9 Nov
DOCKET #V-320-95 2
MR. STERN: Judge, before we even --
THE COURT: Just a minute. Okay.
Mr. Stern? First of all, let me first say that
both parties are present, Miss Walsh appearing
with the petitioner, Miss Phillipson, and Mr. Stern
appearing with the respondent, Mr. Murtari, and
Mr. Lupia, law guardian, is present. Now,
Mr. Stern, you wanted to request something of the
Court?
MR. STERN: Judge, just for counsel and
your understanding, I appeared Friday before
Judge Hedges, he set a trial down for today at
10:30. I explained to him --
THE COURT: He what?
MR. STERN: He set a trial in his court for
my client today at 10:30. I explained to him
that I believed this trial would go. He said he
was going to send someone down here at 10:30 to
get me to tell him whether I was going or not and
we've got to set a temporary order of custody in
that case so someone may be coming down for me in
about 20 minutes.
THE COURT: Mr. Stern, when we start a
trial here, it's an excuse for every court in
this state.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 3
MR. STERN: I told that to Judge Hedges.
THE COURT: I will not -- once we start
this now we are going straight through. There
are no exceptions and no departures from what the
rules are of the Court, okay? So there's no way
I'm going to be volleying back and forth with two
trials. I mean, just forget it.
MR. STERN: Again, Judge, I'm only
expressing to you what I was told.
THE COURT: I'm telling you this.
MR. STERN: Yes.
THE COURT: Are you in a trial there yet?
Did they start the trial and swear in witnesses?
MR. STERN: I have no intention of leaving,
I just wanted to --
THE COURT: Did they start a trial there?
MR. STERN: No, sir.
THE COURT: You're not in trial there,
you're not in trial anyplace else? Because
that's a legitimate excuse for me not to start
now. But as long as you aren't --
MR. STERN: Yes, sir.
THE COURT: -- once we start here every
Court in this state has to honor that. And
that's the way it's going to be. So now anything
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 4
else?
MS. WALSH: No, your Honor.
THE COURT: Are we ready to start?
MS. WALSH Yes, your Honor.
THE COURT: Opening statements, Miss Walsh?
MS. WALSH: Yes, your Honor.
THE COURT: Let me first of all before we
start so that we can move this along quickly
and -- but give it all the time that you need, I
will not hear any testimony prior to the divorce.
That has been done, it's over with, okay? We're
only interested in circumstances that changed
since then. Okay? And so I'm saying it right at
the outset because I won't make any exceptions to
it. Okay?
MS. WALSH: Thank you, your Honor.
Your Honor, I have an expert witness who is
scheduled to come in this afternoon at 2 o'clock
and I just would like the Court to know that.
I'm not sure we'll be finished with my client,
who is my first witness, but I ask the Court and
Mr. Stern's patience with that.
THE COURT: Well, I'm sure there's no
objection to going out of turn for that. We will
do it for the other side too.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 5
MS. WALSH: Okay. Your Honor, we're here
today seeking the Court's permission to relocate
the child with my client to San Diego, California and
we recognize at this point that that is a heavy
burden and it is our burden to show the Court by
preponderance of the evidence pursuant to the
Tropea case that it is in the child's best
interest and I think, your Honor, that, in fact,
the evidence will show not only that it's in the
best interest but, in fact, my client has a good
and reasonable request before this Court. This
is not based on speculation, it's not based on a
desire just to start a new life, it's not based
on a desire to move someplace out of Syracuse.
It's based on her need to become self-supporting.
It's based on her need to become able to be
economically sufficient so that she can prepare
herself to be self-supporting and prepare herself
to take care of the child.
She has been studying linguistics at
Syracuse University and has been admitted to a
PhD program at the University of California. The
evidence will show that this is a reasonable and
realistic goal that she has to become
self-supporting. The evidence will also show
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 6
that there has been a history in this case of the
respondent failing to provide child support per
the prior order. He has been ordered per the
Judgment and Decree of Divorce to pay $120 per
week for child support. He has steadfastly
refused to obey that order. He is now over
$7,000 in arrears in child support, almost 3,000
in child care, and does not pay anything towards
the medical insurance or medical expenses for
this child.
We recognize that there are many factors
that the Court will look at and one of them is
the reason for the relocation and the reason for
the opposing of the relocation. We submit,
your Honor, that Miss Phillipson has good reason and
that the respondent's reasons for opposing it are
not. He does not come to this Court with clean
hands. We are going to look at the quality of
the relationship between the child, the custodial
parent and the non-custodial parent.
Your Honor, I ask you to take judicial
notice of the decision of Judge Majors in which
the Court found for reasons the Court was unable
to determine that the defendant, Mr. Murtari,
insists on control and domination of the child
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 7
Domenic as well as of the plaintiff. He does
not understand the feelings or concerns of other
persons as observed by the Court throughout the
trial. The evidence will show that that has
continued, your Honor, that that has continued
and will continue because Mr. Murtari has for
whatever reason an unstoppable need to control
and dominate and have his own way.
The Court will also look at the
relationship between the parties and it will show
that there has been bitterness, manipulation and
continued problems throughout this marriage and
since the divorce. The Court will find that
there has been continuing litigation since the
trial, since the divorce, numerous motions to the
Supreme Court, numerous motions to the Appellate
Court. Mr. Murtari has appealed what was a
decent decision from the Supreme Court to the
Appellate Court and to the Court of Appeals and
as late of last week is threatening to continue
to appeal what he put in quotes as, quote, "a
silly divorce." Your Honor, we don't think this
is silly. We think that this has been, in fact,
a very non-silly event.
My client has come in good faith before
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 8
this Court to ask this Court's permission to
relocate for good reasons. We will show that the
respondent's behavior has a negative impact on
the child, that he, in fact, makes bad decisions,
bad judgment, and that, in fact, the loss of some
visitation can be made up through holidays and
summer vacation. The lack of visitation will not
affect this child. This can be made up in a
reasonable way.
The Court will also look at how the life of
the child and the petitioner will be enhanced and
we will be able to prove, your Honor, that it
will be enhanced emotionally, culturally and
economically and that it will be better for the
child to be able to relocate. The Court will
also look to see whether it's feasible to change
custody and I think the facts will clearly show
that there is only one parent here -- as was true
in the divorce, there is only one parent who can
have custody in this matter. There cannot be a
change of custody, it would not be in the child's
best interest.
One other factor that Tropea suggests that
the Court look at is the feasibility of the
respondent moving, and the evidence will show
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 9
that this is a man with an MS in computer science
who has refused to adequately support his child,
has refused to work to his capacity, could, in
fact, become employed almost anywhere in the
country for income over 70,000 and yet he reports
to this Court and reports to the support court
where there is a violation petition pending that
he's making less than $20,000 a year.
Your Honor, there's something very wrong here
with a man who could make 70,000 and asks this
Court to award him not only custody, award him an
assign counsel. There is something very, very
wrong with that. We know our burden is great but
we believe, in fact, that we will be able to
prove it.
One last comment, your Honor. My research
on Tropea says clearly that the Court has to look
at all the factors about what's in the best
interest of the child and I think post Tropea
cases have, in fact, somewhat been overturned or
sent back for the lack of a decent record.
Therefore, I'm going to ask the Judge's patience
in putting a case on and putting it on fully.
Thank you.
THE COURT: Mr. Stern?
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 10
MR. STERN: Judge, it was not my intention
to make an opening statement. I would like to
tell the Court what I expect, Judge, to show and,
very simply, I have made a decision that we're
not going to relitigate the divorce myself. I'm
not going to be putting in any evidence that the
respondent is not a suitable parent or get into
he said/she said about, well, she did this, he
did that. What I am going to focus on will be
the child. I will say and be putting on evidence
to show you that a great deal of the charges that
Miss Walsh has put forward are much more
complicated that she's explained. My client will
explain to you those factors. That he is paying
child support at a level that he can afford.
This is something that's going to be litigated
later in the month anyway but if it's being
brought up to in some way make my client look
bad, I'll give the Court at least something to
hang its hat on.
Judge, my client is a good man, I'm going
to show you that. He's a very good father. He
has done something that -- I forget who said it
but it was said that the man who represents
himself has a fool for a client, and I think
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 11
that's particularly true of my client. He didn't
have the buffer of an attorney in Supreme Court.
I think that it created a lot of animosity
towards him. He did some things that no attorney
would do, out of just experience and knowledge of
the system. That has cost him considerably. He
now comes in here in a very damaged state as a
result of the Supreme Court trial. He's paid a
heavy price for his inability to pay for an
attorney in Supreme Court and for not having an
attorney in Supreme Court.
I'm going to concentrate all of the
evidence on what's in the best interest of this
child as the case law dictates, that there's only
one important person in this courtroom and that
will be Domenic. I'm doing to try and show that
this child is loved by both parents. I'm going
to particularly put the proof on from my client's
side, he has an extended family here in Syracuse,
he's got cousins his own age, he's got a
grandmother who lives here in Syracuse.
Essentially all of his family in the United
States is here in Syracuse, in the surrounding
area. He has a large extended Italian family
here. He gets together for holidays. I
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 12
understand that the child also has grandparents
in Japan but I don't believe that the child will
be any closer to them by being in California.
What we're going to try and show is that
this child is entitled to the consortium of his
father, of his grandmother, of his cousins that
are his own age and older, they're here in
Syracuse, that they know him and love him, and
that to take this child and have him placed in
California outside of the consortium of his family
and that ability to have those relationships as
he grows up is going to be detrimental to this
child, to the grandmother who certainly has a
right and an interest in knowing her grandson and
to his cousins who would grow up with him. Thank
you.
THE COURT: Mr. Lupia?
MR. LUPIA: The law guardian waives.
THE COURT: Okay. First witness,
Miss Walsh?
MS. WALSH: Adrianne Phillipson.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 13
H I R O M I S U M I Y A, having been
called as a witness, being duly sworn, testified
as follows:
COURT ATTENDANT: State your name for the
record, please.
THE WITNESS: Adrianne, H-I-R-O-M-I, Phillipson,
S-U-M-I-Y-A.
COURT ATTENDANT: Be seated.
DIRECT EXAMINATION
BY MS. WALSH:
Q Miss Phillipson, where do you live?
A I live near the University, off of Thurber and --
Thurber and Remington Avenue.
Q And how long have you lived there?
A Approximately 3 years.
Q And who resides with you?
A My son Domenic.
Q And will you describe your home?
A It's a two-bedroom apartment with living room,
and eating area and a kitchen, bathroom.
Q And how many bedrooms?
A Two bedrooms.
Q And why did you move to that area?
A During the proceeding of the divorce I was given
the permission to move out of marital residence with my son.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 14
Then I started looking for a place to move with my son. I
was working for Syracuse University at that time so I looked
for the area that is close to my work and also close to my
friends. I finally found an apartment where I moved to.
There was a Japanese family living who had same age as
Domenic and they had been playing for a year at that point.
Q And are you here asking the Court to relocate to
San Diego, California?
A Yes.
Q And what are the reasons that you're asking the
Court to relocate?
A I was accepted to a PhD program in linguistics at
University of California. This will give me a big step
forward to become a self-supporting mother.
Q And why did you decide to seek a PhD?
A When I was finishing my Masters Degree I started
to think of the future. I started to look for a job which I
did not get accepted by any and then I talked to my
professors. I also called the committee member who is --
the search committee. I also talked to the recruiting
agency who I sent a resume to and they all recommended
having PhD will give me much stronger skills and
qualification.
Q And you have recently finished a Masters, is that
what your testimony is?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 15
A I am finishing my thesis and I am graduating in
December.
Q And that's been where?
A Syracuse University.
Q And how long has that program lasted?
A Two and a half years.
Q And were you employed during that time?
A Yes.
Q And what was your employment?
A I was a teaching assistant.
Q At Syracuse University?
A Yes.
Q Are you -- okay. Do you have any problem getting
employed not being a US citizen?
A No, I have Green Card and that usually is
sufficient.
Q And you originally are from Japan, is that
correct?
A Yes.
Q And when did you first come here?
A 1981.
Q And English is your second language, is that
correct?
A Yes.
Q Have you visited San Diego, California?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 16
A Yes.
Q And when do you anticipate starting your PhD
program?
A January of 1999.
MS. WALSH: Could I have this marked?
(Whereupon, Petitioner's Exhibit Number 1
was marked for identification.)
Q Showing you what's been marked as Exhibit --
MR. STERN: Excuse me, may I --
MS. WALSH: I'm sorry. Let the record
reflect that I am showing this to Mr. Stern.
MR. STERN: Judge, I want to object to this
because I should have been provided this document
prior to coming into court. I did ask for what
documents were going to be put into evidence.
MS. WALSH: Your Honor, first of all, I
haven't offered it yet as a technicality.
Secondly, the original letter which was having
her admitted was sent to Mr. Stern. We asked
since this Court had delayed this matter for a
letter showing that although she wasn't able to
go in September they have accepted her for
January.
Also, very basically, Mr. Stern's request
for discovery occurred on the day this matter was
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 17
scheduled for trial. It was untimely to begin
with and I complied as best I could given the
time frame, and I believe it's significant to
this matter.
MR. STERN: On two issues. One is that,
first of all, my request at the time was
untimely. It was not on the day of trial, I
believe. But it was untimely. But Miss Walsh
agreed to comply with it and, in any event, it's
now been I think about two months since that
request.
MS. WALSH: No, it was October.
MR. STERN: Okay.
MS. WALSH: It was when we were here in
court last time. I was handed the discovery in
the hall.
MR. STERN: Well, it's been more than 20
days. In any event, Judge, I'll withdraw my --
as it hasn't been offered, I'll withdraw my
objection.
Q Can you identify Exhibit 1, Miss Phillipson?
A Yes.
Q And what is that?
A It is a letter from Linguistic Department of
University of California to myself stating that they have
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 18
accepted me originally for fall of 1998 but they allow me to
defer until January 11th, 1999.
MS. WALSH: Thank you. I would offer
Exhibit Number 1 into evidence, your Honor.
MR. STERN: Judge, I'm going to object on
the grounds that they've had this in their
possession for it appears about a month and I was
not provided with a copy and I asked for all
copies of any exhibits that were going to be
offered into evidence.
MS. WALSH: Your Honor, it's not a month.
This is October 14th, I think the --
THE COURT: Mr. Lupia?
MR. LUPIA: Judge, I have no objection to
it being admitted.
THE COURT: Overrule the objection. You
know, if we're going to -- I don't care, it's
your right to do it but, you know, it's --
without this it stands with what she says under
oath, that she got the letter. I don't
understand why you would object to proving that
that is the case.
MR. STERN: I don't object to that, Judge,
but what I don't want to have happen is later on
in the trial I do get surprised with something
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 19
that I haven't had a chance to look over, I
haven't had a chance to confer with my client and
I certainly want to set a foundation that I don't
want just a flood of things coming in.
THE COURT: Well, you know, on second
thought this is hearsay I suppose. It isn't
proven otherwise, I won't take it. But her word
stands. If you want better proof to show, it's
here. I won't take it.
MR. STERN: It's not on that --
THE COURT: Keep the record clean. It's
fine with me.
MR. STERN: Okay.
THE COURT: I'm just saying I think we
ought to use a little common sense here.
MR. STERN: Again, Judge, it's not on that
issue that I am concerned. I'm concerned about
what the document that I haven't seen is going to
say.
Q Miss Phillipson, what are the financial arrangements
that will allow you to continue your education and provide
you with support when you go to California, if the Court
allows you to go to California?
A They will give me a tuition waiver and from a
second year on I could get teacher assistantship or research
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 20
assistantship.
Q And how long a program is this?
A I expect to be 3 to four years.
Q And are you currently employed?
A No.
Q And how are you able to provide for your needs at
this time?
A I depend on the sale from the house. My parents
has been supportive financially. Those are the two things
that can support me and my son.
Q And are those finite resources?
A No.
Q Do you understand what I mean when I say finite?
Are those resources -- are those resources always going to
be there for you?
A Oh, no.
Q Why do you need to become self-supporting?
A As I said, those resources are not forever and as
we spend it will be gone and I need to insure that I have
economical resource myself so that I don't have to depend on
anybody else.
MS. WALSH: Could I ask that you mark
those?
(Whereupon, Petitioner's Exhibits Numbered
2 and 3 were marked for identification.)
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 21
MS. WALSH: I would like the record to
reflect that I am showing Mr. Stern Exhibits 2
and 3.
MR. STERN: I have no objection to
Plaintiff's Exhibit 2 and, again, I would renew
my objection with regard to Plaintiff's Exhibit 3
as I believe that this is the first time that I
have seen it and I did ask for all exhibits prior
to the trial. Thank you.
MS. WALSH: Your Honor, Exhibit 3 was
attached to a financial affidavit that was
submitted to Kathryn Davies that Mr. Stern has
had in his possession for 3 or four months.
It's a paystub, my client's former paystub,
your Honor.
MR. STERN: Judge, on the basis it was
attached to another petition on another trial, I
don't believe that that suffices but just for the
matter of moving along I will withdraw my objec-
tion. I want the Court to understand my concern.
THE COURT: Mr. Lupia, any objection?
MR. LUPIA: No objection, Judge.
Q Miss Phillipson, I am showing you what has been
marked as Exhibit 2 and 3, can you identify that for the
record?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 22
A Yes.
Q And what is Number 2?
A Exhibit 2 is my tax return form.
Q For what year?
A From 1997. Exhibit 3 shows my paystub from
Syracuse University.
Q And what was your total income in 1997?
A 7,610.
Q And have you ever made more money than that in a
year in the last 3 years?
A No.
MS. WALSH: I'd like to move in Exhibits 2
and 3, your Honor.
THE COURT: No objections? Petitioner's
Exhibits 2 and 3 are received into evidence.
Q Miss Phillipson, is there any other job that you
could do in Syracuse that would allow you to be
self-supporting?
A Not in this area.
Q You have another Masters degree, correct?
A Yes.
Q And what is that?
A Music -- piano performance.
Q And are you able to be self-supporting as a piano
teacher?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 23
A No.
Q Why not?
A It doesn't make enough money. Also, I was forced
to sell the piano at this point. Working hour will conflict
with taking care of Domenic because my students will be
school-aged children who comes after school when Domenic
comes home as well.
Q And why were you forced to sell the piano?
A Because I was financially not being able to make
end meet.
Q You were awarded the piano at the time of the
Judgment and Decree of Divorce?
A Yes.
Q Okay. And at the time you were forced to sell
the piano, had you been able to sell the marital residence?
A I think right immediate after I sold the piano, I
think, I was able to sell the house.
Q But you sold the piano first?
A Yes.
Q And there was some difficulty with selling the
marital residence, correct?
A Yes.
MR. STERN: Objection, leading.
MS. WALSH: I'll withdraw it.
Q And to your knowledge what does your husband do?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 24
What does your ex-husband do?
A He's computer engineer.
Q And what is his level of education?
A He's got a Masters Degree in computer science.
Q And to your knowledge what is the highest income
he ever made?
A Prior to being fired the company paid him over
54,000.
Q Do you have any other work experience, previous
work experience, besides piano?
A I've done some translation interpretation.
Q And that's from Japanese to English?
A Yes, mostly Japanese to English.
Q And is it possible for you to be self-supporting
being a translator in the Syracuse area?
A No.
Q And what was the most you ever made doing
translation?
A In a year about a thousand dollars.
Q About a thousand dollars?
A (Nodding yes.)
Q Have you looked for any jobs in the last year?
A Yes, I have.
Q And where did you look for jobs?
A I looked through Internet mostly, Association of
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 25
Teachers of Japanese, Association of Asian Studies. They
post many opening positions, and I also sent a resume to
recruiting agencies. At that time I was just desperate to
find any job.
Q And approximately how many positions did you
apply for?
A 20 to 30.
Q And were you successful in getting any jobs?
A No.
Q Did you have any job interviews?
A I had two job interviews.
Q And what position were these job interviews for?
A This was like a one year temporary position for
teaching Japanese.
Q And where were those positions?
A One was -- I believe it was in Indiana, the other
one was North Carolina.
MS. WALSH: Could I have these marked?
(Whereupon, Petitioner's Exhibit Number 4
was marked for identification.)
MS. WALSH: Let the record reflect I'm
showing Mr. Stern Exhibit Number 4. And I have
been forgeting the law guardian. I show the law
guardian Exhibit Number 4.
Q Miss Phillipson, can you identify Exhibit Number 4?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 26
A Yes.
Q And what is Exhibit Number 4?
A Those are the letters of rejection, the position
that I applied for.
Q And where are those from?
A One is from Binghamton University, Oberlin,
Williamette University, Colby College, Kenyon College,
Earlham College.
MS. WALSH: Your Honor, I would move into
evidence Exhibit Number 4.
MR. STERN: I have no objection.
MR. LUPIA: None.
THE COURT: Petitioner's Exhibit Number 4,
received into evidence with no objections.
Q Miss Phillipson, have you applied for a job at
Syracuse University?
A No.
Q Are there any jobs at Syracuse University?
A No.
Q And how do you know that?
A Because there is no opening.
Q And as a result of your job efforts what decision
did you make regarding your pursuit of a job?
A After talking to people in the field I decided to
go to PhD.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 27
Q And did you apply to Syracuse University for
their PhD program?
A No, I did not.
Q And why not?
A They don't have PhD program in linguistics.
Q And what specific area of linguistics do you hope
to study?
A First language acquisition but especially
bilingual first language acquisition.
Q Bilingual first language acquisition?
A Right.
Q And what does that mean?
A Language -- first language acquisition in general
is how the children develop languages. Bilingual first
language acquisition is a specialized area studying children
who are raised bilingually or multi-lingually from birth or
less than a month, within a month after birth.
Q Within the month of their birth?
A Yes.
Q And why is this an area you wish to pursue?
A It has been a neglected area, it's -- many
bilinguals -- the society has based on mono lingual society
and the point of youth and bilingual children suffered
as a result and they do require empirical back-up to
promote a bilingual education. What is important to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 28
them is having self-esteem that is related to the language
they speak and many times that has been neglected or worse
they had -- they didn't have self-esteem and that damaged
the growth of the children.
Q Is Domenic being raised bilingually?
A Yes.
Q And since when has he been raised bilingually?
A From his birth.
Q From his birth. And where did you apply for this
PhD program?
A I have applied City University of New York.
Q The City University?
A Of New York. University of California, University
of California at SanDiego and Santa Barbara and University
of Hawaii.
Q Did you apply at Cornell University?
A No, I did not.
Q And why not?
A We have language requirement in order to go to
PhD program. You have to be proficient in either German,
French or Russian.
Q And that was their criteria for admission?
A Yes.
Q And do you meet that criteria?
A No.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 29
Q As far as you know are there any other colleges
or universities in New York State that have the programs in
this area of bilingual language acquisition?
A No.
Q And have you investigated whether there are?
A Yes.
Q And why have you chosen to go to San Diego?
A I was accepted to their program.
Q And what is it about their program that is best
for you in terms of your goal?
A They offer bilingual acquisition courses and
program. They have a good interdisciplinary program,
associated with speech and hearing sciences. Some professor
in that particular department also specializes in bilingual
acquisition. At the same time there is another Japanese
professor who works in the hearing and speech sciences.
Q And what have you learned, if anything, about the
San Diego, California area regarding your goal to become
self-supporting?
A It's -- I found that it's very -- it's almost
like ideal. It's located outside Denver. Denver has a
large Japanese community, both those who are from Japan as
business and as well as the second generation Japanese
Americans. That would provide me a lot of research
materials.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 30
Q And what did you learn, if anything, about the
graduates of this program from Denver -- from San Diego?
A What was encouraging to me was 100 percent, all
of the graduates from PhD program, found a job which --
MS. WALSH: Could I have that marked?
