Tamoutselis v. Tamoutselis

67 Misc.3d 1206 (A)

126 N.Y.S.3d 613 (Table)

Irene TAMOUTSELIS, Plaintiff

v.Alexandros TAMOUTSELIS, Defendant

Index No.: 120183707

Supreme Court, Monroe County, New York.

Decided April 1, 2020

Marilee G. Sercu, Esq., SERCU & SERCU, LLP, Attorney for the Plaintiff, Irene Tamoutselis, Pittsford, New York

Francis C. Affronti, Esq., AFFRONTI LLC, Attorney for the Defendant, Alexandros Tamoutselis, Rochester, New York

Richard A. Dollinger, J.

The "spaghetti test" — throw everything against the wall and see what sticks -- is an urban legend. Cooked spaghetti does not stick to a wall, as the legend describes.¹

Nonetheless, American courts have seized on the legend in describing litigation when one party splatters allegations in a scattered-barrel fashion into pleadings, hoping that "something will stick" and guide the Court's analysis. See Jane Doe K.G. v. Pasadena Hosp. Ass'n , 2020 U.S. Dist. LEXIS 45247 (C.D. Cal. 2020)(defendants move to dismiss Plaintiffs' pleading by throwing spaghetti at the wall and seeing what sticks); Laning v. Mattress Firm Inc. , 2019 Colo. Dist. LEXIS 387 (D.C. Colo. 2019)("throw the spaghetti at the wall and see if any pieces will stick").

In this matter, a mother asks the court to modify the parties' visitation schedule because of myriad difficulties that, she claims, her children have encountered in dealing with their father during his visitation time. The mother's application, in addition to seeking a modification for the visitation time for the father, also seeks a restriction that would bar the father's current girlfriend from being present when the children have visitation with their father and an award of attorneys fees. In opposition, the father moves to dismiss the application claiming that the mother's allegations, at best, fail to establish a significant change in circumstances to justify any modification. He also requests that counseling of the children and their father continue and asserts a claim for fees.

But, like the thrown spaghetti in the legend, the allegations by the mother here just don't stick.

Although somewhat unusual in the context of matrimonial litigation, the Court considers the father's application to be a motion to dismiss the mother's order to show cause because she fails to state a cause of action, a dismissal motion permitted under CPLR 3211(a)(7).² The Fourth Department has embraced that same standard when considering an application to dismiss an application for modification of a custody order before a hearing. Matter of Gworek v. Gworek , 158 AD3d 1304 (4th Dept 2018). The rubric of that provision requires this Court to accept the facts as alleged by the wife as true and give her every favorable inference as she seeks to establish a prima face case that a change in circumstances exists sufficient to allow the Court to proceed to appoint an attorney for the children and convene a hearing to establish facts upon which a final determination can be made. The Court notes that the father presented a lengthy affidavit responding to the factual allegations by the wife but the Court, at this stage, is not concerned with whether the wife's allegations are true — which the father's strongly opposes — but only whether those allegations, accepted as true, are sufficient to establish the basis for a hearing.

As a starting point, a parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since entry of a prior order to warrant a modification in the children's best interests. Morales v. Goiocha , 175 AD3d 1294, 1295 (2d Dept 2019). A major ingredient in that analysis can be a breakdown in parental communication to a point "where they simply cannot work together." Sonley v. Sonley , 115 AD3d 1071, 1072 (3d Dept 2014) (breakdown occurs if relationship is antagonist or uncivil). In that vein, the Court must consider whether there is evidence here that establishes a breakdown in the relationship between the parents that warrants an inquiry into the whether a modification of the prior custody/visitation plan "was necessary to ensure the best interests of the children." Gonzales v. Hunter , 137 AD3d 1339, 1341 (3d Dept 2016) (when therapist testifies that child fears abuse by a parent and consequent anxiety, modification is justified). But, in a contrary view, court have held that hearings and modification requests have been denied where the allegations were conclusory and unsubstantiated. Newton v. McFarlane , 174 AD3d 67, 77 (2d Dept 2019). In addition, numerous courts have opined that in "order for the custodial parent to develop a meaningful, nurturing relationship with the child, physical access must be frequent and regular." Pena v. Tiburcio , 162 AD3d 670, 671 (2d Dept 2018). A parent's unjustified restrictions on that access right can be a basis for modification as well. Coon v. Sanabria , 158 AD3d 756, 757 (2d Dept 2018).

