Recent Decisions and News
First Department Holds That Invoices Standing Alone May Not Be Regarded as Evidence of Title or Ownership of Property.
In Anonymous v. Anonymous,--- N.Y.S.3d ----, 2017 WL 1234201, 2017 N.Y. Slip Op. 02613 (1st Dept., 2017) the parties prenuptial agreement did not specifically address how the parties should divide their art collection upon dissolution of the marriage. It provided that any property owned on the date of execution of the prenuptial agreement, April 21, 1992, or "hereafter…acquired" by one party remains that party's separate property. It provided that "[n]o contribution of either party to the care, maintenance, improvement, custody or repair of… [the other's party]…shall in any way alter or convert any of such property…to marital property. The prenuptial agreement further provided that "any property acquired after the date of the marriage that is jointly held in the names of both parties" shall, upon dissolution of the marriage — which occurred on March 25, 2014 — be divided equally between the parties. Under the heading, Non-Marital Property, the agreement provided: "No property hereafter acquired by the parties or by either of them…shall constitute marital property…unless (a) pursuant to a subscribed and acknowledged written agreement, the parties expressly designate said property as marital property…or (b) title to said property is jointly held in the names of both parties." During the marriage, the parties agreed to acquire certain art as a joint collection, including pieces acquired through Art Advisory Services, Luhring Augustine, and The Kitchen. The husband moved, inter alia, for a declaratory judgment that, "consistent with the Prenuptial Agreement, the title to the art purchased during the marriage determines whether it is marital or separate property, regardless of the source of funds used to acquire it or the alleged intent behind the purchase." He argued that title should be determined based solely on the invoice or bill of sale. The motion court relied on the invoices as proof of whether the art was jointly or individually held in granting his motion.
The Appellate Division held to the contrary, that invoices, standing alone, may not be regarded as evidence of title or ownership of the art. An invoice is defined as "[a] list of goods sent or services provided, with a statement of the sum due for these" . "An invoice…is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity, or cost of the goods, or price of the things invoiced, and it is as appropriate to a bailment as a sale. Hence, standing alone, it is never regarded as “evidence of title" (Sturm v. Boker, 150 US 312, 328 . An invoice cannot be said to be dispositive of ownership. The purpose of the invoice is not to identify the titled owner. The unreliability of an invoice as sole proof of title was evidenced by various invoices in the record. The Appellate Division concluded that title to personalty cannot be determined by relying solely upon an invoice. In determining title to the artwork in question, all the facts and circumstances of the acquisition and indicia of ownership must also be considered. Accordingly, the order was reversed, on the law, the declaration vacated, and the matter remanded for further proceedings, including discovery and an evidentiary hearing to determine the ownership of the disputed art.
Third Department Holds That Failure to Effectuate Proper Service of a Motion Deprives the Court of Jurisdiction to Entertain the Motion
In Matter of Gariel v Morse, --- N.Y.S.3d ----, 2016 WL 7469484 (Mem), 2016 N.Y. Slip Op. 08921 (3d Dept., 2016) the Appellate Division held that the father’s letter to the court had to be treated as a motion for voluntary discontinuance pursuant to CPLR 3217(b) (see Family Ct Act § 165[a]) and, as such, it had to comply with the applicable service requirements. Inasmuch as the father’s failure to effectuate proper service “deprive[d] the court of jurisdiction to entertain the motion”(Lee v. I–Sheng Li, 129 AD3d 923, 923 ; see Matter of Lydia DD., 94 AD3d at 1386; Bianco v. LiGreci, 298 A.D.2d 482, 482 ; Adames v. New York City Tr. Auth., 126 A.D.2d 462, 462 ; Burstin v. Public Serv. Mut. Ins. Co., 98 A.D.2d 928, 929  ), it found that Family Court erred in dismissing the petition.
Second Department Holds that Party Seeking Counsel Fees Must Demonstrate, Prima Facie, Attorney Substantially Complied with 22 NYCRR 1400.2 and 1400.3
In Piza v Baez-Piza, --- N.Y.S.3d ----, 2016 WL 7224738, 2016 N.Y. Slip Op. 08384 (2d Dept.,2016) following a trial, the defendant sought additional attorney’s fees, and, the Supreme Court, inter alia, awarded the defendant the sum of $7,500 in attorney’s fees for legal services provided following the earlier award of $3,500 in attorney’s fees. The Appellate Division held that Supreme Court erred in awarding the defendant total attorney’s fees in excess of the $7,500 retainer that she paid to her attorney, as she did not demonstrate, prima facie, that her attorney substantially complied with 22 NYCRR 1400.2 and 1400.3 (see Vitale v. Vitale, 112 AD3d 614, 615). It modified the judgment to provide that the additional award of attorney’s fees for legal services provided following the prior award of $3,500 be limited to the sum of $4,000 (see Mulcahy v. Mulcahy, 285 A.D.2d 587, 588–589).