(Whereupon, Petitioner's Exhibit Number 5
was marked for identification.)
MS. WALSH: I show Mr. Stern Exhibit 5
which had not previously been disclosed. It was
not in my possession until last week.
MR. STERN: Judge, perhaps what we could do
is maybe Miss Walsh could maybe just show me all
of the things that she is going to be introducing
that she hasn't shown me previously instead of me
taking time and making an objection one by one.
I don't want a trial by ambush. I asked for
these things previously. If she had them in her
possession, I should have been able to see them.
Let me see which ones I would object to and which
I wouldn't. This is not fair.
THE COURT: Yes.
MS. WALSH: Your Honor, I have no problem
doing that if you would like to take five
minutes.
THE COURT: We're going to take a break now
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 31
anyway. Start again at 11, give you 10 minutes
to go through that, okay?
(Whereupon, a short recess was taken.)
THE COURT: Okay.
MS. WALSH: The record should reflect that
I have shown Petitioner's Exhibit B (sic) to
Mr. Stern and Mr. Lupia, and I'm handing it to
the petitioner.
Q Miss Phillipson, can you identify that for the
record.
A Yes, this is brochure of Linguistics at the
University of California.
Q And is this where you discovered that 100 percent
of the graduates are employed?
A Yes, as well as I talked to the head of the
Linguistics Department.
Q And what else is in this brochure?
MR. STERN: Objection. This is not in
evidence and for the witness to be testifying
from the exhibit is inappropriate without it
being in evidence.
THE COURT: Well --
MS. WALSH: I'll move it into evidence.
THE COURT: Just ask her the question. If
she's got to refresh her recollection, is there
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 32
something in there that she had read or
something? I mean, you know, ask her the
question that you want, not what else is in
there.
Q Did you learn about what else was offered in this
program through this brochure?
A Yes, I have.
Q And what did you learn?
A The interdisciplinary programs, what area do they
do research, who are the faculties, those general
informations.
Q And what does it say in that brochure and what
have you learned about what areas are their graduates
employed in?
A Mostly teaching at the colleges and universities.
Q What percentage are teaching at colleges or
universities?
A 61 percent.
MR. STERN: Again, it appears that the --
excuse me. Objection. It appears that the
witness is testifying reading the document. If
Miss Walsh wants to introduce the document, she
should just introduce it into evidence.
MS. WALSH: I'll be happy to introduce it
into evidence, your Honor.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 33
THE COURT: Any objection?
MR. STERN: I have no objection to it being
introduced in evidence.
MR. LUPIA: None.
THE COURT: What number?
MS. WALSH: Number 5, your Honor.
THE COURT: Petitioner's Exhibit Number 5
is received into evidence.
Q Is there anything else about going to San Diego,
California that was particularly beneficial to you in terms of
your pursuit to become self-supporting?
A University of California is the headquarters of
Association of Teachers of Japanese. That would provide me
meeting people there, work with them and get head start.
Q And have you visited San Diego, California?
A Yes, I have.
Q And when did you visit?
A The end of August.
Q That was after you had been accepted, correct?
A Yes.
MR. STERN: Objection, leading.
THE COURT: Sustained.
Q And from what you observed on your visit, how far
is San Diego from Denver?
A About half an hour drive.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 34
Q And describe the physical relationship to the
best of your ability between San Diego and California -- and
Denver?
MR. STERN: Objection. Its relevance? I
don't understand what the relevance of how close
San Diego is to Denver.
MS. WALSH: I think she testified, and if
she hasn't she will, that there is a large
Japanese population in Denver that will afford
her opportunities for employment.
THE COURT: Okay. Go ahead.
Q You can answer the question, which was describe
the physical relationship between San Diego and Denver?
A It is like a suburb of Denver, like Liverpool to
Syracuse.
Q And how do you know about the Japanese community
in Denver?
A How do I know? I did the research. I went to
the library, I got some information to contact, I called the
people up, I asked around.
Q And why is a large Japanese community important
to your work?
A For my research as well as job opportunities.
Currently about 50 Japanese companies there and it's growing
and there is also substantial number of Japanese Americans.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 35
Q And you said how many Japanese companies?
A About 50.
Q 50? Are there any other advantages besides
economic or your work to being near a large Japanese
community?
A Culturally it is important for me and for
Domenic who is growing up as bilingual and they have a
Japanese school in Denver once a week.
Q And what does that Japanese school do?
A They teach writing, reading, math, science, in
Japanese.
Q And it's once a week?
A It's once a week.
Q So this would be in addition to his regular
schooling?
A Yes.
Q And that happens on the weekends?
A Yes.
Q Do you know anything else about the Japanese
community in Denver?
A As I said, it's substantial number so they have
newspapers, they have cultural events.
Q You say they have a newspaper, do you know
anything about that newspaper?
A I just found out over the phone and they're
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 36
sending me the newspaper as well but I haven't received it
yet.
Q Do you know how often it's published?
A It's a weekly paper.
Q Do you know how long it's been published?
A Oh, I don't know.
MR. STERN: Judge, if it would expedite the
trial for us to stipulate to the fact that I -- I
don't have any personal knowledge but if it makes
a difference that there is a large and vibrant
Japanese population in Denver, I am willing to
stipulate to that.
THE COURT: Okay.
Q Miss Phillipson, what would you be qualified to do
after you have received your PhD in linguistics?
A What would be the big difference is that I will
be qualified for a 10-year-track position compared to
temporary position which is just a substitute of like some
other professor.
Q And when you say a 10-year-track position, you
mean on the college level?
A Yes.
Q And any other jobs that you will be qualified
for?
A As a researcher -- I'll be more qualified for
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 37
translator too but the researcher developing textbooks or
language assessment with PhD you can be a head of research
project.
Q Be the head of a research project?
A Yes.
Q You mean for a company?
A Company, yes.
Q And why did you visit San Diego?
A I wanted to make sure it is a safe and a good
environment for myself and for my son.
Q And what did you observe when you visited?
A It was such a beautiful place, climate is dry,
over 300 days of sunshine, very safe and clean place. I
have just never seen such a place in the States. I did not
see any litter, vandalism, any part of the city.
Q Did you observe any living arrangements?
A Yes.
Q And what did you observe?
A I checked out a family housing at -- provided by
University of California.
Q And what did you observe about that?
A They're located near the campus, it is very safe
and nurturing place, very family friendly place.
Q And did you -- are you eligible to get an
apartment there?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 38
A Yes.
Q Have you applied to get an apartment there?
A Yes, I have.
Q And have you been accepted?
A Yes.
Q And describe the apartment?
A Again, it is two-bedroom apartment -- I mean,
townhouse, and a living room, kitchen, bathroom, washer and
dryer area, it has a playground provided, child care is also
provided.
Q And do you know what it's going to cost you per
month?
A Yes?
Q How much?
A $503 including utility.
Q Including utilities?
A Yes.
Q And how many bedrooms?
A Two bedrooms.
Q And what do you pay now for your apartment?
A $594.
Q Does that include utilities?
A No.
Q So it's 594 plus utilities?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 39
(Whereupon, Petitioner's Exhibit Number 6
was marked for identification.)
Q Miss Phillipson, handing you what has been marked as
Exhibit 6, can you identify that for the record?
A This is a newsletter of the family housing.
Q And what did you learn about the family housing
from the newsletter?
A They have family events, baby-sitting
information, they give you what to look for, watch out, the
community.
MS. WALSH: I would like to move into
evidence Exhibit Number 6.
MR. STERN: I object to its admission,
Judge. The first time I'm seeing it is today and
too much for me to read now. And, additionally,
I don't see its relevance.
MS. WALSH: I think it's relevant in terms
of my client's ability to --
THE COURT: What about competency though on
all of these things? The objection -- I mean, I
don't know. I don't even know why it's
important. She can testify to what she's done.
I mean, if you want better stuff to look at, you
can look at it, you know, but if she's testifying
and there's no one to counteract it, that's what
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 40
we got.
MS. WALSH: Are you going to --
THE COURT: I won't take that if there's an
objection.
MS. WALSH: Thank you.
THE COURT: She can testify to everything
that she did and what she read and what she saw
and tell us about it.
Q You testified that you learned that there was
child care available at the family housing, correct?
A Yes.
Q And how -- what kind of child care?
A It's provided -- providing after school child
care, also baby-sitters available in that family housing.
Q And do you know what your schedule would be if
you were to go to California?
A Yes.
Q And what would your schedule be?
A My class would be Tuesdays and Thursdays from
about 10 to 4 o'clock.
Q And you would not have school on Monday,
Wednesday or Friday, is that correct?
A Right.
Q What role, if anything, then would child care
play for Domenic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 41
A It will be very minimal.
Q Okay. What to your mind is the advantages of
living in the family housing at the University?
A First of all, it's a safe place, it would provide
Domenic and myself easy way to meet people in assimilation.
That would provide good place to -- for Domenic to --
provide Domenic to socialize with other kids and meet new
kids.
Q And would Domenic have his own room?
A Yes.
Q And what other facilities for Domenic did you
observe at this housing?
A They had playgrounds.
Q And could you compare it to where you live right
now?
A It's brighter, size-wise it's approximately the
same but it's -- I feel safer.
Q But it's cheaper too?
A Cheaper, yes.
Q Is that what your testimony was?
A Yes.
Q And what do you pay now per month for utilities?
A Approximately 40 to $50.
Q And the new apartment is going to be
approximately $90 cheaper and it includes utilities, is that
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 42
correct?
A Right.
Q So it would be approximately $90 plus $50 cheaper
per month?
A Right.
Q Miss Phillipson, were you able to investigate the
educational opportunities for Domenic when you were in
San Diego?
A Yes.
Q And what did you do to investigate?
A I went to -- what do they call -- school --
school board of San Diego area and I got the newspaper because
that was during the summer, they had a special issue for
back to school and they listed every single school in the
district.
Q And what do you know about where Domenic would
be going to school?
A I just have accepted to move -- the move to the
apartment from the housing and according to the location I
checked the school. It's called Aurora 7.
Q Aurora 7?
A Aurora 7. And they have half-day kindergarten.
There are 3 kindergartens that consist of 19 children
and two teachers and they also have enrichment program
after -- in the afternoon.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 43
Q And what did you learn about anything -- what did
you learn, if anything, about their ratings regarding the
school?
A They are academically very -- rated very well.
Parents satisfaction is over 90 percent.
MR. STERN: Objection as to -- I mean,
there should be some foundation as to her
expertise in this area and what knowledge she
has. I mean, if she wants to talk about her own
personal beliefs and, I liked it, it was red, it
has clean walls or something, but it's
statistics.
MS. WALSH: Could you mark that for me,
please?
THE COURT: Yes.
MS. WALSH: I asked her to mark this.
THE COURT: Do you have this arranged here
because a lot of this I can't accept unless you
have an agreement on it.
MS. WALSH: I understand, your Honor.
THE COURT: I'll sustain that objection.
It has to be factual, not giving your opinion.
Okay?
(Whereupon, Petitioner's Exhibit Number 7
was marked for identification.)
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 44
Q Miss Phillipson, how did you learn about the academic
rating of the school, Aurora 7?
A That was in the newspaper.
Q It was, pardon?
A In the newspaper of all the information provided
by the school.
MR. STERN: Objection, hearsay.
MS. WALSH: I show Mr. Stern Exhibit
Number 7.
THE COURT: Hold it. I've got to rule on
it. I sustain the objection.
Q Miss Phillipson, handing you what has been marked as
Exhibit Number 7, can you identify that for the record?
A Yes, this is the copy from the newspaper that
gives you all the information about school.
Q And is that the source of your information about
the school?
A Yes.
Q And what did that tell you about the school?
MR. STERN: Objection, hearsay.
THE COURT: Sustained.
MS. WALSH: I would like to move Exhibit
Number 7 into evidence, your Honor.
MR. STERN: Objection. I haven't seen this
before. It's hearsay evidence. It's a photocopy
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 45
I assume of an original which is not here in
court.
THE COURT: Mr. Lupia?
MR. LUPIA: Judge, I would object as well.
It's hearsay.
THE COURT: Sustained.
Q What else did you learn, if anything, about the
educational standards of the school in San Diego?
A All the schools are much higher score than, SAT
scores --
MR. STERN: Objection as to foundation.
Q How did you learn that?
A From the school district.
Q And did you meet with anyone at the school
district?
A Yes.
Q Who did you meet with?
A I don't remember the name but the head of the
school district.
Q And Domenic would be enrolled in kindergarten,
is that correct?
A Yes.
Q And his schedule would be what, do you know?
A I was told that it will be a half-day
kindergarten with enrichment in the afternoon.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 46
Q And do you know what his hours would be?
A From 8:30 until -- including enrichment it would
be like 2, 2:30.
Q And on two days a week you would need to provide
after school, is that correct?
A Yes.
Q For how long?
A Until 4 o'clock.
Q And the rest of the days you wouldn't need to
provide any after school, is that correct?
A Right.
Q And Domenic is currently enrolled here in
Syracuse in school?
A Yes.
Q Where is he enrolled?
A Jowonio.
Q And will he be able to attend Jowonio next year?
A No.
Q And he's currently enrolled in what year?
A Kindergarten.
Q And next year he would be going to first grade,
correct?
A That's correct.
Q And if Domenic and you are forced to stay here,
where would Domenic be going to school next year?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 47
A The school district would be Percy Hughes.
Q And that's the Syracuse City School District?
A That's correct.
Q Did you learn anything about the size of classes
at the Aurora 7 school?
A There about 19 students and two teachers.
Q 19 students and two teachers?
A Yes.
Q And did you learn anything about the philosophy
of the school?
A They are striving for encouraging individual
growth and to survival skills.
MR. STERN: Judge, it's all coming in but I
object to this as hearsay. I'm sure that there
are fine schools that can be found and as to her
testifying as to their philosophy and this and
that --
MS. WALSH: We're going to move on now,
your Honor.
MR. STERN: This is just hearsay.
THE COURT: Okay. It is usual if someone
is contemplating a move to make inquiries on
their own and we can accept it. If you want to
challenge it, go ahead and challenge it. It's
her word against yours I suppose but, I mean,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 48
this is a thing that's done all the time to check
on what schools are available and so on, and I --
you know, she can testify as to what she
investigated and what she got out of it.
MR. STERN: Okay.
THE COURT: You can cross-examine her on
it, how far she went in her investigation and so
forth. Okay? And I think that's fair. Okay.
MS. WALSH: We're going to move on at this
point, your Honor.
THE COURT: Yeah.
Q Miss Phillipson, you have sole custody of Domenic,
correct?
A Yes.
Q Subject to the respondent's visitation?
A Yes.
Q And that's per the Judgment and Decree and
decision of Judge Majors?
A Yes.
MS. WALSH: Your Honor, I'm going to ask
that the Court accept the Judgment and Decree of
Divorce and the decision. When I gave Mr. Stern
the information he requested, I specifically said
I wasn't going to give court documents because
they were of record. They are voluminous in this
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 49
case to begin with and that his client could
provide him with all of those anyway, okay?
THE COURT: You know, the Court takes
notice of all its orders, okay, including Supreme
Court and everything else. Those orders are
attached to the petition so I don't see any need
to --
MS. WALSH: Okay.
THE COURT: -- reintroduce them.
MS. WALSH: Okay. Unless I ask my client
to --
THE COURT: Those are all a matter of
record, court record, and we have to take notice
of them. They're here.
MS. WALSH: Could I ask you -- is the
decision -- is the Court's decision --
THE COURT: The decisions are there.
MS. WALSH: Not just the Judgment and
Decree of Divorce?
THE COURT: No, the decision -- I thought
the decision was here.
MS. WALSH: I just want to make sure.
THE COURT: This is the judgment and then
the decision. A is the decree and C is the
decision. They're in the papers.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 50
Q Miss Phillipson, you're familiar with the Judgment
and Decree of Divorce?
A Yes.
Q And you were able to review it before you came to
Court today?
A No.
Q Have you reviewed it in the last couple of weeks?
A Yes.
Q Okay. And pursuant to the Judgment and Decree of
Divorce and the decision there was a restraint on the
respondent, correct?
A Yes.
Q And what was the nature of that restraint?
MR. STERN: Objection. Judge, are we
getting into the divorce and the things that have
occurred --
MS. WALSH: Only --
MR. STERN: I haven't finished yet. And
the things that occurred prior to this action?
THE COURT: No. We're talking about a
decision I believe, correct?
MS. WALSH: Correct.
THE COURT: And I imagine we have to know
what it is to see what was done concerning that
up to today.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 51
A The restrain order is provided because the
respondent started to visit the child care --
MR. STERN: Objection.
THE COURT: Excuse me. What was the
restraint, I think is the question.
Q What was the restraint?
A The respondent was not to be able to visit the
child care center.
Q And that was as a result of specific actions,
correct?
MR. STERN: Objection, leading.
A Yes.
THE COURT: Let's go on. The Court is
aware of it. In fact, the Court read all of this
to prepare for today's trial. I'm aware of all
of that. So let's talk about after that. In
fact, it goes on about when the child goes into
the next year, correct?
Q Was there any ongoing problems based on the
restraining order on Domenic, for Domenic?
A After the --
Q Yes.
A After the restrain order?
Q Yes.
A Before the restrain order or before his father
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 52
starts to visit the child care Domenic -- it was about a
month into when he started going to child care and he was
just getting used to the child care, interacting -- start
interacting with other children and teachers. After his
father's visit he refused to interact with other children
and the teachers and he told me, I do not want to interact
with other children. When I asked a reason, he said, he
goes, daddy doesn't go to the child care. He also had a
problem with the lunch, eating lunch. He refused to eat
lunch with other children. It lasted over a year.
Q Did you talk to Domenic about his refusal to eat
lunch with other children?
A Yes, I did.
Q And what did Domenic tell you?
A Because daddy doesn't come to the child care.
Q And has this matter been resolved?
A This year finally after two years he finally
started to eat lunch with other children and the last year
when he started Jowonio he was still -- the first 3 months,
September through December, from what I heard from teachers
he didn't interact very much. I started to hear a lot more
interaction with other children after the Christmas
vacation. One teacher said that Domenic had a fight with
other children which is good sign because before that he was
just standing by not interacting with other children,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 53
therefore he did not get into any trouble. But because he
started to interact with other children there is always
conflict. That's how he got into the fight and the teacher
told me that's a positive sign for him. By the end of last
year he not only interacted with other children but when
there is a conflict he learned how to negotiate with other
children. I was very happy to hear that teachers said that
he starts to interact with other children and try to make a
bridge between other children when they have conflict as
well. He did not still eat lunch but now and then I started
to hear from teachers he had a sip of drink because he
refused to eat and drink throughout the day.
Q And why did he tell you -- did he tell you why he
refused to eat and drink with the other children?
MR. STERN: Asked and answered.
A His answer was because his daddy didn't come to
the day care, which is very surprising to me. After so many
years, so many time, time passed but it had such a great
impact on him, negative impact on him, and I was very
shocked about it. It was beyond my imagination to
understand.
Q Miss Phillipson, describe the communication between
you and the respondent regarding what's in Domenic's best
interest?
A It's been very difficult. It's almost
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 54
impossible.
Q Are you able to have direct communication with
him?
A Not anymore. I used to. I tried -- I used to
talk to him over the phone. Then he would start saying,
just think about what you're doing, you know, what you
think, you know what you're doing to Domenic, just come
back to real life and --
Q What effect, if any, did that have on you?
A I felt awful and after the phone conversation I
started to cry and I decided not to talk him over the phone.
Instead I started to write a letter or send a fax.
Q And at this point that's how you communicate, by
fax or letter?
A Yes, I do.
Q And describe how -- describe your communication
when you try and schedule a change to schedule vacations?
A It was an endless battle.
Q Pardon me? I didn't hear you.
A Endless battle. He would count his hours in
minute, the time he would lose, but if I ask him adjustment
he would not consider my time loss but he would just take
it. He would not consider exchanging the time but when he
lose it, he would count to the minute.
Q Was there any particular problems related
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 55
regarding vacations?
A Especially summer vacation it was always endless
going back and forth because I wanted to leave enough time
for Domenic for time change, jet lag, because usually a
week or so he's very tired but his father did not allow that
time because he's concerned with the time, how much time he
will have, how much time he would lose. And eventually I
had to ask my attorney -- like this summer I asked my
attorney to deal with it.
Q When you say you asked your attorney to deal with
it, what do you mean?
A It became impossible to negotiate with him
because there is no negotiation. There's no give and take
deal. But he would just keep taking it.
Q So when you tried to schedule summer vacation it
had to be done between your attorney and the respondent, not
directly with you and the respondent, correct?
A Yes.
MR. STERN: Objection.
THE COURT: Sustained. That's leading.
You'll have to ask the question.
Q Why did you ask your attorney to communicate with
the respondent?
A Again, he would become very controlling and start
saying things like, think about Domenic.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 56
Q What other problems do you have dealing with the
respondent concerning what's in the best interest of
Domenic?
A He always says it's best for Domenic but what I
see is putting his desire first.
Q Whose desire first?
A His father's desire. He would -- over the period
of time he would say manipulative things to Domenic.
Q Can you give us examples of the manipulative
things that he says to Domenic?
A It goes back to around November '96. That's when
I became first alert about a situation.
MR. STERN: Judge --
A Because Domenic started saying --
MR. STERN: Objection.
THE COURT: Hold on.
MR. STERN: My objection is this. I
thought you were very clear about the fact --
THE COURT: I agree. And I am going to
sustain the objection. I will definitely not go
beyond the date of the decree.
Q Miss Phillipson, the Judge wants to insure that we
don't go after March 26th, 1997.
A Yes, it's November '96.
Q Right. And that was after you were in court?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 57
A Right.
MS. WALSH: That's true, your Honor. We
were in court -- our last day of court was
October 2nd, 1996.
THE COURT: Yeah.
Q It's listed on the top of the Judgment and
Decree.
A And the first --
THE COURT: I got that so what is so
important that happened in between that and the
decision -- I mean, the actual order?
MS. WALSH: She's going to testify as to
what she began to notice regarding the
manipulation by the respondent of the child.
THE COURT: That was after the hearing but
before the decision, is that --
MS. WALSH: Before the decision and before
the judgment, correct. Unfortunately, the
decision is not dated. The only thing --
THE COURT: You know, I'm still not going
to -- we go from the decree and that's it. The
decree is dated and we're going to go from there.
A Next event, next thing I noticed, he --
THE COURT: If it's all that serious, there
must be something since then, since the decree.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 58
Q We need to go from March of '97.
A '97.
Q What you're going to testify has to be after
March of '97.
A May of '97. He came back crying and he had
wheezing and next day I also had to take him to the doctor
because his wheezing continued.
THE COURT: I've got to know when, where,
who was there, and the child was crying coming
back from where? I don't know from where.
THE WITNESS: From visitation.
THE COURT: You have to go easy and take it
in stages like that, all right? Go ahead.
Q This was in May of 1997?
A Yes.
Q And he was returning from where?
A From visitation from his father.
Q And where were you?
A I was at home.
Q And what occurred? Was there anybody else there
besides you and Domenic?
A No.
Q What occurred?
A And his father.
Q His father was there?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 59
A Brought him back. He came back crying and he was
wheezing.
Q He was what?
A Wheezing.
Q Wheezing.
A And I took him to the pediatrician the next day
and the following day when I was ready to give him a bath he
started to ask me, do you feel lonely when I'm not here.
Q Do you feel what?
A Lonely.
Q Lonely.
A I said no, I -- knowing that you have a good time
with father, I'll be happy and I'm grown-up so I can take
care of myself. And then he told me, daddy always tells me
he's lonely when Domenic is not there. He always tells him
he wants Domenic to stay longer. So I asked him what does
he make you feel. How does he make you feel. And he was --
just turned to four and he was pointing his stomach and he
said this feels funny. So I asked him, do you feel like
you're doing something wrong, and he said yes. And that
continues to this day. And the transition has been very
difficult for him.
