15,16, 19, 1996 and September 27,1996 and October 2,1996 before
the HONORABLE CHARLES T. MAJOR, a Justice of the Supreme Court, and the Plaintiff having
appeared with counsel, MAUREEN K. WALSH, ESQ., and the Defendant having appeared pro se,
and the Law Guardian, JOSEPH A. LUPIA, ESQ. having appeared on behalf of the child and the
Court having heard testimony from both parties and having reviewed and examined all of the
evidence and prior pleadings in this matter and duly deliberated upon the same, and having
made and filed a Decision
containing Findings of Fact and Conclusions of Law and deciding, among other things,
that the Plaintiff is entitled to a Judgment against the Defendant dissolving the marriage
heretofore existing between the parties on the grounds of Cruel and Inhuman Treatment,
NOW, after due deliberation; it is hereby
ORDERED, ADJUDGED AND DECREED that the Plaintiff Adrianne Phillipson Murtari, is entitled to
and granted a Judgment against the Defendant John Murtari, dissolving the marriage
heretofore existing between the parties on the grounds of Cruel and Inhuman Treatment; and
it is further
ORDERED, ADJUDGED AND DECREED that the plaintiff Mother, Adrianne Phillipson Murtari, is
granted sole legal and physical custody of the child Domenic Kazu Murtari, born February
11, 1993, and it is further
ORDERED, ADJUDGED AND DECREED that the Defendant shall have visitation on alternate
weekends from Thursday at 5:00 p.m. to Monday at 7:00 p.m. and the Defendant shall
transport Domenic to school on the Monday following the weekend he has visitation, when
ever Domenic starts kindergarten. Additionally, the Defendant shall have five (5) weeks of
exclusive visitation during the summer, but no more than three consecutive weeks at any
one time; every Easter from Good Friday at 1:00 p.m. until Easter Sunday at 6:00 p.m.;
every Christmas from Christmas Eve Day at 9:00 a.m. through December 26th at 9:00 a.m.;
every Father's Day from 9:00 a.m. until 7:00 p.m., and Memorial Day, Labor Day and
Thanksgiving in odd years, and President's Day, Fourth of July and Columbus Day in even
years from 9:00 a.m. to 7:00 p.m. Defendant shall be permitted to take Domenic to church
on all Sundays and is allowed two hours to do so, to be computed between the hours of 8:30
a.m. and 11:30 a.m., except when the Plaintiff has Domenic during her summer vacation
schedule to Japan or other trips to Japan or on other special occasions in which the
Plaintiff is out of town; and it is further
ORDERED, ADJUDGED AND DECREED that the Defendant shall be allowed reasonable telephone
contact with Domenic when at the Plaintiffs residence, and the Plaintiff shall be allowed
reasonable telephone contact with Domenic when he is at the Defendant's residence; and it
is further
ORDERED, ADJUDGED AND DECREED that the child Domenic shall be able to travel with the
Plaintiff to Japan for four (4) weeks each summer, and Plaintiff must notify Defendant by
May 1st of each year as to when the summer Japan trip will occur and the Plaintiff may
visit Japan with Domenic on special occasions once each year, but not for longer than ten
days and the Plaintiff must give the Defendant thirty (30) days notice; and it is further
ORDERED, ADJUDGED AND DECREED that if the parties cannot agree upon transportation for
visitation, the Plaintiff shall deliver Domenic to the Defendant at the beginning of
visitation, and the Defendant shall return the child at the end of the visitation; and it
is further
ORDERED, ADJUDGED AND DECREED that the Defendant is ordered restrained from visiting
the Child Care Center at any time and once Domenic starts Kindergarten the Defendant is no
longer restrained so long as any visits are not disruptive and he has the permission of
the school authorities; and it is further
ORDERED, ADJUDGED AND DECREED that the Defendant has the option of purchasing the house
from the Plaintiff for the gross sum of $37,000.00 within sixty (60) days of receipt of a
certified copy of the Judgment and Decree of Divorce and, if he does not choose to
purchase the house, then the Plaintiff shall have thirty (30) days to exercise her option
of purchasing the house from the Defendant for the gross sum of $37,000.00. To exercise
their respective option, the parties must provide written notice to the other party by
certified mail with return receipt requested. If either party is unable to obtain
financing of the purchase within forty-five (45) days of exercising their respective
