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Recent Decisions and News
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Appellate Division, First Department
First Department Holds Brooke’s Reasoning Applies with Equal Force Where Child Is Legally Adopted by One Partner and Other Partner Claims He or She Is A AParent@ With Co‑Equal Rights Because Of Preadoption Agreement. Observes Equitable Estoppel Requires Close Scrutiny of Child.
In re K.G., v. C.H., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3118937 (1st Dept., 2018) petitioner (KG) claimed that she was a parent with standing to seek custody of and visitation with A., the adopted child of respondent (CH), her now ex‑partner. KG was not biologically related to A., who was born in Ethiopia, nor did she second adopt the child. KG=s claim of parental standing was predicated upon the Court of Appeals decision in Matter of Brooke S.B. v. Elizabeth A.C.C. (28 NY3d 1 ), which expansively defined who is a Aparent@ under Domestic Relations Law ' 70. On appeal, KG primarily claimed that in 2007, before A. was identified and offered to CH for adoption, the parties had an agreement to adopt and raise a child together. CH did not deny that the parties had an agreement in 2007 but claimed that the 2007 agreement terminated when the parties= romantic relationship ended in 2009, before A. was first identified and offered for adoption to CH in March 2011. After a 36Bday trial, Supreme Court held that notwithstanding the parties= agreement to adopt and raise a child together, KG did not remain committed to their agreement, which terminated before the adoption agency matched A. with CH. The court denied KG standing to proceed and dismissed the petition for custody and visitation.
The Appellate Division observed that in Brooke, the Court of Appeals overruled Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 ) and abrogated Debra H. v. Janice R. (14 NY3d 576 , cert denied 562 U.S. 1136 ), its earlier precedents, thereby greatly expanding the definition of who can obtain status as a parent and have standing to seek custody and visitation of a child. The Brooke Court placed the burden of proving standing, by clear and convincing evidence, on the party seeking it. The Court recognized that there could be a variety of avenues for a movant to prove standing. It expressly rejected the premise that there is only one test that is appropriate to determine whether a former same‑sex nonbiological, nonadoptive party has parental standing. In Brooke and its companion case of Matter of Estrellita A. v. Jennifer L.D., the Court of Appeals recognized each petitioner=s status as a parent but did so applying two completely different tests. The Court of Appeals also left open the possibility that a third Atest,@ involving the application of equitable principles, such as the doctrine of equitable estoppel, could be utilized to confer standing in certain circumstances. In Brooke, the Court of Appeals recognized that where a former same‑sex partner shows by clear and convincing evidence that the parties had jointly agreed to conceive a child that one of them would bear, and also agreed to raise that child together once born, the nonbiological, nonadoptive partner has standing, as a parent, to seek custody and visitation with the child, even if the parties= relationship has ended. The Court referred to these circumstances as the parties having a preconception agreement and applied the Aconception test@). In Estrellita, the Court resolved the question of standing differently, applying the doctrine of judicial estoppel. In Estrellita, the child=s biological parent (Jennifer L.D.) had previously petitioned Family Court for an order requiring Estrellita A., the nonbiological, nonadoptive partner to pay child support. Jennifer L.D.=s support petition was granted and she was successful in obtaining child support from Estrellita A. Subsequently, Estrellita A. sought custody and visitation with the child, but Jennifer L.D. denied that Estrellita A. had standing as a parent. The Court of Appeals determined that Jennifer L.D. had asserted an inconsistent position in the support action, because Jennifer L.D. had successfully obtained a judgment of support in her favor and therefore, was judicially estopped denying Estrellita A.=s status as a parent given Family Court=s prior determination that Estrellita A. was in fact, a legal parent to the child (id. at 29).
In deciding Brooke, the Court rejected the argument that it should adopt only one, uniform test to determine standing as a parent. The Court observed that a different test might be applicable in circumstances where, for instance, a partner did not have any preconception agreement with the legal parent. In Brooke it 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.
The First Department held that although Brooke was decided in the context of children who were planned and conceived through means of artificial insemination, the Court=s reasoning applies with equal force where, as here, a child is legally adopted by one partner and the other partner claims he or she is a Aparent@ with co‑equal rights because of a preadoption agreement.
The Appellate Division found ample support in the record for the trial court=s factual conclusion that the parties= 2007 agreement to adopt and raise a child together had terminated before A. was identified by the agency and offered to CH for adoption. Nor was the trial court=s consideration of whether the plan was in effect at the time the particular child in this proceeding was identified for adoption an impermissible reformulation or restriction on the plan test originally enunciated in Brooke.
Although the original petition did not expressly state that KG was claiming standing under Domestic Relations Law ' 70 under an alternative theory of equitable estoppel, the issue was raised early on in the proceeding by the trial court itself.
The Court found that the record was incomplete precluding it from reaching the merits of the parties= respective substantive claims on the issue of equitable estoppel on the appeal. It observed that equitable estoppel requires careful scrutiny of the child=s relationship with the relevant adult and is ultimately based upon the best interest of the child. In the context of standing under Domestic Relations Law ' 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a nonbiological, nonadoptive adult. The focus is and must be on the child (Brooke, 28 NY3d at 27). It is for this reason that the child=s point of view is crucial whenever equitable estoppel is raised. Although the appointment of an attorney for the child is discretionary, it is commonplace and should be the norm where the issue raised is equitable estoppel. This is because equitable estoppel necessarily involves an analysis and determination of what is in the best interests of the child. Even if a court denies the appointment of an attorney for the child, there are alternative means to obtaining this information, including a forensic evaluation or a Lincoln hearing. Here, the child=s voice was totally silent in this record.
In view of its conclusion that the record was incomplete, the Court did not reach CH=s argument that because CH did not consent to holding KG out as a parent, KG cannot prove equitable estoppel. It only held that that the record developed at trial did not permit it to make the full consideration necessary to finally determine the issue of equitable estoppel at this point. Because the record on equitable estoppel was incomplete, it remanded the matter for further proceedings consistent with the decision.
Appellate Divison, Second Department
Income tax liability of the parties is subject to equitable distribution
In Greenberg v Greenberg, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3041099, 2018 N.Y. Slip Op. 04539 (2d Dept., 2018) the parties were married in 1995 and had four children. During the marriage, the defendant owned an Internet‑based business, which he sold in approximately January 2009. In June 2009, the Federal Trade Commission commenced a civil action against, among others, the defendant, in connection with the operation of his Internet company. In August 2009, the plaintiff commenced the action for a divorce. In January 2014, the defendant was convicted in federal court of, among other things, wire fraud, aggravated identity theft, and money laundering. In the ongoing divorce action, Supreme Court conducted a hearing in June and July 2014 with respect to the parties= finances and equitable distribution. The defendant was sentenced in federal court on October 31, 2014, to seven years= imprisonment and ordered to pay restitution in the sum of $1,125,022.58.
After trial Supreme Court, inter alia, found that in all respects the defendant was not credible. It imputed an income of $100,000 per year to the defendant for the purposes of calculating child support obligations. As to equitable distribution, the court found that the only assets available for equitable distribution were two adjacent properties in Lawrence. The properties had been the marital residence and had no present value but might generate income. The court awarded the plaintiff the two properties upon considering a number of factors, including that the real estate was acquired during the marriage; the defendant=s income increased substantially during the marriage, while the plaintiff delayed her own career advancement and remained at home caring for the parties= four children; the businesses, which were marital property and would have been subject to equitable distribution, could not be evaluated because the defendant failed to keep appropriate records; the defendant caused the businesses acquired and created during the marriage to be completely destroyed through his criminal activity; and it was likely that the defendant had transferred business assets without fair consideration. In light of the equitable distribution award and the circumstances of the case, the court declined to award the plaintiff maintenance. It also determined that the defendant would be responsible for any marital debt, including an FTC judgment against him for more than $2,000,000. Finally, the court awarded $50,000 to the plaintiff=s attorney for outstanding counsel fees and $25,000 to the plaintiff for counsel fees previously paid by her, because the defendant had engaged in dilatory tactics and failed to comply with prior orders, causing the plaintiff to incur additional legal expenses. In an amended judgment of divorce entered February 6, 2015, the Supreme Court, among other things, directed the defendant to pay a pro rata share of child support and certain expenses of the children based on the imputed income, awarded the plaintiff the two properties, directed that the defendant would be responsible for any taxes, interest, penalties, and deficiencies that result as a direct consequence of his actions, and directed the defendant to pay the total sum of $75,000 in counsel fees to the plaintiff and her attorney. The defendant appeals.
The Appellate Division affirmed. It held that under the circumstances of the case, the Supreme Court did not improvidently exercise its discretion with regard to the awards. The Court observed that the income tax liability of the parties is subject to equitable distribution. Where a party Ashared equally in the benefits derived from the failure to pay, she [or he] must share equally in the financial liability arising out of tax liability@ (Conway v. Conway, 29 A.D.3d at 725B726, 815 N.Y.S.2d 233; see Lago v. Adrion, 93 A.D.3d at 700, 940 N.Y.S.2d 287). AHowever, if one spouse makes the financial decisions regarding the income tax return and earned virtually 100% of the parties= income during the period, the court, in its discretion, may direct that spouse to pay the entire tax liability@. Here, the Supreme Court deemed the defendant responsible for, inter alia, all of the parties= tax liabilities incurred during the marriage, including the plaintiff=s own failure to file tax returns for her personal income or to pay taxes on her income, of which failings she had reason to be aware by virtue of notices she received from the Internal Revenue Service. Under these circumstances, it was not equitable to hold the defendant, rather than the plaintiff, liable for any taxes, interest, penalties, and deficiencies that resulted from the plaintiff=s failure to file income tax returns and to pay taxes on income that she individually earned during the marriage.
Appellate Division, First Department
First Department Holds law firm not entitled to a money judgment against defendant, its former client, on a motion to fix charging lien pursuant to Judiciary Law § 475
In Bernard v De Rham, --- N.Y.S.3d ----, 2018 WL 2435717, 2018 N.Y. Slip Op. 03891 (1st Dept., 2018) the Appellate Division held that the law firm was not entitled to a money judgment against defendant, its former client, on a motion pursuant to Judiciary Law § 475. Such a motion seeks a lien upon the client’s cause of action, which does not provide for an immediately enforceable judgment against all his assets, but is a security interest against a single asset, i.e., a judgment or settlement in his favor. To obtain a money judgment, the law firm must commence a plenary action.
The Appellate Division further held that Judiciary Law § 475 does not preclude the attachment and enforcement of a charging lien on an award in his favor, which may include an award of legal fees from his ex-wife (citing Cohen v. Cohen, 160 A.D.2d 571, 572, 554 N.Y.S.2d 525 [1st Dept. 1990] [holding that “[a]lthough a charging lien does not attach to an award of alimony and maintenance, section 475 does not preclude the enforcement of such lien upon any other award made in the action”; Rosen v. Rosen, 97 A.D.2d 837, 468 N.Y.S.2d 723 [2nd Dept. 1983] [holding that “(w)hile a charging lien does not attach to an award of alimony and maintenance, section 475 of the Judiciary Law does not preclude the enforcement of such a lien upon another award made in the action, such as an award of counsel fees to either the client or subsequent counsel”] )
Appellate Division, Second Department
Equitable Distribution of a Portion of a Contingency Fee That the Plaintiff Was Paid After Commencement of The Action for Work Performed Before Its Commencement
In Weidman v Weidman, --- N.Y.S.3d ----, 2018 WL 2709520, 2018 N.Y. Slip Op. 04027 (2d Dept., 2018) the plaintiff and the defendant were married in 2000, and hade one minor child. The plaintiff, who was admitted to the New York State Bar in 1986, was a solo practitioner with a general law practice. After the birth of the parties’ child, the defendant did not return to her full-time teaching position but worked on a part-time basis earning approximately $30,000 annually. In September 2011, the plaintiff commenced this action for a divorce and ancillary relief. The Appellate Division, among other things, saw no reason to disturb the Supreme Court’s equitable distribution of a portion of a contingency fee that the plaintiff was paid after commencement of the action (see Block v. Block, 258 A.D.2d 324, 325, 685 N.Y.S.2d 443; Blechman v. Blechman, 234 A.D.2d 693, 695–696, 650 N.Y.S.2d 456). The plaintiff had agreed to accept a lump sum payment of $34,971, as well as a $240,000 structured settlement, as his attorney’s fee in a case on which he worked from January 2004, through the beginning of January 2013. The court found that only the $240,000 structured settlement earned prior to commencement was marital property, to reflect that the defendant was not entitled to compensation for the work the plaintiff performed after the commencement of this action. The court properly determined that the defendant’s equitable share of the structured settlement payments was 50%, and that her distributive award should be reduced by 15% to account for the plaintiff’s income tax liability. Moreover, the plaintiff’s contention that the court engaged in “double counting” by distributing a portion of the contingency fee to the defendant in addition to maintenance was without merit, as the plaintiff’s income for purposes of determining maintenance was based on imputation of his income admitted for purposes of child support. The contingency fee in the form of a structured settlement was treated as a one-time bonus outside the $100,000 of imputed income.
Second Department Joins Third and Fourth Departments in Holding that Court may award visitation-physical access “as agreed by the parties”
In Matter of Samuel v Sowers, --- N.Y.S.3d ----, 2018 WL 2709799, 2018 N.Y. Slip Op. 03984 (2d Dept., 2018) after a hearing, the Family Court granted the father’s custody petition and awarded the mother physical access “as agreed amongst the parties.” The Appellate Division affirmed observing that notwithstanding the litigation between these parties, the father expressed, both through his words and his actions, a strong commitment to ensuring physical access between the mother and the children. Under these circumstances, awarding the mother physical access “as agreed amongst the parties” was not an improvident exercise of discretion It observed that should the mother be unable to obtain physical access by agreement, she may file a petition seeking to enforce or modify the order.
Editors note: To the same effect see Alleyne v Cochrane, 119 A.D.3d 1100, 990 N.Y.S.2d 289, 2014 N.Y. Slip Op. 05221 (3d Dept., 2014); Thomas v Small, 142 A.D.3d 1345, 38 N.Y.S.3d 461 (Mem), 2016 N.Y. Slip Op. 06340 (4th Dept., 2016); Pierce v Pierce, 151 A.D.3d 1610, 56 N.Y.S.3d 703, 2017 N.Y. Slip Op. 04594 (4th Dept., 2017).