Q Okay. Let's stop, okay? When you say that
continues to today, what continues to today?
A His father telling him he feels lonely, he want
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 60
him to stay longer.
MR. STERN: Objection as to foundation and
as to hearsay.
THE COURT: Sustained. Listen, please, you
have to speak up a little bit too because I am
straining like crazy to hear you.
THE WITNESS: I am sorry.
THE COURT: But you have to speak up and
you have to say what the child said to you and
what you said to the child. That's the only way
this can come in, okay? As best you remember it.
I've got to know when it was, where it was, who
was there, what the child said to you and what
you said to the child, and that's the way it will
come in. And that's an exception that we make
here because we consider a child a quasi party to
these proceedings, okay?
Q Miss Phillipson, you testified that that first event
occurred in May of '97, correct?
A Yes.
Q And approximately how many times since then have
you had those kinds of conversations with Domenic in which
he tells you the same types of things he said in May of '97?
MR. STERN: I'm going to object as to, I
don't understand what she means by that type. If
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 61
she would just specify what we're talking about.
MS. WALSH: Okay.
Q How many times has Domenic told you that his
father tells him that he feels lonely when Domenic leaves?
A Since then countless, every time -- almost every
time he comes back from his visitation, and usually when he
cries I assure him it is not his fault.
Q Now, you said that transitions were difficult.
That was your testimony?
A Yes.
Q Okay. And when you say transitions, what do you
mean?
A Visitation occurs every other weekend. I usually
bring him to his father's. There is some exceptions but
usually I bring him to his father's.
Q Okay. And when you bring him to his father's,
where do you bring him?
A Lately I bring him to Thruway exit off 690.
Q And how long have you been doing that?
A I think it's over a year.
Q And who requested that the transition be at the
Thruway exit?
A The beginning of the transition has been --
Q At there?
A At --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 62
Q And who requested that you bring him there at the
beginning?
A Oh, his father.
Q His father. And before it was at the Thruway
where did you bring him?
A There was time I brought him to the marital
residence in Phoenix.
Q And that's where the respondent was residing?
A Yes.
Q And what are the problems that you've had at the
beginning of the visitation?
MR. STERN: If any. Leading.
THE COURT: Overruled. Did you have any
problems, first of all.
Q Did you have any --
THE COURT: Regarding the visitation, did
you have any problems since this order was made?
MS. WALSH: Your Honor, I believe she
testified that there were problems at the
beginning of visitation and --
THE WITNESS: Yes.
Q And what are those problems?
A He would ask me if I would be okay, if I feel
lonely, and there is at times that he did not want to go.
Q And how do you handle it when Domenic tells you
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 63
things like that?
A When he tells me if I feel lonely?
Q Yes.
A I tell him knowing that he's happy having fun
I'll be happy for him and I am okay so you don't have to
worry about mommy.
Q And what problems, if any, do you have at the end
of visitation, at the end of the -- at the transition at the
end of visitation?
A It's been always difficult but there is times
he -- his father always insists on prolonging the transition
time, creating fake family conversation.
Q Is there a specific time that you can remember?
A In September after this summer vacation twice --
Q September of 1998?
A September.
Q September of --
A Of '98, the most recent one. He spend almost a
half an hour outside the door during the transition.
Q Who spent?
A Domenic's father and Domenic.
Q Outside whose door?
A My house, my door. Other times there is -- there
is a time that we had a problem with a diaper situation
and --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 64
Q Okay. We're going to get to that.
A Okay.
Q Let's -- when you said that there was a half an
hour, would you describe what happened?
A His father opened the door or I opened the door
and they were there and Domenic always comes in father's
arm like a baby. He carries him all the way as long as I
have seen him -- seen them.
Q And how old is Domenic now?
A Five years old.
Q How much does he weigh?
A 45 pounds or so.
Q So Domenic is being held in his arms by his
father?
A Yes.
Q Okay. And what happened?
A Then his father usually starts telling me that
Domenic wanted to tell you such and such and I already
have -- Domenic -- which Domenic requested me to do as
well but I already talk to Domenic that he is five years
old, or since four years old, that it is important that you
tell in your own words as much as you can and daddy will be
happy to hear your own words and that's being -- I have
always encouraged him to do.
Q And what happened on this specific day? What did
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 65
you do when the conversation continued?
A I told them that I prefer to hear from Domenic
instead of his father and Domenic seemed -- needed more
time and John was still holding him so Domenic didn't --
you know, wasn't on the floor. He was holding him.
Q So his father did not put him down to allow him
to come in, is that correct?
A Right. So I closed the door and -- I told them
that when you're ready, let me know. Then I closed the
door. Then they spend a half an hour outside the door.
Q And what, if anything, did you observe at the end
of the half hour?
A Domenic eventually came in.
Q And what was his -- what was Domenic doing when
he came in?
A He was still sobbing.
Q Sobbing?
A What was interesting was we closed the door and a
few minutes he stopped crying, he went back to regular
five-year-old, very active and started telling me about the
dinosaur book he read.
Q And did Domenic say anything else to you about
the half hour outside the door?
A No.
Q Do you remember any other particular problems
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 66
that occur around transitions?
A My memory goes back to diaper situation.
Q Okay. And tell us what the diaper situation was?
A I potty-trained him when he turned to four and I
told his father the fact he was potty-trained, how I trained
him, but I noticed he comes back with a diaper. I used to
go to the marital residence in Phoenix to pick Domenic up
and I noticed that he's wearing diaper and I express a
concern not in front of Domenic but afterwards --
Q Who did you express the concern to?
A I expressed a concern to his -- to Domenic's
father.
Q And what was your concern?
A I was concerned because he's potty-trained with
me, he's capable of going to the bathroom, but yet he was
put back into the diaper at his father's and it is such an
extreme double standard.
Q And Domenic was completely trained at your house
at four?
MR. STERN: Objection, leading.
THE COURT: Sustained.
Q How old was Domenic when he was trained at your
house?
A He was trained during the day at four and summer
of '97 when I took Domenic to Japan and spend a full four
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 67
week he was potty-trained completely.
Q So after that summer you were not using diapers
at all, correct?
A Right.
Q And what was the problem that you observed
regarding his toilet training with his father?
A I tried to talk to his father and tried to
express how important it was to Domenic to be potty-trained
in both houses. I also talked to Domenic's pediatrician
about the situation and she told me that children should be
potty-trained by four and it is not fair for Domenic to be
imposed in such a double standard.
MR. STERN: I'm going to object as to
hearsay, what the doctor said.
THE COURT: Sustained.
Q What, if anything, did you tell the respondent
about what he could do to help him train Domenic at his
house?
A What did I fell the respondent?
Q Yes.
A I tried to explain how I trained him and
emphasized during the visitation maybe you -- he could pick
one day to just to spend on potty-training, which I did.
But knowing his personality I prepared him as well which I
told him.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 68
Q Did you talk to Mr. Murtari about your
conversations with the child's pediatrician?
A Yes, I did.
Q And what did you tell the respondent about that?
A I told him about what the doctor said. I also
gave him a number he can call.
Q Call who?
A Call the pediatrician.
Q So you gave Mr. Murtari the phone number?
A Yes.
A Originally I was talking to him over the phone
but Domenic's father became very irritant about the subject
and he started telling me, if you think it's that important
you should write me a letter, so I started writing him a
letter. I wrote him a letter as best of my knowledge March,
May, also immediately before the summer vacation because I
was very concerned that Domenic would be in diaper during
this long vacation.
Q And you said there was a time when there was a
problem regarding the diaper at a transition?
A Yes.
Q And what was that -- do you remember when that
problem was?
A I believe it's -- he was potty-trained in
February and we were still wearing jackets so I believe that
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 69
that was March, March or April, early April.
Q Of 1997?
A Of 1997, yes.
Q And you stated previously that you were going to
the marital residence to --
A Yes.
Q -- bring -- to pick up Domenic?
A Yes.
Q And what occurred?
A I noticed he was in a diaper.
Q Who else was there?
A There was a time that some neighbors were there
too but mostly his father, myself and Domenic.
MR. STERN: Excuse me. I'm going to object
as to relevance. How much of the diaper incident
do we have to -- I mean, we're going over and
over about diapers and all this. How much do we
need to hear for it to be relevant to a
relocation case?
MS. WALSH: Your Honor, if I could be
heard?
THE COURT: Yeah.
MS. WALSH: I believe the fact is that it
is very important because it goes very
specifically to not only the issue of the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 70
respondent's judgment regarding the child but I
do believe the respondent also has a cross
petition for custody before the Court.
THE COURT: I understand. I am not going
to restrict that but we're going to take it up at
2 o'clock. We're going to break for lunch.
MS. WALSH: Could I ask the Court what kind
of calendar the Court has at 2 so that I can talk
to my --
THE COURT: We may have to start a few
minutes later than that. Let's see. I've got
maybe 3 real quick things. I'll say this, that
we will start no later than 2:30. Okay?
If you're ready to go at 2:30, okay, we will
start --
MS. WALSH: So I can have my witness --
THE COURT: Whatever I've got will be done
by then.
MS. WALSH: So I can have my witness come
at 2:30.
THE COURT: 2:30 will be fine.
MS. WALSH: Okay.
MR. STERN: If I could just understand how
much more time you will need with this witness
and what you expect so that can I plan my
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 71
witnesses.
MS. WALSH: I think my expert will be about
an hour and I expect that I will be another hour
with my client.
THE COURT: Yeah, okay.
MR. STERN: I need to be heard on the
expert, Judge, because I'm not sure -- I'm going
to object to the admission of the expert. I put
in a request for his curriculum vitae or any
information regarding what his expertise is. To
this date I haven't received that.
THE COURT: You have to do that when she
puts him on the stand.
MR. STERN: But I'm entitled to know --
THE COURT: As far as his credentials?
MR. STERN: What his credentials are.
THE COURT: It's more important, you know,
on an argument on whether -- you know, on whether
it's necessary in this case on whether, you know,
it's material and relevant and so on. He's going
to be here, okay? And the point is, what are you
trying to use him for?
MS. WALSH: Your Honor, I did disclose that
I was using this. I would again remind the Court
that I was given an omnibus discovery on the date
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 72
that we were scheduled here for trial. I told
you in chambers and Mr. Stern that I would comply
as best I could within 24 hours. I wrote a
letter, explained what his credentials were,
explained that he would be here, and I have
gotten nothing back in terms that it was
insufficient, nor have I gotten any other
requests so I did, in fact, disclose it.
MR. STERN: Judge, how can I cross-examine
this man on what his credentials are when I have
been given no disclosure as to what they were to
this point. Miss Walsh told me that she was
going to comply. I haven't received anything.
THE COURT: You know, this is the day of
the trial and, you know, if you didn't make any
motions for me to, you know, before the trial,
you have to make them when the person is here.
You make them then. But I'm telling you now if
it's material, it's relevant, he's going to be
here, okay, that's what I'm looking for.
MR. STERN: Okay.
(Whereupon, a luncheon recess was taken.)
THE COURT: Back on the matter of Murtari/
Phillipson on Docket V-320-95. Both parties are
present with counsel, the law guardian is
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 73
present. Miss Walsh?
MS. WALSH: I'd like to call Dr. Ken
Reagles.
K E N N E T H W. R E A G L E S,
having been called as a witness, being duly
sworn, testified as follows:
COURT ATTENDANT: State your name for the
record, please.
THE WITNESS: My name is Kenneth William
Reagles.
THE COURT: Miss Walsh?
DIRECT EXAMINATION
BY MS. WALSH:
Q Dr. Reagles, where do you reside?
A I reside at 6751 Flametree Drive in Dewitt.
Q And do you have a professional address?
A Yes. Actually I have two. At
Syracuse University it's 258 Huntington Hall, and I also
have an office for the consulting business that I run and
that is at 500 Plumb Street, Suite 550 in Downtown Syracuse.
Q And what is your profession?
A I'm a professor of rehabilitation services and a
specialist in vocational rehabilitation.
Q And will you define what rehabilitation services,
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 74
what a rehab specialist is?
A Yes, an individual who does the work that I do is
involved in the vocational rehabilitation of individuals who
have barriers to employment. In most instances those
barriers are physical or emotional, sometimes they're
cultural, and so the rehabilitation specialist's job is to
assist those individuals to the extent that they can compete
with individuals who are not disabled or who are culturally
advantaged, if you will.
Q And what tools does a rehab -- rehabilitation
counselor specialist use in making these assessments about
people?
A Well, there are a variety of tests and measures
within the vocational area. We would use vocational
interest, batteries, aptitude tests, intelligence tests,
achievement tests as well as tests of personality. We would
also used specialized tests that would get at specific
vocational skills such as mechanical aptitude, opportunity
to -- or the capacity to see things in three dimensions like
as measured by an instrument called the Minnesota Paper Form
Board Test but in addition to tests and measures we also
rely heavily upon medical information that is generated by
treating physicians. We would use some reports from allied
health professionals, such as psychologists, neuro
psychologists, social workers, anyone else who has specific
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 75
information about an individual with whom we would be
working. We utilize the interview process to essentially
take a history of the individual, learn about their assets
and liabilities, their strengths, their barriers to
employment. I would also utilize authoritative references
in our field, many of which are generated by the
U.S. Department of labor, such as the Dictionary of
Occupational Titles, the Occupational Outlook Handbook. We
would also rely upon labor statistics generated by State
Department of Labor as well as the Federal Department of
Labor. We would use wage data generated by Department of
Labor, Department of Commerce. We would utilize demographic
information such as life expectancies, work life
expectancies, social economic status, that sort of thing.
So those would be some of the instruments that -- and
sources of information that we would typically rely upon.
Q Are you presently employed in this area?
A Yes, I am.
Q And what is your current employment?
A Professor of Emeritus at Syracuse University
within the Rehabilitation Services Department where I have
been since 1975. Since 1969 I have been the owner and,
therefore, the president of a consulting firm known as
K.W. Reagles and Associates, that provides essentially
forensic rehabilitation psychology services to attorneys and
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 76
their clients. I have also in 19 -- from 1980 until 1987 I
was the co-owner with Dr. Ronald Dougherty of an outpatient
clinic known as Pelion that provided vocational and medical
services to a variety of client populations.
Q Dr. Reagles --
THE COURT: Excuse me just one second.
(Short pause.)
THE COURT: I'm sorry. Go ahead.
Q Dr. Reagles, will you provide us with your
educational background?
A Yes, I have an Undergraduate Degree in physical
education and chemistry from the University of Wisconsin at
LaCrosse and that was achieved in 1962. I have a Masters
Degree in counseling and guidance from SanDiego State
University in SanDiego, California and that was achieved in
1966 and I have a PhD, a Doctorate of Philosophy in
rehabilitation counseling psychology from the University of
Wisconsin at Madison and that was achieved in 1969.
Q And what subject matter is included in the course
of study leading to a degree in rehabilitation counseling
psychology?
A First, rehabilitation counseling psychologists
are concerned with individuals who have disabling conditions
so there's a great deal of study about medical information,
disease processes, trauma, other ways of which individuals
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 77
can become disabled including those that are either
inherited or are what we call developmental disablities,
acquired during the developmental process either prior to or
to an individual's birth or subsequent to it. We also are
concerned about getting people back to work so there's a
great deal of study of vocational psychology of where people
work, what qualifications it takes to become employed, what
happens to workers when they become disabled, what are the
trends within the world of work with regard to what jobs are
coming into existence, which ones are going out of favor,
which ones is there a great deal of demand for, which ones
not so much demand for, the wages, the fringe benefits, the
unemployment rates, the work life expectancies associated
with employment.
We do what we do within a context of a counseling
relationship so there's a great deal of information about
human growth and development, personality theory, the
conduct of interviews and counseling sessions, how to assist
individuals with disablities adjust to their disability, and
by that I mean not only physical disablities but cultural
issues as well, educational deficits. We more recently have
become specialists in the use of technology to minimize or
even eliminate the consequences of disability and so those
are the essential areas of study within a degree leading to
rehabilitation counseling psychology or rehabilitation
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 78
counseling.
Q And would you tell us about your previous work
experience, briefly?
A Sure, of course. And actually I taught school in
the public schools of Wisconsin for two years, I was a
junior high school general science teacher and then I began
to pursue graduate study and I worked as a counselor at the
University of Northern Illinois for one semester before
embarking upon a doctoral study at the University of
Wisconsin. Having completed that degree in 1969 I had an
opportunity to spend a year in Israel assisting in the
establishment of the first rehabilitation counseling program
outside the United States. I returned to the University of
Wisconsin where I spent five years as the research director
of a federally funded rehabilitation research institute and
in 1975 I learned of a position vacancy at Syracuse
University that was a combination of teaching and research
and community service. I applied for the position, I was a
successful applicant and in the fall of 1975 my wife and my
daughter and I moved to Syracuse where we have lived ever
since.
Q And at your work both at the University of
Wisconsin and at Syracuse University have you completed any
research in your field?
A Yes, I have.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 79
Q And in what areas?
A Most of my research has been about the impact of
rehabilitation services, the economic benefits, individual
satisfaction with rehabilitation services. I have developed
a number of tests and measures to measure such impact. I've
also looked at issues of cultural disadvantagement, directed
a five-year study at the University of Wisconsin called the
Wood County Project which tested the effectiveness of
traditional vocational rehabilitation techniques for
individuals whose barriers to employment were cultural, not
medical. More recently I've had an opportunity to be
involved in research regarding substance abuse, especially
with Dr. Dougherty and but the prevailing theme within my
research focus has been upon the economic consequences of
disability.
Q And have you published or written any books in
this area?
A Yes, I have. I've written four books,
approximately 15 chapters in books that others have edited,
about the same number of monographs, which are essentially
short books, 80 to 100 pages long. Primarily those were the
results of specific research projects and I have more than
50 articles that have been published in professional
journals.
Q And are there professional organizations to which
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 80
you belong?
A Yes, there are.
Q And what are they?
A The American Counseling Association, the National
Rehabilitation Association, the National Association of
Forensic Economists. I also belong to the National Council
of Rehabilitation Educators, the American and National
Rehabilitation Counseling Association, and the National
Association of Rehabilitation Professionals in the private
sector.
Q And have you had a leadership role in any of
these organizations?
A Yes.
Q And what is that?
A I have been the national president of the
American Rehabilitation Counseling Association, I have also
been the national president of the National Council of
Rehabilitation Educators.
Q And have you offered your services to attorneys
and their clients?
A Yes, I have.
Q And what is the nature of the services that you
offer?
A Most typically I am involved in legal matters
that I think we know as personal injury or wrongful death
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 81
cases, more -- or, less frequently I'm involved in marital
matters, wrongful dismissal, sexual harassment cases. So
that's the nature of the kinds of cases that I get involved
in.
Q And have you testified in Court before on these
matters?
A Yes, I have.
Q And in what courts have you testified?
A I have testified in New York Supreme Courts in --
from Buffalo to Rochester to Syracuse to Utica to Albany
down into the New York City area as well as Watertown,
Binghamton, other communities. I have also testified in
Federal Courts in most of those communities. I have
testified in courts outside of New York State. I have also
testified in Canada.
Q And have you testified in matrimonial matters on
the economic value and -- of a housewife?
A Yes, I have.
Q And have you testified in those kind of matters
regarding the steps that a housewife or a homemaker must
take to become self-supporting?
A Yes, I have.
Q And are you paid for your services?
A Yes, I am.
Q And have you been employed by both plaintiffs and
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 82
defendants or petitioners and respondents?
A Yes, I have.
Q And do your fees depend in any way on the outcome
of the trial?
A No, they don't. I'm paid for my time.
MS. WALSH: Your Honor, I'd like at this
time to ask that Mr. Reagles be qualified as an
expert in the field of rehabilitation counseling.
THE COURT: Mr. Stern?
MR. STERN: Judge, at this time I'd like to
renew my objection as I placed on the record. I
had asked in my omnibus discovery demands served
upon the petitioner more than 20 days ago the
name and address of each person whom they intend
to call as an expert witness, a statement of the
qualifications of such expert witness, the
statement and reason --
THE COURT: I'm going to interrupt you,
Mr. Stern. I received absolutely no motions in
this regard. I received no motions to preclude
anything, and I have been here 18 years and this
is the way I have handled every case such as
this. We don't require that witness lists be
traded. If that's something that you've got a
beef about from discovery, you should bring it to
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 83
the attention of the Court before the trial date.
So I'm overruling your objection, it's on the
record and we're going to proceed. Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay.
MR. STERN: Judge, I'd like a little voir
dire, if I may.
THE COURT: You may.
VOIR DIRE EXAMINATION
BY MR. STERN:
Q Hi, Professor Reagles.
A How are you doing?
Q I just have a couple of questions about your
experience in the area of helping people get jobs as a
professor of linguistics. How many of those cases have you
worked on?
A I believe that this is the first case that I have
been involved in --
Q Okay.
A -- where the employability of someone with the
prospective accomplished one of the doctoral degree in
linguistics has occurred.
Q Has part of your -- do you have any background in
linguistics?
A Only to the extent that the Department with which
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - VOIR DIRE 84
I have been affiliated with at Syracuse University is -- has
been historically within the same department as the
communications sciences and disorders department and many of
my colleagues in that department have joint appointments to
the Department of Linguistics so I'm generally familiar with
it but I would certainly admit that I'm not intimately
familiar with it.
Q Certainly. Do you have any familiarity with --
what sort of tests do you have -- I mean, as an expert what
sort of test can you have to gauge someone's language
ability?
MS. WALSH: Your Honor, I would welcome
this as a cross-examination. I don't know that
it's voir dire.
THE COURT: Yeah, this is more to his
credentials as an expert than voir dire.
MR. STERN: I understand, Judge. What I'm
trying to understand is that certainly he has an
education in vocational rehabilitation and
certainly if I had some brain injury or various
problems with that there's lots of things a
vocational rehabilitation expert is good for.
But my question to him is what can he add to this
as to this woman's ability to get a job as a
linguistics professor.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - VOIR DIRE 85
THE COURT: Why don't you wait until you
get the direct testimony and then you can find
out. Maybe he hasn't got anything on that.
MR. STERN: Well, that was what I was
trying to see from voir dire.
THE COURT: Well, the voir dire is strictly
for his credentials.
MR. STERN: Okay.
THE COURT: That's what it's for. As to
whether he's an expert or not and that's limited
to that. So you have to wait for your other
questions later on.
MR. STERN: I understand, Judge. And I
would have no objection to him being admitted as
an expert in rehabilitation.
THE COURT: Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: The witness is regarded as an
expert.
CONTINUED DIRECT EXAMINATION
BY MS. WALSH:
Q Dr. Reagles, did there come a time when you were
asked to evaluate the matter of Miss Adrianne Phillipson?
A Yes.
Q And specifically what were you asked to do?
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Official Court Reporter
K. REAGLES - DIRECT 86
A I was asked to become familiar with who she was,
what her family background had been, what her educational
history has been, essentially what her marital and parental
histories have been. I was asked to become familiar with
the evolution of her career aspirations, as reflected not
only in her academic accomplishments but upon her future
professional pursuits. That is, what it is that she wants
to do for her professional career. Then to within that
general area to learn more specifically about her
professional and career aspirations as they involved the
study of linguistics, specifically the phenomenon of
language acquisition and even more specifically within
circumstances -- usually families where there is what we
call bilingualism, that is parents who have -- one parent
having English, the other having Japanese as the languages
of choice and the influence of that phenomenon about the
acquisition of language by the children, and having that as
the back drop of her career and professional aspirations to
then conduct a study of the sites within U.S. colleges and
universities where the accomplishment of those career
objectives would be most feasible.
