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Combined Parental Income Amount Adjusted to $141,000.
As of January 31, 2014 the combined parental income amount is $141,000. It is adjusted every two years (effective January 31st) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The Child Support Standards Chart is released each year on or before April 1. The income tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989.
Court of Appeals Holds Appeal from a Contested Order of Protection Issued by Family Court, Based upon a Finding That the Subject Individual Has Committed a Family Offense, Is Not Mooted Solely by the Expiration of the Order.
In Matter of Veronica P. v. Radcliff A., --- N.E.3d ----, 2015 WL 566677 (N.Y.), 2015 N.Y. Slip Op. 01300 the Court of Appeals held that an appeal from a contested order of protection issued by Family Court, based upon a finding that the subject individual has committed a family offense, is not mooted solely by the expiration of the order.
Petitioner sought an order adjudging respondent guilty of the charged offenses, as well as an order of protection against him pursuant to Family Court Act § 842. At the hearing, both sides called witnesses to testify to the relevant events, and respondent vigorously opposed the entry of an order of protection or any other adverse adjudication. In an oral decision rendered on February 4, 2011, the court found that respondent was guilty of a family offense, concluding that he had committed acts constituting harassment in the second degree. That same day, the court entered a written two-year order of protection against respondent. The written order stated that a family offense petition had been filed in the case, listed the date of the petition and noted that the order was being issued after a hearing at which respondent had been present. The order directed respondent to stay away from petitioner's home and to refrain from committing assault, harassment, stalking and certain other offenses against her. (The written did not declare that respondent was guilty of a family offense.)
Respondent appealed, but while the appeal was pending, the order of protection expired. The Appellate Division unanimously dismissed the appeal as moot, citing the expiration of the order (Matter of Veronica P. v. Radcliff A., 110 AD3d 486, 486 [1st Dept 2013] ). The Court of Appeals reversed. It observed that in general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. The ability of an appellate decision to directly and immediately impact the parties' rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand "what ifs." On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of
the order which the party seeks to appeal. In this case, the expiration of the order of protection did not moot the appeal because the order still imposed significant enduring consequences upon respondent, who might receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggested that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. Although the order did not declare respondent guilty of a family offense in so many words, the order noted that it was issued after a hearing in a family offense proceeding, and it expressly barred respondent from victimizing petitioner by committing a variety of crimes nearly identical to those charged in the family offense petition. Thus, a court examining the order may readily discern that Family Court found respondent guilty of committing a family offense against petitioner and issued an order of protection to prevent him from continuing to offend against her. Armed with that information, the court in a future case may increase the severity of any applicable criminal sentence or civil judgment against respondent. In the face of the substantial probability that the order of protection would prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor would directly vindicate his interest in avoiding that consequence of the order. The Court found that the the order of protection had other potential legal consequences that render it susceptible to appellate review. Beyond its legal consequences, the order of protection placed a severe stigma on respondent, and he can escape that stigma by prevailing on appeal Rubenstein. The order essentially labeled respondent a family offender. Given the totality of the enduring legal and reputational consequences of the contested order of protection, respondent's appeal from that order was not moot.
Respondent urged the Court to hold that an appeal from any expired order of protection, other than one entered upon stipulation, is not moot. The Court expressed no view on the correctness of that proposed holding because it was unnecessary to resolve the case. The order was revered and the matter remitted to the Appellate Division for further proceedings in accordance with the opinion.
Second Department Holds That it Is Only Appropriate for an Attorney for a Child to Form an Opinion as to What Would Be in the Child's Best Interest, after Gathering Evidence and Making a Complete Investigation.
In Matter of Brown v Simon,--- N.Y.S.2d ----, 2014 WL 7392499 (N.Y.A.D. 2 Dept.), the parties entered into an agreement to share joint custody of the child, with the mother to have residential custody, which was embodied in an order entered on consent of the parties. Shortly after the agreement was entered into, the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The father and mother each filed a petition seeking sole custody of the child. Before a hearing on the petitions was held, the attorney for the child, based on the out-of-court statements of the day care provider, made an application for the father to be awarded temporary custody of the child. The Family Court granted that application. The Appellate Division pointed out that such an award was improper, as it was based on the disputed hearsay allegations ( Matter of Swinson v. Brewington, 84 AD3d 1251).
The Appellate Division held that during the hearing on the petitions, the Family Court erred in permitting the father to testify that the child told him that the mother's other daughter "did it." The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration. The admission of this hearsay statement could not be deemed to be harmless, as this hearsay statement was the only evidence presented to support the allegations that the child had been sexually assaulted and that the sexual assault was committed by the child's older sibling. Both CPS and the Administration for Children's Services investigated the allegations and concluded that the allegations were unfounded, and an expert in the area of child abuse concluded that there was no evidence that the child had been physically or sexually abused.
The Appellate Division also held that Family Court also erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 ( HIPAA) for disclosure of her other daughter's medical information was not met (45 CFR 164.512 [e][i], [ii] ). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony, This error could not be deemed harmless, as the physician's testimony was used by the father and the attorney for the subject child to portray the mother's other daughter as seriously disturbed.
Significantly, the Second Department held that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence (citing Matter of Carballeira v. Shumway, 273 A.D.2d 753, 756 where the Third Department said that: "A Law Guardian should not have a particular position or decision in mind at the outset of the case before the gathering of evidence.") It is only appropriate for an attorney for a child to form an opinion as to what would be in the child's best interest, after such inquiry. Here, it was inappropriate for the attorney for the child to have advocated for a temporary change in custody without having conducted a complete investigation. The attorney for the child acknowledged that his application was based solely on his discussion with the father and the child's day care provider, which was located near the father's residence, and that he did not speak to the mother or the child's other day care provider closer to the mother's residence.
It reversed the order appealed, remitted the matter to the Family Court for a de novo hearing and directed the Family Court to appoint a new attorney for the child.
Omission or Redaction of Confidential Personal Information
The Uniform Civil Rules of the Supreme and County Courts were amended to require the omission or redaction of Confidential Personal Information from papers filed with the court. See 22 NYCRR 202.5(e), relating to the omission or redaction of confidential personal information, effective January 1, 2015. Compliance with this rule is voluntary from January 1 through February 28, 2015, and mandatory thereafter. See 2014 New York Court Order (C.O. 00290), NY Order 14-0029. The rules do not apply to a matrimonial action. 22 NYCRR 202.5(e)(1). In addition, the rules do not apply in a proceeding in surrogate's court, or a proceeding pursuant to article 81 of the mental hygiene law, or as otherwise provided by rule or law or court order.
The Civil Practice Law and Rules defines the term "matrimonial action" to include actions for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage. The definition of “matrimonial action” in the civil practice law and rules does not include an action to set aside or declare void a prenuptial agreement, separation agreement or postnuptial agreement, an action to declare the validity of such an agreement, nor an action for a declaratory judgment with regards to, specific enforcement or breach of such an agreement. Nor does it include an action to declare the legitimacy of a child commenced in the Supreme Court, a visitation proceeding commenced pursuant to Domestic Relations Law § 72, or an action for child support. Thus, parties in such actions are required to comply with this rule.
The parties are required to omit or redact confidential personal information (“CPI”) in papers submitted to the court for filing as defined in the rules Confidential personal information ("CPI") means: the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof; the date of an individual's birth, except the year thereof; the full name of an individual known to be a minor, except the minor's initials; and. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof. 22 NYCRR 202.5(e)(1).