option, their option shall be null and void. If neither party exercises their respective
option to purchase the house, then the house shall be placed on the market for sale, and
sold within six (6) months, or then sold at auction, and the net proceeds to be divided
equally between the parties; and it is further
ORDERED, ADJUDGED AND DECREED that the Defendant remains responsible for the costs and
expenses of the marital residence including mortgage, taxes, insurance, utilities, repairs
and maintenance until the premises are sold or transferred to the Plaintiff; and it is
further
ORDERED, ADJUDGED AND DECREED that the Defendant is capable of earning income in excess
of $40,000.00 per year and, as such, the Defendant shall pay child support in the sum of
$120.00 per week, retroactive to October 1, 1995, plus a pro-rated share of child care and
uncovered medical and dental costs and insurance for Domenic and that the Plaintiff has an
earning capacity based on her education and present employment of $26,000.00 per year and
the Court determines the pro-rated share for child care and uncovered medical/dental
insurance and expenses for the child to be 40% for Plaintiff and 60% for Defendant; and it
is further
ORDERED, ADJUDGED AND DECREED that the Defendant owes child support from October 1,
1995 to September 30, 1996 in the amount of $6,240.00 with a credit of $1900.00 paid on
October 2, 1996 for a Judgment of child support arrears of $4,340.00 as of September 30,
1996; and it is further
ORDERED, ADJUDGED AND DECREED that the PIaintitf is granted a Judgment for the amount
of $18,214.00 against the Defendant for dissipated marital assets and; it is further
ORDERED, ADJUDGED AND DECREED that the Defendant shall hold the Plaintiff harmless for
any and all portions of the credit card debt that he has incurred; and it is further
ORDERED, ADJUDGED AND DECREED that the personal property listed in Schedule
"A" are awarded to the Plaintiff and those listed in Scheduled "B" are
awarded to the Defendant, but as to those items listed as Domenic's, they shall remain
where they are at the time of this Decision and Plaintiff may remove her items from the
marital residence on adequate notice to Defendant of at least ten (10) days; and it is
further
ORDERED, ADJUDGED AND DECREED that the Defendant's pension at General Electric shall be
divided in accordance with the formula set forth in Majauskas v. Majauskas, 61 NY 2d 481;
and it is further
ORDERED, ADJUDGED AND DECREED that the Plaintiff shall not be entitled to receive any
interest in the Defendant's business or Defendant's property in Lyons, New York; and it is
further
ORDERED, ADJUDGED AND DECREED that the Defendant shall not be entitled to any interest
in the Plaintiff's Master's Degree; and it is further
ORDERED, ADJUDGED AND DECREED there will be no award of maintenance to either party;
and it is further
ORDERED, ADJUDGED AND DECREED that Plaintiff is awarded $3,000.00 in attorney fees; and
it is further
ORDERED, ADJUDGED AND DECREED that any and all future questions on this matter, except
those having to do with interpretation and equitable distribution, including issues of
modification, custody and child support are referred to the Family Court having
jurisdiction therein.
ORDERED, ADJUDGED AND DECREED that either party may resume the use of their premarriage
or any former surname.
Dated: March 26, 1997
Sharon R. Renk
Deputy County Clerk
Syracuse, New York.
ENTER
/S Charles T. Major
Justice of the Supreme Court
APPELLATE DIVISION, FOURTH JUDICIAL DEPARTMENT
SUPREME COURT OF THE STATE OF NEW YORK
0495 PRESENT: PINE, J. P., HAYES, WISNER, PIGOTT AND BOEHM, JJ.
ADRIANNE PHILLIPSON MURTARI, RESPONDENT, V
JOHN MURTARI, APPELLANT.
{APPEAL NO. 1.)
John Murtari having appealed to this Court from the judgment of the Supreme Court,
entered in the Onondaga County Clerk's office on April 3, 1997, and said appeal having
been argued by John Murtari, appellant, Maureen Walsh of counsel for respondent, submitted
by Joseph Lupia, Jr., Law Guardian, and due deliberation having been had thereon,
It is hereby ORDERED that the judgment so appealed from be and the same hereby is
unanimously affirmed without costs and counsel fees on appeal are awarded.
Memorandum that is hereby made a part hereof.
Entered: April 29, 1998
CARL M. DARNALL, Clerk
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial
Department
0495. (Onondaga Co.) -- ADRIANNE PHILLIPSON MURTARI, RESPONDENT, V JOHN MURTARI, APPELLANT.