Appellate Division Considers Factor  “the existence and duration of a pre-marital joint household in awarding Maintenance
In Kaprov v Stalinsky, --- N.Y.S.3d ----, 2016 WL 7380951, 2016 N.Y. Slip Op. 08509 (2d Dept., 2016) the husband argued, inter alia, that as the Supreme Court had already ordered him to pay, pursuant to a pendente lite order, $3,000 per month in temporary maintenance retroactive to November 12, 2010, the date on which the wife filed her complaint seeking a divorce, the Court, in awarding maintenance for seven years from the date of judgment this effectively granted the wife an 11–year maintenance award, which is excessive in duration given that the marriage lasted only 12 years and the parties had no children together. The Appellate Division rejected this argument observing that a party’s maintenance obligation is retroactive to the date the application for maintenance was first made (see Domestic Relations Law § 236[B][a] ). However, the party is also entitled to a credit for any amount of temporary maintenance ... already paid” (Huffman v. Huffman, 84 AD3d 875, 876). In arguing that the maintenance award was out of proportion to the duration of the marriage, the husband failed to recognize that, pursuant to the version of Domestic Relations Law § 236(B)(6)(a) in effect at the time of the commencement of this action, one of the factors a court should take into account in deciding the amount and duration of a maintenance award is “the existence and duration of a pre-marital joint household” (Domestic Relations Law § 236[B][a] ). The wife testified that the couple lived together from 1984 to 2010, approximately 26 years. Thus, an 11–year award of maintenance was not out of proportion with the duration of the joint household. The maintenance award was appropriate for the wife to become self-supporting given the factors involved, including the duration of the pre-marital joint household, as well as the wife’s age, absence from the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][a] ).
2017 Child Support Standards Chart Released
The 2017 combined parental income cap is $143,000. The 2017 self-support reserve is $16,281 and the poverty income guidelines amount for a single person is $12,060. See https://www.childsupport.ny.gov/child_support_standards.html (last accessed March 31, 2017). The child support standards chart, released March 17, 2017 is available at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf (last accessed March 31, 2017).
Appellate Division Holds Postnuptial Agreement Which Was Not Properly Acknowledged as Required by Domestic Relations Law § 236(B)(3) Was Ratified by Accepting its Benefits
In Gardella v Remizov, --- N.Y.S.3d ----, 2016 WL 6885860, 2016 N.Y. Slip Op. 07924 (2d Dept., 2016) the parties to this matrimonial action were married in 2000. In October 2002, the parties entered into a postnuptial agreement, which provided, among other things, that the marital residence and the plaintiff’s private medical practice were the plaintiff’s separate property. In 2006, the parties entered into a second postnuptial agreement, which provided that four parcels of real property in Florida acquired by the parties during the marriage had been purchased with the plaintiff’s separate property, and further addressed the distribution of those four parcels in the event of a divorce. In 2010, the parties entered into a separation agreement, which addressed, inter alia, issues of maintenance and equitable distribution of the parties’ respective assets. At the time, the plaintiff, a neurologist, was earning approximately $600,000 per year, and the defendant, a wine salesman, was earning approximately $40,000. The separation agreement provided, among other things, that the defendant would have no interest in any of the assets acquired during the parties’ marriage, including six parcels of real property, the plaintiff’s partnership interest in a neurological practice, and the plaintiff’s bank and brokerage accounts, and that he waived his right to spousal maintenance. The defendant was not represented by counsel when he executed the separation agreement. In November 2011, the plaintiff commenced the action for a divorce. Supreme Court granted plaintiffs motion for summary judgment dismissing the defendant’s counterclaims to set aside the agreement, and denied defendants cross motion for summary judgment on his counterclaims to set aside the agreements, to nullify the 2002 postnuptial agreement for lack of acknowledgment, and for financial disclosure. The Appellate Division found that given the vast disparity in the parties’ earnings, the evidence that the defendant had no assets of value, and the defendant’s documented medical condition which inhibits his future earning capacity, the defendant’s submissions were sufficient to create an inference that the separation agreement was unconscionable. In addition, the defendant’s evidence indicating that the plaintiff sold almost $1 million in securities in the months preceding his execution of the separation agreement, the value of which were not accounted for in the list of her bank and brokerage accounts therein, raised a triable issue of fact as to whether the plaintiff concealed assets. It held that under these circumstances, the Supreme Court should have exercised its equitable powers and directed further financial disclosure, to be followed by a hearing to test the validity of the separation agreement.