Divorce - Grounds - Domestic Relations Law § 170 (7) - Two Appellate Divisions Hold that Statement under Oath That the Marriage Was Irretrievably Broken for a Period of Six Months Was Sufficient to Establish Cause of Action for Divorce.
In Hoffer-Adou v. Adou, --- N.Y.S.2d ----, 2014 WL 5471501 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which sustained the validity of the parties separation agreement. It also held that contrary to the husband's contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law (citing Townes v. Coker, 35 Misc.3d 543, 547 [Sup Ct, Nassau County 2012] ). Supreme Court's granting of the divorce did not contradict DRL § 170(7)'s requirement that "[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce." The parties' separation agreement resolved the issues of child custody and support. Their subsequent commencement in the Family Court of proceedings concerning these issues did not render the court without authority to grant the divorce, since non-compliance with/or enforcement of, the separation agreement is not an element of Domestic Relations Law §170(7).
In Trbovich v Trbovich,--- N.Y.S.2d ----, 2014 WL 6497983 (N.Y.A.D. 4 Dept.) the Appellate Division affirmed an order which denied the plaintiff's motion for summary judgment seeking a divorce pursuant to Domestic Relations Law § 170(7). It agreed with plaintiff that the relationship has broken down irretrievably for a period of at least six months opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement (citing Palermo v. Palermo, 35 Misc.3d 1211[A], 2011 N.Y. Slip Op 52506[U], affd for reasons stated 100 AD3d 1453; see e.g. Rinzler v. Rinzler, 97 AD3d 215, 218; A.C. v. D.R., 32 Misc.3d 293, 306), and indicated that to the extent that its decision in Tuper v. Tuper (98 AD3d 55, 59 n) suggested otherwise, it declined to follow it. Nevertheless, plaintiff was not entitled to summary judgment under Domestic Relations Law § 170(7) at this juncture of the litigation because the ancillary issues had not been resolved by the parties or determined by the court. [One judge dissented]
Court of Appeals Holds that Marriage Where husband half-brother of wife's mother is not incestuous
In Nguyen v Holder, --- N.E.3d ----, 2014 WL 5431014 (N.Y.), 2014 N.Y. Slip Op. 07290 following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by the Court of Appeals pursuant to section 500.27 of this Court's Rules of Practice, the Court of Appeals held that a marriage where a husband is the half-brother of the wife's mother is not void as incestuous under Domestic Relations Law § 5(3).
Second Department Adopts Fugitive Disentitlement Doctrine to Dismiss Child Support Appeal By Mother.
In Allain v Allain, --- N.Y.S.2d ----, 2014 WL 5350479 (N.Y.A.D. 2 Dept.), the Appellate Division, Second Department, dismissed the appeal, and in an opinion by Judge Roman, held that it was proper in the context of this child support proceeding to apply the fugitive disentitlement doctrine, which permits a court, under certain circumstances, to dismiss an appeal where the party seeking relief is a fugitive while the matter is pending.
The International Child Abduction Remedies Act, 42 USC §§11601 - 11611 was editorially reclassified as sections 9001-9011 of Title 22. It can now be found in 22 U.S.C. §§ 9001-9011.
CPLR 2106 which previously allowed unsworn affirmations only by attorneys, physicians, osteopaths or dentists, was amended, effective January 1, 2015, to allow New York courts to consider unsworn affirmations by any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The affirmation must be in substantially the following form: "I affirm this ... day of ......, ...., under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. (Signature) See Laws of 2014, Ch 380.
The Civil Practice Law and Rules was amended to provide that the certification authorized by CPLR 3122-a may be used as to business records produced by non-parties whether or not pursuant to a subpoena so long as the custodian or other qualified witness attests to the facts set forth in CPLR 3122-a, (1), (2) and (4) of subdivision (a) of this rule. Formerly CPLR 3122-a applied only to business records produced pursuant to a subpoena duces tecum under CPLR 3120. CPLR 3122-a was amended to add subdivision (d) allowing its certification procedures to apply to all business records produced by non-parties whether or not pursuant to subpoena. According to the legislative memorandum in support of the amendment, any party may object to the procedure set forth in CPLR 3122-a after receiving notice from the party intending to use that procedure to introduce business records at trial. If the court sustains the objection, the introducing party will need to bring in a witness at trial to testify to lay the foundation for admission of the documents. CPLR 3122-a does not supplant the procedure set forth in CPLR 2306 as to the introduction of hospital and municipal records at trial. A party seeking to introduce those records may still rely upon the procedure set forth in section 2306 or, alternatively, may follow the rule CPLR 3122-a procedures. CPLR 3122-a (d) added by Laws of 2014, Ch 314, § 2, effective immediately.
CPLR 3113 (1)
CPLR 3113 (1) (c) was amended to provide that a non-party deponent's counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party. Laws of 2014, Ch 379, effective September 23, 2014
Family Court Act §451 amended
Family Court Act §451(1) , which was amended, effective December 22, 2014, provides that an application to modify an order of child support must be accompanied by "an affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested" in order to entitle the petitioner to a hearing on any material issues of fact. No hearing is required if an affidavit has not been submitted even if material issues are present in the case. The amendment removed the requirement of filing an affidavit with the petition by removing word “modify” from subdivision 1 and adding a new subdivision 2, which provides: “ A proceeding to modify an order of support shall be commenced by the filing of a petition which shall allege facts sufficient to meet one or more of the grounds enumerated in subdivision three of this section. Former subdivision 2 has been renumbered subdivision 3. See Laws of 2014, Ch 373, effective December 22, 2014.
Temporary Maintenance Guidelines Cap Adjusted to $543,000
As of January 31, 2014, the Income Cap under the Temporary Maintenance Guidelines has been adjusted from $524,000 to $543,000. TheTemporary Maintenance Worksheet and Calculator may be found at Temporary Maintenance Worksheet and Calculator.
Court Rules Amended
The Uniform Civil Rules for the Supreme Court and the County Court, were amended by adding a new section 202.10, relating to appearances at conferences, to provide that any party may request to appear at a conference by telephonic or other electronic means. It appears that “other electronic means” refers to video conference or computer video services such as “skype”. The rule encourages the court to grant the request where “feasible and appropriate”.
Second Department Holds Court Is Justified in Imputing Income to a Spouse to Establish His Support Obligations When it Is Shown That His Account of His Finances Is Not Believable.
In Weitzner v Weitzner, --- N.Y.S.2d ----, 2014 WL 4723312 (N.Y.A.D. 2 Dept.), the Appellate Division affirmed an order which directed the defendant to pay temporary maintenance in the sum of $4,604 per month, interim child support in the sum of $3,530 per month, interim counsel fees in the sum of $30,000, and his pro rata share of playgroup fees for the youngest child. The Appellate Division stated that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires. The defendant did not demonstrate that any exigent circumstances exist, or that justice otherwise required modification of the pendente lite award. The proper mechanism to correct an error in a temporary award is a quick trial ( Malik v. Malik, 66 A.D.3d at 968, 886 N.Y.S.2d 826; Levakis v. Levakis, 7 A.D.3d at 678, 776 N.Y.S.2d 510). The Supreme Court providently exercised its discretion in imputing income of $200,000 per year to the defendant for the purposes of computing pendente lite awards of maintenance and child support. A court is justified in imputing income to a spouse to establish a party’s support obligations when it is shown that the marital lifestyle was such that, under the circumstances, there was a basis for the court to conclude that the spouse's actual income and financial resources were greater than what he or she reported on his or her tax returns. Supreme Court, in effect, found the defendant's account of his own finances was not believable, and was justified in imputing income to him that was far higher than he reported. Supreme Court did not err in imputing income to the plaintiff equivalent to only a ten-hour work week as an accountant for the purpose of calculating maintenance and child support. The plaintiff had custody of the parties' five children, then aged 16 and under, the youngest of whom was three at the time of the court's order. In addition, the plaintiff had not worked during the parties' marriage (Margaret A. v. Shawn B., 31 Misc.3d 769, 921 N.Y.S.2d 476 [Sup Ct.].