(APPEAL NO. 1.) -- Judgment unanimously affirmed without costs and counsel fees on appeal
awarded.
Memorandum:
The parties were married on November 21, 1987 and have one son, who was born on
February 11, 1993. Plaintiff commenced this divorce action in May 1995. After a nonjury
trial in which defendant represented himself, Supreme Court granted plaintiff a judgment
of divorce on the ground of cruel and inhuman treatment; awarded plaintiff sole custody of
the child with visitation to defendant; imputed annual income of $40,0(70 to defendant and
directed him to pay child support in the sum of $120 per week retroactive to October 1,
1995; directed defendant to pay his pro rata share of child care expenses and uncovered
medical and insurance costs for the child; and awarded plaintiff a judgment of $4,340 for
child support arrears and $18,214 for defendant's dissipation of marital assets. It also
granted defendant the option to purchase plaintiff's share of the marital residence for
$37,000 and, in the event that defendant did not exercise that option within 30 days,
granted plaintiff the option to purchase defendant's share for that amount. The court
further directed that, if neither party exercised the option, the marital residence was to
be sold and the proceeds divided. The court also equitably divided the parties' personal
property and resolved other financial issues. Defendant raises numerous issues on appeal,
none of which requires reversal.
Although we agree with defendant that the court improperly admitted into evidence the
report of the court-appointed psychologist because the report was not submitted by the
expert under oath and the expert was not present and available for cross-examination (see,
22 NYCRR 202.16 [g]), we conclude that reversal is not required on the issue of custody.
The court's determination that the best interests of the child warrant the award of
custody to plaintiff is supported by admissible evidence without consideration of the
improperly admitted report (see, e.g., Matter of Cynthia C. [Rebecca K.], 234 AD2d 929;
see generally, Eschbach v Eschbach, 56 NY2d 167).
We reject defendant's contentions that the court improperly admitted into evidence the
testimony of plaintiff's treating psychologist, that the court improperly awarded
plaintiff a judgment of divorce on the ground of cruel and inhuman treatment, that the Law
Guardian was biased against defendant and should have been disqualified, that the court's
distribution of the parties'personal property was improper and that the court erred in
imputing annual income of $40,000 to defendant for purposes of determining his child
support obligation. We further reject the contentions of defendant that he was deprived of
his right to counsel and that the court erred in denying his requests for an award of
counsel fees. The court properly declined to make a distributive award to defendant of the
value of plaintiff's enhanced earning capacity attributable to the master's degree earned
during the marriage because defendant failed to offer proof of its value (see, Iwahara v
Iwahara, 226 AD2d 346, 347) or that he made a substantial contribution to it (see, Duspiva
v Duspiva, 181 AD2d 810, 811, Iv denied 80 NY2d 752, rearg denied 80 NY2d 926). The
contention of defendant that he was improperly deprived of his right to a trial by jury is
not properly before us (see, Matter of Commissioner of Social Servs. of County of Erie
[Lange] v Crowden, 166 AD2d 888; Siegel, Practice Commentaries, McKinney's Cons Laws of
NY, Book 7B, CPLR C5501 :6, at 21). Although defendant filed a notice of appeal dated
April 2, 1996 from the order denying his motion for a jury trial as untimely, he failed to
perfect that appeal timely. As a result, it was dismissed as abandoned (see, 22 NYCRR
former 1000.3 [b] [2] [i]). Finally, we exercise our discretion to direct that defendant
pay plaintiff's counsel fees generated by these appeals (see, Lawton v Lawton, 239 AD2d
866; Rados v Rados, 133 AD2d 536). Application to fix the amount of those counsel fees
must be made to the trial court (see, Lawton v Lawton, supra). (Appeal from Judgment of
Supreme Court, Onondaga County, Major, J. - Divorce.) PRESENT: PINE, J. P., HAYES, WISNER,
PIGOTT AND BOEHM, JJ. (Filed Apr. 29, 1998.)
APPELLATE DIVISION OF THE STATE OF NEW YORK
FOURTH DEPARTMENT, COUNTY OF ONONDAGA
-------------------------------------------
ADRIANNE PHILLIPSON MURTARI,
Plaintiff/Respondent, - against -
JOHN MURTARI,
Defendant/Appellant
-------------------------------------------
State of New York )
County of Onondaga ) ss:
- JOHN MURTARI, being duly sworn, deposes and states:
- I am the defendant/appellant in this action, and I make this affidavit in
support of my motion for reargument of the appeal.