Q And what information did you consider in
conducting your study?
A Well, I conducted an interview of -- do you want
to tell me your first name?
DEBORAH A. McCARTHY
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K. REAGLES - DIRECT 87
Q Adrianne.
A Adrianne, the pronounciation. I conducted a
personal interview of her, I looked at her academic
accomplishments with respect to the transcript of her
grades, her receipt of degrees. I also then looked at -- of
concern since the focus was upon the acquisition of language
within bilingual families where Japanese was one of the
predominant -- was one of the predominant languages, of
where within the U.S. populations are the concentrations of
individuals of Japanese heritage, since research would be
more prevalent in such settings. I also looked at
institutions having doctoral programs within this general
area of study. I also considered her health background, her
family background, her role as a parent. Those were the
general areas of concern that I had.
Q And what did you learn about Miss Phillipson's need
to become self-supporting at this time?
A I learned that it was quite paramount, that
economically things are not well for her. She has been
involved in what I would call several temporary and
part-time employment endeavors that are not consistent nor
economically fulfilling to the extent that she is presently
economically self-sufficient.
Q And based on what you have learned can she be
self-supporting in the Syracuse area with her current
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 88
credentials?
A In my opinion she cannot.
Q And why not?
A Well, first of all, the degree that she has in
music is more in music theory, not in instruction and so
while she has attempted to earn an income from piano
instruction I believe that the fact that she doesn't have a
degree in music instruction and the fact that she has a --
what I would call a language accent barrier to communication
with students makes it difficult for me to conceive of that
as an area of sufficient income for her.
Q Go ahead.
A She also has had some employment ventures with
colleges and universities, law firms and others where she
has done either translation or interpreter services on
behalf of -- for example, clients of a law firm where the
client spoke Japanese but not English. She's done some
teaching I believe at Lemoyne and at Syracuse University in
the language department, teaching Japanese. Most of those
positions have been eliminated, if not all of them, by the
University's decision to use teaching assistants for those
positions rather than what we call adjunct professors. So
those -- the two principal reasons, or those are the reasons
that I think the two principal areas of vocational activity
that she has attempted in the past are not likely to produce
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 89
the economic wherewithal for her to be self-sufficient in
the Syracuse area.
Q And in your evaluation did you learn whether or
not any of her income that she got from these various
pursuits provided an income which would enable her to be
self-supporting?
A I did.
Q And what -- and were any -- was any of those jobs
able to provide income on a self-supporting basis?
A In my opinion they were not.
Q You stated that Miss Phillipson had a current
impediment or barrier to becoming self-supporting in certain
areas. What is that barrier at this time?
A Well, I think that the fact that English is not
her first language, the fact that she speaks English --
American English with an accent, is a barrier to her
involvement in positions wherein communication, oral
communication, is an important element of such activity amd
certainly music instruction as an example would be one of
those.
Q And is that a barrier to her pursuing her current
goal of a PhD in bilingual education?
A To the contrary. I think it is -- given the
choice of areas of study, it actually is an asset.
Q What did you learn about Miss Phillipson's
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 90
educational background?
A I learned that in 1986 she completed a Bachelor's
Degree, a Bachelor's of Arts degree in photojournalism and
in 1993 she completed a Masters of Arts Degree in music with
an emphasis in piano and that presently she is pursuing a
Masters Degree in linguistics and should complete that at
the end of this semester.
Q Dr. Reagles, are there any authoritative
references that are used by members of your profession to
assist in the study of the availability and focus of
doctoral programs in linguistics?
A Yes.
Q And what are those references?
A Well, the ones that are most commonly used are
the descriptions of the programs that are generated by the
individual graduate programs in linguistics and those are
compiled by an organization having to do -- it's the Society
of Linguistic Associations or the Association of Linguistic
Societies, I'm not sure exactly what the title of the
organization is, but they publish a directory of programs in
linguistics in the United States and Canada. That is a
reference work that I relied upon.
Q And how are they used in the appraisal of the
appropriateness of that?
A What one does is essentially a matching process
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 91
of identifying the specific interests of the individual, in
this instance Adrianne, and then looking at the
characteristics of the graduate programs to find the best
match. That's the first step. Then the other step in this
particular instance was to look -- since the focus is upon
the acquisition of language, bilingualism within families
where American English and Japanese is spoken, then to look
at the concentration of -- within the population of
individuals of Japanese heritage to then essentially combine
the concentrations of such populations with the graduate
programs in those areas to see where the most opportune
areas of scientific and academic inquiry would be.
Q Let's first examine the area of her academic
performance. Did you consider some of her academic
performance more pertinent than others when you did this
study?
A Yes, I did.
Q And what were they?
A Well, certainly the -- her academic preparation
in the area of linguistics as it relates to her potential
for additional graduate study was to me more pertinent than
her background in music, for example.
Q And would you summarize her accomplishments in
the graduate school at the University in the area of
linguistics?
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 92
A Yes. Within the area of linguistics I have
looked at her transcript and there is essentially nothing
but A's and B's and she has a grade point average of well
over 3.5 in her major area of study.
Q And based on your familiarity with her graduate
work do you have an opinion as to her potential for doctoral
study in linguistics?
A Yes, I do.
Q And what information did you consider most
relevant in forming that opinion?
A Once again, the grades that she received within
the core area of study in linguistics and its relationship
to my familiarity with the prior academic accomplishments
sought by faculty within doctoral programs.
Q And what is your opinion as to her potential for
doctoral study?
A It's my opinion that she has the potential to
successfully complete a doctoral program in linguistics.
Q Do you have an opinion as to her goal, which is
to become a PhD in bilingual education, whether or not that
is a realistic goal for this woman to accomplish?
A Yes, I do.
Q And do you have an opinion -- do you have an
opinion as to whether or not if she was able to accomplish
that she would be able to become self-supporting?
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Official Court Reporter
K. REAGLES - DIRECT 93
A I do.
Q And why do you have that opinion?
A It's my opinion that the area of bilingualism
with the growing international focus upon commerce, tourism,
other areas of what I would call social intercourse would
make this an area where there is sufficient demand that if
she were to complete her doctoral degree that she could be
economically sufficient.
Q Dr. Reagles, do you have any information
regarding the rate of employment for people who graduate
from these kinds of programs?
A The numbers of graduates is -- in each particular
program is relatively small, maybe as few as two or three a
year to -- in smaller programs, to maybe a half a dozen or
eight or ten. So that nearly all of those individuals are
successfully employed upon the completion of the degree.
Q Now, Dr. Reagles, did you conduct a study of the
distribution or concentration of persons of Japanese
heritage within the United States?
A Yes, I did.
Q And why was that important?
A Well, because of the importance of having a
population concentration of individuals of Japanese heritage
relative to the academic and research focus of bilingualism
where one of the languages is Japanese, that it appeared to
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 94
me to be most appropriate for the doctoral program under
consideration to at least have access to such a population
or to unique research resources, that was an important area
to examine.
Q And did you prepare an exhibit of your findings?
A Yes, I did.
Q And could I have that?
A Yes.
MS. WALSH: I would like the record to
reflect that I am showing that exhibit to
Mr. Stern.
MR. STERN: Judge, even when I asked
earlier can I see all exhibits which are going to
be admitted in so that can I make a decision at
once, this wasn't included in that packet.
THE COURT: I'm not going to repeat it.
The motion should have been made before trial for
any grievances you had with your requests. I'm
not going to entertain them now.
MR. STERN: Judge, there's no --
THE COURT: The only objection I'm going to
entertain now during this whole trial has to do
with competency, relevancy and materiality only.
That's all. Everything else should have been
brought to the Court beforehand.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 95
MR. STERN: Judge, may I be heard on this
issue? This is the first time that I have
been -- that I have seen this piece of paper. I
could not have made a motion that I haven't been
provided with this prior to trial until this very
moment.
THE COURT: Well, is she moving that paper?
MR. STERN: I believe that she's -- yes,
she's asking to have it --
THE COURT: What is it? Are you making a
motion to introduce that into evidence?
MS. WALSH: I will, your Honor.
THE COURT: What is it? Well, at that
point I will hear your objections, I will hear
his objections and I'll make a ruling.
(Whereupon, Petitioner's Exhibit Number 8
was marked for identification.)
MS. WALSH: I would like the record to
reflect that I have shown this to Mr. Stern. I
am now showing it to the law guardian.
Q Handing you what has been marked as Exhibit
Number 8, Dr. Reagles, can you identify that for the record?
A Yes, this is an exhibit that I prepared showing
the distribution of individuals of Japanese heritage by
state and then also the 10 states that have the greatest
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 96
concentration of such individuals.
Q And what did you learn about your study of the
concentration of Japanese citizens?
A I learned that individuals with Japanese heritage
are -- populations are concentrated most prevalently in two
states, California and Hawaii, California having
approximately 313,000 such individuals, Hawaii approximately
247,000 such individuals, and the next state with -- in rank
order of the numbers of such individuals is New York with
only 35,281, most of whom are concentrated in the New York
City area.
Q And what did you find out about the State of
California?
A The State of California is the ninth population,
having the ninth highest concentration of individuals of
Japanese heritage.
MS. WALSH: Your Honor, I'd like to move
Exhibit Number 8 into evidence.
THE COURT: Mr. --
MR. STERN: Judge, I'm not going to object
to it. Just, as I understand, that is his list
of the states with the highest concentration but
I don't like being presented with things on the
day of trial and here this is --
THE COURT: I can't help it. Again, I'm
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 97
going to tell you that all discovery is supposed
to be made before trial and any problems you have
with it should be brought to the attention of the
Court before trial and at this point the only
objections that I will entertain have to do with
materiality, relevancy and competency. Okay.
Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay. That's number -- what is
it?
COURT REPORTER: 8.
THE COURT: Petitioner's Exhibit Number 8
received into evidence with no objection.
Q Dr. Reagles, did you then examine the
descriptions of the academic doctorate programs in
linguistics who had faculty members who had conducted
research in Japanese/American English bilingualism?
A Yes, I did.
Q And what information did you consider?
A What I considered was essentially what was
contained in your question and that is what academic
programs have faculty members who are conducting such
inquiry.
Q And did you prepare an exhibit of the academic
programs that met the search criteria?
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Official Court Reporter
K. REAGLES - DIRECT 98
A Yes, I did.
Q And do you have that with you?
A Yes, I do.
MS. WALSH: Would you mark that?
(Whereupon, Petitioner's Exhibit Number 9
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibit 9 to Mr. Stern and then
to the law guardian.
Q Dr. Reagles, handing you what has been marked as
Exhibit Number 9, can you identify that for the record?
A Yes, this is the listing of the five university
programs that have in my opinion the most pertinent doctoral
research programs relative to Adrianne's career and
professional aspirations, with just a brief comment about
the program features of each.
Q And what did you learn about the University of
California?
A I learned that to my surprise that there is
located what is called the Bilingual Resource Center that
focuses upon child language acquisition.
MS. WALSH: I'd like to move into evidence
Exhibit Number 9.
MR. STERN: Judge, I object as I asked in
the omnibus discovery demand a copy of any and
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 99
all exhibits that you intend to introduce at
trial. That was not included in the discovery
packet that I received and I object on the
grounds that it should have been provided to me.
THE COURT: For the same reason the
objection is overruled. Mr. Lupia?
MR. LUPIA: No objection, your Honor.
THE COURT: Petitioner's Exhibit 9 is
received into evidence.
Q Dr. Reagles, did you learn about any of the other
programs, whether they had the specific kind of bilingual
education programs?
A There were others.
Q Where were they located?
A Well, they were at the University of Hawaii,
Columbia University, University of Washington, University of
Chicago, Rutgers, University of Texas at Austin, Boston
University, MIT, University of Arizona, and McGill
University in Toronto.
Q Did you then combine the information that you had
regarding the concentration of persons of Japanese heritage
with the information about the pertinent doctoral programs?
A Yes, I did.
Q And what information did you discover?
A What I learned was that the four programs that
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 100
had -- well, of the five programs that had the strongest
areas of research inquiry into first language acquisition
and bilingualism were four universities in California where,
of course, there is the highest population of individuals of
Japanese heritage there, Stanford University, University of
California at Berkeley, University of California at
Los Angeles, University of California at SanDiego. The
fifth one was the University of California at San Diego which
was, of course, in California which is the state with the
ninth highest population of individuals of Japanese
heritage.
Q And did you prepare an exhibit?
A Yes, I did.
Q And could I have that?
MS. WALSH: Make that number 10.
(Whereupon, Petitioner's Exhibit Number 10
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibit 10 to Mr. Stern and to
the law guardian.
MR. STERN: Judge, I again object as this
is the first time that I have seen this document,
I'm surprised by the document and I did ask for a
copy of any and all exhibits which were intended
to use at trial by an omnibus discovery demand.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 101
THE COURT: The objection is overruled, the
same reason.
MS. WALSH: Just for the record,
your Honor --
THE COURT: Mr. Lupia?
MR. LUPIA: She hasn't even offered it yet
but I have no objection.
THE COURT: Oh, I thought you offered it.
MS. WALSH: I am going to offer it now,
your Honor.
THE COURT: Oh, okay.
MS. WALSH: Your Honor, just for the
record, since Mr. Stern is putting this in in
every exhibit I would like the record again to
reflect that I was presented with this discovery
motion on the day that we were first scheduled
for trial. We were then scheduled again and the
Court's calendar -- within a week of that date,
the Court then again adjourned it because of the
Court's schedule. So this is not a discovery
motion that has been pending for any long period
of time. I was handed it to -- it was handed to
me on the day that we were first scheduled for
trial in this matter or maybe even the second day
we were scheduled for trial in this matter.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 102
Q Dr. Reagles, handing you --
MR. STERN: Hold on. I would also just
like to make the record clean on that. I believe
I handed this to counsel for the petitioner on, I
think October -- the last time we were in Court.
I think it was October 5th, and there have been
adjournments but at the time I handed it to you,
to the petitioner's counsel, she represented to
the Court that there was no need for additional
time, that she would provide me with the things
that I had asked for which was only three
requests -- only three demands in the discovery
in my demand. And it's been more than 20 days.
She certainly had sufficient time to provide me
with those things. If it was untimely at the
time, it certainly isn't now. Thank you.
MS. WALSH: I was handed this on October
8th and we had a conference in the Court's
chambers in which I agreed to give what
information I had. We were then again scheduled
on this matter on October 20th.
THE COURT: Okay. Let's go on. You're
moving that document now?
MS. WALSH: Yes.
THE COURT: Okay. The objection the same?
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 103
MR. STERN: Same objection, your Honor.
THE COURT: Any objection?
MR. LUPIA: No objection, your Honor.
THE COURT: Same ruling. Received.
Q Dr. Reagles, based on your study of the
availability of pertinent doctoral programs in linguistics
and the concentration of Japanese within the U.S.
population, do you have an opinion with a reasonable degree
of certainty within your field of the most appropriate
doctoral programs relative to Miss Phillipson's professional
intent?
A I do.
Q And what is that opinion?
A It's the four institutions in California whose
names I recited earlier, as well as the University of
California at San Diego.
Q Dr. Reagles, did I ask you to examine the issue
of Mr. Murtari's employability?
A Yes, you did.
Q Assuming that Miss Phillipson will have to relocate?
A Yes, you did.
MS. WALSH: Would you mark that?
(Whereupon, Petitioner's Exhibit Number 11
was marked for identification.)
MS. WALSH: And the record reflect that I
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 104
am showing Exhibit 11 to Mr. Stern. And I'm
showing it to the law guardian.
Q Handing you what has been marked as
Exhibit Number 11, can you identify that for the record,
Mr. -- Dr. Reagle?
A Yes, this is Mr. -- John Murtari's resume.
Q And how did you obtain a copy of that resume?
A You gave a copy of it to me.
Q And that's the resume that you examined?
A Yes, it is.
Q Did you study his educational background?
A Yes, I did.
Q And what did you learn about his educational
background?
A I learned that he has a Bachelor of Science
degree in astronautical engineer from the U.S. Air Force
Academy that was achieved in 1978, with a grade point
average of 3.5, and subsequently he completed a Master of
Science Degree in computer science from the Syracuse
University in December 1986 with a graduate grade point
average of 3.4.
Q And what did you learn about Mr. Murtari's work
history from that resume?
A Mr. Murtari's work history has --
MR. STERN: I'm going to object. Judge, I
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 105
asked again what would be the substance of
testimony of the expert. I was told that
Dr. Reagle -- this was an October 1st, 1998
letter from Miss Walsh. It says, on September
29th I received your discovery demand.
Dr. Reagles will be only discussing --
interviewed my client and it only basically says
that he will be testifying with regard to the
petitioner, not my client. Again, I'm surprised
by this testimony and unprepared for this
expert's testimony on my client so I'm going to
object to any testimony in this regard when I
was -- this is a surprise to me.
MS. WALSH: Your Honor, I believe in his
opening statement Mr. Stern stated that he was
going to be able to show that Mr. Murtari's
failure to pay support was based on legitimate
reasons. I think that very clearly the Tropea
case says that any relocation must consider the
educational and vocational ability of the other
party to be able to relocate and I can bring back
Mr. -- Dr. Reagles on rebuttal if we need to. It
seems to me a complete waste of time. And I
would say to your Honor, this is Mr. Murtari's
resume, I'll ask him hypothetical questions.
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 106
THE COURT: I'll take your specific
objection on this line of questioning. I'm going
to reserve decision on it so that we don't have
to bring back this witness. There's no jury
here.
MR. STERN: I understand, Judge.
THE COURT: I will have to, you know --
MR. STERN: Judge, the thing I would say is
that --
THE COURT: So we will -- that way we can
go on but I will reserve decision on whether this
line of questioning with regard to your client is
appropriate or not, okay?
MR. STERN: Okay. Thank you, Judge.
Q You've never met Mr. Murtari, have you,
Dr. Reagles?
A No, I have not.
Q And what did you learn about his work history
from that resume?
A I have learned that his principal employment has
been generally within the computer science field as a
systems engineer, systems analyst, programmer, programmer
analyst and computer consultant.
Q And do you have any other information about
Mr. Murtari other than the resume?
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 107
A No, I do not.
Q And based on his educational and work experience
do you have an opinion as to the rate of pay at which
Mr. Murtari could be employed in the Syracuse area?
A Yes.
Q And what is that opinion?
A It's my opinion that there are a number of
occupational titles that are pertinent to his background for
which position vacancies currently exist. As a computer
programmer there are currently 26 vacancies within the
greater Syracuse area with starting salaries ranging from
$33,228 to $41,912. As a computer systems hardware
specialist or technician or engineer, within the Upstate
New York area, which would be from Albany to Buffalo, there
are 229 position vacancies with wages ranging from $37,492
to $54,964. As a systems analyst, 249 position vacancies in
Upstate New York with salaries ranging from $48,984 to
$63,752, and as a programmer/analyst in Central New York,
that's the greater Syracuse area, 24 position vacancies with
salaries ranging from $40,144 to $51,844.
MR. STERN: Objection, relevance. I
thought this was about relocation, an ability to
get a job in another place, and we're talking
about his ability to get a job here in Syracuse.
I object to the relevancy of his testimony,
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - DIRECT 108
your Honor.
THE COURT: I think it has to do with
support payments.
MR. STERN: It has a lot to do with support
payments but that's another trial.
THE COURT: It's very much in issue here,
quite frankly. It's an issue. It was raised in
all the papers. Okay. I mean, she can use this
expert for more than one reason.
MR. STERN: Okay. But, Judge, when I
objected, the things that she said that she
needed this witness for --
THE COURT: I reserved on that. You'll get
a decision on that.
MR. STERN: Okay.
THE COURT: All right.
Q Dr. Reagles, did you complete your testimony on
that area?
A Yes, I did.
Q And based on your familiarity with the employment
of persons with his computer and information background, do
you have an opinion as to his prospects for employment in
the Denver, California area?
A Yes, I do.
Q And what information did you consider?
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A I considered, first of all, a very impressive
resume with excellent work experience within the computer
science field with a number of different disciplines within
that field. I also considered information from the
U.S. Department of Labor regarding the demand for
individuals within the computer science field and let me
quote, "Computer scientists, computer engineers, systems
analyst including programmers, expected to be the top four
fastest growing" --
MR. STERN: Objection. Is the witness
reading from something?
THE WITNESS: Yes, I am.
MR. STERN: Judge, is that into evidence?
THE COURT: Do you want to identify it?
THE WITNESS: Yes, this is from the
Occupational Outlook Handbook which is a
publication of the U.S. Department of Labor
within the category of occupations known as
professional and technical occupations, more
specifically computer scientists, computer
engineers and systems analysts and programmers.
MR. STERN: Judge, this is not a document
that this witness has prepared. I don't
understand why he's reading from it. This is
hearsay. I object to him reading onto the record
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another book which is not admitted into evidence.
MS. WALSH: Your Honor, if I could lay some
foundation.
Q Dr. Reagles, is this one of the tools that a
rehab counselor uses in terms of doing vocational
assessments?
A Yes, it's one that I cited in the -- in my
opening remarks.
Q And is it one of the tools that you use in the
regular course of your business?
A Yes.
Q And is it a research tool that's commonly used by
people in your profession?
A If research is defined broadly, yes.
Q And what -- tell us again what this is.
A This is a publication of the U.S. Department of
Labor that is information for individuals considering
careers in a variety of different occupations and
professions with regard to the nature of the work, the
training that is required, the opportunities for
advancement, the earnings associated with such work, what is
the overall picture of demand within the labor force as --
Q And -- I'm sorry?
A And so it is a document that has a great deal of
relevance to the issue of Mr. Murtari's employability in
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areas around the country.
Q And did you use that in basing your opinion on
whether he could be employed in the Denver, California area?
A Yes, I did.
Q And can you remember without reading it what it
is that you --
A Oh, sure.
Q Can you remember or do you need that to refresh
your recollection?
A Yes, I can.
Q Okay. And what did you learn?
A Well, what the Department of Labor has done in
this particular document is identified the 20 occupations
and professions for which there will be the greatest demand
within the next 10 to 15 year period. The computer science
field including the four job titles that I mentioned
comprise four of the fastest growing occupations and
occupations of greatest demand within the labor market and
will continue to be so for the foreseeable future.
Q And those four -- four areas -- I'm sorry, I
forgot what you called them, four --
A Occupational Titles.
Q Occupations, are occupations that Mr. Murtari is
eligible for, correct?
A Qualified to --
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Q Qualified for.
A Work that he has done in the past. He's
qualified by virtue of his educational background and his
work experience, yes.
Q And do you have an opinion as to his
employability in the San Diego/Denver, California area?
A Yes, I do.
Q And what is that opinion?
A That since there is essentially a national demand
for individuals within this -- within these occupational
classifications that it's my opinion that he would be
readily employable in most any job market that he entered.
MS. WALSH: I have no further questions,
your Honor.
THE COURT: Okay. Mr. Stern, do you want
to take a short break so you can collect your
thoughts and your questioning, and we'll give it
like 10 minutes and then we'll go with you on
cross.
MR. STERN: Thank you, Judge.
(Whereupon, a short recess was taken.)
THE COURT: Okay.
CROSS-EXAMINATION
BY MR. STERN:
Q Let me first ask you about this narrow field
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that we're talking about which is -- it's first language
acquisition and bilingualism?
A Yes. It's really within the context of
bilingualism.
Q And that's a pretty narrow area, correct?
A I'm not sure how you define pretty narrow but --
Q It's a --
A I would call it a specialized area, yes.
Q Yes, it's highly specialized?
A Yes.
Q What brought you to look at that particular
specialized area of all possible careers?
A Sure. Following my interview of Adrianne and
learning of what her career and professional aspirations
were and then looking at the most typical route to that
goal, that's how I got into that area.