The Appellate Division further found, that the 2006 agreement was valid, and that while the defendant correctly contended that the 2002 postnuptial agreement was not properly acknowledged in the manner required by Domestic Relations Law § 236(B)(3) (see Galetta v. Galetta, 21 NY3d 186, 192), the evidence established that the defendant ratified that agreement by accepting the benefits of it and by waiting more than eight years to seek its nullification. No inquiry into the validity of the 2002 postnuptial agreement or the 2006 postnuptial agreement would be necessary or warranted.
Parent Who Obtains Order Compelling Another Person to Pay Child Support Will Be Judicially Estopped from Taking Inconsistent Position That Other Person Was Not a Parent to the Child for Purposes of Visitation
In Paese v Paese, --- N.Y.S.3d ----, 2016 WL 6604674, 2016 N.Y. Slip Op. 07304 (2d Dept.,2016) the defendant had three children from prior relationships, including the subject child. The plaintiff moved in with the defendant and her children and raised the subject child as his daughter. The plaintiff and the defendant later married and then separated. After the separation, the defendant filed a petition in the Family Court seeking child support from the plaintiff for all of her children, including the subject child. A Support Magistrate found that the plaintiff was chargeable with the support of the subject child and his two biological children, and directed him to pay child support and contribute to child care expenses. In May 2013, the plaintiff commenced an action for a divorce. The Supreme Court consolidated the Family Court proceeding with the Supreme Court action and issued a temporary access order pursuant to which the plaintiff had access to the subject child and his biological children. In January 2015, the defendant moved, inter alia, to remove the subject child from the temporary access order, declare the plaintiff a third-party stranger to the subject child. Supreme Court denied the motion, determining that the defendant was judicially estopped from arguing that the plaintiff was not the subject child’s parent for the purpose of visitation because she previously sought and obtained an award of child support for the child. During the trial, when asked about the order denying her motion to remove the subject child from the temporary access order, the defendant testified that she did not agree with the order because, among other things, she did not believe that the plaintiff should be paying support for the subject child. The trial was to resume several weeks later, at which time the Supreme Court informed the parties that based on the defendant’s clear and unequivocal waiver of child support for the subject child, the court would not direct the plaintiff to pay child support for the subject child, which was the sole basis of its judicial estoppel ruling. Therefore, the court ruled, the plaintiff did not have standing to seek visitation, his request for access to the subject child was denied, and there was no need to complete the trial with respect to visitation. The court issued an order accordingly.
The Appellate Division reversed and remitted for completion of the trial with respect to visitation. It observed that one way that an individual may obtain standing to proceed as a “parent” is through the doctrine of judicial estoppel (see Matter of Brooke S.B. v. Elizabeth A. C.C., 28 NY3d 1). Under the doctrine of judicial estoppel, “a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed”. Thus, where a parent obtains an order compelling another person to pay child support based on the parent’s successful argument that the other person was a parent to the child, the parent who obtained child support will be judicially estopped from taking the inconsistent position that the other person was not, in fact, a parent to the child for purposes of visitation. It held that Supreme Court erred in finding that the plaintiff lacked standing to seek visitation with the subject child. The defendant was judicially estopped from arguing that the plaintiff was not a parent for the purpose of visitation. First, by asserting in her child support petition that the plaintiff was chargeable with support for the subject child, the plaintiff assumed the position before the Family Court that the plaintiff was the subject child’s parent, as it is parents who are chargeable with the support of their children ( Family Ct Act § 413[a] ). Next, based on her assertion that the plaintiff was chargeable with the subject child’s support, the defendant successfully obtained an order compelling the plaintiff to pay child support for the subject child. Under this order, the plaintiff was required to pay child support for his children, including the subject child. Furthermore, the record did not support the court’s finding that the defendant unequivocally waived the right to child support. Therefore, the defendant was judicially estopped from arguing that the plaintiff is not a parent for the purpose of visitation.