Background
- Justice Pine, Justice Boehm, Justice Hayes, Justice Pigott, and Justice
Wisner, I make this Motion for Reargument aware of the slim chances it will have for
approval, but hopeful you will thoughtfully consider my request, and as your title
indicates, "Justice" will be served. Certainly, I am not a Lawyer and not
studied in the "Law & Process", but I do have a lively sense of
"Justice" and am concerned there may be a divergence between our "Law &
Process" and the goals of "Justice" in Family Law.
- I wish to preface my remarks by stating I have also closely reviewed the
"record", one I have lived - and while admitting the possibility of blindness to
my own "hidden faults", I must still conclude there is no reasonable basis to
support this Judgment and the process by which it was made -- nor the pain it has
visited on my family (and many, many other families!).
- I also affirm my respect for the people involved. I don't see any
"evil" people here, but good people. The present "system" makes it all
too easy for good people to fall into the simple trap "the end justifies the
means." And these good people can cause very real harm to others.
Misapprehension of the Facts.
- Justice Pine, it was with apprehension that I noted during my Oral
argument that you alone appeared to have any working knowledge of the record, or had even
read the Briefs. While I honestly did not expect anyone on the Panel to read the actual
transcripts, or review the entire list of exhibits. It never occurred to me some of the
Justices would not have a working knowledge of the Briefs - or I would have better
structured my presentation to present a deeper review of the issues.
- I noted in the Memorandum the "unanimous" affirmation of the
Judgment, and could not help but think about a Civil Jury in which five of the jurors were
busy with appointments and other matters to be present for most of a trial. The five then
make an appearance during closing arguments, and during deliberations rely on the opinion
of the one full-time Juror to form their opinions. The Appellate Review process calls for
a panel of Justices to review what happened and form their own conclusions, did that
happen here?
- Justice Boehm, you were the only other Justice to speak, and you talked
about the "desire to maintain stability for the child". I think you were
surprised to find out I was the parent who remained in the home, in the nice neighborhood.
You didn't speak again. Justice, I was confident you, as a professional, would have really
taken the time afterwards to review the Briefs and the Record to find out what happened
for yourself.
- Justices Hayes, Pigott, and Wisner - I was pleased to see your attention
as I was speaking. During the earlier cases presented I appreciated your insightful
questions of the litigants as you attempted to confirm your suspicions regarding the
correct facts & law, versus their knowledge. How I wish that same attention and
preparation had been brought to my presentation.
- Justices, my sincere apologies if I am mistaken (I can appreciate what it
is like to be falsely accused). Also, with humility, I can understand that perhaps the
facts were overwhelmingly clear in this matter.
- I ask the Court to review my point arguments: failure to have opportunity
for Counsel, rushed and incomplete discovery, unethical practice by professional
participants in the process, and a large amount of clear evidence regarding the warmth and
depth of the relationship between Domenic and I, and to find review and reargument would
be justified.
Misapplication of a Controlling Principle of Law.
- Justice Pine, I was surprised by your questioning regarding the earlier
appeal I had filed. I noted in the Memorandum that it was used as the basis to deny the
"constitutional" issues involved..
- The "trigger" for the Appeal which was noticed shortly before
the actual Trial date was the rejection by the Trial Judge of my motion to Vacate the Note
of Issue (and for other relief). I then filed a show cause order with Judge Lawton in
Syracuse in an attempt to get the Trial delayed/stayed. I was surprised when Judge Lawton
called me at home to explain he had reviewed my paperwork, but the Court could not stop
the scheduled trial, and I could pick up the paperwork at his office, and since the Trial
was going to happen anyway, to then appeal after the completion.
- Justices, that was two years ago, and I don't recall the exact
conversation, but the essence of the communication to me was this is bad timing, wait till
your trial is done, and then, if necessary, appeal. I reviewed your cited case, Matter
of Commissioner of Social Servs. Of County of Erie [Lange] v Crowden, 166 AD2d 888,
and ask the court to consider the differentiating items of both timing & Court
communication. In this case the Trial commenced almost within a month of the order leaving
very little time to perfect an appeal - and post trial would have made for a confusing
series of appeal.
