C.B., Plaintiff, v. R.B., Defendant. (2022)

The parties married in 2012 and this divorce action commenced in 2019. There are two children of the marriage and, currently, a Parenting Agreement “the Agreement”, dated March 8, 2021, governs the access and decision-making protocols, including the use of a Parenting Coordinator (“PC”) to facilitate in the resolution of disputes. Neither the parties nor the PC have decision-making authority. Here, both parties have filed competing motions regarding the use of the PC.

Plaintiff mother is seeking, inter alia, to enforce compliance with the Agreement regarding “the retention, implementation and use of a Parenting Coordinator” or in the alternative, ordering that the Agreement be modified so as to eliminate the use of a PC and instead to give plaintiff mother the final decision making on all major decisions concerning the parties two minor children after following the consultation procedures with defendant as set forth in the Agreement; and C) for a counsel fee award of $20,297, pursuant to paragraph 37 of the Agreement.

Defendant father cross-moves seeking, inter alia, to disqualify the PC, alleging bias and impropriety; or in the alternative to appoint a new PC; or to reappoint of the prior Attorney for the Children (AFC); to dismiss the plaintiff's motion for failure to state a cause of action; and directing Plaintiff to follow the terms of the Agreement specifically the conditions precedent or consulting protocol prior to the use of any PC upon any impasse. He also seeks to direct that plaintiff wife provide him with his personal belongings stored at her mother's residence; sanctions; and attorney's fees in the amount of $15,000 associated with these herein motions plus an interim attorney counsel fee award of $25,000.

Both parties attach a number of exhibits which include email correspondences between both parents and the PC on various issues regarding homework, delays for the pickup and drop-off, missed telephone calls, summer school, afterschool activities, vacation details, passport renewal for the children, among a variety of other co-parenting challenges.

CHANGE IN CIRCUMSTANCE SUFFICIENT TO MODIFY THE PARENTING AGREEMENT

Neither party has met their burden of proof to show a change in circumstance such that the underlying Agreement should be modified. Where a parent seeks to modify a full executed formal custody agreement, it must be shown that there has been sufficient change in circumstances since the execution of the agreement, and that modification is in the best interests of the child (Matter of Sergei P. v. Sofia M., 44 AD3d 490, 843 N.Y.S.2d 603 [1st Dept. 2007]). The court entertaining such a petition need not hold a hearing where petitioner has failed to make a showing of changed circumstances sufficient to warrant one (Matter of Ronald S. v. Deirdre R., 62 AD3d 593, 594, 880 N.Y.S.2d 255 [1st Dept. 2009]).

A court conference was held on August 2, 2022 with both parties, counsel and this Court's Law Clerk wherein the issues regarding the passports and the father's personal items were discussed and a plan was made for correction. As of this writing, those issues are likely moot. To the extent they are not, the parties and counsel shall rectify these issues within 20 days of this Court's order.

The PC, Dr. Kristine Danbeck, appears duly qualified to make the recommendations she has put forth in the emails provided by both parties as exhibits. In examination of these correspondences, she explains with genuine and fair detail her reasoning toward these recommendations. While her recommendations are more aligned with the plaintiff mother, it is neither unreasonable nor does it rise to the level of bias, impropriety or lack of impartiality against the defendant father.

Both parties are seeking to have the other comply with provisions of the Agreement. It does not appear that either party has substantially veered away from compliance as alleged by the other, but rather that, as mentioned above, the impasse is generated because Dr. Danbeck's professional recommendations are more aligned with the plaintiff mother rather than the defendant father. Nevertheless, it appears that on this general point, the court, counsel and parties all take the position that all provisions of the Agreement as it is currently written are to be adhered to. Accordingly, these branches of both motions are granted.

ATTORNEYS FEES

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law [“DRL”] § 237). DRL § 237 further creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of ensuring “that marital litigation is shaped not by the power of the bankroll but by the power of the evidence” (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]). It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, “in exercising its discretionary power to award counsel fees, a court should review ․ all the other circumstances of the case, which may include the relative merit of the parties’ positions” (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). The law, however, does not require the monied spouse to pay every dollar of the non-monied spouse's fee (See e.g., Sykes v. Sykes, 41 Misc 3d 1061 [Sup Ct, NY County 2013]).

In this case, the plaintiff wife is the monied spouse. One provision of the Agreement notes that:

“in the event a Party seeks judicial relief for any alleged breach of this Agreement, then the Party prevailing in such action or proceeding shall be entitled to receive from the losing Party his or her reasonable attorney's fees. and all costs and disbursements resulting from or made necessary by such request for judicial relief.” (See Paragraph 37 of the Agreement)”

While there is no indication that either motion is completely frivolous, it is clear that the discord necessitating the need of these motions is precipitated by the defendant's father reluctance to follow the recommendations of the PC. To this end, the court will not award attorney's fees on these motions. The parties have an Order of Reference dated December 9, 2021, and to the extent that attorney's fees are needed to fund that litigation, this court will grant the branch of defendant father's motion for interim attorney's fees in the amount of $10,000, subject to reallocation at trial.

Accordingly, it is

ORDERED that the branches of defendant father's motion seeking to disqualify the PC, Dr. Kristine Danbeck, and appoint either another qualified PC or to reappoint the prior AFC are denied; and it is further

ORDERED that to the extent the defendant father is still not in possession of his personal items, counsel and the parties shall work together to secure a transfer of that property within 20 days of this order; and it is further

ORDERED that to the extent the issue of the children's passport is not resolved, counsel and the parties shall work together to secure resolution and the signing of any outstanding paperwork within 20 days of this order; and it is further

ORDERED that the remaining branches of the defendant father's motion not granted are denied; and it is further

ORDERED that both parties are to continue to comply with all relevant provisions of the March 28, 2022 Agreement; and it is further

ORDERED that the plaintiff mother shall pay $10,000 in attorney's fees for continued litigation.

Ariel D. Chesler, J.