S.H. v. M.S.

64 Misc.3d 1204 (A)

116 N.Y.S.3d 493 (Table)

S.H., Plaintiff,

v.M.S., Defendant.

309513/17

Supreme Court, New York County, New York.

Decided June 7, 2019

Attorney for MS is Julia Currie, Esq. at Court Square Law

SH — pro se

Tandra L. Dawson, J.

This is a matrimonial proceeding wherein each parent is seeking custody of their 17-month old son, as well as possession of their dog, Charlie. This proceeding has been pending for almost 2 years in this court, double the length of their one-year marriage. During the course of this proceeding, the parties have appeared numerous times and the court has issued several interim decisions. The court held a fact-finding hearing, where the Plaintiff, S.H. (hereinafter the "Father") appeared pro se and the Defendant, M.S. (hereinafter the "Mother") was represented by counsel. During the fact-finding hearing, which was conducted over three non-consecutive days, beginning on March 22, 2019 and concluding on March 29, 2019¹ , five witnesses testified in addition to the parties, and numerous exhibits were admitted into evidence. After the hearing, counsel for the Mother and the Father pro se submitted post-trial memoranda to the court. Familiarity with this court's prior decisions and orders is presumed.² To the extent that additional facts are relevant to resolve the instant decision, they are stated in the following analysis.

Background

The parties were married on August 27, 2016. The Father commenced the instant divorce action on September 29, 2017. The Mother's counsel served a Verified Answer dated November 9, 2017. At the time of the parties' separation in July 2017, the Mother was pregnant, and gave birth the parties' Child, A.H.S. (hereinafter the "Child") on December 21, 2017.

During the marriage, the parties resided in an apartment they purchased in Manhattan. After an incident that allegedly occurred in September 2017, the Father was arrested, a criminal proceeding was filed against him, and an order of protection was issued that directed him to stay away from the Mother and her residence. The Father was subsequently arrested again, and the court takes judicial notice that the charges for both arrests were dismissed and sealed on June 12, 2018.

On December 13, 2017, the court granted the Father possession of the parties' dog, Charlie, pendente lite after the Father moved for the return of the dog given the Mother had permitted Charlie to reside with her sister. The parties modified the court's order pertaining to Charlie by so ordered stipulation only so as to allow the Father to obtain the dog from the Mother's sisters' home in Pennsylvania. The court takes judicial notice of the transcript of proceedings for December 13, 2017 whereby the Mother consented to shared access of Charlie, but the court ultimately court granted the Father temporary possession after a determination that shared "custody" was not feasible given the Mother was asking that the Father pay for Charlie's maintenance. (Tr. 12/13/17, 20-21, 28 and 37)

Fact-Finding

The Mother waived her opening statement. The Father made an opening statement whereby he described himself as an honest, law-abiding citizen who never had any trouble with the law prior to meeting the Mother. Since meeting the Mother, the Father said that he was arrested three times, based on what he believes were unfounded allegations. The Father stated that while he still loves the Mother, the abuse in the marriage became unbearable. At this point, the Father's primary goal is to spend as much time as possible with his son.

The Father's Case

A.H., the Father's best friend since college testified on his behalf. Mr. H met the Father in 1994 and testified that he never saw the Father in a physical fight or exhibit any anger. (Tr. 2-4) Mr. H. testified that he observed the Father's interactions with the parties' Child on 7 to 8 occasions. He described the Father as super-attentive, calm and knowledgeable on how to soothe the Child. Mr. H. also testified that the Father was collaborative, encouraging and fostered a nurturing environment. Mr. H. was unable to give specific testimony as to what care the Father provided for the Child, but upon inquiry by the Court he testified in detail as to the last interaction he witnessed between the Father and the Child approximately two weeks prior. Mr. H. testified that the Child was actively walking around his apartment and that the Father was very attentive and made sure to remove fragile items from the Child's way. Mr. H. testified that he observed a lot of cuddling and affection, and that he observed the Father feed the Child and change his diapers. The Mother declined to cross-examine the witness. (Tr. 6-12)

