POST DIVORCE LITIGATION - A CHANGE IN CIRCUMSTANCES?

This court, in particular this Justice, writes the most interesting decisions and here describes the "change in circumstances" as being the "same old same old".

C.M.P. v M.D.P.,  2020 NY Slip Op 50560(U),  Decided on May 7, 2020,  Supreme Court, Monroe County,  Dollinger, J:

"In this matter, a mother seeks to change the terms of a separation agreement, inked less than a year ago and to do so, she needs to demonstrate a "change in circumstances." Schoenl v. Schoenl, 62 Misc 3d 567 (Sup.Ct. Monroe Cty. 2018)(Dollinger, J.). Despite the best efforts of the wife in this matter to allege a "change in circumstances" in 205 sworn paragraphs — her share of the affidavits before the Court — the alleged changes here do not implicate "the fitness of the custodial parent, nor affect 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).

When compared side-to-side, the allegations presented in the competing affidavits in this matter are evidence of differing perceptions of similar events:

(a) "ear aches/infections/boils" versus "sensitive skin/pimples;" (b) "too much outdoors without a coat" versus "a well-clad active toddler yearning for open air,"(c) "discourteous non-communicative grandparents" versus "conscientious grandparents pitching in to save childcare costs;"(d) "a father, stubbornly refusing to change a recently signed visitation [*2]agreement" versus "a father seeking to defend the time he has with the children because he works a mixed shift as part of law enforcement personnel;" or,(e) finally, "a mother who because of changes in her employment, simply wants more time with the children because she can do a better job" versus "a mother with buyer's remorse for signing an agreement that she now sees as preventing her from having more of her available time with her young children."

In short, that's the condensed sketch of the competing affidavits in this order to show cause. There are an abundance of other contested events and their impact on these two parents splattered across the competing affidavits. The mother, based on her 205 paragraphs of allegations, seeks to change the custody plan from joint to sole, designate herself as the primary residential parent and alter the visitation plan. The father asks this Court to deny the application, arguing that there has been no change of circumstances since the execution of the agreement less than a year ago.

Despite the invitation these lengthy and detailed affidavits and the numerous examples of conflict between the parents afford the Court, this Court declines to intervene at this stage. In this Court's view, there is no evidence of a change in circumstances that has impacted the children. There are allegations that the transitions between the two households have occasioned acrimony, mostly off-color verbal exchanges between the parents. There are allegations that the children have had difficulties in a host of areas: potty training, disengaging from the mother at times of transition and often, as only toddlers would, unknowingly parroting what their parents or other adults have said in their presence. There is undisputed evidence that the parents have occasionally exhibited loss of control, if not of their actions, then certainly of their tongues. There is an allegation that the father's parents, who provide childcare, have not communicated with their former daughter-in-law as she would desire but there is no undisputed evidence that the children have been adversely impacted as a result. There are arguments over attending appointments and sharp-exchanges at transfers galore.

But, there is no evidence suggesting any circumstances — present at the time of the execution of the agreement — have changed. Neither parent has changed jobs or work schedules. The parties have different living arrangements but, the divorce occasioned a separation and end to the shared marital residence. There is no evidence that any change in their income has altered their ability to beneficially use their parenting time. There is no change in their health or the health of their children. There is no onset of any debilitating physical ailments or mental health issues. The father's parents were intended, at the time of the agreement, to provide childcare for the children when the parents were working. The children are young but the parents knew the challenges of young children when they signed the agreement.

There is no evidence that the father is an unfit parent: the occasional incidents of disciplining the child, mistreating minor ailments or other minor matters do not transform him into an unfit parent. Whatever personalty traits drove the father's behaviors alleged by the mother in her current application, it is apparent that the father probably possessed — and exhibited — those personality traits during the marriage and at the time of the execution of the separation argument. The parents have hostility to each other, demonstrate occasional loss of control and bitterly resent the other's interference with [*3]their own understandings of what is right for their children or their different parenting approaches. Those circumstances — hostility and resentment — no doubt, were present at the time of the divorce and perhaps for a long time preceding it. The only new wrinkle — or "change in circumstances" — is that the mother asked for more time with the children. The father, relying on the agreement, declined that request and friction, somewhat present beforehand, accelerated, certainly for the mother and, most likely as a result, for the father.

There is ample evidence that these parents do not, at this time, get along: both could stand improvement in their interpersonal reactions to one another. Those reactions by both parents are amplified because of the young age of the two children, the complications of grandparent childcare, the displacement from the COVID virus, the father's structured work schedule as a result of his employment, the introduction of new "friends" into the father's personal life and allegations of circulated offending rumors about the mother among other factors diagnosed and debated in these lengthy affidavits. But, although extensively detailed, the facts which allege a change in circumstances, do not as a matter of law justify modifying the agreed visitation schedule, signed by the parties less than a year ago and do not justify a hearing.

What's also missing in this matter is evidence that either party has continuously or with malicious intent violated the visitation terms of their agreement or, for that matter, any other term. This couple have bickered, used foul language and perhaps failed to communicate as often and as directly as they might but, those factors do not compel the conclusion of a change in circumstances sufficient to change the custody, primary residency or visitation plans set forth in the recently-inked agreement.

The mother's order to show cause to change custody, alter the primary residence designation or modify the visitation plan in the agreement is denied, as is her request for attorneys' fees. The father's cross-motion to dismiss the wife's application is granted but the Court, in an exercise of discretion, declines to award him fees either."