- Also, the Constitutional issues brought on this appeal are based on the
Trial itself. The failure of the CPLR to allow for a Jury on the issue of grounds &
custody, the extra-judicial conduct of the Law Guardian by introducing new factual
material after the conclusion of trial, the repeated denial of Counsel even after clear
evidence was introduced at Trial regarding financial resources, etc..
- With regards to Dr. Black's report being introduced into evidence without
her testimony, you cited Matter of Cynthia C. [Rebecca K.] 234 AD2d 929, in the
cited case their was overwhelming and "clear evidence" of the conduct, which did
not require the corroboration of another report. In this case, the evidence is certainly
not "clear". The direct witness and videotape testimony clearly conflicts with
Dr. Black's report. The only other "expert" that did testify was Dr. Hoenig, and
she was later give a Letter of Reprimand by the Psychological Association for her conduct
in this matter.
Conclusion
- Justices, during my Oral presentation I spoke about how the Jury is
essential to protecting the integrity of our Judicial Process. Experienced professionals
in this matter acted the way they did because "it worked, and they could get away
with it."
- In my Reply Brief I noted the misinformation used by Ms. Walsh
(Plaintiff's Counsel), in her brief. Justice Pine, during your questioning of Ms. Walsh,
it appeared you also noticed she had made representation to items which were not supported
by your reading of the record (and you did not seem pleased!).
- I will soon be submitting an ethical complaint regarding Ms. Walsh's
conduct, and I had hoped such conduct would also have been noted in your Memorandum. While
I am sure there must have been some "back-channel" communication with Ms. Walsh
to let her know your feelings - I hope the Court will recall the issue and update the
Memorandum accordingly.
- It is with some "wry amusement" I recently received Motion
Papers from Ms. Walsh to the Trial Court, for some $10,000 in fees associated with the
appeal, for a job well done?
Why do professionals do this - because it works.
Consequences
- In the last 7 days I have received a "barage" of
motions/actions from Ms. Walsh:
- Adrianne wishes to relocate to California this July, with Domenic, so she can
go to school.
- My 81 year old mother finds out here savings account (which has about
$5500), and to which her Social Security check is deposited, has been put on
"freeze" by Ms. Walsh. The account came up at Trial, it is a joint account with
my name, but I have never put my money in the account - and just have my name on it to
handle potential burial expenses for my mom.
Domenic still asks me, "Daddy, when can I spend more time with
you?"
- The "unanimous affirmation" of the Court is cited as
justification. Is this Justice?
____________________
\S JOHN MURTARI
Sworn to before me this
28th day of May, 1998.
\S
______________________________
Notary Public
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
MOTION NOS. 495-496/98
PRESENT: PlNE, J. P., HAYES, WISNER, PIGOTT, JR., AND BOHEM, JJ.
ADRIANNE PHILLIPSON MURTARI, RESPONDENT,
V
JOHN MURTARI, APPELLANT.
Appellant having moved for reargument of the orders of this Court entered April 29,
1998,
Now, upon reading and filing the affidavit of John Murtari sworn to May 29, 1998, the
notice of motion with proof of service thereof, and due deliberation having been had
thereon,
It is hereby ORDERED that the motion be, and the same hereby is, denied.
Entered: July 8, 1998
CARL M. DARNALL, Clerk
COURT OF APPEALS
STATE OF NEW YORK
____________________________________
Adrianne Phillipson Murtari,
Plaintiff-Respondent
-- against --
John Murtari,
Defendant-Appellant
____________________________________
(1). The title of the action is as set forth in the caption. There has been no change
in the parties since the commencement of this action.
(2). This appeal is taken from the Appellate Division of the Supreme Court, Fourth
Department.
(3). The Notice of Appeal to this Court was served on 20 May 1998 and filed on 20 May
1998.
(4). The original Judgments appealed from were serviced by U.S. Mail from the Appellate
Division , dated April 29, 1998, and the Judgment was entered on April 29, 1998.
(5). The name and address of the attorney for the Plaintiff-Respondent is:
Ms. Maureen Walsh, Esq.
472 S. Salina Street, Suite 602
Syracuse, NY 13202-2480
(6). Appended to this statement are copies of the following papers:
(Exhibit A). Dated Notice of Appeal.
(Exhibit A). Judgment Appealed from.
(Exhibit B). Other orders brought up for review.
(Exhibit C). Memorandum from Appellate Division
(Exhibit D). Judgment of Trial Court.
