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`NYSCEF DOC. NO. 17
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`INDEX NO. 150857/2022
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`EZRA NAHUM,
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`Petitioner,
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X
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`- against -
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`HEATHER BERGSTEIN,
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`Respondent.
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`Index No. 150857/2022
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`Hon. Michael L. Katz
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`AFFIRMATION IN
`OPPOSITION AND IN
`SUPPORT OF CROSS-MOTION
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`JAD GREIFER, an attorney admitted to practice before the Courts of the State of New
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`York, affirms the following to be true under the penalties of perjury:
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`1.
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`I am a member of Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP,
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`attorneys for Respondent, Heather Bergstein, in this post-judgment child custody action, and
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`respectfully submit this affirmation in opposition to Petitioner’s order to show cause and in
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`support of Respondent’s cross-motion seeking an Order (i) enjoining Petitioner from speaking to
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`the parties’ son Micah about the instant litigation, including, but not limited to, discussions
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`concerning modifications to the parties’ Custody Agreement, the content of the motion papers
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`and/or discussions concerning the parenting access schedule, except to the extent specifically
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`authorized by Dr. Shainbart, (ii) awarding Respondent interim counsel fees of no less than
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`$100,000, without prejudice to future applications and (iii) directing Petitioner to pay one
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`hundred percent of the fees and costs associated with the attorney for Micah.
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`2.
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`Petitioner’s application should be denied as a matter of law. Petitioner has failed
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`to show (i) any sufficient change in circumstance that would merit judicial consideration of
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`changes to the parties’ carefully negotiated May 4, 2009 Stipulation resolving custody (the
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`“Custody Agreement”) that was incorporated but not merged into the parties’ February 23, 2010
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`Judgment of Divorce, or (ii) that such a change would be in Micah’s best interests.
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`PREMIMINARY STATEMENT
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`3.
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`Petitioner filed this application after Respondent did not agree to Petitioner’s
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`demand to increase his parenting time from fifty percent (as per the Custody Agreement) to
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`seventy percent. As detailed by Respondent in her affidavit, the instant attempt to bully and
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`intimidate his ex-wife is consistent with his approach to “co-parenting” over the last decade.
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`4.
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`As explained by Respondent in her affidavit, instead of allowing for discussion
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`with Micah’s treating therapist Dr. Shainbart (as Dr. Shainbart recommended to the parties),
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`Petitioner ran to Court to demand that Micah live with him one hundred percent of the time, and
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`that the Court strip Respondent of all decision-making authority.
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`5.
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`While the application is littered with false and vituperative attacks on Respondent,
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`it importantly does not make out a prime facie case for the Court to disturb the Custody
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`Agreement. And even if Petitioner has accurately represented Micah’s alleged wishes, the law is
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`very clear that a child’s wishes are not determinative in the Court’s analysis in what is in the best
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`interests of the child, particularly in a situation where the facts are as described in Respondent’s
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`affidavit submitted herewith.
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`THERE IS NO BASIS TO DISTURB THE PARTIES’ CUSTODY
` AGREEMENT AND PETITONER’S APPLICATION SHOULD BE DENIED
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`Applicable Law
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`6.
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`As the Court of Appeals clearly and unambiguously held in Matter of Sergei P. v.
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`Sofia M., 44 A.D.3d 490 (1st Dep’t 2007):
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`Where parents enter into a formal custody agreement, it
`will not be set aside without a showing of a sufficient
`change in circumstances since the time of the
`stipulation, and unless the proposed modification is shown
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`to be in the best interests of the child. Furthermore, no
`court will modify such an order of custody granted on
`stipulation, absent such showings. (Internal citations
`omitted.)
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`7.
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`It is also well settled that while the desires of a child are to be considered by the
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`Court in a custody determination, they are “but one factor to be considered; as with the other
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`factors, the child’s desires should not be considered determinative.” Eschbach v. Eschbach, 56
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`N.Y.2d 167, 173 (1982) (emphasis added). “In weighing this factor, the court must consider the
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`age and maturity of the child and the potential for influence having been exerted on the child.”
