KCC v. HKY (2023)

The following e-filed documents listed on NYSCEF (Motion #003) numbered 53-67 were read on this motion.

Upon the foregoing documents, and on consideration of oral argument conducted on November 16, 2023, Motion Sequence #001 is resolved and therefore, it is hereby,

ORDERED, that the Plaintiff's Motion, to Reargue, having been heard by this Court, is DENIED with prejudice, and it is further;

ORDERED, that the Plaintiff's request for a hearing to determine the residential custody of the subject child, JC, is DENIED and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Statement of Facts

Plaintiff KCC and Defendant HKY were married in Kings County, Brooklyn, New York on May 20, 2019. There is one child of the marriage, to wit: JC born, August XX, 2019. The Plaintiff commenced this action for divorce on or about February 2, 2023. On November 8, 2023, Plaintiff filed Motion Sequence #003 by Notice of Motion.

Plaintiff seeks (a) re-argument of Plaintiff's cross motion to the Defendant's Order to Show Cause, dated October 9, 2023; (b) a custody hearing to determine the residential custody of the subject child, JC; and (c) such other and further relief as this Court may deem just and proper.

On November 14, 2023, Defendant filed opposition as part of cross Motion Sequence #004, which is not fully submitted and not part of this decision. Plaintiff filed reply to on November 15, 2023. Oral argument was heard on Motion Sequence #003 on November 16, 2023. This is a Decision and Order on Motion Sequence #003.

II. Reargument

In Motion Sequence #003, the Plaintiff seeks to reargue a motion for relief, pendente lite, decided on October 20, 2023. Pursuant to CPLR § 2221[d], a party may move to reargue a prior motion for the purpose of modifying a prior order if said motion [1] shall be identified specifically as such; [2] shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and [3] shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. For the Court to exercise its discretion in permitting the Plaintiff to reargue, the Plaintiff must meet all three conditions of CPLR § 2221[d].

“A motion for leave to reargue ‘shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion’ ” (see Ahmed v. Pannone, 116 AD3d 802 [2d Dept 2014] quoting Grimm v Bailey, 105 AD3d 703 [2d Dept 2013] quoting CPLR 2221 [d] [2]; citing Matter of American Alternative Ins. Corp. v. Pelszynski, 85 AD3d 1157 [2d Dept 2011]).

“While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented” (see id. quoting Matter of Carter v Carter, 81 AD3d 819 [2d Dept 2011]).

“A pendente lite award should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse, determined with due regard for the preseparation standard of living” (see Jin C. v Juliana L., 137 AD3d 1063 [2d Dept 2016] citing Fieland v. Fieland, 229 AD2d 465 [2d Dept 1996]). “[A]ny perceived inequities in pendente lite support and maintenance can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored” (see id. quoting Swickle v. Swickle, 47 AD3d 704 [2d Dept 2008]).

Plaintiff has not provided any matters of fact or law that the Court was previously unaware of in determining the prior motion. Accordingly, the Plaintiff's motion is DENIED with prejudice.

III. Hearing for Custody, Pendente Lite

Custody orders are required to be entered “as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child.” (Domestic Relations Law § 240 [1] [a]).

“In making a determination as to what custody arrangement is in the children's best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent[.]” (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], citing Matter of Hutchinson v Johnson, 134 AD3d 1115 [2d Dept 2015]).

“There is ‘no prima facie right to the custody of the child in either parent[.]’ ” (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], quoting Domestic Relations Law § 70 [a]). “In adjudicating custody and visitation rights, the best interests of the child is the paramount factor to be considered[.]” (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Eschbach v Eschbach, 56 NY2d 167 [1982]).

Plaintiff cites Matter of Dysko v. Dysko, 213 AD3d 847 [2d Dept 2023], which found, “Custody determinations ․ require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child[.]” In this matter the Court has made a careful and comprehensive evaluation of the material facts and factored into its deliberations not only the positions of the parties, but also the impartial evaluations of the Attorney for the Child and the Court Ordered Investigation conducted by the Administration for Children's Services.

The facts in Dysko are also clearly distinct from the present matter. In Dysko, without a hearing, the Court made a final custody determination granted the mother's petition for sole legal and physical custody of the parties’ children, and suspended the father's parental access with the children until he enrolled in therapy. (see id.). In the present matter at bar, the Court, after considering all the factors presented by the parties, the Attorney for the Child, and the Administration for Children's Services issued a pendente lite decision that granted the Plaintiff's request for joint legal custody, granted Defendant's request for residential custody, and granted the Plaintiff a very generous and liberal parenting time schedule, which included alternating weekends with overnights, a weekly mid-week dinner visit, alternating holidays and daily telephonic/virtual communication with the child on days where Plaintiff has no in-person parenting-time.

The contention, that the court erred in determining the pendente lite custody and visitation arrangements without conducting a hearing, has been found to be lacking in merit. (see Krantz v. Krantz, 175 AD2d 863 [2d Dept 1991] citing Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]; Meirowitz v. Meirowitz, 96 AD2d 1030 [2d Dept 1983]; Girardi v. Girardi, 140 AD2d 486 [2d Dept 1988]; Askinas v. Askinas, 155 AD2d 498 [2d Dept 1989]).

Contrary to the Plaintiff's contention, after considering all the factors presented by the parties, the Attorney for the Child, and the Administration for Children's Services the Court possessed adequate relevant information to enable it to make an informed and provident determination, without a hearing, as to whether it was in the children's best interests to grant the Defendant residential custody and the Plaintiff generous and liberal visitation, pendente lite. (see Matter of Lazo v. Cherrez, 121 AD3d 1002 [2d Dept 2014] citing Matter of Katz v. Shomron, 116 AD3d 777 [2d Dept 2014]; Matter of Law v. Gray, 116 AD3d 699 [2d Dept 2014]; Matter of Zaratzian v Abadir, 105 AD3d 1054 [2d Dept 2013]; Matter of Stefas v. Sierra, 104 AD3d 952 [2d Dept 2013]).

The Court had sufficient information provided by the parties, the Attorney for the Child, and the Administration for Children's Services to make its decision regarding custody, pendente lite. Accordingly, Plaintiff's request for a hearing to determine the residential custody of the subject child, JC, is DENIED.

Decretal Paragraphs

It is hereby ORDERED, Plaintiff's Motion, to Reargue, having been heard by this Court, is DENIED with prejudice for the reasons set forth above, and it is further;

ORDERED, that the Plaintiff's request for a hearing to determine the residential custody of the subject child, JC, is DENIED, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.

Ronald Castorina, Jr., J.