(Exhibit E). Findings of Trial Court.
(7). This Court has jurisdiction to entertain the appeal and to review the questions
raised since they involved the construction of the Constitution of the United States.
Justices, I have been forced to pursue my defense "pro se". I have spent a
great deal of time reviewing procedures to insure these documents facilitate a rapid
review on your part. I will speak in "plain english" in these brief paragraphs
to communicate what I feel is the essence of this Appeal, and why it fall as a matter of
"right" to the Court of Appeals.
I believe the record will show that I am a good person, a good spouse, and most of all,
a good parent. It will show unambiguous evidence of my community involvement, and close
relationship with my child. If I wasn't watching this happen with my own two eyes, I
would not believe it possible. Especially the trauma our son Domenic has been put through.
As I went through the process you will follow I found myself stripped of dignity,
reputation, property, and most of all, my relationship with Domenic. I watched
experts/professionals with a great deal of experience relying more on
"intuition" than "evidence". Professionals who staked out early
positions, and then just did not move.
I saw a frightening lack of regard for "due process" (as required by the
Fifth Amendment), it appeared we were marching toward a predetermined goal. There was no
doubt how Judge Major felt when we met in chambers right before Trial began. I certainly
felt that as a "man", I did not get "equal protection".
Justices, as you well know, you control the ball in these matrimonial affairs. The
attorneys have no recourse to a Jury, and so, at the cost of all else, must stay in your
good graces. It is a frightening amount of power, and I think it is one that our
Constitution places a check upon by the use of a Jury. The CPLR of New York denies it's
citizens that right (one that I feel is "preserved" to our citizens by the
Ninth/Seventh and Fourteenth Amendments.
Given the evolution of Matrimonial Law since the time of the founding fathers, I
believe it is time we realize that a parent has a right to be with their child (and same
for the child). Again this is a right preserved to the people. If a party wishes to
challenge that, they must convince a Jury beyond a reasonable doubt. While this may appear
"revolutionary", I feel it's time may have come. The need to convince a Jury
would reduce the horrendous amount of groundless allegations that get made. And it also
recognizes the equality of both sexes.
To help your understanding of this case I have included all the Appellate Briefs
filed in this matter as separate attachments. They contain extensive references/excerpts
from the record, and should give you a "flavor" for the entire proceeding.
(7a) Constitutional References
- Fifth Amendment - . . . nor be deprived of life, liberty, or property, without
due process of law . . .
- Seventh Amendment - In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved . . .
- Ninth Amendment - The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people. . . Declaration of
Independence - We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty, and the pursuit of Happiness.
- Fourteenth Amendment - . . . No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws. . .
(7b) Point Headings
- Was the Defendant unfairly denied funds so that he could secure representation of
Counsel, and did he not have a Constitutional right to Council in a proceeding which could
separate him from his child?
ANSWER: Trial Court denied requests for Counsel on numerous occasions.
- Was the Defendant improperly denied his Constitutional right to a Trial by Jury, not
only on the issues of grounds, but also on the issues of Custody and Property
Distribution?
ANSWER: Trial Court denied request as part of same motion, 4/15/97.
- Should the Defendant's objections regarding Dr. Hoenig's testimony, with regards to
hearsay, identified expert, and the introduction of her report into evidence, been
sustained?
ANSWER: During trial, objections of Defendant were overruled by the Court.
- Were the Defendants Constitutional rights to "due process" and ability to
confront an accuser violated. Should the Plaintiff have been allowed to enter the report
of Dr. Lois Black, Court appointed psychologist, into evidence without her oral testimony
and opportunity for cross examination.
ANSWER: Trial Court overruled objection by Defendant.
- Should the Note of Issue been vacated and the Defendant given more time to complete
discovery and should the Plaintiff been compelled to sign release forms for counselors who
had advised the couple?
ANSWER: On a motion heard 4/15/97 and on 9/10/97, Trial Court found there had been
time and no signature of forms was required.
- Should a mistrial have been granted when the Defendant produced a letter from the
Central New York Psychological Association reprimanding Dr. Hoenig for unprofessional
conduct in this matter?
ANSWER: Trial Court refused to sign Show Cause order dated 10/15/96.
