June 29, 2022 United States Supreme Court [Italy][Petition granted][Ameliorative measures] [Vacated and remanded]
In Golan v. Saada, ___U.S.___, (Supreme Court, June 15, 2022) Petitioner Narkis Golan was a citizen of the United States. She met respondent Isacco Saada, an Italian citizen, while attending a wedding in Milan, Italy, in 2014. Golan soon moved to Milan, and the two wed in August 2015. Their son, B. A. S., was born the next summer in Milan, where the family lived for the first two years of B. A. S.’ life. The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair. Saada also yelled and swore at Golan and frequently insulted her and called her names, often in front of other people. Saada once told Golan’s family that he would kill her. Much of Saada’s abuse of Golan occurred in front of his son. In July 2018, Golan flew with B. A. S. to the United States to attend her brother’s wedding. Rather than return as scheduled in August, however, Golan moved into a domestic violence shelter with B. A. S. In September, Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B. A. S. Saada also filed a petition under the Convention and ICARA in the U. S. District Court for the Eastern District of New York, seeking an order for B. A. S.’ return to Italy. The District Court granted Saada’s petition after a 9-day bench trial. As a threshold matter, the court determined that Italy was B. A. S.’ habitual residence and that Golan had wrongfully retained B. A. S. in the United States in violation of Saada’s rights of custody. The court concluded, however, that returning B. A. S. to Italy would expose him to a grave risk of harm. The court observed that there was “no dispute” that Saada was “violent—physically, psychologically, emotionally, and verbally—to” Golan and that “B. A. S. was present for much of it.” The court described some of the incidents B. A. S. had witnessed as “chilling.” While B. A. S. was not “the target of violence,” undisputed expert testimony established that “domestic violence disrupts a child’s cognitive and social-emotional development, and affects the structure and organization of the child’s brain.” Records indicated that Italian social services, who had been involved with the couple while they lived in Italy, had also concluded that “ ‘the family situation entails a developmental danger’ for B. A. S.” The court found that Saada had demonstrated no “capacity to change his behavior,” explaining that Saada “minimized or tried to excuse his violent conduct” during his testimony and that Saada’s “own expert said . . . that [Saada] could not control his anger or take responsibility for his behavior.” The court nonetheless ordered B. A. S.’ return to Italy based on Second Circuit precedent obligating it to “ ‘examine the full range of options that might make possible the safe return of a child to the home country’ ” before it could “ ‘deny repatriation on the ground that a grave risk of harm exists.’ ” The Second Circuit based this rule on its view that the Convention requires return “if at all possible.” Blondin I, 189 F. 3d, at 248. To comply with these precedents, the District Court had required the parties to propose “ ‘ameliorative measures’ ” that could enable B. A. S.’ safe return. Saada had proposed that he would provide Golan with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges he had filed against Golan, begin cognitive behavioral therapy, and waive any right to legal fees or expenses under the Convention. The court concluded that these measures, combined with the fact that Saada and Golan would be living separately, would “reduce the occasions for violence,” thereby ameliorating the grave risk to B. A. S. sufficiently to require his return. The Second Circuit vacated the return order, finding the District Court’s ameliorative measures insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.’ return. The Second Circuit affirmed. The Supreme Court, in a unanimous opinion by Justice Sotomayor held that a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child’s safe return. Justice Sotomayor found that the Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives. Blondin I, 189 F. 3d, at 248. The Convention does not pursue return exclusively or at all costs. Rather, the Convention “is designed to protect the interests of children and their parents,” Lozano, 572 U. S., at 19 (ALITO, J., concurring), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures in at least three ways. First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. A court may decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave. Sexual abuse of a child is one example of an intolerable situation. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed. Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. A court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.
Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children. Timely resolution of return petitions is important in part because return is a “provisional” remedy to enable final custody determinations to proceed. A requirement to “examine the full range of options that might make possible the safe return of a child,” is in tension with this focus on expeditious resolution. Consideration of ameliorative measures should not cause undue delay in resolution of return petitions. Justice Sotomayor summarized the Courts holding as follows: “ …although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.” In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. It was appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___. The Court held that the District Court should determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. The order of the Second Circuit was vacated and the case remanded.