Doctrine of Judicial Estoppel, Also Known as Estoppel Against Inconsistent Positions, Bars Constructive Trust Action
In Bihn v Connelly, --- N.Y.S.3d ----, 2018 WL 2709955, 2018 N.Y. Slip Op. 03956 (2d Dept., 2018) the plaintiff commenced an action against the defendant Susan Connelly and her husband, inter alia, to impose a constructive trust on certain Chaucer Street property. The defendants moved for summary judgment dismissing the complaint, and to impose sanctions pursuant to 22 NYCRR 130–a.1(a). They contended that in 2011, the plaintiff represented in a bankruptcy petition that he had no interests in real property. Therefore, he was judicially estopped from contending that he had an interest in the Chaucer Street property. The Supreme Court granted the defendants’ motion. The Appellate Divison affirmed. It agreed with the Supreme Court’s determination that the action was barred by the doctrine of judicial estoppel. Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed. The doctrine applies only where the party secured a judgment in his or her favor in the prior proceeding. This doctrine “rests upon the principle that a litigant ‘should not be permitted ... to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise’”. “The doctrine is invoked to estop parties from adopting such contrary positions because the judicial system cannot tolerate this playing fast and loose with the courts” (Ford Motor Credit Co. v. Colonial Funding Corp., 215 A.D.2d at 436, 626 N.Y.S.2d 527). Tthe plaintiff’s contention that he had an interest in the Chaucer Street property based on promises that Susan made to the plaintiff in 2007 and 2009 was contrary to his representation to the United States Bankruptcy Court in 2011 that he had no interest in real property. Based upon the plaintiff’s representations to the Bankruptcy Court, his debts were discharged. Therefore, the action was barred by the doctrine of judicial estoppel.
Moreover, the Supreme Court did not improvidently exercise its discretion in awarding sanctions in the form of attorney’s fees and costs to the defendants upon a finding that the action was completely without merit in law and could not be supported by a reasonable argument for an extension, modification, or reversal of existing law.
Appellate Division, Third Department
Third Department Holds That Stepgrandparent Is Not Related to A Stepgrandchild By Marriage for Purposes of Family Ct. Act § 1056(4).
In Matter of Makayla I, --- N.Y.S.3d ----, 2018 WL 2726019, 2018 N.Y. Slip Op. 04047 (3d Dept.,2018) the order adjudicating the subject children to be abused and/or neglected was affirmed. Respondent Caleb K. was the father of Annabella J. (born 2009) and Caleb J. (born 2012), and the stepfather of Makayla I. (born 2004). Respondent Harold J. was Caleb K.’s father, and was the biological grandfather of Annabella J. and Caleb J. and the stepgrandfather of Makayla I. In December 2013, petitioner commenced a Family Ct Act article 10 proceeding against Caleb K., alleging that he allowed Harold J. to sexually abuse Makayla and derivatively abused the other two children. Petitioner thereafter commenced a Family Ct Act article 10 proceeding against Harold J., alleging that he sexually abused Makayla and derivatively abused the other two children. After a fact-finding hearing, Family Court held that Makayla was abused by Harold J. and Caleb K., Annabella was abused by Caleb K. and derivatively abused by Harold J., and Caleb J. was derivatively abused by both respondents. Following a dispositional hearing, the court issued three orders of protection barring Harold J. from having any contact with the children until their eighteenth birthdays. Harold J. appeals the fact-finding order and the orders of protection. Caleb K. appeals the fact-finding order only. The Appellate Division observed that Harold J. was not Makayla’s biological grandfather, but rather was related to her through his son’s marriage to Makayla’s mother. This raised the issue of whether a stepgrandparent is related to a stepgrandchild by marriage for the purposes of Family Ct. Act § 1056(4). The Appellate Division concluded that they are not. This conclusion was supported by the specific language in the statute, “related by ... marriage” (Family Ct. Act § 1056), rather than the broader and more inclusive concept of “affinity,” which is used elsewhere in the Family Ct Act (cf. Family Ct. Act § 812[a]). Further, a stepgrandparent has no enforceable legal right to have contact with a stepgrandchild as a stepgrandparent lacks standing to pursue visitation. Thus, although Family Ct. Act § 1056(4) limits the duration of orders of protection against a stepparent who is related to a child by and through his or her own marriage to the child’s mother or father, these limitations do not apply to a stepgrandparent, whose relationship to the child is attenuated. Therefore, because Harold J.’s relationship to Makayla was not established by his own marriage, but rather through his son’s marriage, it was statutorily permissible, in this regard, for Family Court to issue an order of protection until Makayla’s eighteenth birthday. Family Ct. Act § 1056(4) prohibits orders of protection until a child’s eighteenth birthday if the order is against someone who is related by blood or marriage to a member of the child’s household. Therefore, if, at the time of disposition, Makayla resided in the same household as Annabella and Caleb J., the order of protection as to Makayla could not exceed one year (see Family Ct. Act § 1056). The matter must be remitted for the purpose of making this determination. The order adjudicating the subject children to be abused and/or neglected was affirmed.
Appellate Division, Fourth Department
Law of The Case Doctrine Forecloses Re-Examination of Holding That Petitioner Had Standing to Seek Custody or Visitation Absent A Showing of New Evidence or A Change in The Law.
In Matter of Renee P.-F v Frank G., --- N.Y.S.3d ----, 2018 WL 2425251, 2018 N.Y. Slip Op. 03839 (2d Dept., 2018) Joseph P. and Frank G. were domestic partners., They asked Joseph’s sister, Renee P.–F., to act as a surrogate. Renee executed a surrogacy contract in which she agreed to be impregnated with Frank’s sperm and to terminate her parental rights in order for Joseph to adopt the child or children. In February 2010, Renee gave birth to fraternal twins. During the first four years of the children’s lives, Joseph and Frank equally shared the rights and responsibilities of parenthood, although Joseph did not legally adopt the children. The children regarded both Joseph and Frank as their parents. During that period, Renee frequently saw the children. In early 2014, Joseph and Frank separated, and the children continued to reside with Frank. Joseph, acting in a parental role, visited and cared for the children on a daily basis. In May 2014, Frank suddenly refused to allow Joseph or Renee to have any access to the children. In December 2014, Frank moved to Florida with the children without informing Joseph or Renee or commencing a proceeding for custody of the children. Renee petitioned for custody of the children, and Joseph petitioned to be appointed guardian of the children. In March 2015, Frank petitioned for custody of the children and for permission to relocate with the children to Florida. In an order dated April 8, 2015, the Family Court denied that branch of Frank’s motion which was for permission to relocate with the children to Florida. In June 2015, Joseph withdrew his guardianship petition and filed a petition for custody of the children. Frank then moved, in effect, to dismiss Joseph’s custody petition on the ground, inter alia, that Joseph lacked standing under Domestic Relations Law § 70. In an order dated August 21, 2015, the court, after a hearing, denied Frank’s motion to dismiss and determined that Joseph had standing to seek custody of or physical access with the children. Frank appealed from the orders dated April 8, 2015, and August 21, 2015. While Frank’s appeals were pending, the Court of Appeals, in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488, overruled Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27. Based upon the evidence adduced at the hearing before the Family Court and in light of Matter of Brooke S.B., the Appellate Division determined that Joseph established standing to seek custody or physical access and remitted the matter to the Family Court, Orange County, for a full hearing on the custody petitions (see Matter of Giavonna F.P.–G. [Frank G.–Renee P.–F.], 142 A.D.3d 931, 36 N.Y.S.3d 892; Matter of Frank G. v. Renee P.–F., 142 A.D.3d 928, 37 N.Y.S.3d 155). On remittitur, the Family Court, after a hearing, issued an order dated February 14, 2017, granting Joseph custody of the children and denying Frank’s petition. The Appellate Division held that Family Court properly determined that Joseph had standing to seek custody of the children pursuant to Matter of Brooke S.B., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488. On Frank’s prior appeal from the order dated August 21, 2015, the Appellate Division determined that Joseph established standing to seek custody or physical access pursuant to the standard set forth in Matter of Brooke S.B. and remitted the matter to the Family Court, Orange County, for a full hearing on Joseph’s petition for custody or visitation with the children (see Matter of Frank G. v. Renee P.–F., 142 A.D.3d at 930–931, 37 N.Y.S.3d 890). “The law of the case doctrine foreclosed re-examination of issues decided on a prior appeal in the same action, absent a showing of new evidence or a change in the law”. Here, Frank had a full and fair opportunity before the Family Court and on the prior appeal to contest the issue of Joseph’s standing. Frank had neither presented new evidence that would change the determination in the prior appeal nor demonstrated that there had been a subsequent change in the law. Under these circumstances, Frank was barred from raising the same argument again on these appeals
Appellate Division, First Department
Purpose of Counsel Fees Is to Prevent More Affluent Spouse from Considerably Wearing Down the Opposition. Court Should Not Unduly Rely Upon Financial Circumstances at Time of Decision Rather Than Weighing Historical and Future Earning Capacities of Both Parties
In Matter of Brookelyn M., v Christopher M, --- N.Y.S.3d ----, 2018 WL 2406234, 2018 N.Y. Slip Op. 03801(1st Dept.,2018) the Appellant mother and respondent father had a child together. The father filed a custody petition in 2014. The mother cross-moved for custody and sought interim counsel fees. The father cross-moved for counsel fees and filed an affirmation in opposition to the mother’s application for interim counsel fees. The parties arrived at a settlement that resolved the issues in the custody matter, but left counsel fees to the court’s determination. The mother sought counsel fees of $174,000, which the mother claims are attributable to the custody matter. The court denied the mother’s request for counsel fees because, among other reasons, she retained private counsel although she was unemployed at the onset of the litigation. At the time the decision was rendered, she earned an annual gross income of $44,000, and the father was unemployed. The court also held that the conduct of the parties throughout the custody matter did not support an award of counsel fees because it found no evidence that the father unnecessarily prolonged the litigation or that he caused undue fees to accrue in the litigation. The Appellate Division remanded the matter for a fee hearing. It observed that the purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition. In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties. Although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and had significantly more expected earning capacity than the mother. The financial and tax documents in the record supported such a conclusion. However, the father was entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested could be examined. While an evidentiary hearing is not required prior to making an interim award, it was required here since the mother was seeking fees following the final resolution of the case. The fees here were significant and the father has raised questions about the bills. Moreover, in assessing the father’s contentions that the mother overlitigated this matter, the court would need to consider what the father spent on legal fees. That information could not be ascertained on the record.
Appellate Division, Second Department
Consideration of Relevant Factors, Including Fact That Wife Was Suffering from Psychiatric Condition and was Unable, For Foreseeable Future, To Be Self-Supporting, Warranted Non-Durational Maintenance Award
In Greco v Greco, --- N.Y.S.3d ----, 2018 WL 2225174, 2018 N.Y. Slip Op. 03510 (2d Dept., 2018) the parties were married in 1999 and had two children together. In May 2010, the plaintiff commenced the action for a divorce. Following a custody trial, the Supreme Court awarded the plaintiff full custody of the children based upon the defendant’s psychiatric condition. Thereafter, a trial was held on the financial issues. The court, inter alia, awarded the defendant monthly maintenance in the sum of $4,500 for a period of three years and the sum of $114,555.50, representing her equitable share of the appreciated value of the marital residence. The Appellate Division held that, the amount of maintenance awarded by the Supreme Court was consistent with the purpose and function of a maintenance award considering, among other things, the equitable distribution award and the absence of child-rearing responsibilities because the plaintiff was awarded full custody of the children. However, taking into consideration all the relevant factors, including the fact that the defendant was suffering from a psychiatric condition and was unable, for the foreseeable future, to be self-supporting, it was an improvident exercise of the court’s discretion to limit the maintenance award to a period of three years. It modified the duration of the defendant’s maintenance should be until her remarriage or cohabitation, or the death of either party, or until the defendant begins to draw Social Security benefits or reaches the age of 67 or such age that she would qualify for full Social Security benefits, whichever occurs first, at which time the maintenance award would be reduced to $2,000 per month.
The Appellate Division held that similarly, the Supreme Court improvidently exercised its discretion in failing to direct the plaintiff to pay the defendant’s health insurance premiums. The court should have directed the plaintiff to pay for the defendant’s health insurance premiums until the earliest of such time as the defendant is eligible for Medicaid or Medicare, or she obtains health insurance through employment, or remarries or cohabitates.
Attorneys Failure to Send Client A Bill At Least Every 60 Days Warranted Denial of Post Trial Counsel Fee Application. Expert Fees May Not Be Awarded Where No Affidavit Submitted from Expert.
In Greco v Greco, --- N.Y.S.3d ----, 2018 WL 2225194, 2018 N.Y. Slip Op. 03509 (2d Dept., 2018) following the conclusion of the trial on financial issues, the defendant moved for awards of counsel fees and expert witness fees. The court awarded counsel fees of $70,000 payable to Lawrence J. Glynn and $37,500 payable to John A. Gemelli, and expert witness fees of $12,700 payable to the defendant
The Appellate Division modified. It observed that court rules impose certain requirements upon attorneys who represent clients in domestic relations matters, and the failure to substantially comply with the rules will preclude an attorney’s recovery of a fee from his or her client or from the adversary spouse. A showing of substantial compliance must be made on a prima facie basis as part of the moving party’s papers. Here, the evidence proffered by the defendant in support of an award for work performed by Glynn demonstrated that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days (see 22 NYCRR 1400.2, 1400.3; Montoya v. Montoya, 143 A.D.3d at 866, 40 N.Y.S.3d 151; Rosado v. Rosado, 100 A.D.3d at 856, 955 N.Y.S.2d 119; Gahagan v. Gahagan, 51 A.D.3d 863, 859 N.Y.S.2d 218). Accordingly, Supreme Court erred in granting Glynn’s counsel’s fees.
