BENEDICT v. BENEDICT

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Supreme Court, Appellate Division, Fourth Department, New York.

Jacquelyn BENEDICT, Plaintiff–Respondent, v. Timothy BENEDICT, Defendant–Appellant.

1417

Decided: February 08, 2019

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ. TIMOTHY A. BENEDICT, ROME, DEFENDANT–APPELLANT PRO SE. EISENHUT & EISENHUT, UTICA (CLIFFORD C. EISENHUT OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and in the exercise of discretion by vacating the eighth, tenth and eleventh decretal paragraphs and substituting therefor the respective provisions directing that, for the period from May 2, 2013 to May 2, 2014, defendant's child support obligation is $ 15,490.40 per year or $ 1,290.87 per month;  for the period from May 2, 2014 to April 1, 2016, defendant's child support obligation is $ 15,101.10 per year or $ 1,258.43 per month;  and for the period from April 1, 2016 forward, defendant's child support obligation is $ 15,315.30 per year or $ 1,276.28 per month, and striking from the fifteenth decretal paragraph the child support sum of $ 1,455.47 and substituting therefor the sum of $ 1,276.28, and as modified the judgment is affirmed without costs.

Memorandum:  Defendant father appeals from a judgment of divorce entered following a trial that, among other things, awarded plaintiff mother sole legal and physical custody of the parties' child and directed the father to pay child support, maintenance and attorney's fees to the mother.

We reject the father's contention that Supreme Court erred in failing to award joint legal custody of the child.  Joint custody is inappropriate where, as here, “ ‘the parties have an acrimonious relationship and are unable to communicate with each other in a civil manner’ ” (Matter of Kleinbach v. Cullerton, 151 A.D.3d 1686, 1687, 56 N.Y.S.3d 733 [4th Dept. 2017];  see Leonard v. Leonard, 109 A.D.3d 126, 128, 968 N.Y.S.2d 762 [4th Dept. 2013] ).  The record establishes that, although the parties could sometimes effectively communicate with each other, most of their interactions were acrimonious, and that the father physically and emotionally abused the mother.  Thus, the court's determination that joint legal custody is inappropriate has a sound and substantial basis in the record (see Kleinbach, 151 A.D.3d at 1687, 56 N.Y.S.3d 733;  see also Matter of Christopher J.S. v. Colleen A.B., 43 A.D.3d 1350, 1350–1351, 842 N.Y.S.2d 627 [4th Dept. 2007];  see generally Forrestel v. Forrestel, 125 A.D.3d 1299, 1299, 3 N.Y.S.3d 483 [4th Dept. 2015], lv denied 25 N.Y.3d 904, 2015 WL 2026161 [2015] )

Contrary to the father's contention, the record also supports the court's determination that it was in the child's best interests to award sole legal and physical custody to the mother and to deny him any extended weekend and holiday visitation (see generally Matter of Abdo v. Ahmed, 162 A.D.3d 1742, 1743, 76 N.Y.S.3d 436 [4th Dept. 2018]; Matter of Terramiggi v. Tarolli, 151 A.D.3d 1670, 1672, 56 N.Y.S.3d 721 [4th Dept. 2017] ).  Evidence of the father's temper and acts of domestic violence against the mother and his other children demonstrates that he possesses “ ‘a character [that] is ill-suited to the difficult task of providing [his] young child[ ] with moral and intellectual guidance’ ” (Matter of Tin Tin v. Thar Kyi, 92 A.D.3d 1293, 1293, 938 N.Y.S.2d 407 [4th Dept. 2012], lv denied 19 N.Y.3d 802, 2012 WL 1538438 [2012] ).