Q She had already been accepted into the program
when you began interviewing her?
A Not to my knowledge.
Q Okay. Did she come to you for counseling on the
issue of, what should I do?
A No, she did not.
Q Okay. You didn't advise her to go in this area?
A I did not.
Q She brought this area to you?
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A That is correct.
Q Had she already -- she had already then been
applying in this area?
A Quite frankly, I don't know.
Q Okay.
A I believe that she had made some applications but
I honestly don't know.
Q Okay. How many of these jobs are there in
bilingual first language acquisition and bilingualism in the
United States?
A I would suspect that there are between 100 and
200 at the doctoral research level.
Q Jobs?
A Yes.
Q Working in universities?
A Yes.
Q Doing this type of research?
A Yes.
Q And where are most of those jobs located?
A Mostly at the University -- with respect to the
issue of bilingualism involving Japanese?
Q Right.
A They are -- most of those positions are at
academic institutions within the population concentrations
of Japanese within our society.
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Q How do you know this?
A Simply because of the preponderance of
institutions with that focus as I examined it.
Q Are in California, the majority are in
California?
A Yes. Well, yes, I would say that the majority
are, yes.
Q Let me just show you Plaintiff's Exhibit 9, this
is your document?
A Yes.
Q Does that help refresh your memory?
A Sure.
Q And as I look at it there is -- out of five you
found with that concentration with professors who teach in
that area, four of them are in California?
A That is correct.
Q Okay. One's in SanDiego, two in SanFrancisco,
Stanford and Berkeley?
A Yes.
Q And then UCLA is in Los Angeles?
A LosAngeles, yes.
Q And then the one is in California?
A Yes.
Q So the majority of her jobs would have to be in
California if she were to get a job in this area?
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A Actually I don't know that because that calls for
knowledge of the future employment market, you know, that I
have no way of assessing. What this list really is is the
list of doctoral programs where the research focus and the
faculty qualifications and other academic resources in my
opinion are most appropriate to her career goals.
Q And it's based, of course, upon -- there's no way
for you to know what it will be in the future?
A That's correct.
Q But right now everybody -- the majority of the
jobs are in California?
A Not the jobs, don't misinterpret me.
Q Okay.
A The educational opportunities are most
appropriate at those institutions at California.
Q Okay. What I was asking originally was how many
jobs are there to be had in this area and you had said a
couple hundred in the area. Now, how many jobs are there in
the area with regard to Japanese first language bilingual
education?
A I don't know. There's no -- I have tried to find
out such information but I was unable to find that -- it's
quite specific information. It's generally not compiled
with that specificity.
Q Did you ever find any jobs that were vacant right
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now for that particular -- for somebody with a PhD in that
area?
A Yes.
Q How many of those jobs are available today
or since the last time you have looked?
A I would say from the search that was done late
summer that there were approximately around 30 position
vacancies nationally.
Q In Japanese first language instruction?
A They have to do with the -- with a Japanese
instruction. Not all of them are within the context of
bilingualism or even first language acquisition.
Q And where were those jobs located?
A Essentially all over the country.
Q All over the country?
A Yes.
Q How many here in New York?
A I found to my recollection just one and this was
at Hamilton College and it was only a teaching fellowship,
it was not a doctoral faculty position.
Q So it wouldn't be a full-time position?
A That's right.
Q Or might not lead into one?
A That's correct.
Q It might just be --
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A That's correct. It would typically be occupied
by an individual who was continuing to pursue graduate
study.
Q Would it be fair to say that the majority of
these positions would probably be in the higher Japanese
populated areas like California, Hawaii?
A I would agree, yes. Yes, although -- you know,
as a generality I would agree with that but not all of them
are.
Q Okay. Now, you had looked at -- one of the
resources you used was the directory of programs in
linguistics, correct?
A Yes, that's correct.
Q And that was a 1995 publication?
A I believe it is, yes.
Q Let me show you Plaintiff's Exhibit --
Petitioner's Exhibit Number 10, your document?
A Yes.
Q And certainly some things have changed in the
last three years?
A I suspect they have, yes, right.
Q Okay. But this is the best guess you could give?
Is there another publication -- is there another publication
that's subsequent to the 1995?
A It is to my knowledge -- to my knowledge it is
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published periodically. The most recent copy that we could
find was the 1995 edition.
Q Okay. Now, certainly you reviewed the
requirements that the University of California has to see if
they were suitable to her particular strengths and
weaknesses?
A Yes, I did.
Q Is one of the publications that you reviewed this
publication?
A Actually, I didn't review that. I was aware that
that had been made available but I had personally not seen
it.
Q Okay. Well, let me give you this, it's marked as
Petitioner's Exhibit 5?
A Yes.
Q It's titled, Graduate Study in Linguistics at the
University of California, San Diego?
A Yes.
Q Well, first let me ask you, what did you review
in determining what the requirements were of the programs
that she would be going into?
A The descriptions that were in the Linguistic
Society of America Publication called the Directory of
Programs in Linguistics. It has the faculty members,
members' names, their research interests, it has the
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academic support resources. Those are generally speaking.
Q Requirements for PhD, things like that?
A Generally speaking, yes.
Q What course requirements are necessary, what
aptitudes are necessary, as such?
A I'm not sure that it gave that. It was more
for -- it was more description of the program than it was of
specifically what they were looking for because the match of
doctoral student with program is such a unique phenomenon --
Q Sure.
A -- that they specifically don't specify in any
great detail what it is that they're looking for.
Q So you're not sure whether her particular
strengths and weaknesses would match with this particular
graduate program because they didn't tell you what the
requirements were academically and aptitude-wise from the
research that you have done?
A I only know that by virtue of learning that she
had made application to that program and had, in fact, been
accepted and offered an assistantship. So on the basis of
that I would conclude that there was probably a pretty good
match.
Q You would conclude, you're not sure, you're not
giving an opinion, a professional opinion, it's a guess?
A Well, I could tell you from nearly 30 years of
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experience as a professor associated with doctoral programs
that who gets admitted to doctoral programs is a very unique
phenomenon, it is a eclectic mix between faculty members and
students.
Q I'd be happy to submit you as an expert in
faculty review and PhD programs also. Let me bring you
to --
A Or who gets into law school.
Q Yeah, exactly.
A There are some less than objective criteria that
sometimes get used.
Q Sometimes very objective but not the ones that we
think they should be. Now, let me ask you about the
vocational evaluation you did. It was not a full vocational
evaluation, it was not -- was it?
A Well, typically a vocational evaluation -- the
term vocational evaluation is usually related to job skills
and --
Q Correct.
A -- and it is more appropriate for individuals who
have little sense of what it is that they want to do, and
what you're trying to do is give them information from which
they can make better decisions. And so in the context of
that definition of the term, no, I did not do a vocational
evaluation but more a survey and study of Adrianne's
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educational and vocational background and career aspirations
as articulated to me in the interview and matching that with
the information that was made available to me from the
resources that I consulted about these programs.
Q Okay. So you didn't do a full vocational
evaluation?
A In my mind it would not be appropriate.
Q Okay.
A She had very clear ideas of what it was that she
wanted to do.
Q And only based upon where she wanted to go which
was in the bilingual -- I keep forgeting it myself.
A Bilingualism. First language acquisition.
Q So only in the context of what she came to you
for did you see -- did you do an evaluation?
A Generally speaking, that's correct. In other
words, I narrowed my focus to those graduate programs where
their offerings were commensurate with her interests but
through that process I would acknowledge that I became
generally aware of other programs in linguistics but also
learned that either their requirements or their research
focus was not appropriate, it didn't concern Japanese, it
didn't concern bilingualism.
Q So your focus -- certainly you had a very strong,
tight focus on first language acquisition and bilingualism
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and then more broadly in your research you found out about
also issues of linguistics and careers in linguistics but
that was probably the widest focus was just in linguistics?
A Yes. I guess one thing that I would say is I was
impressed with the number of programs that there are in
linguistics.
Q And you didn't do a -- you didn't do a vocational
evaluation beyond linguistics and a career in academia in
linguistics or a career in something having to do with --
let me retract that.
You didn't do a vocational evaluation beyond the
focus of linguistics generally and, more specifically, first
language acquisition bilingual?
A I would have to say that, yes, I did, because I
was asked to do two things. One is to assess her current
employability in the greater Syracuse area with the academic
training and job experience that we've learned about that
she has but then to go to the real issue that I thought was
of more importance and that is her doctoral study, where is
the most appropriate place for her relative to her stated
interests and career aspirations.
Q Let me just understand this because I feel like
I'm getting a long answer. I don't understand the answer.
Your -- you focused on the issue of linguistics and her
interest in being in linguistics, you focused on her ability
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to make a living in that area, in this area and areas of the
country, correct?
A Generally speaking I would agree with you, yes.
Q Well, you're certainly not saying that she can't
do any other job than linguistics, correct?
A I am not.
Q Okay. What about her ability to work in retail?
A I'm sorry, that strikes me as so disparate from
anything that she has ever done before that I believe that
that would be inappropriate.
Q Well, she has a child whose father, grandmother
and extended family live here in Syracuse, did she tell you
that?
MS. WALSH: I'm going to object,
your Honor, to the nature of that question in
terms of this witness. I think it's outside the
scope of direct examination and he answered the
question. He doesn't now need to be
argumentative about it.
MR. STERN: Judge, if I may be heard? I'm
not being argumentative. I'm trying to
understand what he was looking at.
THE COURT: I'll let him answer. Go ahead.
Q Did she tell you that her son's extended family,
the majority of his extended family, is right here in
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Syracuse?
A I believe she did, yes.
Q Okay. So certainly some people, one of their
objectives might be to keep a family together and find a job
in an area so they can keep a family together?
A That's not what I was asked to do.
Q Excuse me?
A That's not what I was asked to do.
Q Okay.
A I mean, that is beyond my qualifications.
Q She didn't say that one of my objectives is to
make sure that Domenic grows up in Syracuse?
MS. WALSH: I'm going to object,
your Honor.
MR. STERN: I'm asking a question.
THE COURT: Well, go ahead. Answer it
but --
A She did not. She did not. She -- I must tell
you that she expressed concern for her son with regard to
those issues but she did not state her concerns in the
language that you did.
Q Okay. You don't know what her ability is to get
a job in retail, would you have an opinion?
A I have an opinion that it would be quite remote,
primarily because retail involves oral communication skills
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and accuracy of communication and it's my opinion that the
accent associated with her oral communication as well as the
inadequacy of the speech volume would place her at a
considerable disadvantage for being successful in a retail
occupation.
Q What about as a professor, her language problems
as a professor teaching in an American --
A I think it is a disadvantage and that's why I
think that for her to focus into an area of academic pursuit
where, in fact, her language and accent could actually be
seen as an advantage -- in other words, when you're dealing
with individuals who are bilingual, that is that they speak
either English or Japanese, she could speak in a language
that was most preferred by the recipient of that
communication.
Q Well, if she was teaching American students --
A Uhm-hmm.
Q -- in the issue of bilingualism --
A Uhm-hmm.
Q -- certainly she would be teaching in English?
A Not necessarily. I mean, there may be
individuals of Japanese heritage. I suspect that she would
be teaching individuals of both languages and I would say
that her capacity to be an effective lecturer is limited by
those difficulties.
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Q But you're hypothesizing, you don't know what
language people are teaching their courses in, you're
hypothesizing that in all possible worlds it's possible that
she might be teaching in Japanese at an American university?
A I'm saying that that's possible.
Q Okay.
A I think that that issue makes it even more
compelling for her to pursue a career as a researcher
wherein her oral communication skills are not as important
as they are as a lecturer.
Q Now, she's applied for a number of jobs as an
instructor in Japanese, correct?
A Yes.
Q And she certainly has the credential to be a
instructor in Japanese, that's just someone who helps out
the professor in language instruction?
A She has done that, yes.
Q And she hasn't gotten a job?
A That's my understanding.
Q Would you agree that one of the detriments for
her is probably this language barrier for her that you
discussed?
A That may be a factor but I think a bigger factor
is the fact that the institutions have eliminated adjunct
professors to the preference of using teaching assistants,
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individuals who are part of the program, the doctoral
students within those programs.
Q Well, there are language instructors right here
in Syracuse?
A Of course.
Q Yeah.
A Of course.
Q That I'm familiar with. What is the -- do you
know the competition, who she's going to be competing
against and their abilities with regard to language?
A Not specifically, no.
Q So it's possible she could come out of a PhD
program and be competing against people who are perfectly
proficient in English?
A Yes, it's possible.
Q And when she's competing against those people --
A Yes.
Q -- it's going to be very difficult for her to get
a job?
A Well, I wouldn't jump to that conclusion. I
would say that she would be at competitive disadvantages
relative to that. It depends what you want them to do. If
the emphasis is upon effectiveness as a lecturer, yes, but
if the emphasis is on effectiveness as a researcher, then I
don't think that she would be at a competitive disadvantage.
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Q She's going to be at a disadvantage against
people who are proficient in English?
A You know, in rehabilitation there's a principle
which we call the competency deviation, and that is that the
more confident people are, the more deviance there will be.
So if she's a very competent researcher, then the more
deviance, if you will, in her expressive language will be
tolerated by those with whom she works.
Q Doctor, she's going to be at disadvantage against
people who are proficient equally in English and Japanese?
A I'm not sure that we can say that.
Q And you don't know the competition at this time?
A Of course not.
Q Okay. If you could look at page 28 of exhibit --
if you could tell me the exhibit of the pamphlet?
A Sure, it's Exhibit 5.
Q Exhibit 5, thank you. On page 28 under language
reading ability, let me read you something. "All PhD
students must demonstrate the ability to read linguistic
literature in either French or German. If a reading exam is
taken for this purpose a dictionary may be used."
A Uhm-hmm.
Q Do you see where it says that?
A Yes, I do.
Q Is this the first that you have seen --
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A This is the first time that I have seen this
brochure, yes.
Q Is that the first that you have heard of this
requirement?
A I believe it is.
Q Knowing that in order to be a PhD student you
must demonstrate an ability to read French or German -- let
me retract that. Does my client speak or read French or
German?
A Does your client?
Q Not my client, I'm sorry. I'm so used to being
the petitioner.
A Sorry.
Q Does Miss Phillipson -- at least I remember her name,
I'm happy for that.
A That's more than I could do.
Q Does Miss Phillipson express a language of either
French or German proficiency in reading or speaking?
A I believe that she has the capability to at least
consider a reading examination in French but I must tell you
I don't know the specific competency that she holds in that
area.
Q To your knowledge does she have any competence in
French?
A I'm not sure.
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Q You don't know?
A I don't know.
Q That's okay.
A No.
Q Do you know if she has any competence in German?
A I don't.
Q Okay. That's all I wanted to know.
A Sure.
Q Now, this is something that I have a question
about. Now, if you look on page 30 --
A Uhm-hmm.
Q Okay? First let me ask you, she's been admitted
into the masters program out at the University of California,
correct?
A My understanding is that she has been admitted
into the doctoral program.
Q Well, let me show you something. This is part of
her petition.
A Okay.
MR. STERN: I didn't pull it out. I just
assume that it would be part of the record.
MS. WALSH: I think, your Honor, we need to
have it marked and put into evidence if we're
going to --
MR. STERN: Well, Judge --
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THE COURT: Is that part of the pleadings?
MR. STERN: It's part of the pleadings.
THE COURT: Yeah, it's the same as -- we
have the part of the pleadings.
MS. WALSH: Okay. What part are you
looking at?
MR. STERN: I'm looking at Exhibit B. It's
Exhibit B of petitioner's petition for
modification of a prior order Docket Number
V-320-95.
Q What I'd like to do is show you -- first ask you,
have you seen this letter dated April 27th, 1998?
A No, I have not.
Q It's fair to say you don't know what program she
has been admitted to?
A Well, I could read but -- I mean, this is not
uncommon. In other words, where an individual had a
particular deficiency, that rather than to admit them
directly to the doctoral program they would admit them to a
masters program until they had satisfied the deficiency but
then move directly into --
Q Certainly, but I'm not asking about that. All
I'm asking is that you were not aware that she has only been
admitted into the masters program? That's a yes or no?
A I was not.
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Q Okay.
A I was not.
Q Thank you. It's a lot easier if you just give me
the answer to my question.
A Well, you know, it really is a difficult question
to answer yes or no because it's somewhat misleading to make
it sound like she applied for the masters program when, in
fact, she applied for the doctoral program.
Q Well, okay. In any event, I don't need to -- if
you're not aware of this I won't --
A Okay.
Q -- get into it but I'm going to ask you a
hypothetical question.
A Say it again.
Q I'm going to ask you a hypothetical question now.
A Okay.
Q Assuming that she was only allowed into the
masters program -- I want you to look at page 30 --
A Yes.
Q -- of Petitioner's Exhibit 5, the linguistics
handbook from the University of California?
A Uhm-hmm.
Q Right at the top it has admissions requirements,
and I know you haven't seen this before.
A Yes.
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Q But it says Masters Degree program, admission
requirements are not rigid, do you see that?
A Yes, I see that. Yes, you read it accurately.
Q And then I want you to follow with me backwards a
bit to page 25, under masters program. Do you see that?
A Yes.
Q Okay. And do you see where it says, most M.A.
students -- what's M.A. mean?
A Master of Arts.
Q -- elect a program of study based on 30 semester
hours of courses, okay, but a thesis plan requiring 24 hours
of courses is available, I assume if you're writing a
thesis. What's 30 semester hours?
A 30 semester hours would be essentially comprised
of courses that would be three credit courses. You would
need 10 of them to get 30 semester hours but you need to
accumulate that many semester hours to satisfy the
requirements of --
Q How many hours is that a week? Is that 30 hours
a week of course work?
A Generally speaking, for each one hour of credit
there is a presumption that that takes three hours of time
outside the classroom.
Q Okay.
A So a three credit course would be essentially
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12 hours a week, three hours in the classroom and 9 hours
outside the classroom.
Q Okay. On page 27 --
A Yes.
Q -- we have course work for PhD for doctoral
program?
A Okay.
Q Now, assuming that Miss Phillipson was admitted into
the PhD program?
A Yes.
Q Do you see where it says the total amount of
course work required for PhD is normally 36 hours?
A Yes. 12 --
Q That's 12 three hour courses?
A Yes.
Q Okay. So that would be -- how much -- so 12
three hour courses, so how much would she be working per
week at a PhD level in this program?
A It depends on what they ask her to do. An
individual who has an assistantship typically takes three
credit courses during the summer semester and works 20 hours
per week as an assistant.
Q Now, you're a professor so you have had your own
PhD students I assume?
A Yes, I have, many of them.
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Q Is that a pretty rigorous endeavor to get a PhD
in a field?
A I think it is, yes.
Q A lot of work?
A Sure.
Q Full time?
A Full time. It depends on how you approach it.
There -- in most doctoral programs you can do some of the
work part time but then there becomes a point where you have
to have either one semester or one academic year of what we
call residency --
Q Yeah.
A -- where you have to be there full time. Full
time is considered nine semester hours.
Q If I wanted to -- if a person wanted to complete
a PhD in three years or four years --
A Uhm-hmm.
Q -- would that be a pretty fast pace in a PhD?
A It would be fairly typical I would say.
Q And that person, would they -- would you estimate
that they would be working, you know, towards their PhD a
great deal of the day?
A It's hard to say.
Q Okay.
A Hard to say. Now, once the course requirements
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are completed, maybe that's only 36 hours, then the work
really becomes upon the dissertation and that is often done
within the context of a research assistantship, it can be
done at a more -- at a pace that is more convenient for the
student.
Q Well, it's been my experience with my friends who
are PhD students --
MS. WALSH: I'm going to object,
your Honor, to Mr. Stern testifying as to his
experience with his friends. He can ask a
question but --
THE COURT: Yeah.
MS. WALSH: I would suggest that that --
THE COURT: Sustained. Keep it objective
to what we're doing here.
Q It's true that PhD students writing a
dissertation, this is one of the most -- for most PhD
students or candidates that the dissertation is one of the
most stressful times in their lives?
MS. WALSH: I'm going to object,
your Honor.
Q Correct?
THE COURT: Overruled. If he can answer,
if he knows the answer.
A I would -- generally speaking I would say it is.
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Q It's a lot of work?
A It's what separates those who get it from those
who don't.
Q Okay. In this program Miss Phillipson would have to
write a dissertation thesis in English, correct?
A In English I suspect, yes, but I don't know that
because I haven't seen the brochure but I would suspect
that's true.
Q Okay. And a dissertation is a publishable work,
correct?
A Not necessarily. The only guarantee that it will
be published is in the University of Michigan Microfilm
Series.
Q But it has to be of quality that it could be
published, publishable quality?
A Whatever that means. If you're talking about
commercially publishable, I would disagree.
Q Okay. One of the things that you talked about
was her economic situation?
A Yes.
Q Okay. And I'd like to ask you some questions
about that?
A Sure.
Q You had said that she had limited economic
resources at this point?
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A I'm not sure if I made that statement but that's
my impression, yes.
Q Okay. Did you review her income tax return?
A I did not.
Q Okay. How -- what did you base your opinion on
her economic situation on?
A Well, she told me about what she had been earning
from past employment as a piano teacher where she earned
approximately $3,000 a year, that she had had some part-time
work either as an instructor of Japanese, for example, at SU
and Lemoyne and that she had from time to time gotten some
what I would call consulting work as an interpretor for,
like, law firms for example, but that I got the impression
that she was having difficulty finding such work and that it
didn't pay particularly well.
Q Okay.
A And that she was not -- she talked also about her
expectations of support from Mr. Murtari that have been
disappointing.
Q So the answer to my question is that the
things -- you haven't reviewed any documents, it's all from
what Miss Phillipson has told you?
A I would agree.
Q Did she tell you about support that she gets from
any other sources?
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A Not specifically, no. That really wasn't an area
of inquiry of mine, quite frankly.
Q Okay. I'd like to take you back -- my client has
shown me the part I was asking --
A Sure.
Q -- one of the requirements of the page 28 of the
linguistic pamphlet under preliminary examination.
A Uhm-hmm.
Q It says, "At the beginning of their second year
in the doctoral program students must submit to the faculty
a research paper based on analysis of language data in a
form suitable for its submission for publication."
A Uhm-hmm.
Q Okay.
A Publication would be in this context within a
professional journal, okay, not for publication for
commercial purposes.
Q Okay. And you would need to have a command of
the language that you're writing in to have it be suitable
for submission for publication?
A Yeah. Frequently they're done in collaboration
with one's major professor because that's how major
professors get publications, is to assist students with such
efforts.
Q So that person would then assumably help her
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along with her --
A They would provide editorial assistance, yes.
The student typically would provide drafts and they would
get edited and they would go through several obliterations.
Q I'd like to ask you, now, you testified you're
being paid to be here?
A Yes.
Q How much are you being paid?
A My usual hourly fee is $165.
Q And how many hours have you worked on this
particular case?
A I don't know exactly. I would suspect it's 15 to
17 hours.
Q Okay. Do you -- so if you can just give me a --
I'm not that good at math. 15 to 17 hours at one --
A Probably about $2500 total.
Q About $2500?
A I think close to that.
Q And that would be the totality of your fees so
far?
A Actually I haven't submitted an invoice and so I
would have to go back and add up the exact number of hours
but it would be in that ballpark.
Q Right around 2500?
A I would guess, yes.
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Q Now, if you're a teaching assistant?
A If I was a teaching assistant?
Q Assuming Miss Phillipson were a teaching assistant at
the University of San Diego, does that's entail putting in
additional hours?
A Additional hours?
Q Other than just studying for her own course work?