The Father testified next. The Father gave a timeline of the parties' relationship stating that he met his Mother in 2015 and that the relationship moved very quickly, and they moved in together after 5 months, in December 2015. The Mother had been looking to purchase an apartment and they decided to buy one together. The parties closed on the apartment in Manhattan in April 2016, and the Father proposed marriage the next day. The parties decided to adopt a dog ("Charlie") just before they got married. The parties were married in August 2016 during the Father's family's visit from the United Kingdom. The Father described a beautiful small, rooftop wedding in Manhattan. The couple then honeymooned in Italy when the Father stated that the Mother's "bizarre behavior" began. The Father then described several incidents that he indicated followed the same pattern of rage, followed by name-calling and physical altercation, followed by the Mother's apologies and promises to get help. (Tr. 14-16)

While in Florence during their honeymoon the Father testified that the parties were having a lovely evening at a local restaurant. When the Father returned from paying the bill, the Mother was gone. The Father testified that he tried calling the Mother but she did not answer until 20 or 30 minutes later. The Mother did not tell him why she left. When he saw her again at the hotel, the Father testified that she began screaming and yelling at him and poured a drink over him. The next day, the Mother apologized and said she would get help. The Father testified things got better for a little while. (Tr. 24-25)

The next incident was in October 2016. The parties were at a friend's Halloween party. The Father testified that the Mother became "paranoid" because he was speaking to someone, was very angry and struck him several times in the face with her fists. The Father testified that he had bruises that lasted about a day. (Tr. 21-23) On cross-examination, the Father testified that he did not seek medical treatment for the bruising. In a prior affidavit the Father provided to the court in November 2017, he stated he was "covered in blood" and thought he broke his nose. (Tr. 23, 54-55)

The Father detailed an incident that occurred in January 2017, when the parties were in Pennsylvania. According to the Father, the Mother had been drinking and went into a rage, calling the Father names and smashing items in the house. The Mother wanted to leave but the Father would not let her drive given she had been drinking. The Father testified that the incident began at about 8:00 p.m. and that the Mother didn't calm down until early the next day (approximately 3:00 a.m.). The next morning, the Father testified that the Mother helped him clean the house and agreed to see a therapist. The Mother first saw K.H. and later saw K.G.. (Tr. 17-20)

The Father testified that the Mother once threw a phone at him and missed, then punched him in the face, but he was not injured. (Tr. 21)

In April 2017 the Mother found out that she was pregnant and they were both very excited. Shortly thereafter, in May 2017, the parties were supposed to travel to Utah and Nevada together. The night before they were supposed to leave, the Father testified that the Mother began to call him names, telling him that he's "disgusting" and a "loser," and that she wanted a divorce. The Father left the marital residence and spent the night at a hotel. He flew to Nevada and received numerous text messages and missed calls from the Mother and her family. The Father testified that security at Caesar's Palace called him in the middle of the night stating that the Mother is on the phone and needs to speak with him. Eventually, the Father took the call and the Mother informed him that she had a medical emergency and he agreed that she can fly to Nevada to meet him, where she again became apologetic. (Tr. 25-29)

On the 4th of July weekend 2017, the Father testified that the parties were in the house in Pennsylvania, to prepare it to be sold. Instead, the Mother was cooking and making a mess, which upset the Father. The Father ultimately left and stayed at a friend's house in Pennsylvania, where he remained for the rest of July and all of August. In September, 2017, the Father testified that he returned to the marital residence for an evening, when, after a lovely evening, the Mother accused him of cheating and the Father left the residence again. (Tr. 29-32)

The last weekend of September 2017, prior to the sale of the Pennsylvania house, the Father testified that he invited some friends and neighbors over for a party, and that many stayed over. There weren't enough beds so people shared, or slept on air mattresses. The Father testified that he was woken up by the Mother, the Mother's mother, and sister when they came "bursting" into the bedroom screaming. The Father testified they woke up the whole house and his friend L.. The Father described the Mother and her family as "belligerent" and stated that they damaged the kitchen. The Father testified that the Mother kicked him in the groin during the incident, but conceded on cross-examination that this was not in the Affidavit he submitted to the court in November 2017. Ultimately the Mother and her family left and took the dog. The Father...