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`Id. As detailed in Respondent’s affidavit, Micah is very much afraid of his father and is under his
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`influence.
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`Micah’s Alleged Preference Does Not
`Warrant Modification of the Custody Agreement
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`8.
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`Petitioner has failed to articulate and/or make out a prime facie case that a
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`modification of the Custody Agreement would be in Micah’s best interests. As detailed in
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`Respondent’s affidavit, it would not be.
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`9.
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`Instructive here is the case of Anonymous 2011-1 v. Anonymous 2011-2, NYLJ
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`1202767815770, at *1 (Sup., NA, Decided August 5, 2016). In this post-judgment case, the
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`father brought a contempt motion against the mother who refused to provide the father with
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`parenting access to their seventeen-year-old daughter. Like here, the parties’ agreement
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`provided for the parents to share equal residential time, but when their daughter refused to
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`transition to her father, the mother took no action. The court found the mother in contempt.
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`10.
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`Critically, the court held that “while the articulated desires of a mature child can
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`be considered [] it cannot be that the child’s (albeit a seventeen-year-old) preference is per se
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`determinative simply because she is seventeen and can ‘vote with her feet.’” Id. at 30. The court
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`further noted that the parents are expected to act in their child’s best interest, “even when the
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`child disagrees” and that the law “fully expects the parents to foster a positive relationship”
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`between the child and the other parent, even in a shared custody arrangement. Id. (emphasis
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`added). See also King v. King, 124 Misc.2d 946 (1984) (where child was thirteen and a half and
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`refused to transition to the mother as per custody agreement, the court could not permit the
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`“desires of a child to take on the attributes of a force majeure or Act of God”). Here, where
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`Micah is only fourteen (a long way from seventeen), and where Petitioner seeks to eliminate
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`Respondent as a co-parent, Micah’s alleged wishes are most certainly not determinative.
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`11.
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`Also instructive is Ebert v. Ebert, 38 N.Y.2d 700 (1976). In Ebert, the father
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`brought a petition to change the custodial arrangement after the oldest of the three children
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`expressed a desire to live with him on a permanent basis after spending the summer with him in
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`an “attractive house” when in contrast, the mother who was “limited in her financial resources,”
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`had set up a “far less commodious, but adequate, apartment.” Id. at 702. The court denied the
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`petition, finding that other than the children’s wishes, there was no change of circumstances, and
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`“the disparity between the creature comforts and amenities which living with the father would
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`bring and those lesser ones provided by the mother did not make for one.” Id. at 704 (emphasis
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`added). Therefore, “while the children’s attitudes were to be given consideration, that did not
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`mean that their wishes were to be determinative. The best interests of a child, particularly over
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`the long term, often require the overbalancing of subjective desires by more dependable
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`objective criteria.” Id. at 702 (emphasis added). That Micah allegedly cried the two days before
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`he was set to transition from Petitioner’s Southampton estate back to Respondent’s modest
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`apartment in New York City (Pet. ¶35) is hardly surprising or noteworthy—who wouldn’t prefer
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`to remain in the Hamptons during a global pandemic? In any event, as the court held in Ebert, a
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`child’s preference to live with one parent because that parent offers nicer accommodations than
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`the other parent does not qualify as a change of circumstances warranting modification of a
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`Custody Agreement.
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`12.