Net Worth Affidavit Form Revised Effective August 1, 2016
The Affidavit of Net Worth Form which is required to be served by both parties, pursuant to DRL §236 [B]  and 22 NYCRR §202.16(b), was revised effective August 1, 2016. The new form, which is gender neutral, includes new categories of expenses and removes certain expense categories. The most significant change is that it requires that the value of assets and the amount of liabilities and debts shall be listed as of “date of commencement” of the action in addition to the “current amount.”
Other significant changes in the form include new sections under “Liabilities“ for “Credit Card Debt” and “Home Equity and Other Lines of Credit;” former Item VII, Support Requirements, was removed; and former item VIII Counsel Fees was removed and replaced with the following:
“VII. LEGAL & EXPERT FEES
Please state the amount you have paid to all lawyers and experts retained in connection with your marital dissolution, including name of professional, amounts and dates paid, and source of funds. Attach retainer agreement for your present
The parties are now required to indicate if the net worth statement is not the first one they have filed. The following language appears at the end of the form:
“This is the _______ Statement of Net Worth I have filed in this proceeding.”
It appears that item 12.1 Contingent Interests (stock options, interests subject to life estates, prospective inheritances) contains a confusing typographical error. It requires the affiant to list "g. source of acquisition to acquire. ” However, it is clear from the balance of the assets portion of the form that this was meant to read “Source of funds to acquire”, a term used throughout the form.
The Net Worth Affidavit form can be downloaded in pdf, word and fillable format from http://www.nycourts.gov/divorce/forms.shtml
Preliminary Conference Stipulation/Order Form Revised Effective August 1, 2016
The Preliminary Conference Stipulation/Order form required to be served pursuant to 22 NYCRR §202.16(f) was revised effective August 1, 2016. It was re-formatted and contains new provisions related to the post-divorce maintenance guidelines and notice of the automatic orders.
DRL §236 [B]  [g], which is applicable in actions commenced on or after January 25, 2016 (Laws of 2015, Ch 269) provides that where either or both parties are unrepresented, the court shall not enter a maintenance order or judgment unless the court informs the unrepresented party or parties of the post-divorce maintenance guideline obligation. Subdivision M. titled “NOTICE OF GUIDELINE MAINTENANCE” contains a notice intended to comply with DRL §236 [B]  [g], in cases where there is an unrepresented party. The Notice advises the parties that under the Maintenance Guidelines Law there is an obligation to award the guideline amount of maintenance on income up to $178,000 to be paid by the party with the higher income (the maintenance payor) to the party with the lower income (the maintenance payee) according to a formula, unless the parties agree otherwise or waive this right.
The new form contains a new Subdivision J titled AUTOMATIC STATUTORY RESTRAINTS ( DRL §236[B]), in which each party acknowledges that he or she has received a copy of the Automatic Statutory Restraints/Automatic Orders required by DRL §236[B], and that he or she understands that he or she is bound by those Restraints/Orders during the pendency of this action, unless terminated, modified, or amended by order of the Court upon motion of either party or upon written agreement between the parties duly executed and acknowledged.
The other significant changes in the form are as follows:
BACKGROUND INFORMATION, was moved to Item A, at the beginning of the form and the information formerly at the beginning of the form was moved into item A.5. That part of Item A which requires the parties to identify and state the nature of any premarital, marital, separation and other agreements was modified to add “and/or Orders which affect the rights of either of the parties in this action.” Like the former preliminary conference statement it also contains a space to include a date for either party to “challenge the agreement”. However, unlike the former form, the new form contains a a waiver provision which specifies that if “No challenge is asserted by that date, it is waived unless good cause is shown.”
Subdivision B GROUNDS FOR DIVORCE (1-3) contains spaces for the parties to insert the dates the pleadings were served or will be served. Subdivision B (4) which is where the parties indicate that the issue of grounds “is unresolved” was modified to remove “a jury is or is not required”. In the new form Subdivision B (4) specifies that if “the issue of grounds is resolved, the parties agree that Plaintiff/Defendant will proceed on an uncontested basis to obtain a divorce on the grounds of DRL § 170(7) and the parties waive the right to serve a Notice to Discontinue pursuant to CPLR 3217(a) unless on consent of the parties.”
That part of former Subdivision C, which stated that “The issue of custody is resolved __ unresolved__” was removed from the form, and the references to a “parenting plan” in the event custody issues are resolved or unresolved were removed.
The following was added to Subdivision C CUSTODY, as (3):
ATTORNEY FOR CHILD(REN) or GUARDIAN AD LITEM: Subject to judicial approval, the parties request that the Court appoint an Attorney for the parties’ minor child(ren) (“AFC”). The cost of the AFC’s services shall be paid as follows: _________________________________________________________ .