Court of Appeals
Authenticated Screen Shots Properly Admitted into Evidence. Proper foundation may be established through testimony that the screen shot accurately represents the subject matter depicted. In People v Rodriguez, 2022 NY Slip Op 03307 (2022) the charges against defendant included sending numerous text messages containing sexual content to the 15-year-old victim, a player on his volleyball team. Text messages that defendant sent to the victim came to light when the victim's 16-year-old boyfriend observed them on her phone, took screenshots of messages that were sexual in nature, and forwarded the screenshots to the victim's mother and himself. The Court of Appeals held that the trial court acted within its discretion in determining that the People properly authenticated the screenshots. It observed that technologically generated documentation is ordinarily admissible under standard evidentiary rubrics and this type of ruling may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated. The Court noted that it had recently held that for digital photographs, like traditional photographs, "the proper foundation [may] be established through testimony that the photograph accurately represents the subject matter depicted" (People v Price, 29 N.Y.3d 472, 477 [2017] It reiterated that "[r]arely is it required that the identity and accuracy of a photograph be proved by the photographer" which would be the boyfriend here. Rather, "any person having the requisite knowledge of the facts may verify" the photograph "or an expert may testify that the photograph has not been altered." Here, the testimony of the victim, a participant in and witness to the conversations with defendant, sufficed to authenticate the screenshots. She testified that all of the screenshots offered by the People fairly and accurately represented text messages sent to and from defendant's phone. The boyfriend also identified the screenshots as the same ones he took from the victim's phone on November 7. Telephone records of the call detail information for defendant's subscriber number corroborated that defendant sent the victim numerous text messages during the relevant time period. Under these circumstances, there was no abuse of discretion as a matter of law in the court's determination that the screenshots of the texts messages were sufficiently authenticated or in admission of the screenshots into evidence.
Appellate Division, First Departent
No increase in pendente lite child support award was warranted Where Defendant failed to establish that the pendente lite child support award was insufficient
In Anonymous v Anonymous,--- N.Y.S.3d ----, 2022 WL 2308862 (Mem), 2022 N.Y. Slip Op. 04114 (1st Dept.,2022) the Appellate Division affirmed an order that awarded pendente lite child support. It held that no increase was warranted as Defendant failed to establish that the pendente lite child support award was insufficient. She argued that the award was inadequate in light of plaintiff’s wealth, but not that it was insufficient to meet the child’s actual needs or to support a lifestyle appropriate for the child (see DeNiro v. DeNiro, 185 AD3d 465 [1st Dept 2020]; Sykes v. Sykes, 43 Misc.3d 1220[A], 2014 N.Y. Slip Op 50731[U], *22 [Sup Ct, N.Y. County 2014] ).
A single instance of domestic violence may be a proper basis for a finding of neglect.
In Matter of Esther N., --- N.Y.S.3d ----, 2022 WL 2308871, 2022 N.Y. Slip Op. 04126 (1st Dept.,2022) the Appellate Division affirmed a finding that respondent father neglected the four subject children. The findings of neglect were supported by a preponderance of the evidence that the father committed acts of domestic violence in the presence of two of the children and while the other two children were in the apartment (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]) The credited testimony of the mother and the caseworker at the fact-finding hearing demonstrated that the father punched the mother with a closed fist while he was arguing with her about the family’s expenses in the living room where two of the children were present, and then continued fighting with her behind a closed bedroom door, leading the children to ask him to stop and to summon the police. The two children’s out-of-court statements that after they saw the father punch the mother with a closed fist, the eldest daughter summoned the police to stop the altercation as testified to by the caseworker was supported by the mother’s testimony about the incident. A single instance of domestic violence may be a proper basis for a finding of neglect. The record, including the mother’s testimony that those children told her that they summoned the police because they were scared of what he was going to do to her, supported the finding that the two older children were in danger of or were emotionally impaired by the domestic violence that he inflicted upon the mother while they were present. The two younger children, who were in their own bedroom when the incident occurred, were in imminent danger of physical impairment due to their proximity to the violence directed at the mother even in the absence of evidence that they were aware of the incident or emotionally affected by it
Support Magistrate’s determination that respondent’s failure to pay child support as ordered was not willful affirmed where it rested largely on his credibility findings, to which great deference is owed
In Matter of Laura R., v. Christopher B., --- N.Y.S.3d ----, 2022 WL 2164235, 2022 N.Y. Slip Op. 03978 (1st Dept.,2022) the Appellate Division affirmed an order that, inter alia, determined that respondent father’s failure to pay child support was not willful. It held that the Support Magistrate’s determination that respondent’s failure to pay child support as ordered was not willful rested largely on his credibility findings, to which great deference is owed. The Support Magistrate found that respondent testified credibly that he could not have sought regular employment because of his parenting responsibilities. The parties’ three children lived with him full time during most or all of the relevant period. Before the COVID–19 pandemic started, he shuttled them between home in New Jersey and school in New York City, and after the pandemic started he supervised the children, who all had Individual Education Programs, in their remote learning at home. He spent the summer of 2020 with them, taking them to baseball practice and games. Petitioner had shown no reason to disturb the Magistrate’s findings that this testimony was credible. Petitioner’s reliance on cases in which a party could have sought employment but did not do so was therefore misplaced.