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`Petitioner also makes much of the fact that he dislikes Respondent’s parenting
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`style, citing a time that Respondent, in exercising her parental judgment, opted to deal directly
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`with Micah’s school to address the fact that he was being bullied, rather than force Micah to
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`navigate the situation alone. (Id. ¶21). But differing parenting styles is not a reason to modify
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`the Custody Agreement. To the contrary. In finding the mother in contempt, the court in
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`Anonymous explicitly recognized that the parents had markedly differing parenting styles and
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`philosophies which was “not an unusual circumstance in an intact family where… children can
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`often benefit from the different strengths and viewpoints of their parents.” Anonymous 2011-1 at
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`7. The father in Anonymous 2011-1 had a “strong authoritarian personality” who was impatient
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`and inclined to “go ballistic” while the mother was described as “warmer and more emotionally
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`available.” Id. The fact that the father’s parenting style may have been less pleasing to his
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`seventeen-year-old daughter did not excuse her from spending time with him. Similarly, that
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`one week Micah may prefer Respondent’s parenting style and the next week Petitioner’s
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`(depending on who is catering to his wishes) in no way dictates that the Custody Agreement
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`should be disturbed. Micah should continue to have the great benefit of Respondent’s parenting
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`style, even if some days Micah (like any typical fourteen-year-old) does not care for it.
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`13.
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`Even if Micah may today think that he would like to spend more time at
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`Petitioner’s—who has four luxury homes and can outspend Respondent ad infinitum— Micah is
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`fourteen and like most teenagers, likely changes his mind and his mood several times daily.
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`Importantly, the law is clear that Micah’s desires are not determinative, not to mention that, as
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`detailed in Respondent’s affidavit, Petitioner has no doubt exerted influence over Micah in this
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`regard. Micah is not mature enough to fully (if at all) appreciate that he benefits from his
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`parents’ different parenting styles, that Petitioner has failed to foster his relationship with
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`Respondent, and that this misguided attempt to marginalize his mother is not in his best interests.
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`PETITIONER SHOULD BE ENJOINED FROM
`DISCUSSING THE CASE WITH MICAH
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`As detailed by Respondent in her affidavit, Micah is unduly influenced by his
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`14.
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`father. Micah is afraid to say no to Petitioner and routinely subjugates his own interests, such as
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`participating in his evening basketball classes, rather than risk making waves with Petitioner.
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`Micah even quit his school basketball team when Petitioner failed to act like a parent in that
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`situation, as described by Respondent in her affidavit.
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`15.
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`As Respondent details in her affidavit, Petitioner has unfortunately lied to Micah
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`about issues and circumstances involving his mother, which has caused Micah to have inaccurate
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`negative perceptions. As Respondent details, because his father lied to him, Micah incorrectly
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`believes that his mother threatened to sue and/or sued his prior therapist, Dr. Stark (she did
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`neither). When Respondent became aware of the wholly false narrative that Petitioner fed their
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`son and told Micah that what he had been told was not accurate, she could observe that it made
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`him uncomfortable, and that he was having trouble absorbing the contrary information.
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`16.
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`As Respondent further explains, Petitioner’s modus operandi is often to insert
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`Micah in the middle of his parents’ disagreements. As detailed in her affidavit, Petitioner
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`demanded that the meeting between him and Respondent, include Micah – the evident reason
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`being that Petitioner wanted to “enforce” Micah telling his mother about Petitioner’s proposed
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`schedule change.
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`17.
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`Petitioner also bullies Micah. As described by Respondent, when Micah started
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`gaining weight as he entered puberty, Petitioner not only engaged in body shaming behavior
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`towards Micah. In another incident, Petitioner exploded on Micah when he was only eight years
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`old for forgetting to use his prescription cream for his eczema. Respondent also describes that
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`Petitioner bullies Micah into staying home with his younger brother when Micah wants to see his
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`friends. Indeed, as Respondent painfully details, Micah is so afraid of his father that when he is
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`in Petitioner’s care, if an issue arises in the middle of the night, such as nervousness about
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`hearing a sound, or physical pain (including an incident that eventually resulted in Micah being
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`rushed to the ER), Micah reaches out to his mother from his Father’s residence, because he is
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`afraid to wake his father and/or it is Mom who Micah is most comfortable turning to in such
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`situations. We note that these are the type of facts and circumstances that Petitioner must be
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`specifically prohibited from talking to Micah about and confronting him with (otherwise Micah
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`will be embarrassed and angry about the revelation). Thus, until this matter is resolved, unless
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`otherwise directed by Dr. Shainbart, we are specifically requesting that Petitioner should be
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`enjoined from discussing this case, including the content of any of the motion papers, with
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`Micah.
