Opinion
I2017003349
09-02-2020
Robert LANCIA, Jr., Plaintiff, v. Lisa M. LANCIA, Defendant.
Legal Aid Society of Rochester, Heather Neu, Esq., Rochester, New York, Attorney for Defendant Inclima Law Firm, PLLC, Charles Inclima, Esq., Rochester, New York, Attorney for Plaintiff
Legal Aid Society of Rochester, Heather Neu, Esq., Rochester, New York, Attorney for Defendant
Inclima Law Firm, PLLC, Charles Inclima, Esq., Rochester, New York, Attorney for Plaintiff
Richard A. Dollinger, J.
The French journalist Jean-Baptiste Alphonse Karr once famously quipped "plus ça change, plus c'est la même chose," which is generally translated in English as "the more things change, the more they stay the same." When marital discord, which destroyed a marriage, persists after the divorce, its continuing presence cannot be characterized as a change of circumstances and, when viewed in its best light, is actually "plus de la même chose."
Karr, Les Guepes , 1849; see also Council of the City of NY v. Department of City Planning of the City of NY , 2019 NY Misc. LEXIS 4308 (Sup. Ct. New York Cty 2019). The phrase has been described as an example of French cynicism. McCarty v. Baltimore , 265 Md. 423 (1972).
More of the same thing.
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In this post-judgment proceeding, the mother moves to modify the parties' custody arrangement established in the parties' Separation and Property Settlement Agreement and Judgment of Divorce that was entered less than two years ago, on the ground that the relationship between her and her ex-husband has substantially deteriorated, to the point that they can no longer co-parent. The application sought a virtual total rewriting of the agreement, seeking a change from joint to sole custody, limiting the content and timing of email communications between the parents, restricting holiday visitation, allowing the children to call the other parent and have them picked up from their visitation, inserting a right of first refusal to a parent if the children are overseen by grandparents or other family members, amending the provisions involving the children's activities, changing the provisions regarding the children's expenses on school trips or other school-related activities and changing the method of calculating the couple's individual income tax returns based on the benefits of using the child's status in filing their returns. The father opposes the motion, and asks that it be dismissed without a hearing, arguing that there has been no showing of a substantial change in circumstances that would warrant modification. It appears to the Court that, while the particulars may have changed somewhat, in the end, all has, indeed, remained the same between these parties.
The mother points to a number of instances of conflict between her and the father over the last several months, dating back to last fall. She highlights upwards of a dozen instances, ranging from disagreements over COVID protocols, extracurriculars and medical care to general allegations of lack of communication by the father. While some of these allegations are more serious than others, at face value they appear to make out a prima facie case that, due to difficulty communicating and an apparent general dislike of one another, the two have difficulty co-parenting. The problem, however, as pointed out by the father in response, is that, while the particulars may have changed, these are not new issues, and so, really, all has remained the same — "the meme chose." Nothing in the mother's papers indicates that the parties' lack of ability to communicate and general dislike for each other has changed markedly from the situation as it was when the Judgment of Divorce, establishing the co-parenting regime, was entered in November 2018. The parties were not communicating well at that time either, and there was, as there apparently continues to be, general ill-will toward each other. The sheer volume of emails and texts on myriad subjects written after this divorce confirms that the parents do, in fact, communicate with each other. In one instance, cited by the husband, the couple exchanged 45 text messages over a two-day period. They usually disagree — vehemently — about the subjects contained in the communications but this chain of combative messages is stark evidence that the discord, which caused the divorce, remains in full flower in its aftermath.
In addition, there is no direct allegation that the parental conflict, in evidence for years both before and after this divorce, has impacted the two sons. The children have been shielded from any serious illnesses, engaged in extracurriculars, visited with parents and other family members, received necessary treatments from healthcare professionals, and there is no allegation that they are not maturing and adjusting to the new life of having divorced parents. The mother does allege that one child is estranged from his father but the father's responding affidavit, while acknowledging changes in his relationship with his son, further claims his wife has sought to alienate the son from him. He describes, at length, his efforts to "walk the delicate path of building connections [to the son] without becoming overbearing." He alleges that his efforts have been met with some success but there is no allegation that the parent's failure to agree is the cause any estrangement.
"It is well settled that, in seeking to modify an existing order of custody, ‘[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody order should be modified’ " ( Hughes v. Davis , 68 AD3d 1674, 1675 [4th Dept 2009], quoting Matter of Di Fiore v. Scott , 2 AD3d 1417, 1417—1418 [internal quotation marks omitted] ). Where a petitioner "fails to allege any substantial change in circumstances in her papers," such an application is properly denied without a hearing ( Zindulka v. Zindulka , 284 AD2d 631, 632 [3d Dept 2001] ; see also Whitehead v. Whitehead , 122 AD3d 921, 921 [2d Dept 2014] ["A party seeking such a modification is not automatically entitled to a hearing on the application, but first must make an evidentiary showing sufficient to warrant a hearing"] ). Moreoever, " ‘a voluntary agreement of joint custody ... will not be set aside unless there has been a sufficient change in circumstances showing that a modification will be in the best interests of the children’ " (Matter of Lowe v. Bonelli , 129 AD3d 1135, 1136-37 [3d Dept 2015] ). A petition containing merely "broad, unsubstantiated allegations" of a change in circumstances is properly denied without a hearing ( id. at 1137 ).
As set forth above, the mother alleges essentially that the parties do not communicate, and generally do not get along — at all. However, that was the case even prior to the parents' signatures on a settlement agreement that defined their relationship to their children and other aspects of their post-divorce obligations and rights. Here, the mother has "failed to demonstrate that those communication problems have changed since the prior custody order was entered," and the application must therefore be denied ( McCarthy v. Kriegar , 162 AD3d 1563, 1564 [4th Dept 2018] ).