Court of Appeals Establishes Rule for Third Party Discovery Subpoena
In Kapon v Koch, ___NY 3d ___, 2014 WL 1315590, 2014 N.Y. Slip Op. 02327 (2014) the Court of Appeals, in an opinion by Judge Pigott, held that where a subpoena is served by a party seeking discovery from a nonparty pursuant to CPLR 3101(a)(4), (1) the subpoenaing party must first sufficiently state the "circumstances or reasons" underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), otherwise it may be challenged for facial insufficiency, and (2) the witness, in moving to quash, must establish either that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." (3) Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is "material and necessary" to the prosecution or defense of an action, i.e., that it is relevant.
Court of Appeals Declares Family Offense Statute Unconstitutional
In People v Golb, ___NY3d __,2014 WL 1883943 (2014) the Court of Appeals held that (Penal Law § 240.30(1)(a), aggravated harassment in the Second Degree was unconstitutional, under both Federal and State law because it was vague and overbroad. The statute, which is frequently invoked in family offense proceedings, provides that "[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.." The Court noted that three federal judges have already found this statute unconstitutional.
Appellate Division Holds Family Court Had Jurisdiction to Determine Father's Petition for Custody Even Though Court of Dominican Republic, Applying Hague Convention, Denied His Petition for Return to the United States.
In Matter of Katz v Katz, --- N.Y.S.2d ----, 2014 WL 2198516 (N.Y.A.D. 2 Dept.) the father filed a petition for custody in the Family Court alleging that, on October 2, 2011, the mother took the parties' child, who had been residing in the Bronx, to the Dominican Republic without his permission. The Family Court held the matter in abeyance pending a determination in the Dominican Republic with regard to the father's application there for a return of the child pursuant to the Convention on the Civil Aspects of International Child Abduction. On October 5, 2012, the Civil Chamber of the Court of Children and Adolescents of the Judicial District of Santo Domingo rejected the father's request for a return of the child, and directed that the child remain in the company of the mother in the Dominican Republic, finding that if the child were returned to the United States she would be exposed to a violation of her fundamental rights due to issues of domestic violence. Family Court dismissed the father's petition for custody, concluding that it was bound to do so pursuant to the order issued by the court in the Dominican Republic. The Appellate Division reversed. It observed that the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court's jurisdiction in international child custody matters. Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this State has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (Domestic Relations Law §76[a] ). "Home state" is defined as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (Domestic Relations Law § 75-a ). Pursuant to Domestic Relations Law § 75-d, a "court of this state shall treat a foreign country as if it were a state of the United States". The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply. A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence. It was undisputed that the United States was the child's country of habitual residence, and that, at the time the petition was filed, New York was the child's "home state." Thus, the Family Court had jurisdiction to determine the father's petition for custody. Moreover, the denial, by the court in the Dominican Republic, of the father's application for a return of the child pursuant to the Convention, did not preempt his custody proceeding (see In re T.L.B., 272 P3d 1148 [Colo App]. Accordingly, it held that the Family Court erred in dismissing the father's petition.
Second Department Holds That Although Pendente LIte Formula Amount Is Intended to Cover All of a Payee Spouse's Basic Living Expenses, it May Be Appropriate to Direct Payment by the Monied Spouse of the Mortgage and Taxes on the Marital Residence and Other Expenses
In Vistocco v Jardin--- N.Y.S.2d ----, 2014 WL 1465580 (N.Y.A.D. 2 Dept.), the parties were married in 1995 and had three unemancipated children. The Supreme Court awarded the defendant $3,000 per week for child support and $3,000 per week in temporary spousal maintenance, directed the plaintiff to pay the mortgage and taxes on the marital residence where the defendant resided with the parties' children, directed the plaintiff to pay the defendant's car insurance, and awarded the defendant interim counsel fees and expert fees in the sums of $12,500 and $3,500, respectively. The Appellate Division affirmed. The plaintiff argued, inter alia, that the Supreme Court erred in directing him to pay, in addition to spousal maintenance, the mortgage and taxes on the marital residence and the defendant's car insurance. He contends that the pendente lite maintenance award is intended to cover the defendant's basic living expenses, which include the mortgage, property taxes, and her car insurance. The Court observed that the formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a payee spouse's basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses (see Khaira v. Khaira, 93 AD3d 194). However, it may be appropriate to direct payment by the monied spouse of the mortgage and taxes on the marital residence and other expenses of the nonmonied spouse under certain circumstances (see id.). In light of the evidence that the plaintiff's income exceeded $500,000 and the gross disparity between the plaintiff's income and the defendant's income, the Supreme Court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence (Domestic Relations Law § 236[B][5-a][c][a][ii] ), as well as the defendant's car insurance (see e.g. Goldberg v. Goldberg, 98 AD3d 944; Macagnone v. Macagnone, 7 AD3d 680).
Second Department Holds That a Party Is Entitled to a Credit for Payments Made to Satisfy the Other Spouse's Legal Obligations.
In McKay v Groesbeck, --- N.Y.S.2d ----, 2014 WL 1910489 (N.Y.A.D. 2 Dept.), the Appellate Division pointed out that a party's maintenance and child support obligations are retroactive to the date of the application therefor, and except as otherwise provided, any retroactive amount due shall be paid, as the court directs, taking into account any amount of temporary maintenance or child support which has been paid (DRL § 236[B][a]; DRL§ 236[B][a]). Generally, voluntary payments made by a parent for the benefit of his or her children may not be credited against amounts due pursuant to a judgment of divorce. A party is not entitled to a credit for payments made to satisfy that party's own legal obligations that were not made pursuant to a pendente lite order of support . In this case, there was a pendente lite order for temporary child support of $1,000 per month issued in 2006, but no payments were made pursuant to that order. However, a party is entitled to a credit for payments made to satisfy the other spouse's legal obligations. It held that the defendant should have received a credit towards arrears for any payments he made toward the plaintiff's car payments and insurance, and for one half of the payments he made toward the mortgage and carrying charges on the marital home, as those payments were made to satisfy the plaintiff's legal obligations.
Statement of Clients Rights Rule (22 NYCRR 1210.10) Amended Effective April 15, 2013
Part 1210.1 of the Official Compilation of Codes Rules, and Regulations of the State of New York, containing the the Statement of Clients Rights that must be posted in every law office, was amended effective April 15, 2013. Substantial Revisions were made to the Statement. (Click here to download Revised Statement of Clients Rights)
Court of Appeals Amends Rules to Require Digital Copies of Records and Briefs
The Court of Appeals has adopted the Court-Pass system, which provides the public with free access to the Court of Appeals materials for appeals. Parties with appeals, certified questions pursuant to section 500.27 of the Court of Appeals Rules of Practice, or judicial conduct matters before the New York State Court of Appeals must use the Court-PASS Upload Service to submit digital copies of records and briefs as required by the Court's Rules, which were amended effective February 1, 2013. (See 22 NYCRR 500.2). To access the Upload System, New York attorneys must be registered with the New York State Unified Court System's Attorney Online Services. If you do not have an existing Attorney Online Services account, you must first create an account here and then return to this page to login using your Attorney Online Services account credentials. Filers who are not New York attorneys must contact the Clerk's Office to obtain "guest" login credentials.