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`RESPONDENT SHOULD BE AWARDED COUNSEL FEES
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`It is ridiculous and wasteful that a fee application needed to be made. Upon
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`18.
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`Respondent’s information and belief, until last year Petitioner was the Head of Securities
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`Division and Operations at Goldman Sachs, and where he had worked for well over a decade,
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`making partner all the way back in 2010, shortly after the parties’ divorce. Upon Respondent’s
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`further information and belief, Petitioner owns four homes: a six bedroom four-and-a-half-
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`bathroom duplex on the upper east side (that per Zillow is worth approximately $7 million), a
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`five-bedroom, four-bathroom, estate in Southampton (that per Zillow is worth approximately $4
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`million), a home in Paris, and a pied-à-terre in lower Manhattan. Petitioner is now a Managing
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`Director at Citadel LLC, a multinational hedge fund and financial services company with over
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`$35 billion under management.
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`19.
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`Conversely, Respondent has very limited assets (Respondent’s Statement of Net
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`Worth is annexed as Ex. 1) and a comparatively modest income, particularly by Upper East Side
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`standards (Respondent’s 2020 and 2021 W-2s are annexed as Ex. 4 ).
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`20.
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`This case is frankly the poster child for an award of counsel fees. Absent the
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`requested award, Respondent will not be able to afford her counsel and Petitioner will utilize his
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`limitless resources extract the change in custody that he wants, but that is not in the Child’s best
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`interests.
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`21.
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`As detailed in her sworn statement of net worth, Respondent only has
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`approximately $300,000 in assets, including her retirement accounts, and less after her liabilities
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`are accounted for. As explained in her affidavit, her salary is only $156,000 annually (her W-2s
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`for 2020 and 2021 are higher since she received a sign on bonus that was payable monthly over
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`the first two years; the last monthly payment of which will be received by Respondent on or
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`about June 1, 2022).
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`22.
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`Conversely, Petitioner has a net worth of tens of millions of dollars and likely has
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`earned more in a single year as a partner at Goldman Sachs than Respondent has in her entire
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`lifetime. We look forward to receipt of Petitioner’s sworn statement of net worth. See Uniform
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`Trial Court Rule 202.16(k)(4),(5).
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`23.
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` On February 7, 2022, we requested that Petitioner pay my firm’s $50,000 initial
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`retainer. See Letter to Pet. Counsel annexed as Ex. 5. We were ignored. Notwithstanding the
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`Court’s statements on the issue of fees at the February 14, 2022 Court appearance, Petitioner
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`continued to ignore our request that he pay Respondent’s counsel fees. We are requesting an
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`interim fee award of no less than $100,000, without prejudice to future applications. We would
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`have accepted payment of the $50,000 initial retainer had we not needed to make this
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`application. But not only has additional expense been incurred in connection needing to prepare
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`a net worth statement and the portion of the affidavit and affirmation related to the professional
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`fee application, but Petitioner, consistent with his personality, is intent on making this as painful
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`as possible for Respondent (even though his attorney confirmed to this Court that she did explain
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`the applicable law to her client and even though this Court encouraged Respondent to reconsider
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`his position). We/Respondent should not be constrained to file serial orders to show cause to
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`receive payment of fees. By the return date of this motion, Respondent will have already
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`incurred more than $50,000 in fees ($31,187.54 were incurred in February) in connection with
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`Petitioner’s post-judgment application for a change in custody.
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`Applicable Law
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`24.
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`Section 237(b) of the DRL expressly authorizes courts to order the monied parent
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`to pay the attorneys’ fees of the non-monied parent in a post judgment action for custody. It
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`makes presumptive an award of interim counsel fees and expert fees:
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`to enable [the less monied parent] to carry on or defend the
`application or proceeding as, in the court’s discretion, justice
`requires, having regard to the circumstances of the case and of the
`respective parties. There shall be a rebuttable presumption that
`counsel fees shall be awarded to the less monied spouse
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`DRL § 237.