A Oh sure, yes. In other words, if a teaching
assistant is actually doing lecturing then they would need
to do preparation for that lecturing. However, sometimes
teaching assistants simply assist an instructor and handle a
discussion group or they assist the instructor with updating
a core syllabus, that sort of thing so they may not --
Q It's generally considered a part-time job?
A Yes, yes.
Q In addition to your full time job of being a
student?
A That's correct. The typical arrangement is an
assistantship is 20 hours a week and then the individual
takes six to nine credits of academic courses.
Q Okay. You had given two opinions. One was
Miss Phillipson's ability to work in this area and the other one
was my client's ability to work in this area.
A Yes.
Q I want to go back to Miss Phillipson's ability to get
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a job here in Syracuse?
A In Syracuse, okay.
Q You're -- or the surrounding area?
A Yes.
Q You're certainly not saying that she couldn't
find work here in Syracuse?
A No, I'm not.
Q Okay. She has a degree in photojournalism?
A She does.
Q She could be a photographer?
A Possibly so.
Q Okay. And she could work for perhaps a newspaper
as a photographer, even with her language barrier?
A I did investigate the opportunities for
photographers within the contemporary labor markets and
there are no vacancies presently.
Q She could work for a company that requires a full
time photographer for doing product work and such, correct?
A Possibly so.
Q Did you review any opportunities in that way?
A No, I did not.
Q Okay. Are you aware of any of the industry here
locally that requires full time photographers for taking
photographs of product and making catalogs and that sort of
thing?
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A Generally, yes.
Q Okay. But in this particular case you didn't
explore that option as that was not something that she
indicated an interest in?
A I did -- no, that's not necessarily true although
I would say that the interest that she had in that field is
diminished by her new found interest in linguistics and
language acquisition.
Q Yeah, her new found interest. Her first degree
was in photojournalism?
A That's correct.
Q And then she got a Masters in music?
A Correct.
Q And now she's working on another Masters in
linguistics?
A That's correct.
Q And then she's going to go to California and get
another Masters in another area of linguistics leading to a
PhD program?
A That's my understanding.
Q So that would be three Masters degrees and then
perhaps a PhD?
A Well, I'm not so sure that she would actually
complete a Masters Degree at California. I would agree with
you that it said that she would be admitted into the Masters
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program but typically once any deficiency is satisfied --
Q That's right, you told me that you didn't know
anything about that. I'm sorry, I'm asking you a question
that you don't --
A I am just telling you what is typical.
Q Okay. Well, let me ask you about Mr. Murtari,
have you ever met Mr. Murtari?
A No, I haven't had the pleasure.
Q Okay. Don't be so sure.
A He's your client.
Q That's right. I just didn't want you to jump to
any conclusions. Now, so you have never interviewed
Mr. Murtari?
A No, I have not.
Q Okay. You reach your conclusion entirely based
upon a copy of the resume that you were given by the
petitioner?
A In part. The other part was essentially the
opportunities within the labor market for individuals with
those kinds of qualifications.
Q Based upon his resume?
A Yes, correct.
Q Okay. Now, Mr. Murtari, did you know that he's
opened up his own business in the computer field?
A I had learned that he held himself out as a
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consultant, yes. I didn't know that it was a business
enterprise as such but as a consultant.
Q And that can be a quite profitable thing right
now?
A What's that?
Q Computer consulting. That is quite lucrative
right now?
A It can be, yes. I know what I pay for a local
area network consultant. It's about $90 an hour.
Q Okay. Also the computer business is booming
right now?
A Yes, it is.
Q Somebody with tremendous computer experience and
knowledge could have -- could open their own business?
A I don't know that. That presumes that the
individual has the competency to run a business. I mean,
there are some people who are very skillful at being a
systems analyst or a programmer, may not have the
capacity --
Q That would be a horrible business person?
A That's correct.
Q But at the very least they certainly could open a
business. How successful it is is dependent on their
business acumen?
A That's correct.
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Q And you have no reason to think that my client
has competent business acumen?
A I have no idea.
Q He could have a very successful business as a
consultant and a computer business?
A I don't know that.
Q You don't know either way, who knows?
A No. What I'm saying is I don't have enough
information. If you asked me about the basis of his work
experience, then I would say that it is highly likely that
he could find success in that area but there are a lot of
other factors that enter into that phenomenon.
Q He doesn't need to have a -- he doesn't have to
have a job with someone else to be using his skills in an
appropriate manner?
A Not necessarily, no.
Q You're a consultant yourself?
A Sure.
Q Okay. Is it true that sometimes a business can
take a few years to get started?
A Surely.
Q To be profitable?
A Absolutely.
Q As a vocational rehabilitation counselor, if
someone said that they wanted to start a business --
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A Uhm-hmm.
Q -- you wouldn't tell them that it needed to be
profitable on day one?
A Of course not.
Q Okay. It takes some time?
A Ordinarily it does, sure.
Q Okay. Additionally sometimes it isn't just the
bottom line with money, sometimes people have other
pressures that dictate what type of a job they get, correct?
A I'm not sure I understand the question.
MS. WALSH: I'm going to object as to the
scope of this and the relevancy, your Honor.
MR. STERN: He testified as to my client's
ability to work here in the Syracuse area and
what he could get in Denver.
THE COURT: Go ahead. Overruled.
A I just didn't understand your question. I'm
sorry.
Q Let me ask it in a more clear way.
A Sure.
Q Sometimes I do that. People's choices and
abilities for performing at certain jobs are not entirely
dictated by just their experience?
A Of course not.
Q For example, someone might have children and they
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might decide although I'm a physician I want to be a
part-time physician so I can stay at home with my kids when
they get home from school, correct?
A They might make that decision.
Q And that's a viable career choice or job choice,
right, with their skills?
A Well, I'm saying that that is -- within our
society that is a choice that people are free to make
recognizing that there are consequences to that decision.
Q Sure. It's fair to say that people make career
choices sometimes based upon family pressures?
A Yes.
MR. STERN: Well, I hope we have
contributed to your hourly rate, your hourly fee.
Thank you very much, Professor.
THE WITNESS: My pleasure.
THE COURT: Mr. Lupia?
MR. LUPIA: Thank you, your Honor.
EXAMINATION
BY MR. LUPIA:
Q Doctor, we spoke very briefly in the hallway?
A Yes.
Q I'm going to ask you questions from the
perspective of the child.
A Yes.
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Q Okay. Currently are you aware that the child is
residing with his mother?
A Yes, I am.
Q And if you were to learn given the hypothetical
that the mother's 1997 income was $7600, would you have an
opinion as to whether or not that is a viable amount of
income to sustain a family of a mother and a child?
A Yes, I would.
Q And what is that opinion?
A It's my opinion that it is insufficient. It's
far less than minimum wage even.
Q And given the scenario -- the hypothetical
scenario that a father is contributing approximately $60 a
week on the average or a total of approximately $3,000 a
year, would the $3,000 hypothetically contributed plus the
$7600 income, would you have an opinion as to whether or not
that would be sufficient for a family to function, a family
of a mother and a child?
A Yes, I do.
Q And what is that opinion?
A It's my opinion that it is insufficient. It's
less than the poverty line for a family of two.
Q Now, Adrianne has talked to you about her prior
employments in the field of piano and music?
A Yes.
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Q And it's your opinion that without the specific
degree relative to musical instruction that she's really
limited to simply being a piano teacher on a private sector,
is that your opinion?
A That is my opinion, yes.
Q Do you have an opinion as to the amount of income
that would normally be generated by a piano teacher in the
Syracuse community?
A No, I don't.
Q You heard Adrianne indicate approximately $3,000 is
what she's able to raise on the side?
A Uhm-hmm.
Q Would you feel that that would be -- in the
future that she would be able to maintain a consistent
figure or whether she should be able to substantially
increase that?
A Substantially is the key word. I think that it
might increase to some extent but I wouldn't expect that it
would increase substantially.
MS. WALSH: Could I just clarify? You're
talking as a piano teacher, is that the question?
MR. LUPIA: Yes.
A As a private piano instructor.
Q Yes.
A Right, who gives private lessons.
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Q So in that respect have you formed an opinion as
to whether or not that is a valid venue in which she should
go in direction?
A My opinion is that the expectation of generating
a sufficient income from that activity alone is one from
which she should be dissuaded and pursue other avenues.
Q Did Adrianne discuss with you her attempts to get
into the other avenue with respect to linguistics here in
the Syracuse community?
A Yes, she did.
Q And did she tell you how many applications she
had sent out?
A I don't remember the -- I know that she has sent
out many but I don't know the specific number.
Q Do you have an opinion as to whether or not given
her current educational status she would be able to maintain
employment in the community, in the Syracuse community?
A Doing what?
Q Linguistics.
A It's my opinion that she would not be.
Q From what you have indicated before, do I
understand that the PhD degree makes that much of a
difference relative to her employment ability in the
linguistics field?
A Yes, it makes a tremendous difference.
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Q And you have indicated that you believe that it
would be 100 percent employment rate?
A Nearly. I would -- if not immediately, certainly
within six months to a year's time.
Q Now, Doctor, I didn't hear any figures. Have you
done any research relative to the compensation --
A Yes.
Q -- for a PhD in a linguistics field?
A Yes.
Q And what research have you come up with?
A Beginning salaries for the academic year of
approximately $40,000.
Q And in your opinion is that sufficient for a
mother and child to live on?
A Yes, yes, it is.
Q Now, if the father were able to generate adequate
income to support the child, would that make a difference in
opinion as to whether or not the mother would be able to --
I'm sorry, I'll withdraw that.
If the father were able to earn sufficient
earnings to generate more child support, would that make a
possible difference in your opinion as to whether or not the
mother could sustain herself on her current type of income?
A I suppose there is a level at which if the father
were generating resources that there might be an opportunity
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for her to do that but I don't know what that level is. It
would have to be a whole lot more than $60 a week.
Q Given a hypothetical --
A Yes.
Q -- that two years out into the field that
Mr. Murtari is trained in that he is currently generating
income of $18,000 per year --
MR. STERN: I am going to object to that
because I think this is a little bit beyond his
expertise. It seems like you're asking him an
economics question regarding how much income
would be required to support a family. Is that
the point of this?
MR. LUPIA: Yes.
MS. WALSH: Your Honor, those statistics
are Labor Department statistics that the witness
has already testified about.
THE COURT: Everybody has been into this
area now, we might as well finish it. Really,
everybody has been into it. So finish it up.
Q Is $18,000 an appropriate figure for a man with
Mr. Murtari's qualifications?
A I think it's -- I think that it has to be put in
the proper context but clearly he is capable of earning
substantially more than that in the competitive labor
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market.
Q Have you formed an opinion given the current
amount of -- given the hypothetical current amount of
support and given the hypothetical current amount of Adrianne,
whether or not Adrianne needs to modify her field of
employment in order to maintain sufficient income to -- for
her child and her to survive?
A Yes, I do.
Q And what is that opinion?
A It's my opinion that if she is going to continue
to reside in the United States that advanced graduate study
such as we have described here today is appropriate.
Q Are you aware that her child is bilingual?
A Yes, I know that -- I have learned that he is.
Q Would the child benefit at all from Adrianne's
moving to the San Diego, California area and studying
linguistics?
A I must tell you I have some personal opinions
about that but I don't think they're professional opinions.
Q Okay. Mr. Stern made reference to Adrianne's
possible employment in other areas. For instance, entry
level into food service, entry level into retail sales,
entry level into a wide range of other occupations here in
the Syracuse community. Presuming they are tolerant of her
accent, have you formed an opinion as to what type of income
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level she would be earning entering these other fields which
do not require high educational skills?
A Right, I do.
Q And what is your opinion?
A Entry level salaries in the neighborhood of 12,
$13,000 a year. For it to be substantially more than that
she would have to work a tremendous amount of hours. The
hours that retail people work, especially entry level
people, are usually the evenings and the weekends.
Q Then would I understand that Adrianne's best out
for making the money that is necessary for supporting her
family would be to get specialized education?
A That is my opinion.
MR. LUPIA: No further questions,
your Honor.
THE COURT: Redirect?
MS. WALSH: Just a few, your Honor.
REDIRECT EXAMINATION
BY MS. WALSH:
Q Dr. Reagles, is 12, $13,000 sufficient income for
a mother and a child?
A Not in my opinion.
Q What is the poverty line for two?
A With two children it's --
Q With one child.
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A With one child, a family of two, is about
$11,800.
Q On cross Mr. Stern asked you about
photojournalism, you said that there were no current
vacancies, is that correct?
A Correct.
Q Is that in the United States?
A No, that's in the Central New York area.
Q Do you know that Syracuse University recently
laid off one of its three full time photographers?
A I was unaware of that.
Q You were shown a letter from --
MR. STERN: I would object to that if she's
going to enter that into evidence.
MS. WALSH: Pardon?
MR. STERN: I would object to your
introducing into evidence an assumption of fact
other than as a hypothetical.
MS. WALSH: I'll withdraw the question.
THE COURT: Okay, go ahead.
Q You were shown a letter from the University of
California, correct?
A Yes.
MS. WALSH: Mr. Stern --
MR. STERN: I think -- I left it up there.
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MS. WALSH: No, I think it was part of
the --
THE COURT: Here, you can do it right from
here.
MR. STERN: Are you talking about Exhibit B
of your petition?
MS. WALSH: Correct.
Q Showing you this letter, would you review this?
A Yes.
Q After your review could you testify as to which
program Miss Phillipson has applied to at the University of
California?
A She's applied to the PhD program.
Q And that letter states that there are some
deficiencies, correct?
A That is correct.
Q And you said that that was typical in a PhD
program?
A That is correct.
Q And explain to us why that would be typical?
A Because the faculty is very cautious about
admitting someone to a doctoral program given the due
process requirements of dismissing someone from such a
program and so given the uncertainty that the person would
complete the requirements for the doctoral program they're
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more prone to admit them into a Masters Degree program until
those deficiencies have been corrected.
Q Is it in your experience typical that a M.A.
program in Syracuse might not have all of the requirements
for the -- same requirements as an M.A. program in California?
A There are -- within the same field you mean?
Q Correct.
A There may be some differences. Those differences
tend to be minimized more contemporaneously because of the
requirements of accreditation. They try to make it so that
people can move laterally if they want to. But there
certainly could be some differences, yes.
Q And is it fair to say that there may be a
particular -- a course that was not offered at Syracuse that
is a requirement in California that she has to complete before
she's allowed to go on?
A There's a possibility.
Q Okay. So she has not applied to the master's
program at California?
A No, she has not.
Q She's applied to the doctoral program and she's
been admitted to this program, correct?
A That's my understanding.
Q With the understanding that she would fulfill
certain prerequisites?
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A That's correct.
MR. STERN: Objection. He already
testified that he has no knowledge about what
programs she's in, if any. He hadn't reviewed
the letter. He's now being asked questions about
a copy of the letter that he has never reviewed
before and being asked to give a professional
opinion, and I object to it.
MS. WALSH: And I had given him the
opportunity to read the letter, your Honor.
THE COURT: Based on what he read in the
letter we'll accept his interpretation of it.
MS. WALSH: Thank you.
Q Okay. Dr. Reagles, were you given a retainer in
this matter?
A Yes, I was.
Q And what was the amount of the retainer?
A $1,000.
Q And who paid that retainer?
A It has your signature on the check.
Q Okay. It's my check, right?
A Yes.
Q Thank you. Is it true that if you're a graduate
assistant in a program, you are allowed to take fewer course
work during a particular semester while you do your graduate
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assistantship?
A Yes.
Q So it's actually a decrease in the course work?
A That is correct.
Q And that tends to expand in the amount of time
that it would take to finish a program?
A That is correct.
Q But typically you're paid as an assistant,
correct?
A Yes, you are.
Q And you have certain university benefits, is that
correct?
A That's correct.
Q Like health insurance?
A Yes.
Q And Mr. Stern asked you that -- the question that
sometimes career choices are based on family pressures,
correct?
A Yes.
Q Isn't it fair to say that one of those pressures
is the ability to support your children?
A Sure.
Q And that the amount of income you need to
generate is based on the needs of -- the support needs for
the children, correct?
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A Of course.
MS. WALSH: I have no further questions.
Thank you.
THE WITNESS: Certainly.
THE COURT: Mr. Stern, recross?
RECROSS-EXAMINATION
BY MR. STERN:
Q I just have one question which is, if, in fact,
you reduce the amount of course work you're doing as a PhD
student, how much does that extend the number of years it
takes to complete a PhD?
A Usually by one year.
Q About a year?
A Yes.
Q So if you could complete it in four years, you
would complete it in five?
A Well, it's typically two and a half to three
versus three to three and a half.
Q To complete a PhD you're saying after you
completed your Master's?
A Right.
Q Okay. Thank you.
A It really depends upon what one chooses for its
doctoral dissertation. The most amount of time -- the
inordinate amount of time is the time spent on the
DEBORAH A. McCARTHY
Official Court Reporter
K. REAGLES - RECROSS 163
dissertation.
MS. WALSH: So what you were just talking
about is the course work, not the dissertation?
THE WITNESS: That's correct.
MS. WALSH: Thank you.
THE COURT: So we're all set with this
witness, Mr. Lupia?
MR. LUPIA: All set.
THE COURT: The witness is excused. Thank
you, Doctor.
THE WITNESS: My pleasure.
THE COURT: I appreciate your patience.
THE WITNESS: Certainly.
(Whereupon, the witness was excused.)
THE COURT: We'll resume this hearing at
10 o'clock tomorrow morning.
* * * * * *
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 164
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated:
__________________________
Deborah A. McCarthy
Family Court Reporter
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 2
THE COURT: The matter of Murtari/Phillipson --
Phillipson vs Murtari on Docket V-320-95. Mr. Lupia,
law guardian, is present; Miss Walsh appearing
with the petitioner, Adrianne Phillipson, and Mr. Stern
appears with the respondent, John Murtari. And
we are going to continue now and I believe that
we were on direct examination of your client,
Miss Walsh.
MS. WALSH: Yes, your Honor.
THE COURT: And she's still under oath and
she can take the stand.
MR. STERN: Judge, there's just one
administrative matter that I need to discuss with
you.
THE COURT: Yes, Mr. Stern.
MR. STERN: I have a trial in Federal Court
starting on Monday.
THE COURT: That's too bad. We're
continuing on with that.
MR. STERN: I understand. I just spoke
with my secretary that said that the Judge's
clerk had called your office and they had told
her that you were going to be letting me out at
3 --
THE COURT: That what?
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 3
MR. STERN: My secretary just told me -- I
told her that she's going to have to tell the
Federal Judge that I'm in trial and and that
unless he wants to call you and work something
out that I can't leave. I just got a call back
from her and she said that she spoke to your
office and your office told her that I would be
released at 3 o'clock so that I could be over at
Federal Court at 3:30. That's what I was just
told by my secretary.
THE COURT: That my office said that?
MR. STERN: My secretary said that
Judge Bersani said, that Judge Kahn spoke to your
office or to you. That's what I just got from
her.
THE COURT: That's the start of trial
there?
MR. STERN: The trial starts Monday. He's
come in from Albany to be here in Syracuse for a
pretrial and the Attorney General --
THE COURT: Is that to start a trial?
MR. STERN: On Monday, right, and I have a
pretrial at 3:30 with him and I called --
THE COURT: Well, you know, right now I'm
going to check right now because I don't -- no
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 4
one asked me --
MR. STERN: That's why I'm bringing it up
right now.
THE COURT: -- for that permission and I
did not give it and I don't know. I know this,
that every state -- every Court in the state has
to honor a trial that's in progress. Now, I
don't know, maybe the Federal Government gets
their own rules or something, I don't know.
MR. STERN: Well, again, Judge, I'm just --
THE COURT: Well, let me check on it.
MR. STERN: Okay.
(Whereupon, there was a short pause in the
proceedings.)
THE COURT: Someone called here, no one
told them that you were going to be released from
this trial and they're talking about today.
MR. STERN: Right, today at 3 o'clock.
THE COURT: 3 o'clock today?
MR. STERN: Yes. And I explained to --
THE COURT: To start a trial?
MR. STERN: No, Judge, a pretrial.
THE COURT: Well, today is pretrial. But
it's in order to start a trial when?
MR. STERN: Monday.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 5
THE COURT: Monday. So in other words, he
wants me to stop my trial. I'm not going to do
it unless I have to. Unless there's some law
that I have to.
MR. STERN: I assumed -- there's an
Attorney General traveling from Albany today to
be at that pretrial and that's why I wanted to
make sure that he didn't come if you're not going
to release me.
THE COURT: Call him back right now. And
I'll talk to Judge Kahn or whoever I have to talk
to but no one gave permission from here. My
secretary just said that she would discuss it
with me. She hasn't yet.
MR. STERN: All right. I'm glad I brought
it up. Okay.
THE COURT: In fact, I wanted to make
sure --
MR. STERN: What I was told by the clerk is
that Federal Judges don't let any Courts get in
the way of their schedules and I said, well,
that's interesting because I don't think that my
Judge is going to feel the same way.
(Whereupon, there was a short pause in the
proceedings.)
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 6
THE COURT: Okay. That call came from
Albany, someone -- right, someone --
MR. STERN: I believe the call should have
come from here in Syracuse.
THE COURT: Well, I think it's Albany. But
in any event, what he said is that -- I mean,
what my secretary has said is that this is for a
pretrial, right, and that you would only be there
about a half an hour. Now, my problem is not so
much that but I have to finish this trial, I have
to keep going and now I -- we only got --
tomorrow is a holiday.
MR. STERN: Okay.
THE COURT: Thursday we got all day. And
Friday no judges are here, we're all going to be
at a meeting in Utica. So this --
MR. STERN: Please explain it to
Judge Kahn.
THE COURT: This is the problem, if we
don't finish it I have to finish it Monday.
MR. STERN: Please explain it to
Judge Kahn. I'm just a humble servant of the
Court and I am in between two judges. I'm ready
to be here all day and any other time that you
tell me to be here.
DEBORAH A. McCARTHY
Official Court Reporter
DOCKET #V-320-95 7
THE COURT: Yeah.
MR. STERN: And then I've got Judge Kahn
telling me that he wants me someplace.
THE COURT: Okay. But do you think
realistically you should finish this by the end
of Thursday or not?
MS. WALSH: I would hope, your Honor. I
hope to be finished with my client today and then
it's Mr. Stern's --
THE COURT: What do you think, have you got
a lot of witnesses?
MR. STERN: Well, I wanted to bring in some
of --
THE COURT: I don't want to shorten you.
In other words, you've got to have your right
to --
MR. STERN: I think we should be done by
Thursday but I certainly can't make a promise on
it.
THE COURT: Yeah, okay. All right. Well,
let's get going anyway.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 8
H I R O M I S U M I Y A, having
previously been called as a witness, being
previously duly sworn, continued testifying as
follows:
CONTINUED DIRECT EXAMINATION
BY MS. WALSH:
Q Miss Phillipson, we were going to pick up on the
transition problem you were talking about but first I'd like
to clarify a few things following Dr. Reagles testimony.
A Yes.
Q First of all, in the pamphlet there is a language
requirement, correct?
A Yes.
Q And it states that you're supposed to be fluent
in I think French, German?
A French and German.
Q French and German. And are you fluent in either
French or German?
A No.
Q And did you discuss this problem with anyone in
the University of California program?
A Yes, I have discussed with my advisor.
Q And when did you discuss it with your advisor?
A During the visit in this summer.
Q And what -- what did you learn about that
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 9
requirement?
(Whereupon, there was a short pause in the
proceedings.)
THE COURT: Okay. Just to straighten that
matter out before we continue, is he just wants
you there for today just for about 45 minutes or
whatever.
MR. STERN: Okay.
THE COURT: But that will kill the rest of
the afternoon. But if we're still in trial
that's not going to be a problem of continuing
here.
MR. STERN: Okay.