The Appellate Division reversed the award of expert fees. It noted that absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees. As the defendant failed to submit such expert affidavits Supreme Court improvidently exercised its discretion in awarding the defendant expert witness fees.
Court Found May Not Validate Illegal Surrogacy Contract by Approving Adoption. Family Court Holds That There Is No Authority for A Parent to Adopt Their Biological Child
In Matter of Adoption of A, 72 N.Y.S.3d 811, 2018 N.Y. Slip Op. 28088 (Fam Ct, 2018) J.G. (“Mr. G”) filed a petition seeking to adopt his biological son, J., born on October 9, 2017. According to the petition, J. was conceived through a surrogacy arrangement in New York in which it was agreed that Mr. G would be J.’s only parent. The petition stated after transferring frozen embryos of an unknown egg donor into the surrogate’s womb, Mr. G’s sperm was used to artificially inseminate those embryos. Family Court denied the petition. It noted that, surrogacy was outlawed in New York. See DRL § 121 et seq., it is well-settled that a party to a surrogacy contract may not seek a court’s assistance to enforce the agreement, nor will such contract be deemed viable for any other claims arising under its arrangement. See Itskov, 11 Misc. 3d at 69–70, 813 N.Y.S.2d 844. The court found that it may not validate a patently illegal surrogacy contract by approving Mr. G’s adoption of J. Surrogacy agreement aside, the Court found that there is no authority for a parent to adopt their biological child. See DRL § 110; see also Matter of Zoe D.K., 26 A.D.3d 22, 25, 804 N.Y.S.2d 197 (4th Dep’t 2005). DRL § 110 sets forth categories of persons who may adopt, and a natural parent does not fall within them. Mr. G’s adoption of J. was unwarranted, and the Court declined to approve the adoption.
Appellate Division, First Department
An Award of Counsel Fees Under DRL §§237 and 238 Cannot Be Made Merely to Punish A Party for Its Litigation Conduct
In Roddy v Roddy, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 2049379, 2018 N.Y. Slip Op. 03225 (1st Dept., 2018) the Appellate Division reversed an order of the |Supreme Court which rejected the recommendation of the special referee that plaintiff not be required to reimburse defendant for counsel fees, and directed that plaintiff pay a portion of defendant=s counsel fees. It pointed out that the Domestic Relations Law permits the court to direct a party to pay counsel fees Ato enable the other party to carry on or defend the action or proceeding as, in the court=s discretion, justice requires, having regard to the circumstances of the case and of the respective parties@ . (DRL' 237(a)) These provisions are intended Ato ensure a just resolution of the issues by creating a more level playing field with respect to the parties= respective abilities to pay counsel and permit consideration of many factors, but focus primarily upon the paramount factor of financial need@ (Silverman v. Silverman, 304 A.D.2d 41, 48, 756 N.Y.S.2d 14 [1st Dept. 2003]; Wells v. Serman, 92 A.D.3d 555, 555, 938 N.Y.S.2d 439 [1st Dept. 2012] [an award of counsel fees under these provisions Acannot be made merely to punish a party@ for its litigation conduct] ). Where a party=s inappropriate litigation conduct has adversely affected the other party but both are able to pay their own counsel fees, the appropriate remedy may be a sanction (22 NYCRR 130B1.1), not an award of attorneys= fees. The court awarded legal fees to defendant based upon its consideration of the merits of plaintiff=s positions in the parties= custody litigation. The court also adopted the special referee=s findings that neither party was the Amonied spouse,@ that each was capable of paying his or her own counsel fees, and that both parties are genuinely concerned for and Adeeply care about their children.@ Under these circumstances, the award of counsel fees under the Domestic Relations Law was improper (Wells v. Serman, 92 A.D.3d 555, 938 N.Y.S.2d 439).
Appellate Division, Fourth Department
When Supreme Court exercises jurisdiction over a matter which Family Court might have exercised jurisdiction, it is required to advise an unrepresented party of right to have counsel assigned by the court where he or she is financially unable to obtain the same.
In DiBella v DiBella, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 2048993, 2018 N.Y. Slip Op. 03186 (3d Dept., 2018 the mother appealed from the divorce judgment contending that she was deprived of her statutory right to counsel when Supreme Court compelled her to proceed with the continuation of trial without the aid of counsel. The mother was represented by counsel at the first four days of trial in May, June and July 2014. In October 2014, however, the mother appeared before Supreme Court and indicated that she was discharging her attorney and intended to hire replacement counsel to represent her for the remainder of the trial. The mother represented to Supreme Court that she would need at least two or three months to make arrangements for hiring a new attorney because the normal retainer for an attorney was $3,000. Supreme Court thereafter cautioned the mother to procure new counsel Asooner rather than later.@ Supreme Court adjourned the case and scheduled two additional trial dates on May 27, 2015 and June 3, 2015. On May 27, 2015, the mother appeared in court, explaining that, although she had retained new counsel, he was unable to attend that day and, therefore, she requested the court to Aextend@ or Ahold off@ proceeding with the continuation of the trial until June 3, 2015. Supreme Court denied the mother=s request for an adjournment, indicating that no notice of appearance had been filed by the mother=s replacement counsel and that it could not rely solely upon her statement that she may be represented by counsel going forward. Supreme Court then proceeded with the trial, informing the mother that, under the circumstances, she was going to have to proceed pro se.
The Appellate Division observed that pursuant to Judiciary Law ' 35(8), when Supreme Court exercises Ajurisdiction over a matter which the [F]amily [C]ourt might have exercised jurisdiction had such action or proceeding been commenced in [F]amily [C]ourt or referred thereto pursuant to law,@ Supreme Court is required to abide by the requirements set forth in Family Ct Act ' 262 (see Carney v. Carney, BBBA.D.3d BBBB, BBBB, BBB N.E.3d BBBB, 2018 N.Y. Slip Op. 02034, *3 ) Family Ct Act ' 262(a) provides, in relevant part, that a parent of any child seeking custody must be advised Abefore proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same@ (see Family Ct Act ' 262[a][v] ). The deprivation of a party=s statutory right to counsel Arequires reversal, without regard to the merits of the unrepresented party=s position. There was nothing in the record to indicate that Supreme Court ever advised the mother of her rights pursuant to Family Ct Act ' 262(a). It was incumbent upon the courtCparticularly in light of the mother=s expressed need for several months to obtain the necessary retainer feeCto advise her of the right to assigned counsel in the event that she could not afford same. In the absence of the requisite statutory advisement of her right to counsel (see Family Ct Act ' 262[a][v]) or a valid waiver of such right the mother was deprived of her fundamental right to counsel (see Family Ct Act '' 261, 262[a][v]; Judiciary Law ' 35. Under the circumstances, it remitted the matter to Supreme Court for a new trial on the issues of custody, visitation and child support.
Courts Failure to Comply with DRL ' 75Bi ) and DRL ' 75Bi  requires reversal of Custody determination regarding Jurisdiction.
In Matter of Beyer v Hofmann, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 2075877, 2018 N.Y. Slip Op. 03259 (4th Dept., 2018) the children were born in New York and lived with both parties in New York until December 29, 2015, when the parties moved with the children to State College, Pennsylvania. In April 2016 the children and respondent mother moved to York, Pennsylvania without the father, and the father thereafter returned to New York. He commenced a proceeding on June 6, 2016, and the mother commenced a custody proceeding in Pennsylvania on August 9, 2016. The Appellate Division observed that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by New York (Domestic Relations Law art 5BA) and Pennsylvania (23 Pa Cons Stat Ann ' 5401 et seq.), Family Court had jurisdiction to make an initial custody determination at the time the father commenced the instant proceeding (see Domestic Relations Law '' 75Ba ; 76[a]) and Pennsylvania had such jurisdiction at the time the mother commenced the proceeding in that state (see 23 Pa Cons Stat Ann '' 5402, 5421[a] ). It held that Family Court erred in declining to exercise jurisdiction and dismissing the proceeding without following the procedures required by the UCCJEA. The court, after determining that another child custody proceeding had been commenced in Pennsylvania, properly communicated with the Pennsylvania court (see Domestic Relations Law ' 76Be ). The court erred, however, in failing either to allow the parties to participate in the communication (see ' 75Bi ), or to give the parties Athe opportunity to present facts and legal arguments before a decision on jurisdiction [was] made@ (' 75Bi ). The court also violated the requirements of the UCCJEA when it failed to create a record of its communication with the Pennsylvania court (see ' 75Bi ). The summary and explanation of the court=s determination following the telephone conference with the Pennsylvania court did not comply with the statutory mandate to make a record of the communication between courts.
The Appellate Division found that there were insufficient facts in the record to make a determination, (see Domestic Relations Law ' 76Bf [a] ‑[h]), regarding which state was the more convenient forum to resolve the issue of custody. It reversed the order, reinstated the petition and remit the matter to Family Court for further proceedings on the petition. It noted that the events subsequent to the entry of the order it was reversing may be relevant to and can be considered on remittal (Andrews, 44 A.D.3d at 1111, 844 N.Y.S.2d 147).
Respondents Statement That He Would “Kick [The Petitioner’s] Ass” Is Not A Family Offense
In Benjamin v Benjamin, --- N.Y.S.3d ----, 2018 WL 1833135, 2018 N.Y. Slip Op. 02631 (2d Dept., 2018) the Appellate Division reversed an order which determined that the appellant, the child’s grandfather, in effect, had committed the family offense of harassment in the second degree and issued an order of protection. It found that petitioner failed to establish by a fair preponderance of the evidence that the appellant, in effect, committed the family offense of harassment in the second degree. The testimony at the hearing established only that the appellant stated that he would “kick [the petitioner’s] ass” when he saw him on the street. Such conduct does not establish the family offense of harassment in the second degree as there was no evidence that the statement was “either serious [or] should reasonably have been taken to be serious” (People v. Dietze, 75 N.Y.2d 47, 53, 550 N.Y.S.2d 595, 549 N.E.2d 1166).
Court Has No Authority To Modify Unincorporated Settlement Agreement.
In Abdelrahaman v Mahdi, --- N.Y.S.3d ----, 2018 WL 1864537, 2018 N.Y. Slip Op. 02698 (3d Dept, 2018) while an action for a divorce was pending the parties executed a written agreement adopting an oral stipulation that had been placed on the record providing for payment of child support and durational maintenance, and subsequently executed an addendum. On March 7, 2016, the husband an affidavit in support of a motion seeking a reduction, and temporary suspension, of his child support and maintenance obligations on the basis that he had been terminated from his employment in February 2016. The agreement and the addendum each provided for incorporation, without merger, in the judgment of divorce; however, neither an order governing child support and maintenance nor a judgment of divorce had been entered when the husband made his motion or when the wife served her answering papers. The Appellate Division reversed the order of Supreme Court while found that the husband did not cause the loss of his employment and that he had been diligently seeking employment and granted the husband’s motion to the extent of suspending his child support and maintenance obligations for 90 days or until he secured employment, whichever first occurred, and forgiving all arrears that had accrued prior to August 11, 2016—the date that the hearing was held. It held that inasmuch as the record did not establish the existence of an order governing child support and maintenance or a judgment of divorce, the separation agreement was the sole source of the husband’s obligation to pay child support and maintenance. On this record, there was no valid basis for Supreme Court to suspend the husband’s contractual obligation to pay child support and maintenance. The husband sought modification of the terms of the agreement with respect to his child support and maintenance obligations, by motion, on the ground that his loss of employment constituted a change in circumstances that warranted modification—a standard that applies to modification of orders and judgments (see Domestic Relations Law § 236[B][b])—but he made no argument that the settlement agreement was invalid. Supreme Court may, upon a proper showing establishing a change in circumstances, modify an order or judgment of divorce that incorporates a settlement agreement. However, the court had no authority under the present circumstances to grant the husband’s motion by modifying the settlement agreement.
First Department Holds Support Magistrate Acted Outside Bounds of Authority When, He Deferred Issue of a Recommendation as To the Father’s Incarceration to A “Post-Dispositional Hearing
In Matter of Carmen R. v Luis I, --- N.Y.S.3d ----, 2018 WL 1720655, 2018 N.Y. Slip Op. 02422 (1st Dept., 2018) the Appellate Division held that the Support Magistrate acted outside the bounds of his authority when, after issuing a written fact-finding order in which he determined that the father had willfully violated a child support order, he deferred the issue of a recommendation as to the father’s incarceration to a “post-dispositional hearing.” The Support Magistrate’s decision contravened Family Court Rule § 205.43(g)(3), which states that, upon a finding of willful violation, the findings of fact shall include “a recommendation whether the sanction of incarceration is recommended,” and Rule § 205.43(f), which requires that the written findings be issued within five court days after completion of the hearing. Here, instead of issuing such recommendation in his March 7, 2017 fact-finding order after completion of the hearing on the violation petition that day, the Support Magistrate improperly set the matter down for “post-dispositional review” to commence on May 1, 2017, 54 days later. That hearing lasted several months. During this time, the father continued to violate the support order. The Family Court then compounded the Support Magistrate’s error of law by denying the mother’s objections as premature, leaving her with no recourse to effectively challenge the further delay that ensued.
The Family Court denied the mother’s objections to the Support Magistrate’s fact-finding order because it found that the order was not “final.” The order cited Family Court Act Section 439(e), which permits objections to a “final” order of a Support Magistrate, and Section 439(a), which provides that a “determination by a Support Magistrate that a person is in willful violation of an order ... and that recommends commitment ... shall have no force and effect until confirmed by a judge of the court.” This was error. First, under the plain language of the statute, the Support Magistrate’s fact-finding order was not an order that “shall have no force and effect until confirmed by a judge of the court,” since it did not recommend incarceration. The Support Magistrate’s failure to make a recommendation as to incarceration upon his finding of willfulness essentially constituted a recommendation against incarceration, since the mother could not seek that remedy without a recommendation from the Support Magistrate. Moreover, the parties were entitled to a complete written fact-finding order, including a recommendation as to incarceration, within five court days following completion of the hearing on the mother’s violation petition (22 NYCRR § 205.43[f], [g]). Accordingly, the Family Court should have considered the mother’s objections, and, upon doing so, should have exercised its authority to remand the matter to the Support Magistrate for an immediate recommendation as to incarceration, or to make, with or without holding a new hearing, its own findings of fact and order based on the record (Family Court Act § 439[e]).