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`25.
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`The relevant statutory language expressly codifies the primary purpose behind
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`DRL § 237 – long enunciated by the courts of this state – which is to level the litigation playing
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`field between the parties. See, e.g., O’Shea v. O’Shea, 93 N.Y.2d 187, 190 (1999):
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`Recognizing that the financial strength of litigants is often unequal
`. . . courts are to see to it that the matrimonial scales of justice are
`not unbalanced by the weight of the wealthier litigant’s wallet
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`The recent Second Department decision of Marchese v. Marchese, 185 A.D.3d
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`26.
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`571, 2d Dep’t 2020) underscores the necessity for the monied party to pay all of the non-monied
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`party’s fees, particularly in circumstances such as these. In Marchese, like here, where the
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`monied party could pay the fee award sought without a “substantial lifestyle impact” on him —
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`then the full amount of the fee award should be ordered, and that fact that alone should be
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`dispositive of this motion. Id. at 576 (“[a] less-monied spouse should not be expected to exhaust
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`all, or a large portion, of available finite resources [], particularly where the more affluent spouse
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`is able to pay his or her own legal fees without any substantial lifestyle impact”) (emphasis
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`added). As evidenced by his many luxury homes, and no doubt the income and asset disclosures
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`that will be evident in the required sworn statement of net worth, the requested fee award will not
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`cause any substantial lifestyle impact to Petitioner – in fact, it will cause none.
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`27.
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`Indeed, it is a well-settled principle that “[a]n award of interim counsel fees is
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`designed to create parity in divorce litigation by preventing a monied spouse from wearing down
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`a nonmonied spouse on the basis of sheer financial strength.” Rosenbaum v. Rosenbaum, 55
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`A.D.3d 713, 714 (2d Dep’t 2008), citing O'Shea, 93 N.Y.2d 187, 193 (1999); see also Wald v.
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`Wald, 44 A.D.3d 848, 844 (2d Dep’t 2007)). “Such awards are ‘designed to redress the economic
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`disparity between the monied spouse and the non-monied spouse’ and ensure that ‘the
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`matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s
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`wallet.’” Kaplan v. Kaplan, 28 A.D.3d 523, 523 (2d Dep’t 2006), quoting Frankel v. Frankel, 2
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`N.Y.3d 601, 607 (2004), quoting O’Shea, 93 N.Y.2d at 190. That this is a post-divorce custody
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`litigation makes a level the playing field that much more critical.
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`28.
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`Here, it is plain that a substantial interim legal fee award is warranted to “‘prevent
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`the more affluent [parent] from wearing down or financially punishing the opposition by
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`recalcitrance, or by prolonging the litigation.’” Gober v. Gober, 282 A.D.2d 392, 393 (1st Dep’t
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`2001), quoting O’Shea, 93 N.Y.2d at 193. See also the seminal decision of Charpie v. Charpie,
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`271 A.D.2d 169, 171 (1st Dep’t 2000) wherein the First Department held that the less monied
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`spouse should not be required to utilize the finite resources available to him or her where the
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`other spouse has substantial resources and income from which to pay legal expenses.
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`Qualifications of Counsel
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`29.
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`Cognizant of the fact that an award of counsel fees is based upon not only the
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`nature of the services and the time devoted to the matter, but also upon the reputation and
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`experience of counsel, I respectfully submit to this Court the following: The lawyers in our firm
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`are all highly regarded. My law firm has achieved the recognition and honor of being named one
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`of the “Best” in U.S. News and World Report each year and is one of only two matrimonial law
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`firms in New York that has been selected by Chambers & Partners to be in their top tier (called
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`Band 1). Cohen Clair Lans Greifer Thorpe & Rottenstreich has approximately twenty-five
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`attorneys who practice almost exclusively in matrimonial law.
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`30.