- Did the Law Guardian demonstrate a pattern of conduct consistent with unjustified bias
against the Defendant and did his ability to introduce "facts" after conclusion
of trial, not subject to cross examination violate the Defendant's Constitutional rights
to "due process" and ability to confront an accuser.
ANSWER: In several motions, Trial Court refused to assign a new Law Guardian.
Ignored objections to written report.
- Did the evidence presented at trail support a finding by the Trial Court of "cruel
& inhuman" treatment on the part of the Defendant, was there a fair distribution
of property?
ANSWER: Trial Court found preponderance of evidence to justify "cruel &
inhuman" finding.
- Was there enough evidence to support the Custodial finding of the Trial Court, were not
the Defendant's and Child's Constitutional right's violated when a determination was made
on just a "preponderance of the evidence" versus a standard of "beyond a
reasonable doubt.", and without an option for a Jury.
Dated: 28 May 1998
John Murtari, pro se
45 East Oneida Street
Baldwinsville, NY 13027
(315) 638-7426
State of New York, Court of Appeals
At a session held at the Court of Appeals Hall in the City of Albany on the
thirty-first day of August, 1998.
Present, Hon. Judith S. Kaye, Chief Judge, presiding
Mo. No. 1074 SSD 51
Adrianne Phillipson Murtari,
Respondent,
v
John Murtari,
Appellant
The appellant having filed notice of appeal in the above title and due consideration
having been thereupon had, it is
ORDERED, that the appeal be and the same hereby is dismissed without costs, by the
Court sua sponte, upon the ground that the order appealed from does not finally
determine the action within the meaning of the Constitution.
/S Stuart M. Cohen
Clerk of the Court
** Excerpt from Appellate Brief, references to Exhibits below are not included in
this petition.
DENIAL OF JURY TRIAL
It was a well known fact to both parties that Mr. Murtari wanted a Jury to decide the
issues of grounds. The knowledge went so far as to be used by the plaintiff as another
accusation against Mr. Murtari's conduct. In early March the defendant received a response
to written interrogatories from the Plaintiff and also a notice that a Note of
Issue(R-265) had been filed on February 21st. He immediately wrote a letter to
the Court (R-200), dated March 5th, and expressed his desire for a Jury. A
motion to Vacate the Note of Issue was filed by the defendant on March 11th
(R-201).
Green v. Siben 480 AD2d 923, found that late filing of Jury demand was excused based
on factual showing that earlier waiver of right was result of inadvertence or other
excusable conduct indicating lack of intention to waive such right. In a similar vein,
Fryer v. Connor 152 AD 249, found that if failure to file timely notice was due to
inadvertence and correction of such error would not prejudice plaintiff's right, defendant
would be permitted to serve and file a demand for jury.
Honest Mistake
The defendant simply did not understand that filing a Jury Demand did not indicate
readiness for trial, but was just a notice. The defendant wanted the Note Of Issue
vacated, and was under the mistaken impression that to file a Jury Demand would be
indicating he thought the matter was ready for trial.The Judge delivered a written order
denying the request on March 27th (R-265); however, Mr. Murtari did still file
the Jury Demand on April 2nd (R-268), and on the first day of Trial requested
that a jury be drawn (T1-5), this was also denied:
MR. MURTARI: Your Honor, I would ask that we delay and have time to impanel the
jury, Your Honor, it was, it's been clear I think all during this proceeding, the
plaintiff has been well aware that I desired a jury trial. I think when the note of issue
was filed you know my letter to you, I noted my desire is for a jury, and that some of
those follow-up affidavits, Your Honor, technically I screwed up by not filing that jury
demand. Since then it's been done within a week of your decision not to vacate, I did file
the jury demand. You know I am here disputing the grounds. I am not countersuing for
divorce. That's a significant right for me to have that heard by a jury. And you
know, I am asking the Court to please reconsider that I know I have got your order we had
previously made a decision.
THE COURT: We have already ruled on that. Unless the other side consented I can't
change that. So that motion is also denied. We can proceed.
** Excerpt from Appellate Brief, references to Exhibits below are not included in
this petition.
In numerous requests the defendant requested representation by Counsel, with the
suggested method being a "pool" of funds which both parties could access. There
is clear precedence for a "level playing field" between spouses. Instituted to
protect a financially destitute spouse from being "raped" by the other spouse in
a proceeding where they could not afford attorney's, expert witnesses, and the like. This
is directed by DRL 237 (a), and in perhaps the "clearest" summary, Dikranian
v. Dikranian 263 AD 128, found that when a spouse assails the validity of a marriage and
seeks to destroy a relationship which has existed between parties for several years, the
other spouse should be afforded means of defending themselves in such action.