THE COURT: You have to just let them know.
I mean, you know, so it's just for the purposes
of this pretrial conference or whatever it is.
MR. STERN: So 3 o'clock I'll leave and
then we'll adjourn until Thursday?
THE COURT: Yeah.
MR. STERN: Okay.
MS. WALSH: We will continue this
afternoon, your Honor?
THE COURT: Well, I've got a few cases
there too. Maybe we just better do the morning
and then come back Thursday.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 10
MR. STERN: Okay. Instead of coming in for
a half an hour.
MS. WALSH: Then we won't be finished on
Thursday. I mean, that's just clear. Let's just
make it clear so that Mr. Stern can tell --
THE COURT: Yeah.
MS. WALSH: -- can tell the Judge today.
THE COURT: Make him aware that you may
very well be tied up here at least Monday. Maybe
longer.
MS. WALSH: If we can't go this afternoon.
THE COURT: Well, I've got a bunch of
matters here that have to be processed, all
right, that takes maybe a half an hour. He's got
to be there, you know, leave here at 3. I just
don't think that we're going to get much in.
MS. WALSH: I understand, your Honor. I
just want to make it clear that it seems then
that we're not going to be finished Thursday.
THE COURT: Okay. Let's just figure we'll
go this morning and do what we can and then all
day Thursday and I'll make sure I have got a
clean calendar. No matter what, I'll get rid of
of everything just so that we stay on this all
the way through and then we'll see where we are
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 11
and you may have to do Monday.
MR. STERN: I have no problem with that,
Judge. I am prepared to be in trial, whatever
trial it is, from now until the end of time.
THE COURT: Yeah.
MR. STERN: So --
THE COURT: Okay.
BY MS. WALSH:
Q Miss Phillipson, what did you learn about the
language requirement at the University of California
linguistics program?
A I learned that French and German were required
because in the past many of the linguistic literature was
written in French and German but nowadays an increasing
number of literature is written in English. Also, my
special edition relates to Japanese so I could substitute
Japanese for French or German.
Q So you're allowed to enter the PhD program using
Japanese instead of French or German?
A Yes, correct.
Q And it is a PhD program you've been admitted to,
correct?
A Yes.
Q You're not planning on getting another Masters at
California?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 12
A No.
Q Going back to the issue of the transitions, I
believe you were talking about an incident or several
instances when you were going to the marital residence to
pick up Domenic at the end of visitation, correct?
A Yes.
Q And can you give us a time frame as to when this
occurred?
A I believe it was February through May before the
summer vacation took place.
Q So that would be February through May of 1997?
A Yes.
Q And at that time Domenic was potty-trained at
your home?
A Correct.
Q And tell us what happened when you went to pick
him up at the marital residence? Who was there?
A His father was there, sometimes I found neighbors
are playing with Domenic and the first couple of times after
Domenic was potty-trained I found him in the diaper when I
went to pick him up.
Q And what did you do when you found him in a
diaper?
A I asked his father that Domenic's allowed to use
the bathroom and change to regular underwear before we head
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 13
back to Syracuse, that takes us about a half an hour.
Q And what did Mr. Murtari say?
A First two times he let us use the bathroom.
However, after that I noticed when I go to pick him up the
door was locked. I could not get in and --
Q Did you ask Mr. Murtari to let you in?
A Yes, I did.
Q And did he refuse?
A He did.
Q And at this time were you a co-owner, a joint
owner of that property?
A That's correct.
Q And what happened when he refused to let you into
the house?
A He insisted that he's going to go -- I mean,
Domenic is going to go back to my house with a diaper on. I
told him that is not fair for Domenic and I wanted to have
him go to the bathroom before a half an hour trip, and we
ended up in front of the locked door back and forth, you
know, please let me use and, no, you have to go home. And
that time one of the neighbors was there with his son and
while this was going on he was away from the garage where --
Q The neighbor?
A The neighbor. And I didn't see him but when I
saw him coming towards the garage somehow his father changed
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 14
his mind and opened the door for us and I could have Domenic
use the bathroom and change to his regular shorts.
Q And did there come a time when you stopped
picking up Domenic at the marital residence?
A Yes.
Q And on whose request was that?
A I'm sorry, I don't remember.
Q Okay. And where did you stop -- where was the
transition changed to, from the marital residence to where?
A His father will bring Domenic back to my
apartment.
Q And during the period of time from May of '97 did
Domenic return to your home in diapers?
A Yes.
Q On how many occasions?
A Many times.
Q At the end of every visitation?
A Almost.
Q And did Domenic ever need a diaper at your house
during this period of time?
A No, he did not.
Q And I think you stated that Mr. Murtari had --
you had tried to discuss this with Mr. Murtari, correct?
A Yes.
Q And I think you said that you recommended that he
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 15
speak to the pediatrician, correct?
A Yes.
Q And you said that he said you should put it in a
letter?
A Yes.
Q Okay. Do you remember when that was?
A My first letter was written in March of '97 so I
believe that was -- his request was prior to that.
Q And did he request that you write any other
letters?
A No, he continued every time I tried to talk to
him in that matter he was very irritated and he told me, I
just tell you when changes happen, which I never heard from
him.
Q He never did tell you when a change had happened?
A Right.
Q And what, if anything, did Domenic tell you about
this difference between your house and his father's house?
A Besides diaper?
Q Yes. About the diaper, I'm sorry.
A About the diaper. He doesn't go to the bathroom.
Q He said he wouldn't go to the bathroom?
A Because he was ashamed.
Q And were there any other incidences in which the
issue of the potty-training became a problem for Domenic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 16
A I can't think of it.
Q Now, did there come a time when the transition
changed from Mr. Murtari coming to your house?
A Yes.
Q And when did that occur?
A I believe that was starting from fall of '97.
Q At the end of visitation, right?
A Yes.
Q You testified the other day that he was coming to
your house and prolonging the transition, right?
A Right.
Q And did there come a time when that changed, that
he asked that you --
A Oh, to change.
Q To change where?
A Right.
Q He was going to bring Domenic?
A Yes, I'm sorry, I understand.
Q Let me ask you a question. When did that change
occur?
A I think -- it's been about a month.
Q And who requested the change?
A Mr. Murtari.
Q And how did he request the change?
A He sent me a fax stating that he wanted me to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 17
drop -- meet him at the same place, same place, the Thruway
exit at the end of the visitation.
Q So he sent you a fax requesting this change?
A Yes.
Q And did you acknowledge the letter?
A Yes, I did.
Q And what correspondence, if any, did you have
with Mr. Murtari about the change?
A I also responded with a fax stating that I will
comply his request.
Q And in that fax did you say anything else to
Mr. Murtari?
A I am concerned with his statement making Domenic
feeling guilty. I am concerned of prolonging the transition
time which is very painful to Domenic.
Q And did you ask him to stop that long transition?
A Yes.
Q And did you comply and take Domenic to the
Thruway exit at the end of visitation?
A Yes, I did.
Q So is it the arrangement between you and
Mr. Murtari at this point that the transitions occur at the
Thruway exit?
A Yes.
Q All the transitions are occurring at the Thruway
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 18
exit?
A Yes.
Q And that's at his request?
A Yes.
Q And tell us what happens at the transitions at
the Thruway exit at this time in the last month?
A It's been much better, it's shorter transition.
Domenic is still carried by his father and put into the car
seat but no crying anymore. It's very -- less painful.
Q And it's shorter, is that correct?
A Much shorter, yes.
Q So Mr. Murtari has finally complied with your
request to make the transition shorter?
MR. STERN: Objection, leading.
A Yes.
THE COURT: Overruled.
Q Do you know why it occurs at the Thruway? Did
Mr. Murtari tell you?
MR. STERN: Objection, leading.
A I don't know the reason because he did not make
it clear why he changed to the Thruway exit at the end of
the visitation.
Q Mrs. Murtari, are there other behaviors that you
are concerned about regarding Mr. Murtari's interaction with
Domenic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 19
MR. STERN: Objection, foundation.
A Yes.
THE COURT: Overruled. Answer yes or no,
then we'll get into a foundation if it's yes. If
it's no, then we don't have anything.
A Yes.
Q And what are those concerns?
MR. STERN: Objection, foundation.
THE COURT: I have to first know what it is
and then we're going to find out where, when, who
was there, so on.
MR. STERN: But don't we --
THE COURT: Overruled.
MR. STERN: -- limit it to time?
THE COURT: Answer the question.
A I continued to hear from Domenic that he has
alcoholic beverages at his father's. He sleeps with his
father in the same bed. He continues telling me that his
father tells Domenic that his father feels lonely when
Domenic is not there and want him to stay longer. Once he
told me that before we go to Japan, it's too far for me to
go to Japan; mommy, you should go by yourself. And he was
just too young for -- to make such a statement so I asked
him who said that and he replied by saying daddy.
Q Now, the issue of the alcoholic beverages was an
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 20
issue at the -- during the divorce, correct?
A Yes.
Q And that was brought up during testimony,
correct?
A Yes.
Q And I believe the law guardian had said that it
was inappropriate to be serving the child --
MR. STERN: Objection.
A Yes.
THE COURT: Wait a minute. You know, I
can't follow because you're interrupting the -- I
can't even hear the questions so I don't know
what you're objecting to. You know, you don't
have to worry about a jury. Let her finish.
MR. STERN: All right.
THE COURT: You know, do you want to repeat
the question and then I can hear the objection.
Q Miss Phillipson, there was a concern about Domenic
being served alcoholic beverages at his father's, correct?
A Yes.
Q And that concern was expressed in the court,
correct?
A Yes.
MR. STERN: Objection, leading.
Q It was expressed --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 21
THE COURT: Overruled. Go ahead.
Q By who else expressed that concern?
A Law guardian.
Q And were you surprised to hear that Domenic
stated that he was still getting alcoholic beverages at his
father's house?
A Yes, very much.
MR. STERN: Objection, leading.
THE COURT: Overruled.
Q And does he get any alcoholic beverages at your
house?
A Never.
Q And at your house does Domenic have his own bed?
A Yes.
Q And does he sleep in his own bed?
A Yes.
Q And does he sleep in his own bed all night?
A Yes.
Q And what does he tell you, if anything, about
where he sleeps at his father's?
A He told me that daddy will sleep with him until
the morning.
Q What else, if anything, does Domenic tell you
about his interaction with his father regarding things like
carrying him or sleeping in the bed with him?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 22
MR. STERN: Objection, leading.
THE COURT: Overruled.
A My main concern is that he feels guilty from the
statement made by his father.
Q And how do you know he feels guilty?
A Because he cries when he tells me those things.
His body shakes, trembles, usually his cheeks start to
twitch, and he'll have like a half -- try to smile but I see
the tension in his cheeks.
Q And what does Domenic tell you, if anything,
about what his daddy let's him do or not do?
A I don't know how to answer to that because it's
very opposite thing I would hear from him. I have heard
from him that, I'll tell daddy what I can do but he don't
listen to me. On the other hand, on the other hand, like
carrying him, sleeping with him, having wine, daddy does
anything I tell him to do.
Q When you say daddy doesn't listen when I say I
can do things, what do you mean? What kind of things?
A It's very simple things for five-year-old. One
time he was thrilled to be able to put the jacket on by
hisself and he was showing to every visitor or when we go to
somebody's place he will call attention of everybody that he
can put the jacket on and but his father is -- he didn't let
him do that. And when Domenic asks, daddy wants to do it,
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 23
and that occurred to me when I was present as well.
Q You saw that?
A Yes.
Q That his father won't let him put his jacket on
himself?
A Yes.
Q And Domenic is how old now?
A Right now?
Q Uhm-hmm.
A Five.
Q And that's still occurring?
A I see it.
MR. STERN: Foundation.
THE COURT: I didn't -- you know, I didn't
hear that. Is he still doing that? What's the
last -- what was the answer?
THE WITNESS: It still happens.
THE COURT: It still happens. Now, was
there another question and an objection or what?
MR. STERN: Well, I've heard a string of
charges about things my clients said and all that
when she's heard it, but I never heard when she
heard this from the child. Who was there?
THE COURT: Absolutely. You have to tell
us when, where, who was there, what you said to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 24
the child, what the child said to you.
Q Miss Phillipson, where do these conversations with
Domenic usually occur?
A At my house after visitation.
Q And who is present?
A Myself and Domenic.
MR. STERN: Objection, foundation. Which
comments are we talking about?
Q Let's talk about the jacket --
MR. STERN: Okay.
Q -- in specific. Can you remember when Domenic
told you that his father wouldn't let him put his jacket on?
A That specific instant I was in person, I was
present when it happened.
Q And do you remember when that was?
A That was approximately the same time diaper
incident was happening, so March, February, March of '97.
Q And you observed that approximately how many
times?
A That was one time.
Q And when did you have a -- did you have a
conversation with Domenic about that?
A Yes, I have.
Q And where did that occur?
A In my house.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 25
Q And when did it occur?
A Around the same time, after the instance.
Q And what did Domenic say to you?
A But daddy doesn't listen.
Q And what did you say to Domenic?
A I understand there is people who don't listen but
you still need to speak up for yourself, you may have to do
it more than once. I know it's very difficult.
Q Are there any other specific things that you have
discussed with Domenic that he can do that he says daddy
doesn't let him do?
A Getting in and out of the car, car to the house,
he can walk. Diaper was one of the issues too.
Q And have you observed him getting in and out of
the car when he's with his father?
A Yes.
Q Have you observed that in the last two months?
A Yes.
Q And what have you observed?
A Domenic will get out the car but as soon as he's
out of the car his father will pick him up and bring him to
my car and carrying him and put him into the car seat.
Q And does that happen on each and every transition
that you have observed?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 26
Q He's never allowed to walk that you observed?
A Yes.
Q And are there any other problems that you have
observed between Domenic and his father? Are there any
other problems that you can testify to?
A I cannot think of right now.
Q And are there any other problems that you have in
communicating or talking with Mr. Murtari?
MR. STERN: Objection, leading.
THE COURT: Overruled.
A Yes.
Q And what are they?
A He would talk whatever he wants to talk but when
I have issue and I wanted to talk such as diaper or
medication, he would not want to talk.
Q Specifically what was the problem regarding
medication?
A Generally speaking Domenic is a very healthy boy
but every once in a while he gets sick. One time I gave --
one visitation he had an ear infection so I gave father
antibiotic with other package but I was told he did not
finish.
Q Do you remember when that was?
A I believe that was last fall.
Q Fall of '97?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 27
A '97.
Q And who did you have this conversation with?
A I talked to Mr. Murtari.
Q And he told you he didn't give Domenic the
medication?
A Right.
Q Did he give you any reason as to why he didn't
give him the medication?
A He was fine and he didn't want to take it.
Q And this was a prescription for antibiotic that
his doctor had given him?
A Yes.
Q And it was for an ear infection?
A Yes.
Q And you had asked Mr. Murtari to continue the
dosage?
A Yes.
Q And as far as you know he refused?
A Right.
MR. STERN: If I just may have a
clarification. This is the child? Who is saying
that Mr. Murtari refused, the child said this or
Mr. Murtari told her? I didn't understand that.
Q Who told you that Mr. Murtari would not give the
child his antibiotic?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 28
A Mr. Murtari.
Q Was anyone else present?
A No.
Q Where did this occur?
A During the transition.
Q And this was in fall of '97?
A Yes.
Q Mrs. Murtari, did there come a time when you were
forced to take legal action against Mr. Murtari after the
Judgment and Decree of Divorce?
A After the Judgment. I'm sorry, could you repeat
the question again?
Q Did you have to go back to Court after the
Judgment and Decree of Divorce?
A Yes.
Q To enforce the Judgment?
A Yes.
Q And why specifically did you have to do that?
A Because Mr. Murtari wasn't complying the order to
sell the house.
Q And the Judgment and Decree of Divorce had
ordered the house sold, correct?
A Yes.
Q And how was he not complying?
A After each of us had 30 or 60 days to buy each
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 29
other out, we put the house on the market as the order said
but he was not -- he did not cooperate to put the house on
the market. He was -- I think he was telling the real
agent --
Q The real estate agent?
A -- the real estate agent that unless she can put
notes on the market, say that house is pending in the court.
Q That an appeal was pending?
A That an appeal was pending, okay.
MR. STERN: Judge, I'm going to object as
to relevance as to custody. I don't understand
the relevance of this. It seems to be more of a
fiduciary issue.
THE COURT: I would expect -- I'm assuming
that it has to do with, you know, a support issue
and, you know, what was necessary --
MS. WALSH: Correct, your Honor.
THE COURT: The Decree of Divorce, the
equitable distribution which goes to support the
child because she had the custody. Am I correct?
MS. WALSH: Correct, your Honor.
THE COURT: So I think that's all relevant.
MS. WALSH: It will go to the whole issue,
your Honor, of this ongoing litigation which has
been in every Court in New York State since the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 30
Judgment and Decree of Divorce.
MS. WALSH: Could I have that marked,
please?
(Whereupon, Petitioner's Exhibit Number 12
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Mr. Stern and the law guardian
Exhibit Number 12.
Q Miss Phillipson, handing you what has been marked
Exhibit Number 12, can you identify that for the record?
A Yes.
Q What is it?
A It is a motion made by myself seeking enforcement
of Judgment and Decree of Divorce.
Q That's actually the orders following the motion,
correct?
A Yes.
Q Okay. And pursuant to that order were you
appointed as the receiver of the property at Sourwood Drive?
A Yes.
Q And pursuant to that order was the respondent
ordered to vacate the marital residence within a specific
period of time?
A Yes.
Q And pursuant to that order were you awarded
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 31
attorney's fees for bringing the enforcement action?
A That's correct.
MS. WALSH: I'd like to move Exhibit Number
12 into evidence.
MR. STERN: Judge, I object on a technical
issue that this is not a certified copy and it's
improper to be admitting it but I believe it
should be a part of the Court's record as it is
if the Court has the court documents.
THE COURT: Well, you know, the Court's
going to take notice of any of its orders. We'll
check if that's a concern and make sure it's --
you know, it's an exact copy of the original.
MS. WALSH: Your Honor, I have an
attorney's certification here. I can resign
that. This is a copy of my certification but
I'll be happy to resign that and make it a
certified.
THE COURT: All right. Mr. Lupia?
MR. LUPIA: Judge, I have no
objection.
THE COURT: Okay. Petitioner's Exhibit
Number 12 is received into evidence.
Q Now, pursuant to this order Mr. Murtari was
ordered to execute certain documents transferring the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 32
property to you, correct?
A Yes.
Q And did he, in fact, do that?
A No, he did not.
Q And what action, if any, did you have to take to
get the documents put into your name?
A I have to go back to the Court to ask sheriff
sign the deed.
Q So we had to go back to the Court again, correct?
A Yes.
MS. WALSH: Can I have that marked?
(Whereupon, Petitioner's Exhibit Number 13
was marked for identification.)
MS. WALSH: I would like the record to
reflect that I am showing Mr. Stern Petitioner's
Exhibit Number 13.
MS. WALSH: I show the law guardian
Petitioner's Exhibit 13.
(Whereupon, Petitioner's Exhibit Number 14
was marked for identification.)
Q Miss Phillipson, can you recognize Petitioner's
Exhibit Number 13?
A Yes.
Q And what is that?
A This is the order allowing the sheriff to sign
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 33
the deed.
MS. WALSH: And I would move Exhibit
Number 13 into evidence.
MR. STERN: I object on the same grounds,
this is a copy and uncertified copy.
THE COURT: Mr. Lupia?
MR. LUPIA: No objection, and I ask that
the Court take judicial notice of the original
order.
THE COURT: Petitioner's Exhibit 13,
received into evidence.
Q And did there come a time when the sheriff was
asked to sign a deed transferring the property into your
name?
A Yes.
MS. WALSH: I'd like to have the record
reflect I am showing Mr. Stern Exhibit Number 14.
And I am showing the law guardian Exhibit
Number 14.
Q Miss Phillipson, can you identify Exhibit Number 14?
A This is the sheriff signing the deed transferring
the property to myself.
MS. WALSH: I would like to admit -- offer
Exhibit Number 14 into evidence, your Honor.
MR. STERN: I object again. These are all
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 34
uncertified and this is also uncertified. If
Miss Walsh would like to do the certification
herself, I think that would be better than just a
copy.
MS. WALSH: I will be happy to do that,
your Honor. I can bring my stamp and do that.
THE COURT: Okay. Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay.
Q And when is that dated?
THE COURT: Petitioner's Exhibit 14 is
received into evidence.
Q The date is on the top.
A September 24th, 1997.
Q And for each of these incidences in which you had
to go back to court, did you incur attorney's fees?
A Yes.
Q And did it cause you any other concerns besides
financial?
A Yes.
Q And what were they?
A Emotional stress, myself and on Domenic.
Q And pursuant to the order Mr. Murtari was to
vacate the residence, correct?
A Yes.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 35
Q And did he vacate the residence?
A No.
Q And did there come a time when you had to have
him evicted?
A Yes.
Q And do you remember when that was?
A December 17th, '97.
Q December 17th, 1997? And what did you have to do
to have him evicted?
A I have to get the mover because I was told I have
to empty the house and I have to hire locksmith to change
all the locks of the house. I had to call the towing
company because Mr. Murtari refused to hand the key to the
car in spite of the request from the sheriff.
Q And did you have to be there at the eviction?
A Yes.
Q And did you have to deal with the sheriff?
A Yes.
Q And what do you know, if anything, occurred on
that day.
A Occurred?
Q Yes.
A I was asked to wait at the curve while the sheriff
was making last attempt to make Mr. Murtari comply the
order, which he refused. I saw him in the sheriff's car and
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 36
drove by. Then I was asked to empty the house with the help
of a mover.
Q To your knowledge was Mr. Murtari arrested on
that day?
A Yes.
Q And why was he arrested?
A He refused to move out of the house.
Q And that was on December 17th, 1997?
A Correct.
Q And did he miss any visitation because of the
arrest?
A Yes.
Q And how -- do you know how long he was in jail?
A I believe that was about a week.
THE COURT: Miss Walsh, I'm going to
interrupt you here. We need to just take a very
short break. Five minutes and we'll come back.
(Whereupon, a short recess was taken.)
THE COURT: Okay.
Q Miss Phillipson, how did it feel and what was your
reaction on the day of the eviction?
A It was just awful and heartbreaking too and it
made me realize that he would do anything to get his way.
Q And when you say he, who do you mean?
A He --
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 37
Q Who is he?
A Oh, Mr. Murtari.
Q And why did you find it heartbreaking?
A I knew that I had to empty the house on the day
of the eviction. I also asked Mr. Murtari to let them
know -- let him know that it needs to be moved out so that
he can take an action, but he chose not to do.
Q So when you went into the house after he was
arrested, the house was full?
A The house was full, yes.
Q He had not moved out the furniture?
A No.
Q And what did you then have to do?
A The movers started getting everything out to the
curve, bringing out to the curve, including Domenic's
furniture and that was heartbreaking. I saw his toys,
furniture, just put out on the curve.
Q And they were told to move things at the curb on
the order of the sheriff, is that correct?
A That's correct.
Q Had you made any attempts to do something besides
move it to the curb prior to the eviction?
A My attorney contacted Mr. Murtari to move the
furniture out because we was informed that this has to
happen.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 38
Q Did you ask the sheriff if you could put it
anyplace else?
A Yes.
Q And where did you want to put it? What did you
ask? What did you ask the sheriff?
A Oh, on the day of the eviction?
Q No, before the eviction.
A Before the eviction. If it can be moved to
somewhere else.
Q And what did the sheriff inform you?
A It was not allowed.
Q So you were forced to empty the house and put it
on the curb, is that correct?
A Right.
Q And how long did you have to be there that day?
A All day until I think it was 4:30 or 5 o'clock.
Q And was the sheriff there all day too?