The Family Court’s order cited to trial court cases finding that Family Court may consider objections to nonfinal orders where irreparable harm would result from denial of permission to file such objections. It nevertheless found that “a delay in the disposition of a violation of child support petition is not an irreparable harm.” However, under the circumstances of this case, the mother made a prima facie showing that she suffered irreparable harm. A litigant has a right to bring a violation petition to an expeditious final disposition (Family Court Act § 439–a). The mother was deprived of the “expedited process” guaranteed by statute and the Family Court Rules when the support magistrate conducted protracted unauthorized “post-dispositional” proceedings.
Use of Funds Withdrawn from Account That Is Separate Property to Pay Marital Expenses Does Not Change the Character of The Account to Marital Property.
In Giannuzzi v Kearney, --- N.Y.S.3d ----, 2018 WL 1629752, 2018 N.Y. Slip Op. 02378 (3d Dept., 2018) Plaintiff (wife) and defendant (husband) were married in 1998 and had no children. In 2013, the wife commenced this action for divorce. Prior to the marriage, the wife inherited IBM stock from her grandfather worth in excess of $1 million. Supreme Court granted the wife a divorce and, in relevant part, determined that the wife’s IBM stock was her separate property.
The Appellate Division rejected the husband’s contention on appeal that Supreme Court erred in determining that the wife’s IBM stock was her separate property. Property acquired by a spouse prior to the marriage is separate property, unless it is transmuted into marital property during the course of the marriage (see Domestic Relations Law § 236[B][d]; Spera v. Spera, 71 A.D.3d 661, 664, 898 N.Y.S.2d 548 ; Sherman v. Sherman, 304 A.D.2d 744, 744, 758 N.Y.S.2d 667 ). The IBM stock, including any reinvestment thereof, remained in accounts maintained exclusively in the wife’s name throughout the marriage. It rejected his argument that the IBM stock became marital property because the parties filed joint income tax returns reporting income derived from the IBM stock, the parties utilized dividends received from the IBM stock to maintain the marital standard of living, and the IBM stock was pledged as collateral to secure the loan that the parties obtained to finance the purchase of several of the Florida properties.
The Appellate Division noted that a party to litigation is precluded from taking a position contrary to affirmative elections or representations made on an income tax return that are material to the characterization or taxation of any income derived from the separate property (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369, 909 N.E.2d 62 ; Winship v. Winship, 115 A.D.3d 1328, 1330, 984 N.Y.S.2d 247  ). For example, income realized from the sale, during the marriage, of corporate stock that was separate property was properly classified as marital property because it had been reported on a federal income tax return as ordinary income, rather than as capital gains realized upon the sale of an asset, and income earned during the marriage is marital property (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d at 422, 881 N.Y.S.2d 369, 909 N.E.2d 62). Similarly, the argument that a farm was separate property because it had been inherited by one spouse in 2010 was inconsistent with the fact that the parties had depreciated property and equipment used to operate the farm on joint returns that they filed from 2000 through 2008, because a party cannot depreciate property that he or she does not own (see Winship v. Winship, 115 A.D.3d at 1329–1330, 984 N.Y.S.2d 247). By contrast, the mere reporting of income earned from the separate assets of one spouse on a joint return does not transmute the separate property to marital property because both spouses are required to report all of their income, whatever the source, on a joint return. It agreed that a contrary rule “would force married persons to file separate income tax returns, and to pay higher income taxes, simply to protect the non-marital status of their separate property” (Holden v. Holden, 667 So.2d 867, 869 [Fla. Dist. Ct. App. 1996]). Here, the wife’s assertion that the IBM stock was her separate property was not contrary to any position that she had taken by reporting income derived from her IBM stock on the parties’ joint income tax returns as dividends and capital gains.
It is also well-settled that the use of funds withdrawn from an account that is separate property to pay marital expenses does not change the character of the account to marital property. Thus, the use of dividends earned on the wife’s IBM stock to pay marital expenses was insufficient to transform the stock to marital property. Similarly, the pledge of the IBM stock as collateral for the loan used to acquire several parcels of real property located in Florida did not transmute all or any portion of the stock to separate property. This conclusion is illustrated by the fact that a spouse who contributes separate property toward the purchase of a marital asset, or whose separate property is used to pay a marital debt that was incurred to acquire a marital asset, is entitled to a credit for the separate property contribution.
Appellate Divisions Adopt Uniform Rules for Practice
“Practice Rules of the Appellate Division” have been Approved by Joint Order of the Departments of the New York State Supreme Court, Appellate Division on December 12, 2017. The Practice Rules are effective September 15, 2018.
Separation agreement evidencing parties’ agreement to live separate and apart complies with Domestic Relations Law § 110 requirements for adoption.
In Matter of Jason, --- N.Y.S.3d ----, 2018 WL 1404086, 2018 N.Y. Slip Op. 01922 (2d Dept, 2018 ) the petitioner commenced a proceeding to adopt her grandson, who was placed with her in foster care and freed for adoption. The SCO Family of Services, which placed the child with the petitioner, approved the adoption. The petitioner had been separated from her spouse since June 2016, and a separation agreement was executed by the petitioner and her spouse and duly acknowledged on May 12, 2017. The Family Court determined that the separation agreement was insufficient to comply with the requirements of Domestic Relations Law § 110 because it was merely an agreement by the parties to live separately and apart and did not contain any substantive provisions settling marital issues. The court concluded that the petitioner lacked standing under Domestic Relations Law § 110 to adopt without her spouse and dismissed the petition without prejudice based on lack of standing. The Appellate Division reversed. It noted that Domestic Relations Law § 110 dictates who has standing to adopt. As relevant here, an “adult married person who is living separate and apart from his or her spouse ... pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded ... may adopt another person” without his or her spouse (Domestic Relations Law § 110). The court noted that a separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance. However, the agreement is ‘simply intended as evidence of the authenticity and reality of the separation. Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement “generally ... may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” in providing grounds for a conversion divorce under Domestic Relations Law § 170(6) (Christian v. Christian, 42 N.Y.2d at 70).Here, the separation agreement evidenced the parties’ agreement to live separate and apart; it was in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded (see Domestic Relations Law § 110). Therefore, it satisfied the statutory requirement of the adoption statute with respect to a separation agreement.
Statements made during preliminary conference are not admissible at fact-finding hearing on order of protection
In Almaguer v Almaguer, 2018 WL 1404102 (Mem), 2018 N.Y. Slip Op. 01916 (Mem) (2d Dept., 2018) the Appellate Division reversed an order of protection granted to the wife and remitted for a new hearing. The parties were married, lived together for over 20 years, and were the parents of three children. The wife commenced a proceeding by filing a petition alleging, inter alia, that the husband committed the family offense of harassment in the second degree by threatening to kill her if she filed for divorce. The Appellate Division held that in making its determination, the Family Court erred in considering and relying upon statements made by the husband during a preliminary conference and in proceedings prior to the hearing. Statements made during a preliminary conference are not admissible at a fact-finding hearing (see Family Ct Act § 824). Moreover, the court may not rely upon evidence of an incident not charged in the petition in sustaining a charge of harassment (see Matter of Czop v. Czop, 21 A.D.3d 958, 801 N.Y.S.2d 63.
Courts may not impute income to a party in determining the party’s eligibility for assigned counsel.
In Carney v Carney, --- N.Y.S.3d ----, 2018 WL 1441079, 2018 N.Y. Slip Op. 02034 (4th Dept., 2018) the Appellate Division held that courts may not impute income to a party in determining the party’s eligibility for assigned counsel.
Defendant appeared pro se and requested that counsel be appointed for him given his status as an unemployed graduate student and his lack of a full-time job. Defendant admitted that his living expenses were “next to nothing,” except for his car payment and insurance, because he had been residing with his parents for 6½ years. The court expressed reservation about appointing counsel because of defendant’s advanced degree and demonstrated “high level of skills,” stated that its “obligation is to protect the taxpayers of this state,” and questioned whether it could impute income to defendant before making a decision on his request for assigned counsel. The court determined that there was no authority restricting its ability to impute income to an applicant for assigned counsel. The court then created a framework for an adversarial hearing by appointing the Public Defender’s Office to represent defendant for the limited purpose of supporting his application for assigned counsel and appointing special counsel to present the facts in favor of imputation. The court ordered an evidentiary hearing to determine defendant’s eligibility for assigned counsel based on any imputed income. Following the evidentiary hearing, the court issued the order in appeal No. 2 in which it determined that $50,000 in income should be imputed to defendant and that defendant was not eligible for the appointment of counsel in the pending proceeding (Carney v. Carney, 55 Misc.3d 1220[A], 2017 N.Y. Slip Op. 50667[U], *16, 2017 WL 2271317 [Sup. Ct., Monroe County 2017] ).
The Appellate Division reversed. It observed that as pertinent here, any person seeking custody of his or her child or “contesting the substantial infringement of his or her right to custody of such child” (FCA § 262[a][v] ), as well as “any person in any proceeding before the court in which an order ... is being sought to hold such person in contempt of the court or in willful violation of a previous order of the court” (§ 262[a][vi] ), has “the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (§ 262[a]; see County Law § 722; Judiciary Law § 770;. Where, as here, Supreme Court exercises jurisdiction over a matter over which Family Court might have exercised jurisdiction had the proceeding been commenced there, Supreme Court must appoint counsel if required under Family Court Act § 262 (see Judiciary Law § 35 ).“Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel. In fulfilling that obligation, the court may inquire into the person’s financial circumstances, including, but not limited to, his or her income, expenses, obligations and other relevant financial information and, in furtherance of that inquiry, the court may require the submission of documentation. Here, the submissions in support of the motion for the assignment of counsel confirmed a lack of income and assets. In light of these financial circumstances defendant qualified for assigned counsel pursuant to the Public Defender’s Office eligibility guidelines.
The Appellate Division held that the court had no authority to deprive defendant of his constitutional and statutory right to counsel on the basis of imputed income, and it therefore lacked the authority to conduct a hearing on that issue, requiring reversal.
Where the UIFSA and the FFCCSOA conflicted when applied to the facts, Appellate Division concluded that the FFCCSOA preempted the UIFSA.
In Matter of Reynolds v Evans, --- N.Y.S.3d ----, 2018 WL 1441435, 2018 N.Y. Slip Op. 02077 (4th Dept., 2018) the Appellate Division held that Family Court erred in dismissing the fathers petition to modify a New Jersey child support order based upon lack of subject matter jurisdiction. The father and respondent mother previously resided in New Jersey with the child, and a New Jersey court issued a child support order in 2001. The mother and child thereafter relocated to Tennessee, and the father relocated to New York. In 2004, the New Jersey child support order was registered in New York for purposes of enforcement. In 2016, the father filed a instant petition in New York seeking a downward modification of his child support obligation. In order to modify an out-of-state child support order under the Uniform Interstate Family Support Act ( [UIFSA] Family Ct Act art 5–B), the order must be registered in New York and, in relevant part, the following conditions must be present: “(i) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; (ii) a petitioner who is a nonresident of this state seeks modification; and (iii) the respondent is subject to the personal jurisdiction of the tribunal of this state” (§ 580–611 [a] ). Although the New Jersey child support order was registered in New York, the father was the petitioner and he was a resident of New York. Therefore, under the UIFSA, the father could not properly bring the petition for modification of the New Jersey child support order in New York. The father could, however, properly bring the petition for modification in New York under the Full Faith and Credit for Child Support Orders Act ( [FFCCSOA] 28 USC § 1738B.. Under the FFCCSOA, a New York court may modify an out-of-state child support order if “the court has jurisdiction to make such a child support order pursuant to [28 USC § 1738B] subsection (i)” and, in relevant part, “the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant” (28 USC § 1738B [e], [A] ). Here, neither the parties nor the child continued to reside in New Jersey, and New Jersey therefore ceased to have continuing, exclusive jurisdiction (see Family Ct Act § 580–205[a]; 28 USC § 1738B [d] ). Although the UIFSA and the FFCCSOA “have complementary policy goals and should be read in tandem” (Matter of Spencer v. Spencer, 10 N.Y.3d 60, 65–66, 853 N.Y.S.2d 274, 882 N.E.2d 886  ), the UIFSA and the FFCCSOA conflict when applied to these facts, and the Appellate Division concluded that the FFCCSOA preempted the UIFSA here.
Court exceeded its authority in directing petitioner to find foster care for respondents’ cat.
In Matter of Ruth H, --- N.Y.S.3d ----, 2018 WL 1357868, 2018 N.Y. Slip Op. 01840 (4th Dept., 2018) the Petitioner commenced this neglect proceeding seeking, inter alia, the temporary removal of respondents’ two children from their custody. Respondents consented to the temporary removal of the children and, after a hearing pursuant to Family Court Act § 1027, Family Court determined, inter alia, that the temporary removal of the children while the neglect petition was pending was in the children’s best interests based upon respondents’ failure to provide adequate nutrition for the children and the uninhabitable condition of respondents’ home. The court also determined that petitioner failed to make reasonable efforts to prevent the removal of the children from respondents’ custody, and ordered petitioner to find a foster home for respondents’ cat. The Appellate Division reversed the finding of lack of “reasonable efforts”, and agreed with petitioner that the court lacked the authority to order it to find a foster home for respondents’ cat. Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute , or by the New York Constitution). Inasmuch as animals are property (see generally Mullaly v. People, 86 N.Y. 365, 368  ), and Family Court does not have jurisdiction over matters concerning personal property, it concluded that the court exceeded its authority in directing petitioner to find foster care for respondents’ cat.
The 2018 Child Support Standards Chart LDSS 4515 (3/18) was released in March 2018.