The New York courts have also struggle in differentiating between events that constitute a change in circumstances and "common parenting issues or isolated events that do not warrant a change in custody." Lao v. Gonzales , 130 AD3d 624 (2d Dept 2015). This Court has previously attempted to quantify the exact nature of any change of circumstances before advancing to the best interests analysis. See Schoenl v. Schoenl , 62 Misc 3d 567 (Sup.Ct. Monroe Cty 2018) (Dollinger, J.). But, as a bottom line, any alleged change must significantly improve the lives of the children or, as the Second Department intoned, implicate "the fitness of the custodial parent, or affect[s] the nature and quality of the relationship between the children and the noncustodial parent." Matter of Miedema v. Miedema , 125 AD3d 971, 971-972 (2d Dept 2015).

In applying that thinking to this dispute, some facts in this matter are not disputed at all. The couple have twins, age eight.³ The couple executed a custody agreement in March 2019, which was incorporated into a court order. A separation agreement, resolving equitable distribution issues, was signed in June, 2019 and the divorce was entered in early October, 2019. The custody/visitation agreement contains several pertinent provisions:

(A) Paragraph K(22) give each parent a right to communicate with the children at reasonable times and the child can initiate those communications by telephone at any time.

(B) Paragraph K(2) provides that the couple shall not expose their children to anyone who places the children's "psychological, emotional or physical well-being ‘at risk.’ "

(C) Paragraph K(3) provides that neither parent will expose the children to anyone with a criminal record but contains no other provisions restricting a parent's right to expose the children to other adults or children.

(D) Paragraph K(6) bans the use of corporal punishment but requires that each party "respect the other's disciplinary protocol."

At the time this order to show cause was filed, the parties had been bound by their custody agreement for less than a year. Even before the divorce was entered, the wife brought an order to show cause to hold the father in contempt for violation of the visitation order, primarily because the father sought to take his children to New York City without the mother's approval. Significantly, in the order to show cause filed September, 2019, the mother sought a temporary order to prohibit the father from having his girlfriend in the children's presence during his visitation time. The September, 2019 order to show cause included an affidavit dated August 15, 2019, which described the children's reactions to their father's girlfriend. The mother's August 15, 2019 affidavit alleged that the father required his children in August, 2019 to sleep in a bed at his home with an unrelated "boy," who was the son of the father's girlfriend. The mother then described the children as "needy and clingy with me" since the sleep over and added the children told her that the girlfriend was taking their father away and characterized the girlfriend as "mean" and added that the girlfriend "ignores them."

However, this Court struck that portion of the temporary relief in the September, 2019 order to show cause because, based on the Court's review of the mother's affidavit at that time, there was insufficient evidence to justify restricting the father's relationship with another person or evidence that the children's exposure to the father's friend had adversely impacted the children's well-being. The Court then issued a modified order to show cause, the father responded and eventually the couple worked out a modification agreement. The modification agreement was signed by the father in November, 2019 but not signed by the mother until January 8, 2020. Even though the mother had sought a restriction on the father's girlfriend's involvement with the twins in the order to show cause, the final modification agreement makes no reference to any restrictions on the father's interaction with anyone, much less the girlfriend, during the time that he has with the children.

In her current application, the mother describes a series of incidents that, in her view, indicate the need for a modification of the custody/visitation order and agreement:

(A) On December, 19, 2019, the mother was called by her children, who were crying because their father had threatened to take away hockey and dance, which were the children's favorite activities. The mother contacted a therapist, with whom the family had been consulting and exchanged emails with their father in which the therapist and the mother expressed different views about the children's conduct and their activities. There is no evidence that the custody/visitation agreement, which had not even been signed by the mother at that point, was not followed thereafter or that either parent lost parenting time after December 19, 2019.

(B) On January 11, 2020, three days after the mother executed the custody/visitation agreement, the mother got an email from

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