FORENSIC: Subject to judicial approval, the parties request that the Court appoint a neutral forensic expert to conduct a custody/parental access evaluation of the parties and their child(ren). Subject to Judicial approval, the cost of the forensic evaluation shall be paid as follows:______________________________.
The following was added to Subdivision D FINANCIAL: “(4) Counsel Fees are resolved unresolved.”
Subdivision G. (1) titled Preservation of Evidence was modified to add the requirement that a party shall maintain not only all financial records in his or her possession but all financial records “under his or her control” through the date of the entry of a judgment of divorce.
Subdivision G (2) titled Document Production was also modified to remove the 45 day period to exchange records and require the exchange of checking account, brokerage account and savings account records for both “joint and individual accounts.”
The following language was removed from Subdivision G: “Any costs associated with the use of the authorization shall be paid by _____OR reserved for the Court once the amount is determined.
No later than ________, the parties shall notify the Court of all items to be provided
above that have not been provided.
Spaces were added to Subdivision G (2) for the parties to list the dates for both parties to respond to notices of discovery and inspection, and interrogatories.
Spaces that were in the former preliminary conference order for the parties to list the dates that party depositions and third party depositions were to be completed have been removed.
“Compliance with discovery demands shall be on a timely basis pursuant to the CPLR “ was removed from Subdivision G.
Subdivision H, VALUATION/FINANCIAL was re-written but is substantially the same as in the former form.
The checklist for assets requiring valuation in former Item 1 was removed as well as the sentence :” The date of valuation be ___________for items___________and shall be the date of commencement of this action for items_________________ .”
The words “no later than_____” were removed from the following sentence in Item 1: ‘If a party requires fees to retain an expert and the parties cannot agree upon the source of the funds, an application for fees shall be made.”
The time limitations for the exchange of expert reports in Item 2, Experts to be Retained by a Party, where there is no date specified, was modified to extend the time to exchange expert reports: “Absent any date specified, they are to be exchanged 60 days prior to trial or” 30 days after receipt of the report of the neutral expert, whichever is later.”
Subdivision I, ” Confidentiality/Non-Disclosure Agreement “ which appeared in the former form, was removed.
Finally, the following was added to subdivision N: “All discovery as set forth herein above is expected to be completed prior to the compliance conference.”
The Preliminary Conference form can be downloaded in pdf, word and fillable format from http://www.nycourts.gov/divorce/forms.shtml
Court of Appeals Holds Where Party Represented by Counsel Family Court Objections Must Be Served Upon Him.
In Matter of Odunbaku v Odunbaku, 2016 NY Slip Op 07705 (2016) the Court of Appeals held that if a party is represented by counsel, the time requirements set out in Family Court Act § 439 (e) for objections to a support magistrate's final order, when the order is served by mail, do not begin to run until the order is mailed to counsel.
The mother retained Staten Island Legal Services to represent her in her efforts to obtain child support from respondent father, with whom she had a son. Through counsel, who represented her throughout the proceedings she obtained a support order. Subsequently a different support magistrate granted the father's petition for downward modification and reduced the father's child support obligation. The order and findings, dated July 24, 2013, was mailed by the Clerk of Family Court directly to the father and to the mother, but not to the father's lawyer or the mother's lawyer. On September 3, 2013, 41 days after the orders were mailed, the mother, through counsel, filed objections. Family Court denied the bjections as untimely, relying on Family Court Act § 439 (e), which provides that "[s]pecific written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties" (emphasis added). The Court ruled that "the mailing of a copy of the order and findings of fact to a party of the proceedings satisfied the requirements of § 439 (e) and [22 NYCRR] 205.36 (b)" and that "neither the Family Court Act nor [22 NYCRR 205.36 (b)] specifically requires that the Clerk of Court shall mail a copy of the Support Magistrate's order and decision to a party's attorney."
The mother appealed relying on Matter of Bianca v Frank (43 NY2d 168 ). The Appellate Division affirmed relying on 22 NYCRR 205.36 (b) which provides that "[a]t the time of the entry of the order of support, the clerk of [Family Court] shall cause a copy of the findings of fact and order of support to be served either in person or by mail upon the parties to the proceeding or their attorneys."