Second Department Holds Automatic Orders are a lawful Mandate Subject to Contempt
In Spencer v Spencer, --- N.Y.S.3d ----, 2018 WL 1075362, 2018 N.Y. Slip Op. 01348 (2d Dept, 2018) the Appellate Division, Second Department reversed an order which held the former husband in contempt. It held, as a matter of first impression that the provisions of Domestic Relations Law § 236(B)(2)(b) and Uniform Rules for Trial Courts (22 NYCRR) § 202.16–a, in tandem (automatic orders), constitute unequivocal mandates of the court for the purposes of holding a party in civil contempt pursuant to Judiciary Law § 753. It also held that civil contempt is not an available remedy for a violation of the automatic orders when that civil contempt is sought after entry of a judgment of divorce.
After the judgment of divorce had been entered, the plaintiff learned that, while the trial was pending, defendant sold a warehouse in Brooklyn, which was a marital asset (Property), without her consent and without the consent of the Supreme Court during the pendency of the action. Domestic Relations Law § 236(B)(2)(b) and 22 NYCRR 202.16–a which virtually mirror each other, precludes either of the parties in a matrimonial action from transferring or in any way disposing of marital assets such as the Property without the written consent of the other party or order of the court, except under certain circumstances not applicable to this case (see Domestic Relations Law § 236[B][b]; 22 NYCRR 202.16–a). The automatic orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law § 236[B][b] ).
Although the judgment of divorce had already been entered, plaintiff filed an order to show cause seeking, inter alia, pursuant to Judiciary Law § 753, a finding of civil contempt against the defendant. Supreme Court then held a hearing during which the defendant admitted that he sold the Property for $1.6 million during the pendency of the divorce trial and after paying the mortgage and other encumbrances on the Property, he received proceeds from the sale in the amount of $300,000, which he spent paying debts that he owed. Supreme Court held the defendant in civil contempt, finding the defendant’s sale of the Property in violation of the automatic orders and his expenditure of the proceeds for his own benefit defeated, impaired, impeded, or prejudiced the rights of the plaintiff. The court directed that, unless the defendant purged the contempt by paying $150,000 to the plaintiff on or before December 16, 2016, the defendant would be incarcerated every weekend for a period of six months.
The Appellate Division held that the legislative history of Domestic Relations Law § 236(B)(2)(b) supported the conclusion that the automatic orders constitute unequivocal mandates of the court. It rejected defendant’s contention that Domestic Relations Law § 236(B)(2)(b) constitute a legislative, not a court, mandate for the reason that it is contrary to the express language of 22 NYCRR 202.16–a, against public policy, and without merit. Notwithstanding the foregoing, it found that where a judgment of divorce has already been entered, the remedy of civil contempt is not available for a violation of the automatic orders after the judgment of divorce has been entered. The automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16–a[b] ). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time (see Mittman v. Mittman, 263 App.Div. 384, 385, 33 N.Y.S.2d 211). Here, after the judgment of divorce was entered, the automatic orders ceased to exist for the purposes of enforcement (see 22 NYCRRR 202.16–a). The Court noted that the unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce did not render this plaintiff without available remedies. For example, vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50% of the value of the Property which was awarded to the plaintiff in the judgment of divorce, or amendment of the judgment of divorce are all remedies that the plaintiff could have sought.
Court of Appeals Establishes Guidelines for Disclosure Disputes Involving Social Media Materials.
In Forman v. Henkin, __NY3d__ (2018), a personal injury case, the Court of Appeals rejected the notion that the account holder’s so-called “privacy” settings govern the scope of disclosure of social media materials. It agreed with other courts that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable. It held that rather than applying a one-size-fits-all rule, courts addressing disputes over the scope of social media discovery should employ well-established rules, there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.
The Court noted that in a personal injury case it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate, for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.
The Court observed that to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.
Plaintiff suggested that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. The Court assumed for purposes of resolving the narrow issue before it that some materials on a Facebook account may fairly be characterized as private. It indicated that even private materials may be subject to discovery if they are relevant. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.
Second Department Holds Defective Acknowledgement in Prenuptial Agreement Can be Cured by Extrinsic Proof of Notary who took signature.
In Koegel v Koegel, --- N.Y.S.3d ----, 2018 WL 736117, 2018 N.Y. Slip Op. 00833 (2d Dept., 2017), the Appellate Division observed that the Court of Appeals, in Galetta, left open the issue of whether a defective acknowledgment can be cured by extrinsic proof provided by the notary public who took a party’s signature, and held that under the circumstances of this case such proof remedied the defective acknowledgment.
At the outset it pointed out that Matisoff v Dobi, 90 N.Y.2d 127, 681 N.E.2d 376, 659 N.Y.S.2d 209, (1997) was not controlling here. In Matisoff, a case involving a postnuptial agreement in which the parties waived any rights of election provided by the EPTL, “it [wa]s undisputed…that the document was not acknowledged by the parties or anyone else” (90 NY2d at 130). The case at bar differed from Matisoff since here, there were certificates of acknowledgment of the signatures of Irene and the decedent, but the certificates did not contain the required language for acknowledgment as currently required by the Real Property Law. Similarly, reliance on D’Elia was misplaced since the agreement in that case was not acknowledged at the time of execution. The statement in D’Elia that “[i]t is uncontroverted that the parties’ postnuptial agreement was not properly acknowledged at the time that it was executed” (14 AD3d at 478) was not referring to a defective acknowledgment, but instead, to the absence of any acknowledgment,
In Galetta v Galetta, 21 N.Y.3d 186, 991 N.E.2d 684, 969 N.Y.S.2d 826 (2013) the parties executed a prenuptial agreement before different notaries at different times one week before their wedding took place in July 1997 (21 NY3d at 189). As here, it was undisputed that the signatures on the document were authentic and there was no claim that the agreement was procured through fraud or duress. The certificate of acknowledgment relating to the wife’s signature contained the proper language (see id. at 190). However, in the acknowledgment relating to the husband’s signature, the certificate failed to indicate that the notary “confirmed the identity of the person executing the document or that the person was the individual described in the document” (id.). The husband filed for divorce and the wife separately filed for divorce and for a declaration that the prenuptial agreement was unenforceable (see id.). The wife moved for summary judgment on her cause of action seeking declaratory relief, contending that the agreement was invalid because the certificate of acknowledgment relating to the husband’s signature did not comport with the Real Property Law requirements. The husband opposed the motion on the basis that the language of the acknowledgment substantially complied with the Real Property Law. He also submitted an affidavit from the notary who had witnessed his signature in 1997 and executed the certificate of acknowledgment (see id.). “The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband’s signature” (id. [emphasis added]). The Supreme Court denied the wife’s motion, finding that the acknowledgment substantially complied with the requirements of the Real Property Law. A divided Fourth Department affirmed the order albeit on the different ground that, although the acknowledgment was defective, the deficiency could be cured after the fact and that the notary’s affidavit raised a triable issue of fact as to whether the agreement had been properly acknowledged when executed (see 96 AD3d 1565, revd 21 NY3d 186)
With respect to the issue of whether the certificate of acknowledgment accompanying the husband’s signature was defective, the Court of Appeals determined that without stating” to me known and known to me,’” the certificate failed to indicate either that the notary knew the husband or had ascertained through some form of proof that the husband was the person described in the prenuptial agreement (21 NY3d at 193). The Court noted that: “At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife’s signature: before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same’” (id. [footnote omitted]). The Court pointed out that the” to me known and known to me to be the person described in the document’” language “satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document” (id.). It also observed that” [t]he clause beginning with the words and duly acknowledged’ established that the signer had made the requisite oral declaration” (id.). Given the failure to include this language in the acknowledgment of the husband’s signature, the Court of Appeals agreed with the Fourth Department that the acknowledgment did not conform with statutory requirements (see id. at 194).
Since the Court of Appeals determined that the certificate was defective, it then turned to address the question of “whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife’s favor” (id.). However, in looking at the proof submitted by the husband, the Court of Appeals stated that it “need not definitively resolve the question of whether a cure is possible because, similar to what occurred in Matisoff, the proof submitted here was insufficient” (id. at 197).
The Court of Appeals analyzed in detail the affidavit of the notary submitted by the husband in opposing the wife’s summary judgment motion. The Court pointed out that the notary only recognized his own signature and had no independent recollection of notarizing the subject document (see id.). Given these statements, the Court found that the husband could not rely on the notary’s custom and practice to fill in the evidentiary gaps because “the averments presented by the notary public in this case [we]re too conclusory to fall into this category” (id.). Further, the Court stated that if the notary had recalled acknowledging the husband’s signature, “he might have been able to fill in the gap in the certificate by averring that he recalled having confirmed [the husband's] identity, without specifying how” (id. at 198). However, since the notary did not recall acknowledging the husband’s signature and was attempting to rely on custom and practice evidence, the Court stated that “it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used — and proof of that type is absent here” (id.).
In Koegel, the Appellate Division found that the situation at bar was akin to the hypothetical described by the Court of Appeals in Galetta, where the notaries here, the decedent’s law partner and Irene’s attorney, actually recalled acknowledging the signatures at issue. In such a situation, the Court of Appeals explained that the confirmation of the identity of the signer, through an affidavit, is sufficient without having to explain how the identity was confirmed (see id.). Although, in support of her motion, Irene submitted the prenuptial agreement with the defective acknowledgments to demonstrate that the agreement was invalid, the Surrogate’s Court properly declined to dismiss the petition on the basis of documentary evidence in light of John’s submission in opposition to her motion. To supplement the allegations of the petition, in opposition, John submitted affidavits which showed that the petition may be meritorious in spite of the documentary evidence. In response to the assertion that the prenuptial agreement was invalid as improperly acknowledged, the affidavits of Donovan and Jacobsen specifically stated that each observed the document being signed, took the acknowledgment in question, and personally knew the individual signer signing before him. In so doing, the defect in the acknowledgment was cured in order to give vitality to the expressed intent of the parties set forth in the prenuptial agreement. Accordingly, the Surrogate’s Court properly denied Irene’s motion pursuant to CPLR 3211(a)(1) and Domestic Relations Law §236(B)(3) to dismiss the petition. Therefore, the order was affirmed.
Second Department Joins First and Third Department Holding Presumption of legitimacy applicable to Same-Sex Marriages
New York has a strong policy in favor of legitimacy. Matter of Anonymous, 74 Misc.2d 99, 104, 345 N.Y.S.2d 430 . At common law there is a rebuttable presumption that the child, a child born to a married woman, is the legitimate child of both parties. Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 . The presumption that a child born to a marriage is the legitimate child of both parents ‘is one of the strongest and most persuasive known to the law.” State of New York ex rel. H. v. P., 90 A.D.2d 434, 437, 457 N.Y.S.2d 488 ; Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 .
The presumption of legitimacy as codified in Domestic Relations Law §24 is that a child “born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid”, is the legitimate child of both birth parents. See also Family Ct Act § 417.
In Matter of Maria-Irene D. (Carlos A. v. Han Ming.), 153 A.D.3d 1203, 1205 (1st Dept., 2017) the Appellate Division, first department held that the “presumption of legitimacy”, applies to a child born to a same-sex married couple. There the court applied the presumption of legitimacy to a married gay male couple, one member of whom wanted to vacate the adoption of their child by the other man’s new partner.
In Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op 00495, *5-6 (3d Dept., 2017) the Third Department held that the “presumption of legitimacy” applied to a a married lesbian couple and that, therefore, a paternity petition filed by the male sperm donor must fail. The court pointed out that typically the presumption is rebuttable in the law” upon clear and convincing evidence excluding the [spouse] as the child’s [parent] or otherwise tending to prove that the child was not the product of the marriage,” quoting Matter of Beth R. v. Ronald S., 149 A.D.3d at 1217. In cases involving opposite-gender spouses, the rebuttal happens, for instance, with “proof that a husband did not have ‘access to’ his wife at the time that she conceived a child and he acknowledged that he was not the biological father, combined with testimony that the child was conceived during a trip with the putative father with whom his wife was in a monogamous relationship,” citing Matter of Beth R. v. Ronald S. But applying case law on rebuttal to same-gender spouses is “inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically the product of the marriage,” and the “changing legal and social landscape requires reexamination of the traditional analysis governing the presumption of legitimacy.”
In Matter of Joseph O. v Danielle B. ,2018 NY Slip Op 01192 (2d Dept., 2018) the Appellate Division, Second Department observed that it is an established legal presumption that every child born during a marriage is the legitimate child of both spouses (see Domestic Relations Law § 24; Family Ct Act § 417) and that the respondents correctly contended that because the child was conceived and born to the lesbian respondents during their marriage, there was a presumption that the child is the legitimate child of both respondents (see Domestic Relations Law § 24; Family Ct Act § 417; Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op 00495, *5-6; Matter of Maria-Irene D. [Carlos A.-Han Ming T.], 153 AD3d 1203, 1205). The presumption of legitimacy is rebuttable (see Matter of Findlay, 253 NY 1, 7), and thus its application alone did not warrant the summary denial of a paternity petition brought by the sperm donor. However, the Appellate Division found that the respondents were entitled to dismissal of the paternity petition on the ground of equitable estoppel and it was not necessary to determine if the presumption of legitimacy was rebutted.
Revised Instructions and Forms for Use in Matrimonial Actions in Supreme Court were adopted effective January 31, 2018. The revised forms reflect the increase in the annual income cap of the maintenance payor for temporary and final (post-divorce) maintenance from $178,000 to $184,000 per year. See
Form UD-8(2) Rev. 1/31/18 (ch. 269 and ch. 387, L. 2015) at http://www.nycourts.gov/divorce/childsupport/UD-8-2-MaintenanceGuidelinesWorksheet.pdf;
Form UD-8(3) Rev. 1/31/18 (ch. 269 and ch. 387, L. 2015) at http://www.nycourts.gov/divorce/childsupport/UD-8-3-childSupportWorksheet.pdf and Combined Worksheet Rev. 1/31/18 (ch. 269 and ch. 387, L. 2015) at http://www.nycourts.gov/divorce/childsupport/CombinedWorksheetAndAPP.pdf (last accessed February 6, 2018)
The forms listed below which appear on the New York ecourts website were amended effective January 31, 2018.