Finding of Neglect due to the mother’s long-standing history of mental illness and resistance to treatment, notwithstanding the absence of a definitive diagnosis
In Matter of Siri V. --- N.Y.S.3d ----, 2022 WL 2163064 (Mem), 2022 N.Y. Slip Op. 03982 (1st Dept.,2022) the Appellate Division found that a preponderance of the evidence supported Family Court’s finding that the children’s physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the mother’s long-standing history of mental illness and resistance to treatment, notwithstanding the absence of a definitive diagnosis The finding of neglect was supported by the hospital records concerning the mother’s disturbing behavior with her newborn daughter, which indicated that the mother continued to suffer from the mental health issues that had resulted in a previous finding of neglect in 2016 Indeed, after the neglect finding in 2016, the mother’s two oldest children were removed from her care after she failed to seek mental health treatment and take her prescribed medication as ordered by Family Court, and the 2016 finding was not too remote in time from this proceeding to support a reasonable conclusion that the condition still existed.
Appellate Division, Second Department
The hearing court must state in its decision the facts it deems essential’ to its determination (CPLR 4213[b]). Custody order reversed where Family Court did not identify the facts adduced at the hearing that supported its denial of the mother’s custody modification petition and Appellate Division made its own findings.
In Smith v Francis, --- N.Y.S.3d ----, 2022 WL 2232129, 2022 N.Y. Slip Op. 04026 (2d Dept.,2022) the Appellate Division reversed an order of the Family Court made after a hearing which denied the mothers petition to modify a 2018 custody order to award her residential custody of the child. After the court conducted a hearing it concluded that the mother had failed to prove that there had been a change in circumstances warranting a modification of the existing custody arrangement. The Appellate Division found it lacked a sound and substantial basis in the record. It pointed out that to facilitate effective appellate review, the hearing court “must state in its decision ‘the facts it deems essential’ to its determination” (CPLR 4213[b]). Here, the Family Court did not identify the facts adduced at the hearing that supported its denial of the mother’s petition. The evidence at the hearing showed that, on numerous occasions after the issuance of the 2018 custody order, the father, in the child’s presence, denigrated the mother and behaved inappropriately toward her. He consistently failed to make the child available for telephone and video calls with the mother as required by the original custody order, routinely ignored the mother’s attempted communications with the child, and repeatedly failed to adhere to the court-ordered parental access schedule. The father not only refused to foster a good relationship between the mother and the child, he expressly testified that he did not believe he had an obligation to do so, but actively sought to thwart such a relationship. Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the child as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent. In addition, during the period following the issuance of the custody order, the father demonstrated a lack of interest in the child’s education and development by, among other things, refusing to have the child evaluated for learning disabilities or treated for his speech impediment. Moreover, the father failed to respond to the mother’s inquiries about the child’s health, education, and safety.
Pendente lite awards affirmed where defendant failed to establish the existence of any exigent circumstances warranting a modification of these awards, and any perceived inequity could best be remedied by a speedy trial
In Safir v Safir, --- N.Y.S.3d ----, 2022 WL 2136811, 2022 N.Y. Slip Op. 03917(2d Dept.,2022) the parties were married in August 2003 and had four children together. In or about July 2020, the plaintiff commenced this action for a divorce. The plaintiff moved for an award of pendente lite relief, including, among other things, sole physical custody of the parties’ children. The defendant cross-moved for pendente lite relief, including, among other things, sole physical custody of the children and to direct the plaintiff to pay an equal share of all household expenses. Supreme Court denied those branches of the motions which sought temporary custody of the children. However, for the purpose of pendente lite child support, the court determined that the plaintiff was the “de facto” custodial parent of the children because, inter alia, the children were residing with the plaintiff in the marital residence at the time, while the defendant was residing elsewhere. Thus, the court concluded that the defendant was obligated to pay pendente lite child support to the plaintiff, and awarded the plaintiff $6,000 per month for pendente lite child support. Based upon the parties’ lifestyle during the marriage, the cost of maintaining the marital residence, the plaintiff’s absence from the work force, and the defendant’s payment of all marital expenses during the marriage, the court directed the defendant to maintain the status quo by continuing to pay, pendente lite, 100% of the carrying charges for the marital residence, including the costs of the real estate taxes, homeowner’s insurance, homeowner’s association dues, and repairs associated with that property; 100% of the carrying charges, maintenance costs, and other expenses attributable to the Florida property; and 74% of the cost of employing two housekeepers. In doing so, the court, in effect, imputed income to the defendant, finding that he had voluntarily reduced his income by moving to a part-time employment schedule shortly before the commencement of the action, and utilized the plaintiff’s base salary as her annual gross income. The court also directed the parties to pay, pendente lite, their pro rata share of the costs of the summer camp, education, tutoring, and extracurricular activities for the children, and directed the parties to pay their pro rata share of the cost of tennis lessons for the children, if the parties agreed to continue such lessons. If the parties could not agree on whether to continue tennis lessons for the children, or the form thereof, the court directed that “either party may choose to pay 100% of the cost of the type of tennis lesson they prefer.” The court further determined that the defendant was “undoubtedly the monied spouse,” given that his “reduced, part-time income is more than twice the Plaintiff’s current salary,” and that he had “access to substantial amounts of separate assets.” As a result, the court directed the defendant to pay interim counsel fees for the plaintiff of $30,000.