Motion to Voluntarily Discontinue Action for a Divorce Denied Where Motion Is an Attempt to Avoid an Adverse Order.
In Turco v Turco--- N.Y.S.2d ----, 2014 WL 1798397 (N.Y.A.D. 2 Dept.), the Appellate Division observed that in the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" ( Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d at 883, 969 N.Y.S.2d 67). Supreme Court providently exercised its discretion in denying the plaintiff's application, in effect, to voluntarily discontinue the action, made on the first day of trial, since the record supported a finding that she was merely attempting to avoid an adverse order of the court, and there was a showing that the defendant would be prejudiced by such discontinuance.
Appellate Division Holds New York State's Public Policy with Regard Removal of Barriers to Remarriage (DRL § 253) Cannot Override Forum Selection Clause in Prenuptial Agreement
In Ofer v Sirota, --- N.Y.S.2d ----, 2014 WL 1386552 (N.Y.A.D. 1 Dept.) the Appellate Division held that Supreme Court properly found that the parties' prenuptial agreement was enforceable and that the forum selection clause in the agreement, which granted exclusive jurisdiction over any divorce litigation to a competent Israeli court, was also enforceable (Sterling Natl. Bank v. Eastern Shipping Worldwide, Inc., 35 AD3d 222, 222 [1st Dept 2006] ). Accordingly, Supreme Court properly dismissed this action. The fact that plaintiff alleged that defendant refused to grant her a get (Jewish divorce decree) as required by their agreement was irrelevant to determining whether to enforce the forum selection clause. There was no merit to plaintiff's claim that she would be deprived of her day in court in Israel because Israel does not provide for no fault divorce and defendant's consent to a divorce is required there. While litigation in Israel may be more challenging, plaintiff would have her day in court. It was inappropriate for plaintiff to attempt to avoid Israel's legal system because New York's legal system may treat her more favorably by permitting her to obtain a no fault divorce. Plaintiff, an Israeli citizen, was well aware that Jewish religious laws govern Israeli divorces when she consented to the forum selection clause in the agreement. This State's strong and important public policy with regard to compelling civil litigants to remove any barriers to remarriage (DRL § 253) cannot override the forum selection clause that the parties knowingly included in their prenuptial agreement, particularly because plaintiff will not be deprived of her day in court in the chosen forum.
Disparity in Income and Expenses, and Availability of Tax Deductions Rendered Presumptive Amount of Child Support Unjust or Inappropriate
In Smith v Smith, --- N.Y.S.2d ----, 2014 WL 1316325 (N.Y.A.D. 3 Dept.), Supreme Court calculated the mother's presumptive weekly child support obligation to be $258.33, but concluded that it would be "just and appropriate" to reduce it to $30 per week. The court also directed that child support be paid retroactive to the date of the judgment of divorce, excluding a nine-month period when the mother was unemployed and received inpatient treatment for alcohol dependency. Finally, the court denied the father's request for recoupment of the child support payments he made to the mother pursuant to the judgment of divorce. The Appellate Division found that father's income was twice that of the mother and such a disparity, alone, can justify a deviation. The father also received significant tax deductions and credits for the children, whereas the mother received none (Domestic Relations Law 240[1-b][f] ). Additionally, the mother was responsible for paying a significant portion of the children's uninsured health-related and child-care expenses, as well as other costs associated with her extended and substantial parenting time, all of which impacted the mother's financial resources (Domestic Relations Law § 240[1-b][f] ). The mother purchased a home within the children's school district to facilitate the custodial arrangement, as a result of which she has a significant commute to work, with its attendant expenses. Giving careful consideration to the relevant factors, it found no abuse of Supreme Court's discretion in concluding that the presumptive amount of child support attributable to the mother was unjust or inappropriate. Nonetheless, Supreme Court's reduction to $30 weekly was excessive and, it found $150 per week to be "just and appropriate" under the circumstances present here (Domestic Relations Law §240[1-b][g] ). The Court agreed with the father that the mother's child support obligation should have been made retroactive to February 9, 2009, the date the father made a specific demand therefor in his complaint. (Domestic Relations Law § 236[B][a]).
Appellate Division Holds Natural Parent Has Standing to Seek Legal Custody of His or Her Child
In Matter of Sanchez v Bonilla, --- N.Y.S.2d ----, 2014 WL 1043094 (N.Y.A.D. 2 Dept.) the Appellate Division held that Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children. A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70 [a]. According to the petitioner, the children's father abandoned the children and, due to their immigration status, they could be returned to El Salvador where they had been subjected to abuse by family members and threats by gang members. The petitioner alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status. Since the Family Court dismissed the petition without conducting a hearing or considering the best interests of the children, it remitted the matter to the Family Court for a hearing and a new determination of the custody petition thereafter.
United States Supreme Court Holds that Equitable Tolling Does Not Apply in International Child Abduction Cases under the Hague Convention.
In Lozano v. Montoya Alvarez, --- S.Ct. ----, 2014 WL 838515 (U.S.) Respondent Montoya Alvarez and petitioner Lozano resided with their daughter in London until November 2008, when Montoya Alvarez left with the child for a women's shelter. In July 2009, Montoya Alvarez and the child left the United Kingdom and ultimately settled in New York. Lozano did not locate Montoya Alvarez and the child until November 2010, more than 16 months after Montoya Alvarez and the child had left the United Kingdom. Lozano filed a Petition for Return of Child pursuant to the Hague Convention in the Southern District of New York. The United States ratified the Hague Convention in 1988, and Congress implemented the Convention that same year through the International Child Abduction Remedies Act (ICARA). 102 Stat. 437, 42 U.S.C. §§ 11601–11610. That statute instructs courts to “decide the case in accordance with the Convention.” § 11603(d). Echoing the Convention, ICARA further provides that “[c]hildren who are wrongfully removed ... are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” § 11601(a)(4). ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12's exception to return applies. § 11603(e)(2)(B). Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court “shall order the return of the child forthwith.” Article 12 further provides that the court, “where the proceedings have been commenced after the expiration of the period of one year [from the date of the wrongful removal], shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Thus, at least in some cases, failure to file a petition for return within one year renders the return remedy unavailable.
Finding that the petition was filed more than one year after removal, the district court denied the petition on the basis that the child was now settled in New York. It also held that the 1–year period could not be extended by equitable tolling. In re Lozano, 809 F.Supp.2d 197, 204 (S.D.N.Y.2011). “Viewing the totality of the circumstances, ” the court found sufficient indicia of “stability in her family, educational, social, and most importantly, home life, to conclude that the child was settled in her current environment and that repatriation would be “extremely disruptive Lozano argued that the child should be returned forthwith because the 1–year period in Article 12 should be equitably tolled during the period that Montoya Alvarez concealed the child. The court rejected that argument, holding that the 1–year period could not be extended by equitable tolling. The District Court held in the alternative that even if equitable tolling could apply, it would not be warranted in this case because Lozano had contact information for Montoya Alvarez' sister Maria in New York. Lozano's solicitors did not attempt to contact Maria to determine if Montoya Alvarez and the child were there. 809 F.Supp.2d, at 229–230. Consistent with Second Circuit precedent, see Blondin v. Dubois, 238 F.3d 153, 164 (2001), the District Court also considered “whether to exercise its discretion and repatriate the child even though she was now settled in New York.” 809 F.Supp.2d, at 234. The court declined to exercise that discretion because the “strong evidence that the child is quite settled in New York” outweighed Lozano's “fairly diligent” search efforts and Montoya Alvarez' conduct. On appeal, the Second Circuit affirmed. 697 F.3d 41 (2012). The Court of Appeals agreed that the 1–year period in Article 12 is not subject to equitable tolling. The United States Supreme Court, in an opinion for a unanimous court by Justice Thomas, held that Article 12's 1–year period is not subject to equitable tolling and affirmed.