The Court of Appeals reversed holding that Matter of Bianca v Frank was dispositive. There, it held that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed". The Bianca Court recognized that this principle would not apply if a legislative enactment specifically excluded the necessity of serving counsel by stating the legislative "intention to depart from the standard practice . . . in unmistakable terms" . The Court noted that the rationale of Bianca is straightforward. "[O]nce a party chooses to be represented by counsel in an action or proceeding, whether administrative or judicial, the attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus any documents, particularly those purporting to have legal effect on the proceeding, should be served on the attorney the party has chosen to handle the matter on his behalf.”
The Court held that Bianca governed and the reference to the mailing of the order to a "party or parties" in Family Court Act § 439 (e) must be read to require that the order be mailed to the party's counsel, in order for the statutory time requirement to commence. While section 439 (e) uses the term "party," the statute does not convey in language that could not be mistaken that mailing to a represented party is dispositive for time requirement purposes and mailing to counsel is unnecessary, notwithstanding Bianca.
Court of Appeals overrules it Holding in Matter of Alison D and it's Definition of "Parent" for Purposes of Custody and Visitation.
In Matter of Brooke S.B., v Elizabeth A. C.C., two related cases, the Court of Appeals revisited Matter of Alison D. v Virginia M. (77 NY2d 651 ) which held that in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's "parent" for purposes of standing to seek custody or visitation under Domestic Relations Law § 70 (a), notwithstanding their "established relationship with the child". The Court of Appeals agreed that the Petitioners in these cases, who similarly lacked any biological or adoptive connection to the children, should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a) in light of more recently delineated legal principles, which required it to conclude that that definition of "parent" established by it in Alison D. has become unworkable when applied to increasingly varied familial relationships. The Court, in an opinion by Judge Abdus-Salaam overruled Alison D. and held that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.
The Court of Appeals pointed out that the petitioners had argued that its holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires it to specify the limited circumstances in which such a person has standing as a "parent" under Domestic Relations Law § 70. It observed that because of the fundamental rights to which biological and adoptive parents are entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be appropriately narrow. It rejected the premise that it must now declare that one test would be appropriate for all situations, or that the competing tests proffered by Petitioners and amici were the only options that should be considered. It noted that the Petitioners had alleged in both cases before it that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. It held that these allegations, if proven by clear and convincing evidence, were sufficient to establish standing. Because it decided these cases based on the facts presented to it, it was premature for the Court to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. The Court specified that it did not decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody. Inasmuch as the conception test applied here, it did not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement. It merely concluded that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. Whether a partner without such an agreement can establish standing and if so, what factors a petitioner must establish to achieve standing based on equitable estoppel was a matter left for another day, upon a different record. The Court stressed that its decision addressed only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.
First Department Holds That To Be Valid So-Ordered Stipulation Fixing Temporary Maintenance Must Comply With Domestic Relations Law Former § 236(B)(5–a)(f)
In Anonymous v Anonymous, 2016 WL 4131751 (1st Dept.,2016) Plaintiff commenced the action for divorce in June 2011. On October 5, 2011, the parties signed a preliminary conference stipulation, which was so-ordered by the court, which directed defendant to pay temporary maintenance of $250 per week, plaintiff’s cell phone expenses up to 1,000 minutes, all fixed and other household expenses, and all costs of the child, including but not limited to private nursery school tuition and health costs.
The wife moved for an upward modification of maintenance based upon documentation she had subpoenad showing that the husbands income was greater than he had indicated. The motion court concluded that the PC order was unenforceable, because it did not state that the parties were advised of the temporary maintenance calculations under Domestic Relations Law former § 236(B)(5–a), did not state the presumptive amount pursuant to that calculation, and did not state the reason for deviating from that amount. It determined that the entire stipulation was invalid, because its remaining financial terms were intertwined with the temporary maintenance terms. The court next calculated the appropriate temporary maintenance, applying the formula set forth in the DRL, which is based on the parties’ gross income. Defendant had also submitted a letter from his accountant estimating his 2014 income at $300,000 and the court deemed defendant’s income to be $300,000 for the purposes of calculating temporary maintenance. The court concluded that defendant should pay plaintiff temporary maintenance in the sum of $7,500 per month, retroactive to the date of plaintiff’s motion. The court clarified that that sum was intended to cover all of plaintiff’s reasonable expenses, including housing; thus, the court did not order defendant to pay any expenses to third parties on plaintiff’s behalf, such as the maintenance fees on the marital apartment, which he had been paying. The Appellate Division affirmed. It held that the preliminary conference stipulation was invalid as a matter of law, because it failed to comply with the requirements of Domestic Relations Law former § 236(B)(5–a)(f). That statute required that, where, as here, a “validly executed agreement or stipulation voluntarily entered into between the parties in an action commenced [on or after October 13, 2010] ... deviates from the presumptive award of temporary maintenance, the agreement or stipulation must specify the amount that such presumptive award of temporary maintenance would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount” (former Domestic Relations Law § 236[B][5–a][f] ). This provision of the statute “may not be waived by either party or counsel” and because the remaining terms of the PC order were intertwined with the temporary maintenance terms, the entire order was invalid.
