1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. The following papers numbered 1 to 60 were read on this motion: Papers: No(s). Exhibits Notice of Motion for Stay 1 Notice of Motion to Vacate 2 Motion for Stay 3 Affidavit in Support and Memorandum of Law 4 35 1-30 Affidavit Regarding Ex Parte Communication 36-41 31-35 Memorandum of Law (Parts 1-3) 42-44 Affirmation of Herbert Rodriguez, Jr., Esq. in Opposition 45 1-2 Affirmation of Elliot Podhorzer, Esq. (AFC) in Opposition 48 Affidavit of Sune Gaulsh in Reply 49-59 36-46 Combined Reply to Unopposed Motions 60 ORDER AND DECISION ON MOTION In this custody and visitation proceeding brought under Article 6 of the Family Court Act, petitioner Sune Gaulsh (“Petitioner”) moves (1) to vacate several prior orders of this court issued between November 16, 2020 and December 4, 2020, and (2) to stay prior orders dated December 4, 2020, and November 17, 2020 (Mot seq. 18). Following review of the motion papers and exhibits cited above, procedural history, court file, and transcripts, the motion is denied in its entirety. Background Petitioner and respondent Michelle Mascioli (“Respondent”) are the parents of one child, born August 24, 2011 (the “child”). Beginning in April 2013, the parties have engaged in extensive litigation in this court. In relevant part, the Petitioner and Respondent filed cross-custody petitions in April and June of 2013, respectively (Docket nos. V-10482-13, V-19822-13).1 These petitions were resolved by a Final Order for Custody and Visitation and Parenting Plan, both dated December 17, 2014, which provided for joint custody and set forth a parenting time schedule. On December 18, 2015, Respondent filed a petition to modify the existing order of custody (Docket nos. V-10482-13/15B, V-19822-13/22B). On March 16, 2016, Petitioner filed a petition to modify the order of custody to give “sole custody to Petitioner and parenting time to Respondent” (Docket no. V-10482-13/16C). Following a hearing, the court issued an order dated July 9, 2018 that granted sole legal, physical, and residential custody to Petitioner, with supervised parenting time to Respondent. The order also directed that “no new petitions for custody may be filed (for at least one year) unless there is a change in circumstances,” and “such new filings require leave of Court.” On April 1, 2019, Petitioner filed a motion by order to show cause for leave to relocate with the child “within a 130 radial miles radius of New York County, including any State or Commonwealth therein,” due to Petitioner having lost his employment in New York City. Respondent opposed the application and cross-moved for leave to file a cross-petition for custody based on a change in circumstances, and requested, in the alternative, that her affidavit in opposition serve as a cross-petition for custody. Respondent also sought leave to relocate the child to Garden City, New York. On July 19, 2019, Petitioner filed a motion to dismiss Respondent’s affidavit as “Respondent’s Petition for Custody and Relocation” (Gaulsh affidavit dated June 18, 2019, 10). Thereafter, Respondent filed a motion seeking to enforce the parenting schedule set forth in the July 9, 2018 custody order. A hearing on all of these applications commenced on August 8, 2019. The hearing was continued to September 20, 2019. On or about September 4, 2019, Respondent filed an order to show cause and a petition to modify the July 9, 2018 custody order, on the grounds that Petitioner had, without leave of court and during the pendency of the relocation hearing, relocated to Pennsylvania with the child. By a written letter to the court dated August 30, 2019, annexed as an exhibit to the order to show cause, Petitioner advised the court that he had relocated, stating, inter alia, “Based on this I determined that our best option, in respect of the child’s best interest, was to relocate, before the conclusion of the hearing(s), even with the risk that the Court might deny the relocation and order the child back to New York County, in which case we would have to move back to New York City…. The child and I have therefore relocated to Delaware County, PA[.]“ The relocation hearing, which now encompassed several additional applications for relief filed by the parties during the pendency of the hearing, continued on September 20, 2019 and for several dates thereafter, including a delay of several months due to the onset of the COVID-19 pandemic. In the year that followed, the parties engaged in extensive litigation that included several applications to modify the terms of custody and visitation, motions for contempt and sanctions, and for other reliefs. Among these, Respondent filed several motions for violations of the parenting time schedule. On October 29, 2020, the court issued a temporary order of visitation and a general order which ordered that Respondent “shall have overnight access with the child on November 7, 2020 to November 8, 2020; AND on November 21, 2020 to November 22, 2020″ (Gaulsh affidavit, exhibit 2-3). When Petitioner failed to produce the child for the first two nights of overnight parenting time, on November 9, 2020, Respondent filed a motion by order to show cause, seeking an order of contempt against Petitioner, an interim order awarding legal and physical custody to Respondent, and an order directing Petitioner to transfer the child to Respondent’s physical custody (Mot seq. 16). A hearing was held on the order to show cause on November 10, 2020, which was attended by both parties. At the conclusion of the hearing, Petitioner was found to be in contempt of the October 29, 2020, his testimony was found to be not credible, and Petitioner was ordered to produce the child for extended parenting time with Respondent from November 14, 2020 through December 4, 2020 (Gaulsh affidavit, exhibit 4-5). After the child was not produced on November 14, 2020, the court issued several orders dated November 16, 