Uncontested Divorce Worksheets (Part of Uncontested Divorce Packets)
Form UD-8(2) Maintenance Guidelines Worksheet
Form UD-8(3) Child Support Worksheet
The Uncontested Divorce form packet instructions were also amended effective January 31, 2018
Contested Divorce Worksheets
Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)
Post-Divorce Maintenance/Child Support Worksheet
The Child Support information sheet instructions were also amended recently.
Court of Appeals Holds Dismissal of A Neglect Petition Divests Family Court of Jurisdiction to Issue Further Orders or Impose Additional Conditions on A Child's Release
In Matter of Jamie J., 2017 WL 5557887, 2017 NY Slip Op 08161 (2017) the Court of Appeals, in an opinion by Judge Wilson, held that Family Court lacks subject matter jurisdiction to conduct a permanency hearing pursuant to Family Court Act article 10-A once the underlying neglect petition brought under Article 10 has been dismissed for failure to prove neglect. The dismissal of a neglect petition terminates Family Court's jurisdiction.
Jamie J. was born in November 2014. A week later, at the request of the Wayne County Department of Social Services, Family Court directed her temporary removal from Michelle E.C.'s custody pursuant to an ex parte pre-petition order under FCA § 1022. Four days after that, the Department filed its FCA article 10 neglect petition. More than a year later, on the eve of the fact-finding hearing held to determine whether it could carry its burden to prove neglect, the Department moved to amend its petition to conform the pleadings with the proof. Family Court denied that eleventh-hour motion as unfairly prejudicial to Michelle E.C. and to the attorney for Jamie J. After hearing evidence, Family Court found that the Department failed to prove neglect, and therefore dismissed the petition. The Department did not appeal that decision. Family Court did not release Jamie J. into her mother's custody when it dismissed the article 10 neglect petition. Instead, at the Department's insistence and over Michelle E.C.'s objection, it held a second permanency hearing, which had been scheduled as a matter of course during the statutorily required first permanency hearing in the summer of 2015. Family Court and the Department contended that, even though the Department had failed to prove any legal basis to remove Jamie J. from her mother, article 10-A of the FCA gave Family Court continuing jurisdiction over Jamie J. and entitled it to continue her placement in foster care. Family Court held the second permanency hearing on January 19, 2016. There, Michelle E.C. argued, as she did here, that the dismissal of the neglect proceeding ended Family Court's subject matter jurisdiction and should have required her daughter's immediate return. Solely to expedite her appeal of that issue, Michelle E.C. consented to a second permanency hearing order denying her motion to dismiss the proceeding and continuing Jamie J.'s placement in foster care. The Appellate Division, with two Justices dissenting, affirmed.
Judge Wilson observed that the appeal presented a straightforward question of statutory interpretation: does FCA article 10-A provide an independent grant of continuing jurisdiction that survives the dismissal of the underlying article 10 neglect petition? The Court rejected the Departments “hyperliteral reading of section 1088, divorced from all context,” to argue that Family Court's pre-petition placement of Jamie J. under section 1022 triggered a continuing grant of jurisdiction that survived the eventual dismissal of the neglect petition. In other words, even if the Family Court removes a child who has not been neglected or abused, it has jurisdiction to continue that child's placement in foster care until and unless it decides otherwise. The Court held that Section 1088's place in the overall statutory scheme, the legislative history of article 10-A, and the dictates of parents' and children's constitutional rights to remain together compelled the opposite conclusion. Family Court's jurisdiction terminates upon dismissal of the original neglect or abuse petition. Observing that the Court held in Matter of Tammie Z., "if abuse or neglect is not proved, the court must dismiss the petition . . . at which time the child is returned to the parents" (66 NY2d 1, 4-5 ), nothing in the legislative history of article 10-A suggested that its drafters intended to overturn the long-established rule, promulgated by pre-2005 decisions of the Court and of the Appellate Division, that the dismissal of a neglect petition divests Family Court of jurisdiction to issue further orders or impose additional conditions on a child's release. Instead, that history demonstrated that the drafters intended only to correct a technical issue that plagued article 10 and threatened the State's continued access to federal funding under Title IV of the Social Security Act. The order was reversed and the January 26, 2016 permanency order vacated.
Family Court Act § 424–a(a) requires that parties to child support proceedings submit most recently filed income tax returns. Where petitioner mother failed without good cause to submit most recent tax returns Support Magistrate improvidently exercised discretion in failing to adjourn proceeding until mother filed required documents
In Matter of Feixia Wi-Fisher v Michael, --- N.Y.S.3d ----, 2017 WL 5473843 (2d Dept., 2017) the Appellate Division held that the Support Magistrate properly imputed income to the father based on his future earning capacity and the funds he received from his wife to pay his expenses, where he had access to his wife’s bank accounts which were used to pay the household’s expenses.
The Appellate Division observed that Family Court Act § 424–a(a) requires that parties to child support proceedings submit certain required financial documents, including the party’s most recently filed state and federal income tax returns. When a petitioner fails without good cause to file the required documents, “the court may on its own motion or upon application of any party adjourn such proceeding until such time as the petitioner files with the court such statements and tax returns” (Family Ct Act § 424– a[c] ). Here, the mother failed without good cause to submit her most recent tax returns. Further, her testimony and the financial documents she did submit did not remedy her failure to make complete financial disclosure, since the mother’s financial disclosure affidavit contained inconsistencies, her claimed rental income was unsubstantiated, and her testimony regarding her income and expenses was determined to be incredible. Accordingly, the Support Magistrate improvidently exercised her discretion in failing to adjourn the proceeding until such time as the mother filed the required documents. It remitted the matter for a new determination of the father’s child support obligation following the mother’s submission of the required financial disclosure.
Appellate Division, Third Department holds Postsecondary education expenses are not subject to collection through income execution
In Dillon v Dillon, --- N.Y.S.3d ----, 2017 WL 5489353, 2017 N.Y. Slip Op. 08062 (3d Dept., 2017) the Appellate Division held, inter alia, that Family Court erred in directing that the mother’s payments toward the child’s college education be made through the Support Collection Unit, as “postsecondary education expenses [are] a separate item in addition to the basic child support obligation” (Matter of Cohen v. Rosen, 207 A.D.2d 155, 157 , lv denied 86 N.Y.2d 702 ; see Cimons v. Cimons, 53 AD3d 125, 131 ; Tryon v. Tryon, 37 AD3d 455, 457  ), not subject to collection through income execution (see generally CPLR 5241, 5242).
Appellate Division Holds Supreme Court Has The Authority To Enforce Promissory Notes To A Third Party.
In Schorr v Schorr, 2017 WL 4892266 (1st Dept.,2017) the Appellate Division held that in calculating the child support award, the court properly imputed income to defendant by including significant funds he received from his parents to pay his expenses (see Domestic Relations Law 240[1Bb][b][iv][d] ). Defendant was self-employed and refused to maintain a general ledger or financial records for his business. Trial evidence supported the court's finding that defendant inflated his expenses on his tax returns so as to deflate his reported net income, and otherwise manipulated his income. Further, the defendant, who was the sole executor of his father's estate, admitted to using estate funds directly to pay some of his personal expenses. In view of its inability to quantify these alternate sources of revenue available to the defendant, the court acted within its discretion in imputing income to him based on the discernible measure of parental contributions.
The Appellate Division held that the court providently exercised its discretion in directing the parties to repay to plaintiff's parents from the proceeds of the sale of the marital residence a loan for monies borrowed from her father to purchase the marital residence. It rejected defendant=s contention that the court does not have the authority to enforce promissory notes to a third party.
Unequal Distribution Of Marital Property Under DRL $ 236(B)(5)(d)(14) Allowed Where Spouse Criminal Conduct And Incarceration Impacts Family. Not Necessary for Court To Make Finding Of Marital Waste To Impose Financial Responsibility On A Party For Expenses Arising From His Or Her Criminal Activities.
In Linda G., v. James G., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2017 WL 5326824 (1st Dept., 2017) the Appellate Division held that there can be an unequal distribution of the marital home under the just and proper standard set forth in Domestic Relations Law ' 236(B)(5)(d)(14) where a spouse"s criminal conduct and subsequent incarceration impacts the family. The parties were married in 1989. They had two children from the marriage. Shortly after the older son was born, the family purchased and moved into a cooperative apartment on Park Avenue in Manhattan. The husband was a partner in Ernst & Young (E & Y). In October 2007, due to a pending Securities and Exchange Commission insider trading investigation, the husband resigned. At that time, he had been earning $1.25 million a year. In 2010, the husband was indicted on charges of conspiracy and insider trading. He was found guilty and served a one year and one day sentence in federal prison from May 2010 through January 2011. The SEC investigation and criminal trial depleted the joint assets of the parties. The divorce proceedings started on January 26, 2010. The wife returned to work at JP Morgan in February of 2010, shortly before the husband was imprisoned. In 2013, her base salary was $300,000 and her bonus was more than $200,000. The husband began working at Sherwood Partners after his release from incarceration and testified that, as of 2013, his base salary was $226,000. At the time of the trial, the apartment was valued at $4.75 million. The husband admitted that he stopped contributing to the mortgage shortly before he went to prison in May 2010.
Supreme Court took into account the husband's adulterous and criminal behavior and awarded the wife 75% of the marital home. The Appellate Division held the husband's adulterous conduct was not sufficiently egregious and shocking to the conscience to justify making an unequal distribution of the marital home. However, it held that the impact of the husband's criminal conduct on the family may be considered in making an unequal distribution. Comparing this case to the facts in Kohl v. Kohl (6 Misc.3d 1009[A], 2004 N.Y. Slip Op 51759[U], *24 [Sup Ct., N.Y. County 2004], affd 24 AD3d 219 [1st Dept. 2005] ) the record supported an unequal distribution. The parties were required to spend down their savings from 2007 through 2010 when the husband was forced to resign due to the SEC investigation. He refused to take a plea bargain and insisted on going to trial, blaming a woman with whom he had an extramarital affair for his insider trading. He was convicted of a felony and lost his license to practice law. The husband's post-incarceration earnings at the time of the trial dropped significantly to less than 20% of his prior income. His income never returned to the level he earned prior to the conviction. As a result of the husband's criminal actions, the wife, who had left a lucrative career to raise their children, was compelled to return to work after being out of the workforce for almost a decade. This meant that the wife could no longer remain at home with the children. During this time, the younger son suffered from psychiatric issues and the older son from significant emotional issues. The husband's insider trading, and ensuing criminal trial, conviction and incarceration caused the family to undergo financial losses and a substantial decrease in the standard of living. These events also significantly disrupted the family's stability and well‑being. Based on its review of the record, it found that a 60%/40% equitable division of the value of the marital estate was just and proper when taking into account the hardship that the husband put his family through as a result of his volitional and irresponsible behavior.
The Appellate Division held that Supreme Court's award to the wife of a credit of 50% of marital funds expended in connection with the SEC investigation and criminal proceedings was proper, relying on Kohl v Kohl, where, the court found that the husband should be responsible for 65% of the legal fees for civil forfeiture proceedings and the wife responsible for 35% (2004 N.Y. Slip Op 51759[U], *30). It agreed with the wife that she should not be liable for legal fees as she was not a party to the SEC action and also believed the husband's assertions of innocence. To hold the wife responsible for the accumulation of substantial legal fees for which she shared no culpability would be inequitable. It held that it is not necessary for a court to make a finding of marital waste to impose financial responsibility on a party for expenses arising from his or her criminal activities (Kohl, 24 AD3d at 220). The portion of the judgment awarding the wife a 50% credit for the legal fees arising from the husband's criminal activity was affirmed.
Third Department Holds Default Is Not Willful Under DRL §244 When It Arises with "A Sincere, Though Mistaken, Belief That Payments Were Not Required, Especially When That Belief Was Based Upon Advice from Counsel"
In Seale v Seale, N.Y.S.3d , 2017 WL 4817287, 2017 N.Y. Slip Op. 07492 (3d Dept., 2017) the Appellate Division held, inter alia, that the wife's request for a money judgment for arrears of payments due pursuant to the judgment of divorce should have been granted. Domestic Relations Law ' 244 provides that, upon a party's failure to make any payment for an obligation under a judgment of divorce other than child support, "the court shall make an order directing the entry of judgment for the amount of arrears . . . unless the defaulting party shows good cause for failure to make application for relief . . . prior to the accrual of such arrears" (emphasis added). This provision was intended to shift the burden of seeking relief to the defaulting spouse and to limit a court's discretion in determining whether to grant judgments for arrears. The husband offered various explanations for his failure to make timely payments, but he neither applied for relief prior to his default nor stated any reason for his failure to do so. Supreme Court thus had no discretion to deny the wife's request for a judgment in the full amount of the arrears.
It was undisputed that no arrears remained outstanding. Nevertheless, the wife sought interest for the periods in which the various payments were due but unpaid. Domestic Relations Law ' 244 mandates the payment of interest upon arrears "if the default was willful, in that the obligated spouse knowingly, consciously and voluntarily disregarded the obligation under a lawful court order." The Appellate Division held that a default is not willful when it arises from financial disability or from "a sincere, though mistaken, belief that payments were not required, especially when that belief was based upon advice from counsel" (Parnes v Parnes, 41 AD3d 934, 937 ; see Desautels v Desautels, 80 AD3d 926, 930 ; see also Allen v Allen, 83 AD2d 708, 709 ). Here, the husband owned, as his separate property, a number of valuable parcels of real estate, including several business properties. However, he contended that he was in significant financial distress and had no liquid resources other than sales of his separate property with which to satisfy his equitable distribution obligations. The divorce judgment offered some implied support for this assertion by directing the husband to satisfy most of his equitable distribution obligations by selling parcels of his separate property. In addition to evidence specifically detailing the outstanding debts, tax obligations and other financial constraints that resulted in the husband's lack of liquid resources, his submissions established that a June 2014 separate property transaction yielded no funds from which payments could have been made to the wife and that the proceeds of a September 2014 sale, while adequate to permit payment of the other obligations, did not yield sufficient funds to cover the second counsel fee installment payment. A showing of inability to pay does not preclude a judgment for arrears pursuant to Domestic Relations Law ' 244. Nevertheless, for the purpose of determining the interest issue, the Appellate Division found the husband met his burden to demonstrate that his defaults at the time of the property sales were not willful. Both a bench decision issued shortly after the September 2014 transaction and the January 2015 order upon appeal interpreted the provisions of the divorce judgment to find that the second counsel fee installment payment had not yet become due. Although it disagreed with this interpretation, these rulings provided the basis for a sincere belief on the husband's part that he was not then required to make the second installment payment (see Desautels v Desautels, 80 AD3d at 930; Parnes v Parnes, 41 AD3d at 937). Under these circumstances, it found find that the husband met his burden to demonstrate that his delay in making payments was not willful. Thus, the wife was not entitled to interest for the periods of delay.