Second Department Holds that Test Generally Applied to Determine Whether to Award Child Support in Excess of the Statutory Cap Is Whether the Child Is Receiving Enough to Meet His or Her Actual Needs and the Amount Required to Live an Appropriate Lifestyle.
In Matter of Keith v Lawrence, --- N.Y.S.2d ----, 2014 WL 54299 (N.Y.A.D. 2 Dept.) the father appealed from an order of the Family Court which denied his objections to an order which, after a hearing, directed him to pay child support of $1,250 per month. The parties were the parents of one child. The mother had sole custody. After a hearing on child support, the Support Magistrate found that combined parental income was $215,818.43, of which 47% was attributable to the father. The Support Magistrate awarded child support based on the parties' combined parental income, rather than the combined parental income cap of $130,000 in effect at the time. Although the father's monthly support payment based on the parties' combined parental income totaled $1,437 monthly, the Support Magistrate modified the amount downward to $1,250 monthly, in light of the fact that the child was receiving Social Security disability derivative benefits based on the father's active disability claim. The father filed objections arguing that the Support Magistrate erred in awarding child support based on combined parental income in excess of the $130,000 income cap. The Appellate Division affirmed. It observed that when the combined parental income exceeds $130,000, which was the "statutory cap" in effect when the order was entered, "the court shall determine the amount of child support for the combined parental income in excess of the cap through consideration of the factors set forth in Family Ct Act § 413(1)(f) and/or the child support percentage" (Family Ct Act § 413[c] ). The Family Court must articulate an explanation of the basis for its calculation of child support based on parental income above the statutory cap. The Court held that test generally applied is whether the child is receiving enough to meet his or her "actual needs and the amount required to live an appropriate lifestyle ( Levesque v. Levesque, 73 AD3d 990, 990). The record indicated that the child enjoyed a middle-class lifestyle with extracurricular activities, and attended private school and summer camp. The Support Magistrate properly determined that the child's needs would be met, and her lifestyle maintained, with an award based upon applying the child support percentage to the total combined parental income.
Second Department Holds that Visitation Schedule For Noncustodial Parent Which Deprives Custodial Parent of "Any Significant Quality Time" with the Child Is Excessive
In Matter of Rivera v Fowler, --- N.Y.S.2d ----, 2013 WL 6644622 (N.Y.A.D. 2 Dept.), the Appellate Division found that the parties demonstrated that a change of circumstances had occurred and that modification of the existing visitation arrangement was in the children's best interests where the existing visitation arrangement did not specify the exact time and date that weekly and summer vacation visitations were to begin, which led to disagreement between the parties. However, the Family Court improvidently exercised its discretion in providing that the father have visitation every weekend, beginning Saturday at noon and ending Sunday at 8:00 p.m. The extent to which the noncustodial parent may exercise parenting time is a matter committed to the sound discretion of the hearing court, to be determined on the basis of the best interests of the child consistent with the concurrent right of the child and the noncustodial parent to meaningful time together. A visitation schedule that deprives the custodial parent of "any significant quality time" with the child is, however,
excessive. Here, the schedule established by the Family Court effectively deprived the mother of any significant quality time with the children during each weekend. Moreover, the Family Court improvidently exercised its discretion in failing to specify the period of the mother's visitation with the children during their summer vacation. In the circumstances presented, it held that a more appropriate schedule, consistent with the parental rights and responsibilities of both parties, and the best interests of the children, should provide that the noncustodial father have visitation every other weekend, beginning Saturday at noon and ending Sunday at 8:00 p.m., and one overnight visit per week, and that the parties should have equal visitation time during the children's summer vacation. It remitted to Family Court for further proceedings.
The 2013 New York Legislature amended Domestic Relations Law, the Family Court Act and the Criminal Procedure Law, to protect victims of domestic abuse by recognizing, as family offenses, some forms of economic abuse perpetrated against victims by their abusers.
Family Court Act, §812 (1), Family Court Act § 821 (1) (a), Criminal Procedure Law § 530.11, were amended to add as family offenses, identity theft in the first degree, identity theft in the second degree and identity theft in the third degree (Penal Law §190.80, §190.79 and §190.38), grand larceny in the third degree and grand larceny in the forth degree ( Penal Law §155.35 and §155 30), and coercion in the second degree (Penal Law § 135.60, subdivisions one, two and three.) Laws of 2013, Ch 526, effective December 18, 2013. See NY Legis Memo 526 (2013)
Domestic Relations Law § 240 (3) (a), Domestic Relations Law § 252, Family Court Act § 446, Family Court Act § 551, Family Court Act § 656, Family Court Act § 842, Family Court Act § 1056, and Criminal Procedure Law § 530.12 were amended to provide that an order of protection may require the petitioner or respondent to promptly return specified identification documents to the protected party, in whose favor the order of protection or temporary order of protection is issued. "Identification document" means any of the following exclusively in the name of the protected party: birth certificate, passport, social security card, health insurance or other benefits card, a card or document used to access bank, credit or other financial accounts or records, tax returns, any driver's license, and immigration documents including but not limited to a United States permanent resident card and employment authorization document. Upon motion and after notice and an opportunity to be heard, "Identification document" means any of the following, including those that may reflect joint use or ownership, that the court determines are necessary and are appropriately transferred to the protected party: any card or document used to access bank, credit or other financial accounts or records, tax returns, and any other identifying cards and documents. The order may include any appropriate provision designed to ensure that any such document is available for use as evidence in the proceeding, and available if necessary for legitimate use by the party against whom the order is issued; and specify the manner in which such return shall be accomplished. Laws of 2013, Ch 526, effective December 18, 2013. See NY Legis Memo 526 (2013)
The 2013 legislature amended the domestic relations law, the family court act and the criminal procedure law to protect victims of domestic violence from being charged with and prosecuted for violating their own order of protection.
Among other statutes amended Domestic Relations Law § 240, (3) (b) was amended and a new paragraph i was added. Domestic Relations Law §252 (2) was amended and a new subdivision 9-a was added. The amendments make it clear that victims cannot be prosecuted for violating orders of protection issued in their favor, and are intended to clarify that the protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor and that such protected party may not be arrested for violating such an order. The amendments require a notice in orders of protection that make it clear that the order of protection will remain in effect even if the protected party has, or consents to have, contact or communication with the restrained party and that the protected party cannot be held to violate an order issued in his/her favor nor can such party be arrested for violating such an order. The amendments were enacted November 13, 2013 and apply to all orders of protection regardless of when such orders were issued, except for sections of the law that require the addition of a notice on the order of protection, which sections are effective on January 12, 2013, and shall apply to orders issued on or after such effective date. Laws of 2013, Ch 480, effective November 13, 2013.
2013 New York Legislation Restricts Parental Rights of Sexual Perpetrators When a Child Is Born as a Result of Sexual Offenses.
Domestic Relations Law 240 (1-c) was amended to provide that there shall be a rebuttable presumption that it is not in the best interests of the child to be placed in the custody of or to visit with a person who has been convicted (in this state or in another jurisdiction) of one or more of the following sexual offenses, when a child who is subject of the proceeding was conceived as a result: rape in the first or second degree; course of sexual conduct against a child in the first degree; predatory sexual assault; or predatory sexual assault against a child. Laws of 2013, Ch 371, §1, effective immediately.