2020, including an order directing petitioner to provide an updated email address, an order suspending the July 9, 2018 custody order and immediately awarding temporary custody to Respondent, and a writ of habeas corpus that directed the transfer of custody from Petitioner to Respondent. A warrant for the immediate arrest of Petitioner was issued on November 17, 2020. Contemporaneous with these events, it was discovered that Petitioner had, without notice or leave of court, relocated with the child to Denmark on or about November 13, 2020 (Gaulsh affidavit, exhibit 10). Accordingly, upon letter application of Respondent, on November 23, 2020, the court issued a “Declaration of Custodial Rights & Jurisdiction Hague Convention & UCCJEANY Home State” (id.). The declaration contains orders and judgements which, inter alia, declare that New York is the “home state” of the child pursuant to the UCCJEA, clarifies and reiterates that Petitioner wrongfully abducted and removed the child from the United States in violation of New York law and various court orders, the writ of habeas corpus and warrant issued, the order of custody to Petitioner suspended and custody transferred to Respondent, and orders that “authorities, locally, nationally and internationally, enforce the Orders of NY FAMILY COURT and that [the child] be returned to the UNITED STATES, his “habitual residence,” to the custody of his biological mother Petitioner[.]” (id.). A custody trial was held on December 4, 2020 and a final order and decision after trial issued on the same date (Gaulsh affidavit, exhibit 11). The December 4, 2020 order notes that Respondent did not appear for the trial, despite having been notified of same. In the December 4, 2020 order, the court (1) found Petitioner in contempt pursuant to Judiciary Law 753(A) and sentenced him to a 6-month period of incarceration and ordered to pay Respondent’s litigation expenses, (2) found Petitioner in contempt pursuant to Judiciary Law 750(A)(3) and guilty of offering a false statement for filing in the Second Degree, Perjury in the First Degree, Child Abduction, and Criminal Contempt in the Second Degree, (3) awarded sole custody to Respondent, (4) denied and dismissed the father’s relocation petition with prejudice, and (5) reiterated the court’s prior orders, including the writ and warrant for Petitioner’s arrest (id.). Finally, the order addresses the issue of notice to Petitioner, noting that “the record is replete with undisputed evidence to support the finding that the father had notice of the above-mentioned orders and today’s hearing” (id.). On December 15, 2020, the court issued a “Clarification Order” that clarifies which filings and proceedings the court relied upon in making the final determinations set forth in the December 4, 2020 order. Respondent then pursued a Hague Convention proceeding and proceedings in the Danish court, which ultimately resulted in the arrest of Petitioner while crossing the Serbian border with the child (Gaulsh affidavit in support at 96-98). Respondent thereafter retrieved the child from an orphanage in Bulgaria, where he was being cared for following Petitioner’s arrest in October 2021 (id. at 99). The child continues to reside with Respondent. Respondent also filed a complaint with the Federal Bureau of Investigation, which thereafter filed a criminal complaint in the Southern District of New York against Petitioner with charges of International Parental Kidnapping (Rodriguez affirmation in opposition, exhibit 2). Petitioner thereafter filed appeals of the Family Court orders dated November 16, 2020 (First Dept Case No. 2021-00235), November 17, 2020 (First Dept Case No. 2021-00399), November 23, 2020 (First Dept Case No. 2021-00401), December 4, 2020 (First Dept Case No. 2021-0403) December 15, 2020 (First Dept Case No. 2021-00450). The appeals were consolidated and perfected (First Dept Case nos. 2021-235/399/401/403/450, order dated May, 31, 2021). Petitioner then moved the Appellate Division, First Department, for an order directing that Respondent file proof of commencement of a proceeding to modify visitation and to stay enforcement of the Family Court’s orders of commitment pending hearing and determination of the appeals (id.). The attorney for the child then moved to dismiss the consolidated appeals and Petitioner cross-moved for a calendar preference for the consolidated appeals (id.). By order dated May 31, 2022, the motion to dismiss the consolidated appeals was granted, the consolidated appeals were dismissed, and the motions were denied as moot (id.). Petitioner also moved the Appellate Division, First Department, pursuant to CPLR 5704, 5701(c) and 5501 for an order vacating the Family Court orders dated October 29, 2020 (the temporary order and amended order), November 10, 2020, November 16, 2020 Writ of Habeas Corpus, November 16, 2020 temporary custody order, November 16, 2020 Warrant of Arrest, November 17, 2020 declaration of custodial rights and jurisdiction, November 23, 2020 final order after trial, December 4, 2020 order of custody, and December 15, 2020 clarification order (First Dept Case No. 2021-00401, order dated August 12, 2021). Petitioner also moved, in the alternative, to stay any order not vacated, pending the hearing and determination of the appeal (id.). Finally, Petitioner moved to enjoin, vacate or stay the November 23, 2020 declaration of rights and jurisdiction, November 16, 2020 writ of habeas corpus and custody orders, and the December 4, 2020 order after trial (id.). All of these motions were denied by an Appellate Division, First Department, order dated August 12, 2021. By the motion to vacate (Mot seq. 17), Petitioner now moves this court to vacate several orders, or portions of orders, of this court including (1) the visitation and access provisions of the October 29, 2022 order, (2) the November 10, 2020 order, (3) the November 16, 2020 orders and writ of habeas corpus, (4) the November 