Wife Estopped from claiming charitable contributions were marital waste. A party to litigation may not take a position contrary to a position taken in an income tax return
In Melvin v Melvin, --- N.Y.S.3d ----, 2017 WL 4781198, 2017 N.Y. Slip Op. 07421 (1st Dept., 2017) the Appellate Division affirmed an order which granted the plaintiff husband’s cross motion for an order declaring defendant wife judicially estopped from claiming that charitable contributions reported on the parties’ joint income tax returns from 2011 through 2015 constituted marital waste. The wife argued that charitable contributions totaling approximately $1.5 million, reflected on the parties’ joint tax returns from 2011 through 2015, were made without her consent. However, she did not deny that she signed the tax returns under penalty of perjury, that the charity receiving the contributions was a bona fide nonprofit organization, and that the marital estate received a benefit from the contributions in the form of tax deductions. Although the wife claimed that the husband only sent her the signature page of the tax returns, so that she was unaware of their contents, she had unfettered access to the complete returns from the parties’ accountant. In any event, by signing the tax returns, she is presumed to have read and understood their contents (see Vulcan Power Co. v. Munson, 89 AD3d 494 [1st Dept 2011], lv denied 19 NY3d 807 ; see also Da Silva v. Musso, 53 N.Y.2d 543, 550–551 ). “A party to litigation may not take a position contrary to a position taken in an income tax return” (Mahoney–Buntzman v. Buntzman, 12 NY3d 415, 422 ). By signing the joint tax return, the wife represented that the charitable contributions were made in both parties’ names as a married couple. Thus, she was judicially estopped from now claiming that the donations were, in fact, made without her consent.
First Department Holds "Presumption of Legitimacy"applies to a Child Born to a Same-sex Married Couple
In re Maria-Irene D, 2017 WL 4287334 (1st Dept., 2017) the Appellate Division affirmed an order which vacated an adoption. Appellant Marco D. and respondent Han Ming T. (Ming), both British citizens, entered a civil union in the United Kingdom (UK) in 2008, which they converted into a legal marriage in 2015, effective as of the date of their civil union. In 2013, the couple jointly executed an egg donor and surrogacy agreement with the intention of becoming parents. Both contributed sperm, and the embryo fertilized by Marco’s sperm was transferred to the surrogate. The child was born in September 2014. The couple commenced a proceeding in Missouri to terminate the egg donor and surrogate’s parental rights to the child. In October 2014, the Missouri court awarded Marco, as the genetic father, “sole and exclusive custody” of the child. Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment. At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the UK. In January 2016, Carlos filed a petition in New York to adopt the child. In the adoption papers, Carlos disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco had been caring for the child since her birth. A home study report stated that Marco and Ming legally separated in 2013 and had no children together. Ming’s role in the surrogacy process was not disclosed, nor was the Florida divorce action commenced by Ming in March 2016 in which he sought joint custody of the child.
Family Court granted Ming’s motion, and vacated the adoption pursuant to Domestic Relations Law § 114(3), finding that Carlos and Marco had made material misrepresentations to the court that provided sufficient cause to vacate, and that Ming was entitled to notice of the adoption proceeding. The Appellate Division affirmed. It found that Ming and Marco’s marriage in the UK was effective as of August 2008. New York courts as a matter of comity will recognize such out-of-state marriages (see e.g. Matter of Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292  ). The child was born in 2014, as the result of jointly executed surrogacy agreements, at a time when the couple was considered legally married, thus giving rise to the presumption that the child was the legitimate child of both Marco and Ming (see Domestic Relations Law § 24; Matter of Fay, 44 N.Y.2d 137 ). After the child was born, Marco, Ming and the child lived together as a family, and the couple took affirmative steps in the UK to establish Ming’s parental rights in accordance with UK law. Under these circumstances, the Missouri judgment in 2014 awarding Marco sole and exclusive custody of the child, as opposed to the egg donor and surrogate, was insufficient to rebut the presumption of legitimacy. Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together (see Debra H. v. Janice R., 14 NY3d 576 , cert denied 562 U.S. 1136  ). Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding (see Domestic Relations Law § 111[b] ). Petitioner’s failure to disclose the Florida divorce action, in which the child was named as a child of the marriage and Ming sought joint custody, provided another ground to vacate the adoption (see Domestic Relations Law § 114 ). The adoption petition required petitioner to give a sworn statement that the child to be adopted was not the subject of any proceeding affecting his or her custody or status. Even though petitioner was aware of the Florida divorce action before finalization of the adoption, he failed to disclose the action to the court, instead averring in a supplemental affidavit that there had been no change in circumstances “whatsoever” since the filing of the adoption petition.
Religious Upbringing Clause in Custody Agreement Cannot Be Enforced to Extent it is not in Best Interests of Children or Violates Parent’s Legitimate Due Process Right to Express Oneself and Live Freely.
In Weisberger v Weisberger, --- N.Y.S.3d ----, 2017 WL 3496090, 2017 N.Y. Slip Op. 06212 (2d Dept., 2017) in their stipulation of settlement dated November 3, 2008, which was incorporated but not merged into their 2009 judgment of divorce, the parties agreed to joint legal custody of the children with the mother having primary residential custody and the father having specified visitation. The stipulation contained the following religious upbringing clause: “Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families’. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.”The stipulation of settlement further provided that each party “shall be free from interference, authority and control, direct or indirect, by the other.”
In November 2012, at which time the children were nine, seven, and five years old, respectively, the father moved to modify the stipulation of settlement so as to, inter alia, award him sole legal and residential custody of the children; award the mother only supervised therapeutic visitation; and to enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Jewish Hasidic practices of ultra Orthodoxy at all times and require her to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. In support of the motion, the father alleged that the mother had radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.
Supreme Court determined that there had been a change of circumstances caused by the mother’s transition from an ultra Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.” The court noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” The court posited that had there been no agreement it might have considered the parties’ arguments differently; however, “given the existence of the Agreement’s very clear directives, [the] Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination”. Supreme Court awarded him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation to the mother. The court stayed the provision of the order limiting the mother’s visitation to supervised therapeutic visits, conditioned upon, inter alia, her compliance with the religious upbringing clause. Supreme Court enforced the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy at all times. The court ordered that during any period of visitation or during any appearance at the childrens’ schools “the [mother] must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”
The Appellate Division modified the order. It observed that to the extent the mother’s sexual orientation was raised at the hearing, courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children. The Appellate Division found that a change of circumstances had occurred, such that a modification of the stipulation of settlement was necessary However, Supreme Court’s determination to modify the stipulation of settlement so as to, inter alia, award the father sole legal and residential custody of the children, lacked a sound and substantial basis in the record In pertinent part, the court gave undue weight to the parties’ religious upbringing clause, finding it to be a “paramount factor” in its custody determination. It held that when presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor. Clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children. It found that the mother had been the children’s primary caretaker since birth, and their emotional and intellectual development was closely tied to their relationship with her. The mother took care of the children’s physical and emotional needs both during and after the marriage, while the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation. Aside from objecting to her decision to expose the children to views to which he personally objected, the father expressed no doubts whatsoever about the mother’s ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children’s relationship with her.
Furthermore, the Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement which required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. The plain language of the parties’ agreement was “to give the children a Hasidic upbringing”. The parties’ agreement did not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle. At a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise” (Lee v. Weisman, 505 U.S. at 587). Thus, it held that a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely (see Lawrence v. Texas, 539 U.S. 558, 574. The parties themselves agreed in the stipulation of settlement that they “shall [each] be free from interference, authority and control, direct or indirect, by the other” (emphasis added). The weight of the evidence did not support the conclusion that it was in the children’s best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares. There was no indication or allegation that the mother’s feelings and beliefs were not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there had been no showing that they are inherently harmful to the children’s well-being.
The evidence at the hearing established that the children spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. The weight of the evidence demonstrated that it was in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. It directed the mother to make all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic religious requirements of the father and of the children’s schools while the children are in the physical custody of their father or their respective schools.
Parties May Chart Their Own Litigation Course by Agreement Which Courts Are Bound to Enforce. Waiver of Physician-patient Privilege in Contesting Custody Requires Showing That Resolution of Custody Issue Requires Revelation of Protected Material
In Bruzzese v Bruzzese, --- N.Y.S.3d ----, 2017 WL 2961475, 2017 N.Y. Slip Op. 05579 (2d Dept., 2017) the plaintiff commenced an action for a divorce, and the defendant counterclaimed for a divorce. Prior to trial, the parties stipulated to a divorce on the ground of an irretrievable breakdown of the marital relationship pursuant to Domestic Relations Law § 170(7). After a nonjury trial, the Supreme Court, inter alia, awarded the defendant a divorce on the ground of cruel and inhuman treatment. The Appellate Division held that Supreme Court erred in awarding the defendant a divorce on the ground of cruel and inhuman treatment. "Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce" (Matter of New York, Lackawanna & W. R.R. Co., 98 N.Y. 447, 453). There was no showing of cause sufficient to invalidate the parties' stipulation to a divorce on the ground of an irretrievable breakdown of the marital relationship. Accordingly, the court should have awarded the defendant a divorce on this ground.
The Appellate Division found, inter alia, that the Supreme Court, relying on the physician-patient privilege, improperly precluded testimony of two witnesses who were doctors, regarding the defendant's mental health. It noted that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition by actively contesting custody. However, there "first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material" (McDonald v. McDonald, 196 A.D.2d 7, 13; see Baecher v. Baecher, 58 A.D.2d 821). Since the defendant actively contested custody, and the plaintiff made the requisite showing that resolution of the custody issue required revelation of the protected material, the court should not have precluded the testimony of the doctors regarding the defendant's mental health.
Authors note: In McDonald v. McDonald, 196 A.D.2d 7, 13 (2d Dept.,1994) the Second Department adopted the requirement of Perry v Fiumano, 61 AD2d 512, 519 that before the court may find that there has been a waiver of the physician-patient privilege "[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material" (Perry v Fiumano, 61 AD2d 512, 519).
Where Stipulation Fails to Identify Who Submits QDRO it Is Generally the Responsibility of the Party Seeking Approval of QDRO
In Scheriff v Scheriff, --- N.Y.S.3d ----, 2017 WL 3044528, 2017 N.Y. Slip Op. 05760 (2d Dept., 2017) the parties stipulation provided that the defendant was entitled to 50% of the marital portion of the plaintiff’s pension and that the parties were to cooperate with each other in obtaining a Qualified Domestic Relations Order (QDRO) to divide the pension, that they would equally share the cost of preparing the QDRO, and that the defendant’s share would be determined pursuant to the formula set forth in Majauskas v. Majauskas (61 N.Y.2d 481). The defendant moved, inter alia, “for a set-off against plaintiff’s entitlement to his equity share of the former marital home in an amount equal to all monies owed for QDRO arrears. Supreme Court denied the motion and directed the defendant to prepare and submit “an appropriate Domestic Relations Order.” The Appellate Division affirmed. It observed that under the defendant was entitled to her equitable share of the plaintiff’s pension and that payment of her share was to be effectuated through the submission of a QDRO. Although the stipulation failed to identify the party who would be responsible for submitting the QDRO, “it is generally the responsibility of the party seeking approval of the QDRO to submit it to the court with notice of settlement” (Kraus v. Kraus, 131 AD3d at 101). Thus, the defendant should have prepared and submitted a proposed QDRO to the Supreme Court with a copy to the defendant’s employer. In the absence of a QDRO, there were no “QDRO arrears.”
Where Children’s Wishes Are Product of Influence AFC Justified in Advocating for a Position Contrary to Those Wishes
In Matter of Cunningham v Talbot, --- N.Y.S.3d ----, 2017 WL 2977187, 2017 N.Y. Slip Op. 05637 2017 WL 2977187 (3d Dept., 2017) the Appellate Division held that as the evidence supported a finding that the children’s wishes were both a product of the father’s influence and “likely to result in a substantial risk of imminent, serious harm to [them],” the attorney for the children was justified in advocating for a position contrary to those wishes where the attorney for the children properly informed Supreme Court that the children had expressed a desire not to visit the mother (see 22 NYCRR 7.2[d]).
Where No Party Moved for a Change in Custody Court May Not Modify Existing Custody Order in Non-emergency Situation Absent Notice and Opportunity to Present Evidence
In Noel v Melle, --- N.Y.S.3d ----, 2017 WL 2800796, 2017 N.Y. Slip Op. 05226 (2d Dept., 2017) the mother was awarded sole custody of the child, with visitation to the father. The father filed a violation petition alleging that the mother had violated the order by relocating with the child and by denying him visitation. After three court appearances, the matter was scheduled for a hearing. On that date, the Supreme Court denied a request by the mother to appear by telephone, and, without the father having made an application for custody of the child or the benefit of an evidentiary hearing, awarded the father custody of the child. The court also issued a warrant for the mother’s arrest. The Appellate Division reversed and remitted the matter to the Supreme Court for further proceedings on the father’s violation petition. It cautioned the Supreme Court to be mindful that determining the best interest of a child is a weighty responsibility, and that it ordinarily should not make such a determination without conducting an evidentiary hearing. It held that in order to modify a consent order granting sole custody to a parent, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child’. Custody determinations should generally be made only after a full and plenary hearing and inquiry. Reversal or modification of an existing custody order should not be a weapon wielded as a means of punishing a recalcitrant or contemptuous parent . Moreover, where no party has moved for a change in custody, a court may not modify an existing custody order in a non-emergency situation absent notice to the parties, and without affording the custodial parent an opportunity to present evidence and to call and cross-examine witnesses. Supreme Court improperly modified the consent order by changing custody from the mother to the father without the father having sought that relief in the petition, and without any apparent consideration of the child’s best interests (see S.L. v. J.R., 27 NY3d at 563). The court’s award of custody to the father under the circumstances of this case also was improper in light of the father’s statements during the proceedings that he did not have a steady place to live with the child and that he did not wish to make an application for custody.