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`I believe that I have individually developed an excellent reputation in the
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`matrimonial bar through my representation of clients in all facets of matrimonial litigation,
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`including contested custody matters.
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`31.
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`I graduated cum laude from Harvard Law School in 1995 and Phi Beta Kappa
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`from Emory University in 1992. After graduating law school, I worked on complex corporate
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`matters at Shearman & Sterling until 1998 and then spent the next two years as the Court
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`Attorney to the Honorable Marylin G. Diamond in a dedicated matrimonial part in the Supreme
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`Court of New York County.
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`32.
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`In September 2004, I formed Clair, Greifer LLP with Bernard Clair, Esq., and in
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`May 2011 we merged with Cohen Lans LLP to form Cohen Clair Lans Greifer & Thorpe LLP. I
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`have authored several articles on issues of interest to matrimonial practitioners that have been
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`published in the New York Law Journal and the New York Family Law Monthly. I am “AV”
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`rated by Martindale-Hubbell (its highest ratings for both legal ability and ethics) and have
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`regularly been selected as a “Super Lawyer” by Super Lawyers Magazine and as one of New
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`York’s “Best Lawyers” by New York Magazine. I am also one of the small number of individual
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`matrimonial attorney recognized by Chambers & Partners. My hourly rate for 2022 is $1050.
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`33.
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`Also working with me on this matter is Michelle Foxman, Esq. Ms. Foxman
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`graduated magna cum laude from New York University School of Law in 1996 where she was
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`elected to Order of the Coif and served as an editor of the Journal of International Law and
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`Politics, and cum laude from Columbia University in 1991. After graduating law school Ms.
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`Foxman worked on complex commercial litigation matters at Cravath, Swaine & Moore LLP and
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`before joining our firm, worked at the litigation boutique Selendy Gay Elsberg PLLC. In her pro
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`bono practice, Ms. Foxman has represented battered women seeking a divorce. Ms. Foxman’s
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`hourly rate is $650.
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`FILED: NEW YORK COUNTY CLERK 03/03/2022 06:34 PM
`NYSCEF DOC. NO. 17
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`INDEX NO. 150857/2022
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`RECEIVED NYSCEF: 03/03/2022
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`THE FEE ALLOCATION FOR THE ATTORNEY FOR THE CHILD
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`34.
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`The Court's interim order of February 15, 2022 allocated the $5,000 retainer for
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`the attorney for the child 80% to Petitioner and 20% to Respondent. (Order annexed as Ex. 6).
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`Respondent respectfully requests that any fees for the attorney for the child beyond the retainer
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`be borne solely (100%) by Petitioner.
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`35.
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`As discussed in detail above, the financial disparity between the two parties is
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`tremendous (far in excess of an 80% - 20% ratio). Assigning 20% responsibility to Respondent
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`will cause her hardship; assigning Petitioner 100% responsibility for the AFC fees will cause him
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`none.
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`CONCLUSION
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`36.
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`Based on the foregoing, Petitioner's application should be denied in its entirety
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`and Respondent's cross-motion should be granted in its entirety, together with such other and
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`further relief that this Court determines is just and proper.
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`37.
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`No other application has been made to any other court of competent jurisdiction
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`for the relief sought herein.
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`Dated: New York, New York
`March 3, 2022
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`13
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`13 of 14
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`FILED: NEW YORK COUNTY CLERK 03/03/2022 06:34 PM
`NYSCEF DOC. NO. 17
`
`INDEX NO. 150857/2022
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`RECEIVED NYSCEF: 03/03/2022
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`ATTORNEY
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`CERTIFICATION
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`I,
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`Jad Greifer,
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`hereby
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`certify
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`that
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`the
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`papers
`
`annexed
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`hereto
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`comply
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`with
`
`Rule
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`130-1.1-a
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`of
`
`the Uniform
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`Rules
`
`of
`
`the Chief
`
`Administrator
`
`of
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`the Courts.
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`Dated:
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`March
`
`3, 2022
`
`J id
`
`eifer,
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`.
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`14 of 14
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