Court of Appeals Rejects "adequate relevant information standard" applied by the Courts in Custody Cases
In S.L. v J.R., ___NY3d ___, 2016 NY Slip Op 04442 (2016) the Court of Appeals, in an opinion by Judge Garcia, reversed an order of the Appellate Division, which affirmed Supreme Court's decision in a custody case not to conduct an evidentiary hearing based on its determination that the court possessed "adequate relevant information to enable it to make an informed and provident determination as to the child's best interest." The Court rejected the “undefined and imprecise” adequate relevant information" standard applied by the courts below which tolerates an unacceptably-high risk of yielding custody determinations that do not conform to the best interest of a child nor adequately protect a parent whose fundamental right, the right to control the upbringing of a child, hangs in the balance. The Court observed that in rendering a final custody award without a hearing, Supreme Court appeared to rely on, among other things, hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested by either party. It pointed out that a decision regarding child custody should be based on admissible evidence, and there was no indication that a "best interest" determination was ever made based on anything more reliable than mere "information." Moreover, while Supreme Court purported to rely on allegations that were "not controverted," the affidavit filed by Mother plainly called into question or sought to explain the circumstances surrounding many of the alleged "incidents of disturbing behavior." The Court of Appeals held that these circumstances do not fit within the narrow exception to the general right to a hearing. It reaffirmed the principle that, as a general matter, custody determinations should be rendered only after a full and plenary hearing. It declined, to fashion a "one size fits all" rule mandating a hearing in every custody case statewide. However, where, as here, facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Significantly, the Court held that “ a court opting to forego a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision.” Under the circumstances of this case, a plenary hearing was necessary.
Court of Appeals Holds Consecutive Commitments are Authorized by Family Court Act § 454(3)
In Matter of Columbia County Support Collection Unit, v. Risley, 2016 WL 3147588 (2016) the Court of Appeals held that Family Court, in revoking two prior suspended orders of commitment, was authorized to order consecutive six-month sentences for each to run consecutively with a third six-month sentence imposed for a current violation. The Court, in an opinion by Judge Garcia, observed that Family Court is empowered “to use any or all enforcement powers in every proceeding brought for violation of a court order” of support (Family Ct Act § 454 ). Such powers include the authority to sentence willfully non-compliant parents to jail “for a term not to exceed six months [,]” but also to suspend such orders of commitment when appropriate (see Family Ct Act §§ 454[a], 455 ). The Appellate Division rejected the contention that consecutive commitments were not authorized by Family Court Act § 454(3) and concluded that “[g]iven the father’s failure to contest the amounts due and his willful refusal to voluntarily pay them despite repeated opportunities afforded to him over more than three years, we find no abuse of discretion in the determination to run the sentences consecutively” (122 AD3d 1097, 1098 [3d Dept 2014] ). The Court of Appeals agreed with the Appellate Division and affirmed its order.
Support Forms Updated March 1, 2016 For Maintenance and Child Support Applications
Form UD-8(1) Annual Income Worksheet
Form UD-8(2) Maintenance Guidelines Worksheet
Form UD-8(3) Child Support Worksheet
Post-Divorce Maintenance/Child Support Worksheet
Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)
Temporary Maintenance Worksheet (for divorces started before 10/25/15)
Court of Appeals Holds That Consent to Record Conversation of Child with Another Person Includes Vicarious Consent, on Behalf of a Minor Child
In People v Badalamenti, 2016 WL 1306683 (2016) the Court of Appeals held that the definition of consent, in the context of “mechanical overhearing of a conversation” pursuant to Penal Law § 250.00(2), includes vicarious consent, on behalf of a minor child. It established a “narrowly tailored” test for vicarious consent that requires a court to determine (1) that a parent or guardian had a good faith belief that the recording of a conversation to which the child was a party was necessary to serve the best interests of the child and (2) that there was an objectively reasonable basis for this belief. The Court cautioned that its holding should not be interpreted as a vehicle to attempt to avoid criminal liability for the crime of eavesdropping when a parent acts in bad faith and lacks an objectively reasonable belief that a recording is necessary in order to serve the best interests of his or her minor child. Penal Law § 250.05 and CPLR 4506 cannot be so easily circumvented. The procedural vehicles of pretrial hearings must be used to determine the admissibility of any recordings and will result in the suppression of any parent’s recording that a court determines did not meet the narrowly tailored and objective test. In making this admissibility determination, a court should consider the relevant factors, which include, but are not limited to, the parent’s motive or purpose for making the recording, the necessity of the recording to serve the child’s best interests, and the child’s age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests.