Domestic Relations Law 111-a (1) was amended to provide that a person who has been convicted (in this state or in another jurisdiction) of rape in the first or second degree; course of sexual conduct against a child in the first degree; predatory sexual assault; or predatory sexual assault against a child shall not be entitled to receive notice of adoption proceedings, when the child subject to these proceedings was conceived as the result of the sexual offenses committed. Laws of 2013, Ch 371, §2, effective immediately.
First Department Holds Parents Who Are Directed to Pay Fees of Attorney Appointed to Represent Child May Raise Defense of Legal Malpractice to Attorney's Claim For Fees.
In Venecia C. v. August V., --- N.Y.S.2d ----, 2013 WL 6325172 (N.Y.A.D. 1 Dept.), the divorced parents had three children, age 17, 14 and 11. In the divorce action, although the parties stipulated to joint custody, it was left to the trial court to direct that plaintiff mother would have primary residential custody in the marital apartment in Manhattan. In 2009, the mother moved for an order allowing her to relocate with the children to Demarest, New Jersey, approximately 12 miles outside Manhattan, and the father responded by moving for a change of custody. The motion court appointed the attorney for the children in this context. On November 22, 2011, the attorney for the children moved for an order directing the father to pay the outstanding fees he owed in the amount of $2,034.60, and for an additional sum covering the cost of making the enforcement application. The attorney for the children stated that the father never objected to any of her bills and had previously paid his 30% share of the fees billed. The motion court granted the motion by the attorney for the children, ordering the father to pay the sum of $2,034.60 for his share of outstanding fees, as well as $1,500 for fees she incurred in making the application. It rejected the argument that the Court's ruling in Mars v. Mars (19 AD3d at 196), gave a parent the right to challenge the fee of an attorney for the child on the ground of malpractice. In any event, it found no factual basis for the malpractice claim.
The Appellate Division, in an opinion by Justice Saxe, held that parents who are directed to pay the fees of the attorney appointed to represent the children may raise the defense of legal malpractice to that attorney's claim for fees. He observed that in Mars v. Mars (19 AD3d at 196), the Court held that a parent may assert legal malpractice as an affirmative defense to a Law Guardian's fee application "to the extent of challenging that portion of the fees attributable to advocacy, as opposed to guardianship." He noted that the ruling was limited by the then-prevailing view that attorneys appointed as law guardians for children in divorce cases often functioned in a role similar to a guardian ad litem, advocating for what they believed to be the best interests of the child, as opposed to what the child desired. The Court reaffirmed the essence of the Mars v. Mars ruling, namely that a parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised. Notwithstanding that the father may have standing to assert such a defense, Justice Saxe agreed with the motion court that the father's accusations here did not establish a prima facie showing of legal malpractice and disciplinary violations. He also found that the father never objected to any of the bills presented by the attorney for the children despite the fact that they were in his possession for a significant amount of time (Pedreira v. Pedreira, 34 AD3d 225 [1st Dept 2006] ). The court therefore acted properly in ordering him to pay the fees under an account stated theory (Shaw v. Silver, 95 AD3d 416, 416 [1st Dept 2010] ).
Order of Protection - Disorderly Conduct - Burden of Proof - Second Department Holds Petitioner must Demonstrate Respondent’s Conduct Was Intended to Cause, or Recklessly Created a Risk of Causing, Public Inconvenience, Annoyance, or Alarm.
In Casie v Casie, --- N.Y.S.2d ----, 2013 WL 3813824 (N.Y.A.D. 2 Dept.) the Second Department, in an opinion by Judge Skelos, held that to establish the family offense of disorderly conduct, a petitioner must demonstrate that the challenged conduct was intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm.
On February 15, 2012, the petitioner, Dionne Cassie, filed a family offense petition against her husband, Richard Cassie which alleged that, on February 11, 2012, the parties engaged in a dispute or altercation because the husband had promised that he was going to leave the marital home and had "reneged on his promise." According to the wife, the husband attempted, unsuccessfully, to push her down a flight of stairs, twisted her arm, causing pain, and pushed her against a wall. Based upon this alleged conduct, the wife asserted that the husband had committed the family offenses of, among others, attempted assault, assault in the second or third degree, harassment in the first or second degree, and disorderly conduct. The wife requested an order of protection requiring the husband to stay away from her and the marital home.
At the close of the evidence, the Family Court found that the husband "engaged in the offense of disorderly conduct in the home, in that he fought with [the wife]." The court thereupon issued a two-year order of protection , directing the husband to refrain from various forms of conduct, such as harassment and disorderly conduct.
The Appellate Division reversed in an opinion by Justice Skelos. He observed that in a family offense proceeding, the petitioner has the burden of establishing, by a "fair preponderance of the evidence," that the charged conduct was committed as alleged in the petition. (Family Ct Act § 832). Under the Penal Law, "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture;..."(Penal Law § 240.20). Justice Skelos pointed out that critical to a charge of disorderly conduct is a finding that the disruptive statements and behavior were of a public rather than an individual dimension". In that respect, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem. In assessing whether an act carries public ramifications, relevant factors to consider are the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances. The complicating factor in this case, which was a family offense proceeding rather than a criminal action, is that Family Court Act § 812 provides: "For purposes of this article, 'disorderly conduct' includes disorderly conduct not in a public place" (Family Ct Act §812 ). The husband contended that, even though the Family Court Act specifies that the conduct need not occur in a public place, the petitioner must nonetheless prove either an intent to cause public inconvenience, annoyance, or alarm, or the reckless creation of a risk thereof.
Justice Skelos pointed out that the First and Fourth Departments had held, albeit summarily, that lack of proof of an intent to cause, or reckless creation of a risk of causing, public ramifications, required dismissal of those branches of family offense petitions that charged the respondent with disorderly conduct. Matter of Janice M. v. Terrance J. ,96 A.D.3d 482, 945 N.Y.S.2d 693 (1st Dept); Matter of Brazie v. Zenisek, 99 A.D.3d 1258, 951 N.Y.S.2d 458(4th Dept). Here, the Court now held that even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct. The plain language of the provision of Family Court Act § 812, in contrast, provides only that the conduct need not occur in a public place. The plain language of Family Court Act § 812 therefore pertains only to the actus reus of the offense-specifically, the place where it is committed-and does not speak to the mens rea of the offense. Indeed, since Family Court Act § 812 does not specify an alternative culpable mental state, if the mens rea provided for in the Penal Law were not applicable in family offense proceedings, it is unclear what the mens rea of this family offense would be.
The Court held that that the wife was required to prove that the husband's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm. The wife did not sustain that burden. Accordingly, the order of protection was reversed, on the facts, the petition was denied, and the proceeding is dismissed.
Agreements - Prenuptial - Validity - Domestic Relations Law § 236 (B) (3) - Court of Appeals Holds That Because Affidavit of Notary Was Insufficient to Raise a Question of Fact Precluding Summary Judgment the Court Did Not Need to "Definitively Resolve the Question of Whether a Cure Is Possible" Where There Is Omission in the Requisite Language of the Certificate of Acknowledgment, Signatures on the Prenuptial Agreement Are Authentic, and No Claims of Fraud or Duress.
In Galetta v Galletta, __NY3d__, 2013 WL 2338421 (2013) a matrimonial action, plaintiff Michelle Galetta sought a determination that a prenuptial agreement she and defendant Gary Galetta signed was invalid due to a defective acknowledgment. The Court of Appeals concluded that plaintiff was entitled to summary judgment declaring the agreement to be unenforceable under Domestic Relations Law § 236B(3), and reversed the order of the Appellate Division, which held there was a triable question of fact on that issue.
