Should Interference With Visitation Be Grounds to Eliminate Child Support and Maintenance by Elliot D. Samuelson

A mother who embarked upon a "crusade" to alienate her son from his father and poison the father-son relationship by false accusations of abuse, was severely punished by Justice Jacqueline Silbermann, the administrative Judge of the Matrimonial Courts, in a recent decision that underscores the danger in involving a child in the parent's matrimonial dispute.
The case R.B. v. S.B., which was published in the New York Law Journal on Wednesday, March 31, 1999 so moved the jurist that she was compelled to reflect that the case was "a primer in what parents should not do if their goal is to protect children from the trauma of divorce." Observing that the mother's hatred toward the father was caused by his abandoning the marriage, Justice Silbermann reduced the mother's maintenance substantially from her pendente lite award, and the amount she requested for permanent alimony upon the trial.

The facts of the case are quite interesting. The parties were married for over twenty-five years. The husband in the early years of the marriage was quite successful earning in excess of $500,000 a year. The parties enjoyed a lavish lifestyle, which included a Park Avenue cooperative apartment and several vacation homes. Unfortunately, all of the money that the husband made could not save their marriage. Shortly after filing a bankruptcy, which he claimed was caused by the wife's excessive spending, the husband left the marriage and sued for divorce based upon a cause of action for constructive abandonment. The wife obtained a pendente lite support order of $18,000 a year for child support and approximately $67,000 a year for maintenance (including the direction for payments to third party providers), making a total support award of about $85,000. The wife requested a jury trial to determine the husband's grounds for divorce. The jury returned a verdict in her favor, and the divorce cause of action was dismissed. The sole issues surviving for judge Silbermann to determine were maintenance and child support. Inasmuch as the jury failed to find for the husband on constructive abandonment and no divorce was granted, there was no predicate to distribute the parties' marital property. At the conclusion of the bench trial on the issue of support the court found that the wife so intentionally alienated the couple's son that she suspended all maintenance payments pending the submissions of briefs by counsel and the issuance of the court's decision.

During the trial, it was revealed that the husband had taped several telephone conversations he had with the mother, which substantiated his claims that his wife had gone to extremes to severe his relationship with his son, which he described as warm, loving and caring. There was testimony that the father and son were extremely close and shared many interests including skiing, tennis, chess and that the father participated in school activities and frequently helped his son with homework assignments. This contrasted with the father's total isolation from the son at trial, he being forced to communicate with his son by either e-mail or faxes. The mother periodically referred to the father in the presence of the son as a cheat, a thief and an embezzler. At one point, the mother threatened the father that unless he increased the amounts of cash he was supplying her she would see to it that he would not see the son again. Because of the mother's conduct, the son refused to see the father for a four year period preceding the trial, and would not even speak to him. Finally, the judge remarked that the wife's conduct was designed to fuel "...the acrimony between son and father, in order to further her own agenda." Still further in the decision the court reflected that the mother clearly manipulated the son to further damage his relationship with his father. Throughout this alienation the father attempted to repair the damage. He repeatedly communicated to the child despite his son's rancor and bitter e-mails. He also met with his son's therapist and sought the advice of a child psychologist...all to no avail. The court observed that at no time did the mother ever accept parental responsibility for the damage she had caused nor in any way accept responsibility for, and suggest ways, to address the alienation.

The court noted that the facts of the case justified a total elimination of maintenance to the wife because of her wrongful conduct in estranging their son from his father. However, observing that to do so would financially impact negatively upon the child, the court reduced support to $48,000 for the first year and thereafter a further reduction to $30,000, giving the wife a year to obtain employment and defray her living expenses. However, the husband's request that the court determine that his son, (who was now 17 years of age), was constructively emancipated, failed. The court reviewed case law on this subject and concluded that indeed where a child, without cause, withdraws from parental control and supervision, a court may conclude that they are emancipated and eliminate the obligation to pay child support. However, in rejecting such arguments the court held, "...here however it was not A.B.'s free choice to reject the love and guidance of his father. The evidence clearly established that A.B. was a hostage in S.B.'s war against A.B. Time and again he was fed inflammatory and hurtful information regarding adult issues in S.B.'s attempt to retaliate against A.B. for leaving the marriage. To punish A.B. for S.B.'s conduct by denying A.B. the right to child support payments, would be to cause this child further needless suffering."

Interestingly, the court made the payments of the reduced sums of maintenance and child support conditioned upon the son adhering to the visitation schedule established by the court and added that it would entertain a motion by the father to decrease or terminate child support upon proof that the son refused to see the father.

In reaching its conclusion the court utilized Section 241 of the Domestic Relations Law, which provides that maintenance (but not child support) can be reduced or eliminated in the event that there is a wrongful interference with the visitation rights of the non-custodial parent. Parenthetically we observe that although DRL§241 does not contain a provision that would permit the court to reduce or eliminate child support for the same reason, nevertheless there have been a number of appellate cases that have gone beyond the statute and have sanctioned such action based upon the court's inherent equitable powers to adjust the burden of child support between the parties.

Acknowledging that there was no court ordered visitation in this case, and that the statute might not specifically apply, the court referred to Domestic Relations Law §236(B)(6)(11), which permits the court in fashioning support awards to take into account any factors it finds to be just and proper. This case is especially noteworthy because it sends a message in clear and unequivocal language to parents embroiled in matrimonial litigation, that courts will not permit one parent to involve their children in the acrimony and bitterness existing between the litigants. What better way to do so, then to punish the errant parent in the pocketbook. It is hoped that the decision in R.B. v. S.B., will become a landmark in visitation disputes between vindictive parents. Certainly, if the custodian parent knows that the penalties for wilful interference with the visitation rights of a non-custodial parent could be the elimination of all support, both maintenance and child, the practice to do so may be substantially reduced and hopefully eliminated.

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