Child in a Custody Matter Does Not Have “Full-party” Status and Cannot Appeal from Denial of Mothers Modification Pertion Where She Does Not Appeal.
In Matter of Lawrence v Lawrence, --- N.Y.S.3d ----, 2017 WL 2604311 (Mem), 2017 N.Y. Slip Op. 05023 (4th Dept., 2017) the Appellate Division dismissed the appeal taken by the Attorney for the Child representing the parties’ oldest child from an order dismissing the mother’s petition seeking modification of a custody order. Inasmuch as the mother had not taken an appeal from that order, the child, while dissatisfied with the order, cannot force the mother to litigate a petition that she has since abandoned. It held that a child in a custody matter does not have “full-party status” (Matter of McDermott v. Bale, 94 AD3d 1542, 1543), and it declined to permit the child’s desires to chart the course of litigation.
Testimonial Evidence is not sufficient to overcome marital property presumption
In Schacter v Schacter, --- N.Y.S.3d ----, 2017 WL 2366242, 2017 N.Y. Slip Op. 04372 (1st Dept., 2017) the Appellate Division held that Plaintiff’s brief testimony that a piano was gifted to him during the marriage did not suffice to overcome the marital property presumption; thus, the court properly deemed the piano marital property to be sold and the net proceeds divided equally between the parties (see DRL § 236[B][c]; Bernard v. Bernard, 126 AD3d 658, 659 [2d Dept 2015])
Attorney for the Child Violated Ethical Duty When He Advocated for Result That Was Contrary to Child’s Expressed Wishes
In Matter of Kleinbach v Cullerton, --- N.Y.S.3d ----, 2017 WL 2491351, 2017 N.Y. Slip Op. 04641 (4th Dept., 2017) the Appellate Division, inter alia, agreed with the father that the initial Attorney for the Child (AFC) violated his ethical duty to determine the subject child’s position and advocate zealously in support of the child’s wishes, because that AFC advocated for a result that was contrary to the child’s expressed wishes in the absence of any justification for doing so. It held that there are only two circumstances in which an AFC is authorized to substitute his or her own judgment for that of the child: ‘[w]hen the [AFC] is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child. (Matter of Swinson v. Dobson, 101 AD3d 1686, 1687 quoting 22 NYCRR 7.2[d] ), neither of which was present here. In addition, although an AFC should not have a particular position or decision in mind at the outset of the case before the gathering of evidence”(Matter of Carballeira v. Shumway, 273 A.D.2d 753, 756; see Matter of Brown v. Simon, 123 AD3d 1120, 1123), the initial AFC indicated during his first court appearance, before he spoke with the child or gathered evidence regarding the petitions, that he would be substituting his judgment for that of the child.
US Supreme Court Holds that Obergefell v. Hodges, 576 U. S. ___ (2015), requires that same-sex couples to civil marriage be treated “on the same terms and conditions as opposite-sex couples”.
In Smith v. Pavan, ____U. S. ___ (2017), the petitioners were two married same-sex couples who conceived children through anonymous sperm donation. Leigh and Jana Jacobs were married in Iowa in 2010, and Terrah and Marisa Pavan were married in New Hampshire in 2011. Leigh and Terrah each gave birth to a child in Arkansas in 2015. When it came time to secure birth certificates for the newborns, each couple filled out paperwork listing both spouses as parents—Leigh and Jana in one case, Terrah and Marisa in the other. Both times, however, the Arkansas Department of Health issued certificates bearing only the birth mother’s name.
The department’s decision rested on a provision of Arkansas law, Ark. Code §20–18–401 (2014), that specifies which individuals will appear as parents on a child’s state-issued birth certificate. “For the purposes of birth registration,” that statute says, “the mother is deemed to be the woman who gives birth to the child.” §20–18–401(e). And “[i]f the mother was married at the time of either conception or birth,” the statute instructs that “the name of [her] husband shall be entered on the certificate as the father of the child.” §20–18–401(f) (1).
The Supreme Court, in a per cerium opinion observed that when a married woman gives birth in Arkansas, state law generally requires the name of the mother’s male spouse to appear on the child’s birth certificate—regardless of his biological relationship to the child. According to the Arkansas Supreme Court, Arkansas need not issue birth certificates including the female spouses of women who give birth in the State. When a married woman in Arkansas conceives a child by means of artificial insemination, the State, must list the name of her male spouse on the child’s birth certificate. See §20–18–401(f )(1); And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate. See 505 S. W. 3d, at 177–178.
The Supreme Court pointed out that it explained in Obergefell v. Hodges, 576 U. S. ___ (2015), that the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples”. In the decision below, the Arkansas Supreme Court considered the effect of that holding on the State’s rules governing the issuance of birth certificates and held that Obergefell proscribes such disparate treatment. Because that differential treatment infringed upon Obergefell’s commitment to provide same-sex couples “the constellation of benefits that the States have linked to marriage” the Supreme Court reversed the state court’s judgment. It concluded that Arkansas denied married same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” A State may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” The petition for a writ of certiorari was granted. The judgment of the Arkansas Supreme Court was reversed, and the case remanded for further proceedings not inconsistent with the opinion.
New Rules and Forms Adopted for Matrimonial Actions
By Administrative Order A/O/ 100/17, 22NYCRR §202.50(b) was amended to add a new section 202.50(b)(3) requiring that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought.
The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b) , which is effective August 1, 2017, provides as follows:
202.50. Proposed Judgments in Matrimonial Actions; Forms
* * *
(b) Approved Forms.
* * *
(3) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraphs which shall supersede any inconsistent decretal paragraphs currently required for such forms:
ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the ___ day of ____, [ ] an original OR [ ] a
transcript of which is on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment, * and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreement as if such terms and conditions were set
forth in their entirety herein; and it is further
* In contested actions, this paragraph may read either [shall survive and shall not be merged into this judgment] or [shall not survive and shall be merged into this judgment].
ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the
provisions of that (separation agreement) (stipulation agreement) as are capable of specific enforcement, to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law, or both; and it is further
ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment shall be brought in a County wherein one of the parties resides; provided that if there are minor children
of the marriage, such applications shall be brought in a county wherein one of the parties or the child or children reside, except. in the discretion of the judge, for good cause. Good cause applications shall be made by motion or order to show cause. Where the address of either party and any child or
children is unknown and not a matter of public record, or is subject to an existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such applications may be brought in the county where the judgment was entered;
and it is further
By Administrative Order A/O /99/17, 22NYCRR §202 was amended to add a new section 202.16-b addressing the submission of written applications in matrimonial actions.
The new section addresses the submission of written applications in contested matrimonial actions. The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission.
22 NYCRR 202.16 -b, which is effective July 1, 2017, provides as follows:
§202.16-b Submission of Written Applications in Contested Matrimonial
(1) Applicability. This section shall be applicable to all contested
matrimonial actions and proceedings in Supreme Court authorized by subdivision (2) of Part B of section 236 of the Domestic Relations Law.
(2) Unless otherwise expressly provided by any provision of the CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16 (k) where applicable, the following rules and limitations are required for the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and
visitation unless said requirements are waived by the judge for good cause shown:
(i) Applications that are deemed an emergency must comply with 22 NYCRR §202.7 and provide for notice, where applicable, in accordance with same. These emergency applications shall receive a preference by the clerk for processing and the court for signature. Designating an application as an
emergency without good cause may be punishable by the issuance of sanctions pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any application designated as an emergency without good cause shall be processed and considered in the ordinary course of local court procedures.
(ii) Where practicable. all orders to show cause, motions or crossmotions for relief should be made in one order to show cause or motion or cross-motion.
(iii) All orders to show cause and motions or cross motions shall be submitted on one-sided copy except as otherwise provided in 22 NYCRR §202.5(at or electronically where authorized, with one-inch margins on eight and one half by eleven (8.5 x 11) inch paper with all additional exhibits tabbed. They shall be in Times New Roman font 12 and double spaced. They must be of sufficient quality ink to allow for the reading and
proper scanning of the documents. Self-represented litigants may submit handwritten applications provided that the handwriting is legible and otherwise in conformity with these rules.
(iv) The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law shall not exceed twenty (20) pages. Any expert affidavit required shall not exceed eight (8) additional pages. Any attorney affirmation in support or opposition or memorandum of law shall contain only discussion and argument on issues of law except for facts known only to the attorney. Any reply affidavits or affirmations to the extent permitted shall not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission.
(v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the Appellate Division). maintenance guidelines worksheets and/or child support worksheets, or counsel fee billing statements or affirmations or
affidavits related to counsel fees (pursuant to Domestic Relations Law §237 and 22 NYCRR §202.16(k))' all of which may include attachments thereto, all exhibits annexed to any motion, cross motion, order to show cause, opposition or reply may not be greater than three (3) inches thick without prior permission of the court. All exhibits must contain exhibit tabs.
(vi) If the application or responsive papers exceed the page or size limitation provided in this section, counsel or the self-represented litigant must certify in good faith the need to exceed such limitation, and the court may reject or require revision of the application if the court deems the reasons insufficient.
(3) Nothing contained herein shall prevent a judge or justice of the court or of a judicial district within which the court sits from establishing local part rules to the contrary or in addition to these rules.
By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060.
First Department Affirms Award of Costs of Higher Education, Including College, for 7 Year Old Child Because it Appeared to Be an Inevitable Expense for this Child
In Klauer v Abeliovich, --- N.Y.S.3d ----, 2017 WL 1450277, 2017 N.Y. Slip Op. 03110 (1st Dept., 2017) the parties were married in December 2008 and there was one child of the marriage, born in 2010.
The Appellate Division held that Supreme Court correctly rejected the Referee’s recommendation as to basic child support when it determined that in setting the basic child support obligation the parties’ combined income above the $141,000 statutory cap should be taken into consideration (Domestic Relations Law § 240[1–b][f] ). In deciding to utilize the parties’ combined income up to $800,000 in setting support, the court examined whether the capped support “adequately reflects a support level that meets the needs and continuation of the child[’s] lifestyle” and concluded that it did not (Beroza v. Hendler, 109 AD3d 498, 500–501 [2d Dept 2013] ).
The Appellate Division held that Supreme Court, under the circumstances, providently exercised its discretion in ordering that the husband pay 20% of the child’s educational expenses, including college, until the child attains age 21 (see Cimons v. Cimons, 53 AD3d 125, 131 [2d Dept 2008] ). The court took into consideration several factors, including the high educational achievements of both parties and their professions. Plaintiff, a financial analyst, has a B.A. from Georgetown and an MBA from Columbia Business School; she also holds series 3 and 7 licenses. Defendant, an associate professor of medicine at Columbia University Medical School, has a B.A. from Massachusetts Institute of Technology and a M.D./Ph.D. from Harvard. During the marriage the parties agreed the child would be privately educated and their enrollment of the child in a private nursery school when he was only nine months old reflects their agreement. There was no indication that defendant could not afford to pay his share of private school tuition, and his argument that the child was too young for the court to have addressed higher education issues does not warrant modification of Supreme Court’s order. There was no reason to delay resolution of the issue of higher education, including college, because it appeared to be an inevitable expense for this child, given the parties’ apparent commitment to an enriched education, the parties’ means and their high level of educational achievements. It affirmed the award because it was not an improvident exercise of the court’s discretion.
The Appellate Division held that absent an agreement to the contrary, or without engaging in a proper analysis under the paragraph “(f)” factors of the Domestic Relations Law, the court should not have ordered defendant to pay for summer and/or extracurricular activities (Domestic Relations Law § 240[1–b][f]; Michael J.D., 138 AD3d at 154). Unlike health care and child care expenses, these “add-on” expenses are not separately enumerated under the CSSA and it is usually anticipated that they will be paid from the basic child support award ordered by the court. Furthermore, without explaining why, Supreme Court allocated these add-ons in the same manner it allocated educational expenses (i.e. 20% to defendant as opposed to 10.5%). Because the court made its determination before the Court’s decision in Michael J.D., where it clarified how these add-ons should be analyzed and separately justified under paragraph (f), it remitted to Supreme Court the issue of how summer and/or any other extracurricular activities not specifically agreed to by the parties will be allocated between them, if at all.
The Appellate Division modified to eliminate the award of the separate property credit to plaintiff in the amount of $350,000 and otherwise affirm Supreme Court’s denial of any further separate property credit to plaintiff in the amount of $932,000 for payments toward the principal and/or renovation costs of their Fifth Avenue coop. It held that Plaintiff was not entitled to a separate property credit for the $350,000 downpayment or the additional sum of $932,000 the parties applied towards the purchase price of the Fifth Avenue coop. The conveyance of separate funds under these circumstances resulted in the separate assets becoming presumptively marital and partial use of separate funds to acquire a marital asset does not mandate that plaintiff be credited for any separate funds she committed (see Fields, 15 NY3d at 167).
The Appellate Division held that the court correctly determined that plaintiff’s bonus, although paid after the action was commenced, was compensation for her past performance, not tied to future performance (see DeJesus v. DeJesus, 90 N.Y.2d 643, 652  ). As a general rule, bonuses paid as compensation for past services are marital property and subject to equitable distribution (see Ropiecki v. Ropiecki, 94 AD3d 734, 736 [2d Dept 2012] ). The court properly prorated the bonus to reflect that although it was paid for the 2011 calendar year, the parties separated in May 2011, meaning only 40% of the total amount could be considered marital.
The Appellate Division held that while it was a provident exercise of the court’s discretion to permit plaintiff to make payments to defendant of his distributive share of the marital assets in installments, post-decision interest is mandatory on the distributive award pursuant to CPLR 5002, and should be awarded (see Moyal v. Moyal, 85 AD3d 614, 615 [1st Dept 2011] ).
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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