Michelle Galetta and Gary Galetta were married in July 1997. About a week before the wedding, they each separately signed a prenuptial agreement. Neither party was present when the other executed the document and the signatures were witnessed by different notaries public. The parties' signatures and the accompanying certificates of acknowledgment were set forth on a single page of the document. The certificates appeared to have been typed at the same time, with spaces left blank for dates and signatures that were to be filled in by hand. The certificate of acknowledgment relating to Michelle's signature contained the boilerplate language typical of the time. However, in the acknowledgment relating to Gary's signature, a key phrase was omitted and, as a result, the certificate failed to indicate that the notary public confirmed the identity of the person executing the document or that the person was the individual described in the document.
The Court of Appeals, in an opinion by Judge Graffeo, observed that Prenuptial agreements are addressed in Domestic Relations Law § 236B(3), which provides: "An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." In Matisoff v. Dobi (90 N.Y.2d 127  ), where it held that an unacknowledged postnuptial agreement was invalid, the Court observed that the statute recognizes no exception to the requirement that a nuptial agreement be executed in the same manner as a recorded deed and "that the requisite formality explicitly specified in DRL 236B(3) is essential" (id. at 132, 659 N.Y.S.2d 209, 681 N.E.2d 376).
Judge Graffeo noted that Real Property Law § 291, governing the recording of deeds, states that "[a] conveyance of real property ... on being duly acknowledged by the person executing the same, or proved as required by this chapter, ... may be recorded in the office of the clerk of the county where such real property is situated." Thus, a deed may be recorded if it is either "duly acknowledged" or "proved" by use of a subscribing witness. The Court pointed out that an acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person and it imposes on the signer a measure of deliberation in the act of executing the document. The Court noted in Matisoff that the acknowledgment requirement imposed by Domestic Relations Law § 236B(3) is onerous and, in some respects, more exacting than the burden imposed when a deed is signed. Although an unacknowledged deed cannot be recorded (rendering it invalid against a subsequent good faith purchaser for value) it may still be enforceable between the parties to the document (i.e., the grantor and the purchaser). The same is not true for a nuptial agreement which is unenforceable in a matrimonial action, even when the parties acknowledge that the signatures are authentic and the agreement was not tainted by fraud or duress.
In the certificate of acknowledgment relating to the husband's signature, the "to me known and known to me" phrase was omitted, leaving only the following statement: "On the 8[sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same." Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. As New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective, the Court agreed the Appellate Division, which unanimously concluded that the certificate of acknowledgment did not conform with statutory requirements.
Because the certificate of acknowledgment was defective, the Court of Appeals addressed the questions of (1) whether such a deficiency can be cured and, if so, (2) 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. Because the affidavit of the notary was insufficient to raise a question of fact precluding summary judgment the Court did not need to "definitively resolve the question of whether a cure is possible".
Judge Graffeo observed that in Matisoff, the Court found it was unnecessary to decide whether the absence of an acknowledgment could be cured. Since Matisoff, the Appellate Divisions have grappled with the "cure" issue, which has largely arisen in cases where a signature was not accompanied by any certificate of acknowledgment and the weight of Appellate Division authority is against permitting the absence of an acknowledgment to be cured after the fact, unless both parties engaged in a mutual "reaffirmation" of the agreement. When there is no acknowledgment at all, it is evident that one of the purposes of the acknowledgment requirement—to impose a measure of deliberation and impress upon the signer the significance of the document—has not been fulfilled. Thus, a rule precluding a party from attempting to cure the absence of an acknowledgment through subsequent submissions appeared to be sound. However, because this case did not involve the complete absence of an acknowledgment - there was an attempt to secure an acknowledged document but there was an omission in the requisite language of the certificate of acknowledgment - the Court noted that a compelling argument could be made that the door should be left open to curing a deficiency like the one that occurred here where the signatures on the prenuptial agreement are authentic, there are no claims of fraud or duress, and the parties believed their signatures were being duly acknowledged but, due to no fault of their own, the certificate of acknowledgment was defective or incomplete. The Court observed that the husband made a strong case for a rule permitting evidence to be submitted after the fact to cure a defect in a certificate of acknowledgment when that evidence consists of proof that the acknowledgment was properly made in the first instance—that at the time the document was signed the notary or other official did everything he or she was supposed to do, other than include the proper language in the certificate. By considering this type of evidence, courts would not be allowing a new acknowledgment to occur for a signature that was not properly acknowledged in the first instance; instead, parties who properly signed and acknowledged the document years before would merely be permitted to conform the certificate to reflect that fact.
In this case, however, the proof submitted was insufficient. In his affidavit, the notary public did not state that he actually recalled having acknowledged the husband's signature, nor did he indicate that he knew the husband prior to acknowledging his signature. The notary averred only that he recognized his own signature on the certificate and that he had been employed at a particular bank at that time (corroborating the husband's statement concerning the circumstances under which he executed the document). As for the procedures followed, the notary had no independent recollection but maintained that it was his custom and practice "to ask and confirm that the person signing the document was the same person named in the document" and he was "confident" he had done so when witnessing the husband's signature. The affidavit by the notary public in this case merely paraphrased the requirement of the statute—he stated it was his practice to "ask and confirm" the identity of the signer—without detailing any specific procedure that he routinely followed to fulfill that requirement. Even assuming a defect in a certificate of acknowledgment could be cured under Domestic Relations Law § 236B(3), defendant's submission was insufficient to raise a triable question of fact as to the propriety of the original acknowledgment procedure. Plaintiff was therefore entitled to summary judgment declaring that the prenuptial agreement was unenforceable.
Child Custody - Visitation - Court of Appeals Holds That There Is a Rebuttable Presumption in New York That Visitation with Non-custodial Parent Is in Child's Best Interest. Parent’s Incarceration Not an Automatic Reason for Blocking Visitation
In Matter of Granger v Miscercola, --- N.E.2d ----, 2013 WL 1798581 (N.Y.) Petitioner, an inmate in New York's correctional system, who had acknowledged paternity of a child prior to his imprisonment, commenced a Family Court proceeding seeking visitation with the child after respondent mother refused to bring the child to the prison. Family Court granted the petition, awarding petitioner periodic four-hour visits at the prison with the child, who was then three years old. It noted that "the law in New York presumes visitation with a non-custodial parent to be in the child's best interest and the fact that such parent is incarcerated is not an automatic reason for blocking visitation."The court found that petitioner had "demonstrated that he was involved in a meaningful way in the child's life prior to his incarceration and seeks to maintain a relationship." It further found that the child was old enough to travel to and from the prison by car without harm, and would "benefit from the visitation with his father."The court considered the length of petitioner's sentence and reasoned that "[l]osing contact for such a long period is felt to be detrimental to an established relationship."The court concluded that visitation with petitioner would be in the child's best interests.
The Appellate Division affirmed Family Court's order, finding "a sound and substantial basis in the record to support the court's determination to grant the father visitation with the child in accordance with the schedule set forth in the order" ( 96 AD3d 1694, 1695 [4th Dept 2012] ). While his appeal was pending, petitioner had been moved to a different correctional facility, further from respondent's home. The Appellate Division made no finding of fact in this regard, ruling that any such change in circumstance was more appropriately the subject of a modification petition. The Court of Appeals affirmed rejecting Respondent's primary contention that the lower courts employed an incorrect legal standard in reviewing the petition for visitation.