Second Circuit Holds that Intimate Partner Violence Is a Relevant Factor in Determining if Fees and Expenses are "Clearly Inappropriate"
In Souratgar v Fair, 2016 WL 1168733 (2d Cir., 2016) the Second Circuit reversed a judgment ordering Respondent Lee Jen Fair to pay to the prevailing petitioner-appellee, Abdollah Naghash Souratgar, $283,066.62 in expenses under the International Child Abduction Remedies Act, which directs district courts to issue such an order “unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). It held that the determination requires district courts to weigh relevant equitable factors, including intimate partner violence. Having reviewed all relevant equitable factors, it concluded that, because the respondent showed that the petitioner engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence, and because there were no countervailing factors in the record in favor of the petitioner, such an award would be “clearly inappropriate.”
Court of Appeals Construes "Extended Disruption of Custody", in Domestic Relations Law § 72 (2), in Favor of Grandparents finding they have Standing to Seek Custody
In Suarez v Williams, --- N.E.3d ----, 2015 WL 8788195 (N.Y.), 2015 N.Y. Slip Op. 09231, the Court of Appeals, in an opinion by Judge Leslie Stein, held that grandparents may demonstrate standing to seek custody, pursuant to Domestic Relations Law § 72 (2) and the Court’s decision in Matter of Bennett v Jeffreys (40 NY2d 543 ) based on extraordinary circumstances where the child has lived with the grandparents for a prolonged period of time, even if the child had contact with, and spent time with, a parent while the child lived with the grandparents. In addition, a parent need not relinquish all care and control of the child. Even if the parent exercises some control over the child, for example during visitation, a parent may still, as a general matter, have voluntarily relinquished care and control of the child to the grandparent to the extent that the grandparent is, in essence, acting as a parent with primary physical custody.
Court of Appeals Holds That There Is No Exception to Physician Patient Privilege for Abuse Admitted to Psychiatrist Even If a Patient Is Cognizant of Psychiatrist's Reporting Obligations under Child Protection Statutes
In People v. David Rivera, No. 20, NYLJ 1202725546913, at *1 (Ct. of App., Decided May 5, 2015) defendant, while seeking treatment from a psychiatrist, admitted to sexually abusing an 11year old relative. The psychiatrist notified the Administration for Children's Services (ACS) of defendant's admission. Following an in camera review of the records, Supreme Court held that the admissions defendant made to his psychiatrist were privileged because they were made in the course of diagnosis and treatment of his condition. However, the court, while refusing to allow "the full extent of defendant's admissions" to be used, held that, because the psychiatrist had disclosed the reported abuse to ACS, the fact that defendant had admitted to the abuse was admissible .The Court of Appeals held that the trial court's ruling ran afoul of the physician patient privilege (see CPLR 4504 [a]). It rejected the People’s claim that, because defendant's admission related to the sexual abuse of a child, it was not privileged since defendant had no reason to believe that it would remain confidential. The Court of Appeals held that regardless of whether a physician is required or permitted by law to report instances of abuse or threatened future harm to authorities, which may involve the disclosure of confidential information, it does not follow that such disclosure necessarily constitutes an abrogation of the evidentiary privilege a criminal defendant enjoys under CPLR 4504 (a).
U.S. Supreme Court Holds that Same-sex Couples May Not Be Deprived of Right to Marry
In Obergefell et Al. V. Hodges, Director, Ohio Department of Health, et Al., 576 US ____(2015) the U.S. Supreme Court concluded that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court held that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question, was overruled, and the State laws challenged by Petitioners in these cases were held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.
2015 Child Support Standards Chart released March 6, 2015
According to the Child Support Standards Chart, [LDSS 4515 (3/15)] released March 6, 2015, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, the 2015 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,770 and the 2015 self-support reserve is $15,890.
View and Download the 2015 Child Support Standards Chart
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