The father further contends that the court erred in imposing a sanction pursuant to CPLR 3126 precluding him from introducing evidence at trial of the income he generated from his law firm.  The court imposed that sanction only after the father violated a discovery order compelling production of his law firm's business ledgers, he was held in criminal contempt as a result of that violation, and he failed to produce those documents after being afforded an opportunity to purge himself of contempt.  Based on the father's willful failure to disclose the business ledgers, we conclude that the court did not abuse its discretion in imposing a preclusion sanction (see CPLR 3126[2]; Matter of Duma v. Edgar, 58 A.D.3d 1085, 1086, 873 N.Y.S.2d 747 [3d Dept. 2009]; see generally Perry v. Town of Geneva, 64 A.D.3d 1225, 1226, 882 N.Y.S.2d 626 [4th Dept. 2009] ).  We also reject the father's contention that the mother was not entitled to disclosure of the business ledgers because he produced over 1,800 pages of financial documents.  The mother was entitled to disclosure of the business ledgers because the court ordered that disclosure following its proper determination that those ledgers were relevant to her claims for maintenance, child support, and attorney's fees (see generally CPLR 3101[a];  Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968];  Gromoll v. Bertolino, 4 A.D.3d 759, 759, 772 N.Y.S.2d 154 [4th Dept. 2004] ).

We agree with the father however that, in determining his child support obligation, the court erred in applying the Child Support Standards Act (CSSA) to the combined parental income in excess of the statutory cap (see Domestic Relations Law § 240[1–b][c][2], [3] ).  It is well settled that “blind application of the statutory formula to [combined parental income] over [the statutory cap], without any express findings or record evidence of the [child's] actual needs, constitutes an abdication of judicial responsibility and renders meaningless the statutory provision setting a cap on strict application of the formula” (Antinora v. Antinora, 125 A.D.3d 1336, 1338, 3 N.Y.S.3d 500 [4th Dept. 2015] [internal quotation marks omitted];  see Bandyopadhyay v. Bandyopadhyay, 141 A.D.3d 1099, 1100, 34 N.Y.S.3d 845 [4th Dept. 2016];  Matter of Malecki v. Fernandez, 24 A.D.3d 1214, 1215, 809 N.Y.S.2d 316 [4th Dept. 2005] ).  Here, in awarding child support on income above the statutory cap, the court considered only the father's financial situation.  “[T]he court made no factual findings that the child[ ][had] financial needs that would not be met unless child support were ordered to be paid out of parental income in excess of [the statutory cap],” and we conclude that, “even if the court had made such a finding, there is no evidence in the record to support it” (Bandyopadhyay, 141 A.D.3d at 1100, 34 N.Y.S.3d 845).  Therefore, in the exercise of our discretion, we fix the father's basic child support obligation on the basis of the combined parental CSSA income up to the cap amount, and we modify the judgment by vacating the eighth, tenth and eleventh decretal paragraphs and substituting therefor the respective provisions directing that, for the period from May 2, 2013 to May 2, 2014, the father's child support obligation is $ 15,490.40 per year or $ 1,290.87 per month;  for the period from May 2, 2014 to April 1, 2016, the father's child support obligation is $ 15,101.10 per year or $ 1,258.43 per month;  and for the period from April 1, 2016 forward, the father's child support obligation is $ 15,315.30 per year or $ 1,276.28 per month (see Bandyopadhyay, 141 A.D.3d at 1100–1101, 34 N.Y.S.3d 845).  Thus, we further modify the judgment by striking from the fifteenth decretal paragraph the child support sum of $ 1,455.47 and substituting therefor the sum of $ 1,276.28.

Contrary to the father's contention, we conclude that the court did not abuse its discretion in awarding attorney's fees to the mother inasmuch as the father was the monied spouse and he engaged in dilatory conduct (see Blake v. Blake, 83 A.D.3d 1509, 1509, 921 N.Y.S.2d 614 [4th Dept. 2011];  cf. D'Amato v. D'Amato, 132 A.D.3d 1424, 1425, 18 N.Y.S.3d 801 [4th Dept. 2015] ).  Finally, we have reviewed the father's remaining contentions and conclude that they lack merit.