The Court of Appeals, in an opinion by Judge Pigott, rejected Respondents contention that this presumption was contrary to this Court's holding in Tropea v. Tropea (87 N.Y.2d 727  ) pointing out that its holding was not that presumptions can never be relied upon, but that "each relocation request must be considered on its own merits ... and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child". It observed that in Weiss v. Weiss (52 N.Y.2d 170  ), it held that "in initially prescribing or approving custodial arrangements, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access, appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course". Subsequent Appellate Division decisions have frequently referred to a rebuttable presumption that, in initial custodial arrangements, a noncustodial parent will be granted visitation. "[I]t is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful" or proof that the noncustodial parent has forfeited the right to visitation. Family Court noted that New York law "presumes visitation with a non-custodial parent to be in the child's best interest."
The Court reiterated its holding in Weiss, that a rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation. Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. Petitioner's incarceration, standing alone, does not make a visitation order inappropriate," but a demonstration "that such visitation would be harmful to the child will justify denying such a request". In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child's welfare, or that the right to visitation has been forfeited.
The Court noted that In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms "substantial proof" and "substantial evidence." "[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence". This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration-that visitation would be harmful to the child-that proceeds by means of sworn testimony or documentary evidence. It held that the "substantial proof" language should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption of visitation. The presumption in favor of visitation may be rebutted through demonstration by a preponderance of the evidence.
The Court of Appeals concluded that the lower courts used the appropriate legal standard, applying the presumption in favor of visitation and considering whether respondent rebutted the presumption through showing, by a preponderance of the evidence, that visitation would be harmful to the child.
Termination of Parental Rights - Social Services Law § 384-b - Court of Appeals Holds that phrase "circumstances evincing a depraved indifference to human life" does not mean the same thing for purposes of Social Services Law § 384-b (8) (a) (I) as it does under the Penal Law.
In re Dashawn W., --- N.E.2d ----, 2013 WL 1759867 (N.Y.) the Court of Appeals in an opinion by Judge Read, held that the phrase "circumstances evincing a depraved indifference to human life" does not mean the same thing for purposes of Social Services Law § 384-b (8) (a) (I) as it does under the Penal Law. The Court also held that a showing of diligent efforts to encourage and strengthen the parental relationship is not prerequisite to a finding of severe abuse under Family Court Act § 1051 (e) where the fact-finder determines that such efforts would be detrimental to the best interests of the child.
The Court of Appeals observed that at the conclusion of the fact-finding phase in an article 10 proceeding, Family Court may, "[i]n addition to a finding of abuse, . . . enter a finding of severe abuse as defined in [Social Services Law § 384-b (8) (a)], which shall be admissible in a proceeding to terminate parental rights pursuant to [Social Services Law § 384-b]. If the court makes such additional finding of severe abuse . . ., the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence" (Family Court Act § 1051 [e]. Section 384-b (8) (a) of the Social Services Law, in turn, specifies that "[f]or purposes of this section [384-b]," which governs termination of parental rights, a child is "severely abused" if "(I) the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in [Penal Law § 10.00 (10)]1; or "(ii) the child has been found to be [a sexually abused child]; provided, however, the [parent] must have committed or knowingly allowed to be committed [one of 11 enumerated felony sex offenses] . . .; or "(iii) [the child's parent has been convicted of certain felony offenses under the Penal Law,2 and] the victim or intended victim was the child or another child of the parent or another child for whose care such parent is or has been legally responsible; or . . . the parent of such child has been convicted under the law in any other jurisdiction of an offense which includes all of the essential elements [of these crimes]; and "(iv) the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. Where a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section" (Social Services Law § 384-b  [a] [i]-[iv] [emphases added]).
In this appeal, the parties differed as to what is required to establish "circumstances evincing a depraved indifference to human life" within the meaning of Social Services Law 384-b (8) (a) (i); and whether the diligent efforts specified by subparagraph (iv) of this provision are prerequisite to a finding of severe abuse under Family Court Act § 1051 (e), or may be excused under Family Court Act §§ 1039-b and 1012 (j) or, alternatively, Social Services Law § 384-b (8) (a) (iv) itself.
ACS, joined by the attorney for the children, argued that the cases discussing "circumstances evincing a depraved indifference to human life" within the meaning of the Penal Law do not control the interpretation of the same phrase in Social Services Law § 384-b (8) (a) (I). Judge Read pointed out that under the Penal Law, a person acts "intentionally" when "his conscious objective" is to cause a proscribed result (for example, death) or engage in conduct described by a statute (Penal Law § 15.05 ); and a person acts "recklessly" with respect to a proscribed result or a circumstance described by a statute "when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists" (Penal Law § 15.05 ). And "depraved indifference" bespeaks a state of mind reflecting "a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo" (Feingold, 7 NY3d at 293 ). It is "best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not[, and which reflects] wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts" (Suarez, 6 NY3d at 214). The Penal Law establishes crimes that are mutually exclusive, depending on these distinctions of culpable state of mind; specifically, second-degree intentional murder (Penal Law § 125.25  [mens rea of intent to kill]), as contrasted with second-degree depraved indifference murder (Penal Law § 125.25  [mens rea of recklessness plus mens rea of depraved indifference]), as contrasted with second-degree manslaughter (Penal Law § 125.15 [mens rea of recklessness]).
Judge Read indicated that the same cannot be said of the child protective statutes. Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused "as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life" (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference (see Policano, 7 NY3d at 600 ["[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim" [internal quotation marks omitted]). Additionally, "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (Suarez, 6 NY3d at 212), whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute "circumstances evincing a depraved indifference to human life" refers to the risk intentionally or recklessly posed to the child by the parent's abusive conduct.
Here, Antoine beat or struck a baby — an especially vulnerable victim because so tiny, defenseless and unformed. And the medical experts testimony about the age of Jayquan's injuries established that Antoine must have attacked him on at least two different occasions, separated by at least two weeks. Further, Antoine had to have been aware of the life-threatening risks he created when he applied brute force to Jayquan's chest and shoulder. After all, he knew that devastating injuries ensued when he brutalized his then four-month old namesake, Antoine, Jr. While this prior instance of abuse was too remote in time to support a finding of repeated abuse, it reflects Antoine's utter disregard for Jayquan's life, health and well-being. Additionally, Antoine neglected to summon medical aid for Jayquan's fractured ribs, even though the baby would have to have experienced and displayed continuous pain and distress; and he delayed seeking medical care for Jayquan on February 21, 2007 from 11:00 a.m., when he claimed to have first noticed the baby's suffering, until the early evening hours . Finally, Antoine offered unbelievable explanations for Jayquan's injuries to medical personnel and social workers, and he did not testify at the fact-finding hearing (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79  [where the mother did not testify in a child protective proceeding, we noted that "[a] trier of fact may draw the strongest inference that the opposing evidence permits"]). Thus, there was record support for the Appellate Division's finding, based on clear and convincing evidence, that Antoine, acting under circumstances evincing a depraved indifference to human life, severely abused Jayquan.
It was undisputed that at no time did ACS make "diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate" Antoine (see Social Services Law § 384-b  [a] [iv]). The parties contested whether this omission was permissible in light of Family Court Act §§ 1051 (e), 1039-b and 1012 (j). The attorney for the children, joined by ACS, urged that a showing of diligent efforts is not required for a finding of severe abuse under Family Court Act § 1051 (e). Section 1039-b (a) of the Family Court Act states that "[i]n conjunction with, or at any time subsequent to, the filing of a[n abuse or neglect] petition . . ., the [presentment agency] may file.