The custodial aspects of the motions are denied for the reasons stated on the record on 8/15/2023. Ultimately, the Court did not find a sufficient change of circumstances warranting further review or a hearing on modification of custsody or relocation in this matter.

The only remaining issue to address is a request for a counsel fee award by Defendant based on Plaintiff's alleged frivolous conduct in this action. Specifically, Defendant contends that Plaintiff has filed unnecessary motions in this Court causing her to incur substantial counsel [*2]fees. Indeed, Plaintiff filed two motions in this Court seeking to modify custody so as to grant him sole legal and physical custody and to relocate the children to Texas. The second motion is titled as an "emergency" and seeks to amend minor details regarding the exchange of the children.

The parties' 2019 Texas Divorce Decree specifically contemplates Defendant residing in New York with the children, and gives Defendant the authority to designate the children's primary residence in New York. It provides a comprehensive parental access schedule for regular time and holidays, as well as directives regarding the exchange of the children. The Decree also addresses decision making for the children.

It is undisputed that Defendant and the children relocated to New York in September 2019, approximately one month after the Divorce Decree was issued. New York has been the children's primary home since that time and their lives are based here. They attend school in New York, have their primary doctors here, and have friends here. Plaintiff has access with them on certain weekends, during holidays and school breaks.

Given this undisputed history, it is stunning and clearly frivolous for Plaintiff to argue that the children "lack ties" to New York. For the past four years, their lives have been in New York. The children's place of birth or ties to Texas do not negate this reality.

Similarly, while there have certainly been issues with communication, conflict at exchanges, and issues with access at times during the pandemic, Plaintiff generally sees his children in accordance with the schedule in the Decree. Notably, much of the conflict had to do with the necessity to suspend access during an unprecedented pandemic and also given Defendant's precarious state, i.e. her diagnosis with cancer and undergoing chemotherapy and surgery. In sum, missed parenting time due to those issues cannot be fairly utilized to demand a change in custody.

Many of the Plaintiff's arguments indicate his unhappiness with the agreement the parties struck in 2019 but that too is not a basis to engage in further litigation or to cause Defendant to incur significant counsel fees. This appears to be litigation for the purposes of harassment.

Plaintiff also spends a lot of time attempting to relitigate the family offense proceeding from Family Court in this Court, which is clearly inappropriate and frivolous. Plaintiff is certainly entitled to appeal a decision from Family Court with which he disagrees, but it is wasteful and frivolous to litigate those issues here. Critically, Family Court issued an order following a hearing, and found that Plaintiff committed the family offense of harassment in the second degree. Thus, it is baseless and frivolous to claim that Defendant made false allegations or was incredible in Family Court.

To the extent reasonable modifications to the Decree could be helpful for this family, these concerns could have been resolved without litigation. The parties are again encouraged to engage in discussion about such changes.

Defendant has supported her counsel fee request with an affirmation from counsel, invoices, including updated invoices which the Court permitted to be filed, and a retainer agreement. The submissions establish that Defendant has incurred a total of $33,996.35 in this matter and that Defendant has paid $20,000 to date, leaving a balance of $13,996.35.

A significant portion of the counsel fees incurred by Defendant is due to Plaintiff's decision to file multiple motions in this Court and to set forth frivolous grounds to modify custody and uproot the children from the home for the past four years and to undo the parties' agreement and Divorce Decree. However, some of the litigation and associated cost is [*3]attributable to Defendant. Indeed, she also filed motions with this Court to modify aspects of custody that could have been resolved via agreement of the parties.

Pursuant to 22 NYCRR 130-1.1, the Court may in its discretion award costs and counsel fees incurred due to frivolous conduct. Here, Plaintiff's motions were made to harass and prolong the litigation and to continue litigation with Defendant because he was unhappy with the result of the Family Court proceeding. Further, his applications had no merit and asserted false statements of fact, such as the preposterous claim that the children had no connection to New York. In sum, Plaintiff engaged in frivolous conduct.

In consideration of the foregoing, the Court is imposing sanctions on Plaintiff in the amount of $20,000, which are part, but not all of the counsel fees incurred by Defendant in litigating these motions. Accordingly, Plaintiff shall pay that sum directly to Defendant's counsel within 30 days of this order.

Accordingly, it is

ORDERED, that Plaintiff shall pay the sum of $20,000 directly to Defendant's counsel within 30 days of this order; and it is further

ORDERED, that the motions are otherwise denied, and all relief not granted herein is denied.

This constitutes the Decision and Order of the Court.