Financial Condition of Defendant
On numerous occasion throughout the proceeding Defendant requested funds for Counsel:
Pre-trial motions heard Sep 12, 1995 (R-110), Nov 21, 1995 (R-154), during break in Trial
Sep 10, 1996 (R-282). These requests were denied on every occasion. Probably the most
severe example of this was during the closing of trial, Oct 2, 1996 (T2-214), when
Defendant had given detailed testimony (T2-27 thru T2-99) to his financial state and
discussed his Statement of Net Worth (R-626) and a draft of his 1995 tax return (R-641).
Examination by the Court and Opposing Counsel failed to show any other assets, even after
complete discovery. The defendant even showed that the Plaintiff had at least $20,000 in
funds that were transferred from her accounts to another man (T1-358) and not accounted
for.
Practical Necessity of Counsel in Matrimonial Law
Lack of Counsel was a hammer blow to this entire family receiving Justice. Mr.
Murtari, with an excellent educational record and work experience, certainly represents
the best of what natural resources a "pro se" defendant could have. Yes, Mr.
Murtari did read the practice books, but their is no substitute for trial experience. What
this case makes crystal clear is that a "pro se" defendant has little hope for a
fair outcome in current matrimonial procedure. These proceeding are rarely heard by Jury,
and there is a de facto system of negotiation between Judges and counsel for each side.
The Law Guardian often plays the role of "tie breaker", and occasionally an
expert may be consulted. Without representation of Counsel, Mr. Murtari could not
participate in these negotiations as an equal. The rulings during trial and also pre-trial
motions show a disturbing pattern developing. The defendant requests relief from the Court
and provides rationale and factual detail. The plaintiff make a "cursory" or
even no response to the issues raised by the defendant, and the relief is denied.
- Was the Defendant unfairly denied funds so that he could secure representation of
Counsel, and did he not have a Constitutional right to Council in a proceeding which could
separate him from his child?
ANSWER: Trial Court denied requests for Counsel on numerous occasions.
- Was the Defendant improperly denied his Constitutional right to a Trial by Jury, not
only on the issues of grounds, but also on the issues of Custody and Property
Distribution?
ANSWER: Trial Court denied request as part of same motion, 4/15/97.
- Should the Defendant's objections regarding Dr. Hoenig's testimony, with regards to
hearsay, identified expert, and the introduction of her report into evidence, been
sustained?
ANSWER: During trial, objections of Defendant were overruled by the Court.
- Were the Defendants Constitutional rights to "due process" and ability to
confront an accuser violated. Should the Plaintiff have been allowed to enter the report
of Dr. Lois Black, Court appointed psychologist, into evidence without her oral testimony
and opportunity for cross examination.
ANSWER: Trial Court overruled objection by Defendant.
- Should the Note of Issue been vacated and the Defendant given more time to complete
discovery and should the Plaintiff been compelled to sign release forms for counselors who
had advised the couple?
ANSWER: On a motion heard 4/15/97 and on 9/10/97, Trial Court found there had been
time and no signature of forms was required.
- Should a mistrial have been granted when the Defendant produced a letter from the
Central New York Psychological Association reprimanding Dr. Hoenig for unprofessional
conduct in this matter?
ANSWER: Trial Court refused to sign Show Cause order dated 10/15/96.
- Did the Law Guardian demonstrate a pattern of conduct consistent with unjustified bias
against the Defendant and did his ability to introduce "facts" after conclusion
of trial, not subject to cross examination violate the Defendant's Constitutional rights
to "due process" and ability to confront an accuser.
ANSWER: In several motions, Trial Court refused to assign a new Law Guardian.
Ignored objections to written report.
- Did the evidence presented at trail support a finding by the Trial Court of "cruel
& inhuman" treatment on the part of the Defendant, was there a fair distribution
of property?
ANSWER: Trial Court found preponderance of evidence to justify "cruel &
inhuman" finding.
- Was there enough evidence to support the Custodial finding of the Trial Court, were not
the Defendant's and Child's Constitutional right's violated when a determination was made
on just a "preponderance of the evidence" versus a standard of "beyond a
reasonable doubt.", and without an option for a Jury.
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