The Appellate Division affirmed. It pointed out 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. It held that the Supreme Court did not improvidently exercise its discretion in directing the pendente lite awards. The court providently, in effect, imputed income to him and determined the plaintiff’s income, at that point in time, based solely upon her base salary. The defendant failed to establish the existence of any exigent circumstances warranting a modification of these awards, and any perceived inequity could best be remedied by a speedy trial, at which the parties’ financial circumstances could be fully explored For the same reason, the court properly denied the defendant’s cross motion.
Error to deny without a hearing, the mother’s motion to modify custody where, among other things, she alleged that although the plaintiff had been awarded residential custody, the parties and the children had continued to live together as a family in the marital home for nearly four years and that she had been the children’s primary caregiver
In O’Mahoney v. O’Mahoney, --- N.Y.S.3d ----, 2022 WL 2136807, 2022 N.Y. Slip Op. 03901(2d Dept.,2022) the plaintiff and the defendant were married in 2004. The parties’ children were born in 2011. The parties were divorced by a judgment dated May 4, 2016. Pursuant to the judgment of divorce, the parties were awarded joint legal custody of the children, the plaintiff was awarded residential custody, with parental access to the defendant, and the defendant was to pay child support. . In September 2020, the defendant moved, inter alia, to modify the custody provisions of the judgment of divorce. Supreme Court denied the defendant’s motion. The Appellate Division held that the Supreme Court erred in denying, without a hearing, the defendant’s motion to modify the custody provisions in the judgment of divorce. The defendant alleged that although the plaintiff had been awarded residential custody, the parties and the children had continued to live together as a family in the marital home for nearly four years after the divorce and that the defendant had been the children’s primary caregiver. The defendant also provided evidence that the plaintiff had interfered with her right to joint legal custody of the children and her “reasonable rights of visitation” as provided for in the judgment of divorce. Finally, the plaintiff and the defendant raised specific, contested allegations as to the other’s fitness to serve as the custodial parent. Accordingly, the defendant made an evidentiary showing of changed circumstances requiring a change of custody to ensure the best interests of the children, and a hearing was necessary to determine whether the custody provisions in the judgment of divorce should be modified. It remitted the matter to the Supreme Court for the appointment of an attorney for the children, a hearing and a new determination.
Motion to vacate default granted where the Family Court, granted the father’s oral application and modified the order of custody and visitation to grant relief which far exceeded that requested in his petition, without first receiving any testimony or other admissible evidence upon which it could determine whether modification was required
In Matter of Hogan v Smith, --- N.Y.S.3d ----, 2022 WL 2136773 (Mem), 2022 N.Y. Slip Op. 03894 (2d Dept., 2022) the Appellate Division reversed an order which denied the mother’s motion to vacate the final order of custody and visitation which was granted upon her default. It found that upon the conclusion of the proceedings on May 6, 2021, the Family Court, inter alia, granted the father’s oral application and modified the order of custody and visitation dated October 6, 2020, so as to grant the father relief which far exceeded that requested in his petition, without first receiving any testimony or other admissible evidence in the matter upon which it could determine whether modification was required to protect the best interests of the children. Under these circumstances, and in light of the policy favoring resolutions on the merits in child custody proceedings, the court improvidently exercised its discretion in denying the mother’s motion to vacate the final order of custody and visitation. It reversed the order, granted the mother’s motion and remitted the matter to the Family Court for further proceedings on the father’s petition.
Support Magistrate’s failure to explain in the order of disposition the reasoning for her determination to deny the mother’s request for a purge payment or weekend incarceration did not constitute a violation of Family Court Act § 454(4).