A They have to be, yes.
Q And the movers?
A Yes.
Q Did there come a time when you were able to sell
the house?
A Yes.
Q And at that time did you do a receiver's
accounting?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 39
A Yes.
Q And did you account for how much it cost you to
do the receivership?
A Yes.
Q And how much was that?
A Approximately 6500.
(Whereupon, Petitioner's Exhibit Number 15
was marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibit Number 14 to Mr. Stern
and the law guardian.
MR. LUPIA: 15.
MS. WALSH: 15, I'm sorry.
Q Miss Phillipson, showing you what is Exhibit
Number 15, can you identify that for the record?
A Yes, this is receiver's report.
Q And do you know where that was submitted?
A Supreme Court.
Q To Judge Majors?
A Yes.
MS. WALSH: I'd like to move Exhibit
Number 15 into evidence.
THE COURT: Any objections?
MR. STERN: I have no objection.
MR. LUPIA: No objection.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 40
THE COURT: Petitioner's Exhibit 15
received into evidence with no objection.
Q Miss Phillipson, as a result of the sale of the
marital residence were there certain judgments that were
paid out of the proceeds?
A Yes.
Q And can you tell us what those judgments were?
A Over 18,000 was for dissipated marital asset,
approximately 44, 43 or 4400 was child support arrear, and
another 3,000 for attorney's fee and totals over $25,000.
Q So it was a judgment that you had against
Mr. Murtari, correct?
A Yes.
Q And that was partially satisfied out of the
proceeds of the marital residence?
A Correct.
Q But not totally, correct?
A Right.
Q There was some deficiencies, correct?
A Yes.
Q And was there a judgment to another third party
that had to be paid out of the proceeds of the marital
residence?
A Attorney's fee.
Q Do you want to review it? I think if you review
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 41
it towards the end you'll see that there is a -- there was
another judgment. Go towards the back. Go towards the back
of the exhibit, please. There's two satisfactions. Does
that refresh your recollection?
A Yes.
Q There was a lien against the real property at the
time of sale, correct?
A That's right.
Q And who was that against, the lien?
A Attorney Bucci.
Q Attorney Bucci, correct, had a judgment?
A Yes, yes.
Q And who did she have a judgment against?
A Mr. Murtari.
Q And that had to be satisfied out of the proceeds,
correct?
A Correct.
Q Do you know how much that was for?
A That was 3500.36.
Q And that had to be satisfied before the property
could be sold, correct?
A Yes.
Q So that was right off the top of the proceeds?
A Right.
(Whereupon, Petitioner's Exhibits Numbered
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 42
16 and 17 were marked for identification.)
MS. WALSH: I'd like the record to reflect
that I am showing Exhibits 16 and 17 to Mr. Stern
and to the law guardian.
Q Now, I think you testified, Miss Phillipson, that
pursuant to the sale of the residence you had to satisfy a
prior judgment --
A Yes.
Q -- that you had against Mr. Murtari?
A Yes.
Q And that was in the amount of $25,000, correct?
A Right.
Q Except for that payment has any attempts been
made to satisfy any of the judgments that you have against
Mr. Murtari?
A Not at all.
Q Handing you what has been marked as Exhibit
Number 16, can you identify that for the record?
A This is a motion made by myself for money
judgment.
Q That is a money judgment, correct?
A Yes.
Q And what is it for?
A Asking for attorney's fee, that was incurred by
going to Appellate Division.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 43
Q That's awarding you attorney's fees, correct?
A That's correct.
Q And it's a money judgment against you?
A Against Mr. Murtari.
Q For how much money?
A $10,506.25.
Q And has Mr. Murtari made any attempts to pay
anything on that judgment?
A No.
MS. WALSH: I would move Exhibit Number 16
into evidence.
MR. STERN: Judge, I would object to it not
being properly certified.
THE COURT: Mr. Lupia?
MR. LUPIA: No objection, your Honor.
THE COURT: Objection overruled.
Petitioner's Exhibit Number 16 is received into
evidence.
Q Miss Murtari, showing you what has been labeled
as Exhibit Number 17, can you identify that for the record?
A This is another money judgment.
Q Against whom?
A Against Mr. Murtari.
Q And is it -- to who -- who has the money
judgment?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 44
A I do.
Q You do?
A I do.
Q And what is that money judgment for, what is that
amount?
MR. STERN: Judge, I'm going to object as
she seems to be reading from an exhibit which
isn't in evidence.
MS. WALSH: I would move it into evidence,
your Honor.
MR. STERN: Well, I object as it's not a
properly certified document. It's a copy of a
Court document which should be authenticated as
being true and accurate and so I object to it
going in on that purpose.
MS. WALSH: I will certify all of the
documents, your Honor.
THE COURT: Okay. And with that, the Court
will receive the document into evidence.
Q How much is that for, Miss Phillipson?
A $11,772.52.
Q And has Mr. Murtari made any efforts to pay on
that judgment?
A No.
Q Miss Phillipson, pursuant to the Judgment and Decree
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 45
of Divorce you were awarded child support, correct?
A Yes.
Q And what is the amount of child support that the
Court has ordered?
A $120 a week.
Q And has Mr. Murtari ever paid you $120 per week?
A Never.
Q What is the amount that he pays you?
A $60 a week.
Q And as of today's -- or, as of November 1st what
child support amount is owing since the Judgment and Decree
of Divorce?
A Approximately 7200.
Q And pursuant to the -- strike that.
And you have a current petition for a violation
of that court order pending, is that correct?
A Yes.
Q And that's pending here in Family Court?
A Yes.
Q In front of Kathyrn Davies?
A That's correct.
Q And that matter had previously been scheduled two
different times, correct?
A Yes.
Q And it's now been adjourned until when?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 46
A November 30th.
Q And prior to you bringing that violation petition
did Mr. Murtari ever bring any other petition to modify
that, that decree regarding child support?
A No.
Q After you filed the violation he brought a
modification petition, is that correct?
A Yes.
Q Do you remember when you filed that modification
petition -- when you filed the violation petition?
A I don't remember exactly but that was before the
summer.
Q Before what?
A Before this summer.
Q So it was in April or May of 1997?
A Yes.
Q Does Mr. Murtari always pay $60 per week on time?
A No.
Q And has there been any other occasions where he
has gone for more than two or three weeks without paying you
any support?
A Yes.
Q And can you tell us when that was?
A During this summer he did not pay me from
June 16th through September, I think that was -- towards the
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 47
end of September.
Q Is there any other time that he did not pay you
every week?
A After the eviction.
Q And how long did he go without paying you
anything at that time?
A It was a couple of weeks.
(Whereupon, Petitioner's Exhibit Number 18
was marked for identification.)
MS. WALSH: I want the record to reflect
that I am showing Mr. Stern Exhibit Number 18.
And the law guardian.
Q Miss Phillipson, handing you what has been marked
Exhibit Number 18, can you identify that for the record?
A Yes.
Q And what is it?
A It is a child support payment paid by Mr. Murtari
to me.
Q And it's a copy of what?
A A personal check.
Q Whose personal check?
A Mr. Murtari's.
Q And what's the date on the check?
A September 28th, '98.
Q And what is the amount of the check?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 48
A $840.
Q And what is the notation on the check?
A From July 14th through October 20th.
MS. WALSH: I would like to move Exhibit
Number 17 into -- 18 into evidence.
MR. STERN: I have no opposition.
MR. LUPIA: No objection.
THE COURT: Petitioner's Exhibit 18
received into evidence, no objection.
Q Miss Phillipson, pursuant to the Judgment and Decree
of Divorce Mr. Murtari was ordered to pay a certain
percentage of child care and medical, is that correct?
A Yes.
Q And has he paid -- made any contributions for
child care or medical since the Judgment and Decree of
Divorce?
A No.
Q And as of November 1st what amount of child care
is due and owing from Mr. Murtari?
A I believe approximately 2800.
Q And are you currently providing medical insurance
for Domenic?
A Yes.
Q And what is the cost per month?
A $356.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 49
Q Does Mr. Murtari make any contributions to that
payment?
A No.
Q Did that payment recently change?
A Yes.
Q Why?
A Because I was no longer a teacher assistant at
Syracuse University.
Q And when you were a teaching assistant did you
receive medical insurance as a benefit?
A Yes.
Q And you didn't have to pay the $350 per month?
A No.
Q Correct? And do you anticipate that when you
become a teaching assistant at California you will be able to
get health insurance for Domenic?
A Yes.
Q Does this amount that you have testified here
today include child support that was due and owing prior to
the Judgment and Decree of Divorce?
A Prior to.
Q I can change the question. The amount of child
support that you have testified about is from the Judgment
and Decree of Divorce, is that correct?
A Right.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 50
Q That does not include anything that was owed
prior, correct?
A That's right.
Q You, in fact, had a money judgment for what had
been due and owing prior?
A Yes.
Q Is it fair to say that Mr. Murtari has never paid
the complete amount of child support for any week, any month
in which he has been ordered to do so by the Court?
A That's correct.
Q Is it fair to say that he has never made a
contribution for child care?
A That's correct.
MR. STERN: Objection, leading.
THE COURT: Overruled.
Q Mrs. Murtari -- Mrs. Phillipson, besides the actions
that we've already talked about in Supreme Court and Family
Court, there has been other actions pending in the Courts of
New York State, correct?
A Yes.
Q And what are those?
A Appellate Division and the Court of Appeal.
Q And who brought the action in the Appellate
Division?
A Mr. Murtari.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 51
Q And who brought the action to the Court of
Appeals?
A Mr. Murtari.
Q And did Mr. Murtari have any communications with
you regarding the ongoing litigation?
A Through my attorney.
Q Did he ever tell you directly about his plans to
appeal?
A Yes.
Q And how did he tell you those plans?
A Through a personal letter.
Q And what did he tell you in the personal letter?
MR. STERN: Objection, foundation.
THE COURT: Sustained. When was the letter
and --
Q Was this one or more letters?
A More than one letter.
Q Do you remember how many?
A Two or three.
Q And did you recently get a letter in which he
said he was going to continue to appeal?
A Yes.
(Whereupon, Petitioner's Exhibit Number
19 marked for identification.)
MS. WALSH: I show Mr. Stern Exhibit
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 52
Number 19.
Q Mrs. Murtari, handing you what has been marked as
Exhibit Number 19, can you identify that for the record?
A Yes.
Q And what is that?
A It is a letter from Mr. Murtari addressed to
myself.
Q And what's the date on that letter?
A October 28th, '98.
Q 1998?
A Yes.
Q And did you just receive that?
A Yes.
Q And what, if anything, does that letter say to
you about Mr. Murtari's ongoing appeal of the Judgment and
Decree of Divorce?
MR. STERN: Objection, the document is not
in evidence.
MS. WALSH: I would move the document into
evidence, your Honor.
MR. STERN: Judge, on that basis if this is
another document that I haven't seen prior to
walking into court, I object to it being admitted
as, you know, again, I should --
THE COURT: I will give you a lot of time
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 53
to study it. I won't interfere -- it won't
prejudice -- it won't be prejudicial. I'll give
you plenty of time to look at it so that you can
cross-examine her.
MS. WALSH: Your Honor, the record should
reflect that I gave a copy of that to Mr. Stern
yesterday.
THE COURT: I don't know -- you said it
yesterday on the record?
MS. WALSH: Yes, I gave it to him
yesterday, your Honor. And it's a letter that
was sent last week by Mr. Murtari.
Q What does Mr. Murtari say about the ongoing
litigation in the Appellate Division and the Court of
Appeals regarding the Judgment and Decree of Divorce?
A Yes, I am appealing --
MR. STERN: Objection, the documents speaks
for itself.
THE COURT: Wait a minute. Please.
MR. STERN: I object --
THE COURT: Overruled. Part of it any way,
until we -- so we know what's going on.
A Yes, I am appealing silly divorce in court,
judgment, but I know the marriage is over and it is time to
move on.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 54
Q He's telling you that he's still appealing this,
is that correct?
A Yes.
Q And in past letters what has Mr. Murtari told you
about what he will do in court?
A In the past --
Q In the past letters what did he tell you?
A He will continue to get his way.
Q And did he tell you anything about how long --
MR. STERN: Objection, foundation as to the
last comments.
MS. WALSH: I'll strike that.
Q Did he tell you anything about how long he would
continue this appeal?
A As long as it takes.
Q And did he tell you anything about the cost?
A Yes.
Q And what did he say to you about the cost?
MR. STERN: Objection.
A That it would cost me about 42,000 --
MR. STERN: The last question --
THE COURT: Hold it. That last objection,
when, where did he say this to you, what did you
say to him, what did he say to you.
Q How did he tell you that he would -- what it
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 55
would cost?
THE COURT: I can only take one objection
at a time on the item at the time. I can't go
back.
MR. STERN: I understand, Judge.
THE COURT: Okay.
MR. STERN: I was trying to go back. I
also ask --
THE COURT: You can't go back.
MR. STERN: I understand.
THE COURT: I have to take it just for
what's happening now. Okay. So we will get
that.
MR. STERN: And if you would also instruct
the witness when I'm objecting that it's not her
time to continue to talk over me. I am trying
to, you know, protect my client's rights and to
make sure that --
THE COURT: You've got to let her finish
her sentence.
MR. STERN: When should I object?
THE COURT: We can't even get it properly
in the record when that happens, you know. And
especially when it's a non-jury thing there's no
reason for interrupting. Okay.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 56
Q How did you learn of Mr. Murtari's decision to
keep appealing this and to keep spending money on appeals?
A Through his personal letters.
Q And these are letters that he wrote to you?
A Correct.
Q And in these letters he has stated that he will
continue the struggle?
A Yes.
MR. STERN: Objection, leading.
THE COURT: Overruled.
MS. WALSH: Could you please mark these
two?
(Whereupon, Petitioner's Exhibits Numbered
20 and 21 were marked for identification.)
MS. WALSH: The record should reflect I'm
showing Mr. Stern Exhibit Number 20 and Exhibit
Number 21.
MR. STERN: Judge, before we even begin to
get into these, I believe that these are from
1996.
MS. WALSH: I believe one is from 1996 and
one is from 1997, your Honor, and I am using them
to show Mr. Murtari's intent. We will get into
the numerous Appellate Division motions he has
brought but I think it goes to his state of mind
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 57
and his desire to completely take up this matter
in an inappropriate way which has put tremendous
financial and emotional burden on my client which
is one of the issues that we're dealing with here
and these had been provided to Mr. Stern in the
past.
MR. LUPIA: I would also object on the
basis of that it predates the matrimonial
resolution.
THE COURT: I'm not going to get -- as I
said in the beginning, I'm not going to allow
that but, you know, it was really brought up on
your insistence on when, you know, she testified
that he is continually appealing and is going to
continue this and you wanted to know what date on
it but I suppose you can take, if you have it,
take data that comes after the decree so we don't
get involved in that.
MS. WALSH: One I believe was after the
decree, your Honor. I don't know what date it
was. Mr. Murtari has -- the copy does not have a
date, and I am just doing it for the brief
purpose of showing Mr. Murtari's intent which I
think is significant. If this is his intent
prior to the Judgment and Decree of Divorce, I
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 58
think it's very important for the Court to be
aware of that.
MR. STERN: Judge, maybe we should just
reopen the divorce. I can bring in Ms. Phillipson's
intent prior to the divorce.
THE COURT: Okay.
MR. STERN: I can perhaps --
THE COURT: I already ruled that we're not
going to allow it to go there as we stated at the
beginning of the trial.
Q Miss Phillipson, you've had knowledge for a while
that Mr. Murtari was going to continue this legal struggle,
correct?
A Yes.
Q And that's through letters he sent you?
A Yes.
Q Including the one recently, correct?
A Yes.
Q And what do you know, if anything, from what he
has told you in these letters about the financial cost?
A 40 to $80,000.
Q And what did he say about the 40 to $80,000?
A That it will cost me to go through the
litigation.
Q And that he was going to continue it regardless
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 59
of the cost?
A Correct.
MR. STERN: And I would just object as to
foundation, when this was said, how it was said.
Q And it was said in these letters, correct?
A Yes.
Q And letters from who to whom?
A Mr. Murtari to myself.
Q And do you remember when the letters were?
A There is letters at the various times.
Q You can say you don't know if you don't remember.
A I do remember one letter like August of '97 and
sometime in '96.
Q And then the current one also, correct?
A Yes.
MR. STERN: Objection. Judge, they just
back-doored in a letter I believe from August of
'96 that you ruled was not going to come in and
now they're trying to speak about a letter
from --
THE COURT: '97. Wasn't it '97?
MR. STERN: She said '97 but I'm looking at
the letter and it says 1996 and there are other
things in it. And I thought we were going to try
to stay away from this. I believe there is a
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 60
letter now from a week ago but there's been --
you know, they don't have anything that's recent.
I just don't think it's proper for her to now try
to add a year to the date when she knows that
it's 1996.
THE COURT: Well, that's what
cross-examination is all about. Okay.
MR. STERN: Okay.
Q Now, Miss Murtari, this matter was appealed to
the Appellate Division, correct?
A Yes.
Q And in the course of that appeal there were
numbers of motions brought to the Appellate Division,
correct?
A Yes.
Q And who brought those motions?
A Mr. Murtari.
MS. WALSH: Your Honor, I have a number of
motions. I'm happy to do them as one exhibit or
would you like them marked separately?
THE COURT: Any reason not to mark them all
together?
MR. STERN: I'm sorry, what are you now?
MS. WALSH: A number of motions to the
Appellate Division. I can do them one at a time
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 61
or I can do them in one --
MR. STERN: Well, it seems that you're
going to be going into them in detail so why
don't we have them each marked?
MS. WALSH: I'm not going into them in
detail but I'll be happy to have them each
marked.
(Whereupon, Petitioner's Exhibits Numbered
22 through 29 were marked for identification.)
MS. WALSH: Have the record reflect that I
am showing Mr. Stern 22 through 29.
THE COURT: Mr. Stern?
MR. STERN: Yeah.
THE COURT: Could I just hear from you
regarding any objections because, you know, we're
not going to -- we're going to be breaking now
and you'll have plenty of time to study the
documents for questioning.
MR. STERN: Okay.
THE COURT: I'm just concerned now about
whether --
MR. STERN: I've got two more documents to
write down. I'm trying to go through them as I
have just been handed them and, again, I asked
for all documents that were going to come in and
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 62
this is the first time that I have seen --
THE COURT: Again, I'm not going to hear
any more. I received absolutely no motions to
preclude, no motions of any any kind prior to
trial. Once we start the trial --
MR. STERN: Judge, I can't make a motion to
preclude if I don't have it.
THE COURT: You can do what you want with
it. You have it on the record, your right to
appeal and everything.
MR. STERN: But, Judge, I can't --
THE COURT: I'm not going to repeat that.
You keep bringing it up since we started the
trial. Discovery according to the CPL is between
the attorneys. If you need the Court, you come
in with papers, and I didn't get any papers.
MR. STERN: But, your Honor --
MS. WALSH: If I could be heard on this
issue?
THE COURT: Yeah.
MS. WALSH: I informed Mr. Stern when I
responded to the late motion for discovery that I
was not going to provide him with all of the
court papers, his client has proceeded pro se and
could provide them to him and they were
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 63
voluminous and I wasn't going to spend time and
money doing that. He could go to his client. I
informed him of that and I never heard anything
about that.
THE COURT: Okay.
MR. STERN: And, Judge, just on the record,
I can't make a motion to preclude a document
which I don't know is going to be introduced into
evidence until it's shown to me while I'm
standing in trial.
THE COURT: You asked for certain material,
if you didn't get it you could come to the Court
for assistance. It's done all the time,
Mr. Stern. That's the way I -- like, I have
never seen this in 18 years. This is the first
time. All discovery problems are settled before
trial. I'm not kidding you about that. That is
the truth. I have never seen it.
MR. STERN: Judge, I agree with you.
THE COURT: Now, maybe you're right but
I'll tell you, I've never had the chance to
investigate it because it never happened. All of
those matters are handled before we start a
trial.
MR. STERN: Judge, if somebody asks you
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 64
for --
THE COURT: Okay. You want to -- let's get
to this.
MR. STERN: All right.
THE COURT: Either you want more time --
and you'll have a lot of time because we won't be
back until Thursday.
MR. STERN: I don't need any more time. I
have finished up --
THE COURT: Yeah, okay.
MR. STERN: -- writing them down.
THE COURT: Okay. As to those, objections?
MR. STERN: Well, I would -- they haven't
been offered yet, have they?
MS. WALSH: I intend to offer them,
your Honor.
THE COURT: Okay. Go ahead.
MS. WALSH: Are you objecting?
MR. STERN: Are you offering them into
evidence?
MS. WALSH: I'll offer them into evidence
and I'll deal with them as quickly as I can.
MR. STERN: I have no objection if
Miss Walsh is going to be certifying them as
accurate to the Court.
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 65
MS. WALSH: I will certify them,
your Honor.
THE COURT: Okay. Mr. Lupia?
MR. LUPIA: No objection.
THE COURT: Okay. Petitioner's Exhibits 22
through 29 received with no objections.
MS. WALSH: Does my client need to identify
them?
THE COURT: No, they're all set.
MS. WALSH: Okay.
THE COURT: Everybody acknowledges that?
They're being brought in by stipulation.
Q Miss Phillipson, is it fair to say that Mr. Murtari
brought numerous motions to the Appellate Division?
A Correct.
Q And were at least four of those for a stay of
enforcement of the Judgment and Decree of Divorce?
A Yes.
Q And was one of them to amend his appeal?
A Yes.
Q And was one of them to reargue after the
Appellate Division had made a decision?
A Yes.
Q And each and every time that Mr. Murtari brought
a motion what did you have to do?
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 66
A I have to respond.
Q Did you have to come into the office and read the
motion?
A Sometimes I did.
Q And did you have to allow me to respond on your
behalf?
A Yes.
Q And was this a financial cost to you?
A Yes.
Q And was there any other cost to you other than
financial?
A Emotional stress.
Q And describe for us that stress.
A This has been going non-stop, relentlessly.
Q Since when?
A Throughout the Judgment of Divorce and after the
Judgment of Divorce.
Q How does it make you feel?
A I feel my right is violated as well. I -- I know
the Court doesn't allow me to say before the judgment but
this is throughout, continuous emotional abuse towards me.
Q Do you feel Mr. Murtari is attempting to continue
to control you?
A Yes.
Q Do you feel he's attempting to continue to
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 67
threaten you with more legal action?
MR. STERN: Objection.
A Yes.
MR. STERN: Leading.
THE COURT: Overruled.
Q And how does that make you feel?
A Awful.
Q And at the same time Mr. Murtari is asking you to
be friendly to him, is that correct, in the letter of
October 28th?
A Yes.
Q And can you be friendly with him?
A No.
Q Why not?
A I cannot be friend who I cannot trust, who keeps
hurting me.
Q And do you think this is also hurting Domenic?
A Yes.
Q How is it hurting Domenic?
A Financially this is a burden and it is a
substantial amount of money that can be saved to -- for
other purposes for Domenic. Emotionally he would state
inappropriate things to Domenic.
Q Can you give me an example of an inappropriate --
THE COURT: I think we're going to break
DEBORAH A. McCARTHY
Official Court Reporter
H. PHILLIPSON - DIRECT 68
here, pick it up Thursday at 10 o'clock.
* * * * * *
C E R T I F I C A T I O N
This is to certify that I am an Official Court Reporter
in Onondaga County Family Court, Syracuse, New York; that I
attended the foregoing proceeding and made stenotype notes
thereof; that the foregoing is a true, accurate and complete
transcript of said notes to the best of my ability.
Dated:
__________________________
Deborah A. McCarthy
Family Court Reporter
DEBORAH A. McCARTHY
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