17, 2020 warrant of arrest, (5) the November 23, 2020 Declaration of Custodial Rights & Jurisdiction Hague Convention & UCCJEA-NY Home State, (6) portions of the December 4, 2020 custody order, (7) the December 15, 2020 clarification order (Notice of Motion to Vacate at 3-7). Petitioner also moves to dismiss Respondent’s prior custody petition, “that the court restitute movant’s rights,” restore the July 8, 2018 custody order nunc pro tunc, direct Respondent to immediately return the child to Petitioner’s care, refer Respondent’s counsel to the Departmental Disciplinary Committee for the First Department, and for such other relief and sanctions as the court may deem just and proper (id.). By the second motion, Petitioner moves to stay the criminal and civil contempt portions of the December 4, 2020 custody order and the November 17, 2020 warrant during the pendency of these motions (Mot seq. 18). Respondent opposes the motion and argues that the motions are barred by the doctrines of res judicata and collateral estoppel, that Respondent has not established grounds to vacate his 2020 default at trial, and that the motions are barred by the Fugitive Disentitlement Doctrine (Rodriguez affirmation in opposition). The attorney for the child also opposes the motion and argues, inter alia, that Petitioner has failed to satisfy the requirements to vacate his default, that Petitioner has unclean hands, that Petitioner submitted to the jurisdiction of this court by participating fully in the prior proceedings, and that Petitioner fails to state sufficient grounds for a stay of the prior orders. Discussion First, the court must consider the question of res judicata and collateral estoppel. The First Department has described these doctrines as follows: Conceptually, “res judicata” is an umbrella term encompassing both claim preclusion and issue preclusion, which are described as two separate aspects of an overarching doctrine. Claim preclusion, the primary aspect of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties; issue preclusion, the secondary aspect, historically called collateral estoppel, pertains to the bar on relitigating issues that were argued and decided in the first suit. […] Claim preclusion prevents relitigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions that either were raised or could have been raised in the prior proceeding…. Stated differently, the “doctrine of res judicata only bars additional actions between the same parties on the same claims based upon the same harm.” Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action …[however], it can be asserted only against a party to the first lawsuit, or one in privity with a party…. [I]ssue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) the issue was necessary to support a valid and final judgment on the merits. (Rojas v Romanoff, 186 AD3d 103, 107-108 [1st Dept 2020][internal cites and quotations omitted]). Petitioner’s motion to vacate is barred by both doctrines. The orders in question were litigated in this court and appealed to the Appellate Division, First Department. Respondent participated fully in the proceedings before this court beginning in 2013 and continuing through the appearance on November 10, 2020, and filed numerous applications for relief between the time he moved the court for leave to relocate on April 1, 2019, and his last appearance before the court on November 10, 2020. It was only after he failed to comply with the October 29, 2020 and November 10, 2020 orders, and thereafter removed the child to Denmark, that he defaulted by failing to participate in the proceedings before this court. Moreover, he appealed all of the Family Court orders at issue to the Appellate Division, First Department, and participated fully in those proceedings. Therefore, the motions are barred by the doctrine of res judicata. “The primary purposes of res judicata are grounded in public policy and are to ensure finality, prevent vexatious litigation and promote judicial economy” (Rojas v Romanoff, 186 AD3d at 114). Petitioner’s motions consist of several voluminous submissions, including two affidavits that contain 321 and 17 paragraphs, a memorandum of law spanning fifty-one (51) pages in length, the “motion to stay” consisting of 18 pages, and thirty-five (35) exhibits. Petitioner’s reply is similarly voluminous. By these submissions, Petitioner seeks, effectively to appeal Family Court orders that were previously appealed to the Appellate Division, First Department. This court has no authority to hear such an appeal and further consideration of the motions would fly in the face of the notions of finality and judicial economy. This court, therefore, declines to address the merits of the arguments set forth in Petitioner’s motion. Petitioner cannot be permitted to pursue this vexatious litigation any further. For this reason, the motion to vacate is denied in its entirety and the motion for a stay is denied as moot. Furthermore, in similar circumstances, courts have found it necessary to enjoin pro se litigants from commencing or continuing any further actions when it was found those litigants were abusing the judicial process (see Capogrosso v Kansas, 60 AD3d 522, 522 [1st Dept 2009]). The court finds such action appropriate here. Therefore, Petitioner shall be barred from filing any further motion, petition, or other application to modify, vacate, reargue or otherwise relitigate any of this court’s prior orders without leave of the court. Accordingly, it is ORDERED that Petitioner’s motion to vacate (Mot seq. 17) is denied in its entirety and Petitioner’s motion for a stay (Mot seq. 18) is denied as moot; and it is further ORDERED that Petitioner shall not file any further motion, petition, or other application to modify, vacate, reargue or otherwise relitigate any of this court’s prior orders without leave of the court. This constitutes the order and decision of the court. Dated: November 9, 2022
