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
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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.
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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
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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
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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?
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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
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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 em | 