In Matter of Santman v. Schoenfeldt,--- N.Y.S.3d ----, 2022 WL 2136768 (Mem), 2022 N.Y. Slip Op. 03897 (2d Dept.,2022) the Support Magistrate found that the father’s failure to pay child support was willful, directed the father to pay the mother child support arrears of $20,204 at a rate of $250 per month, and denied the mother’s request to commit the father for a period of incarceration unless he paid a purge amount. The Appellate Division held, inter alia, that contrary to the mother’s contention, the Support Magistrate’s failure to explain in the order of disposition the reasoning for her determination to deny the mother’s request for a purge payment or weekend incarceration did not constitute a violation of Family Court Act § 454(4). The Support Magistrate complied with the statute by setting forth the facts upon which the determination was based. Any purported failure to specifically address the mother’s requests does not amount to a statutory violation requiring remand for further proceedings.
Imputation of income to the father based upon the free housing and use of vehicles he received was not supported by the record, where the Support Magistrate conducted her own research to estimate the value of the father’s housing and adopted the mother’s unsubstantiated estimate of the value of the father’s vehicle use.
In Matter of Sorscher v. Auerbach --- N.Y.S.3d ----, 2022 WL 2136784, 2022 N.Y. Slip Op. 03898 --- N.Y.S.3d ----, 2022 WL 2136784, 2022 N.Y. Slip Op. 03898 (2d Dept.,2022) the Appellate Division pointed out that while a Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. Here, as the Family Court determined, the Support Magistrate’s imputation of income to the father based upon the free housing and use of vehicles he received was not supported by the record, as the Support Magistrate set forth in her findings of fact that she conducted her own research to estimate the value of the father’s housing and adopted the mother’s unsubstantiated estimate of the value of the father’s vehicle use. Although it agreed with the Support Magistrate’s initial determination to impute an income to the father based upon his housing and vehicle use, the Family Court should have remitted the matter to the Support Magistrate to determine the appropriate value, if any, to be imputed to the father for his free housing and vehicle use. It remitted the matter to the Family Court for a hearing to be conducted concerning the limited issue of whether a value can be ascertained for the father’s free housing and vehicle use, and a new determination, if necessary, of the father’s income.
June 15, 2022
Appellate Division, Second Department
Relocation to Georgia permitted mother who was the primary caregiver where the father was not involved in the child’s day-to-day life, education, or healthcare, and kept in contact with the child more through phone and FaceTime calls, rather than in-person visits.
In Matter of Thomas v Mobley, --- N.Y.S.3d ----, 2022 WL 2057827, 2022 N.Y. Slip Op. 03731 (2d Dept.,2022) the parties had one child together, who was born in July 2008. In an order dated April 30, 2015 which was entered upon the agreement of the parties, the parties were awarded joint legal custody of the child, the mother was awarded residential custody, and the father was awarded parenting time. The custody order specified that neither party was permitted to relocate with the child outside of Nassau or Suffolk Counties without consent of the other party or of the court. By petition dated March 12, 2019, the mother sought to modify the custody order to permit her to relocate with the child to Georgia. Family Court granted the mother’s petition and directed that the father have parenting time with the child in Georgia on 10 days’ notice to the mother. The Appellate Division found that the mother demonstrated a change in circumstances, providing a sufficient basis to conduct a hearing. She presented evidence that, since the custody order was issued, the safety in her neighborhood had declined, requiring her to move to protect the child’s safety, which led to a drastic increase in her living expenses. She also presented evidence that she had a job opportunity in Georgia with a higher salary than what she could earn in New York and that her living expenses would be lower in Georgia than they were in New York. The mother established by a preponderance of the evidence that relocating to Georgia was in the child’s best interests . The mother had sound reasons for wanting to relocate, including providing the child with a better environment and increased financial stability. The Family Court’s determination to credit the mother’s testimony as to how the move would improve her finances was entitled to deference. As to the father’s relationship with the child, who was 11 years old at the time of the hearing, the evidence demonstrated that the mother was the primary caregiver; that the father was not involved in the child’s day-to-day life, education, or healthcare; and that the father kept in contact with the child more through phone and FaceTime calls, rather than through in-person visits, which he could continue if the child moved to Georgia. The evidence demonstrated that the child liked the area where the mother sought to move, he had extended family in Georgia, several of the mother’s family members who saw the child regularly in New York were also moving to Georgia, and the child could visit the father during school breaks. It remitted the matter to the Family Court, to set forth a more detailed schedule for parental access, which must specify how the parties are to pay for the travel associated with the schedule.
Appellate Division, Third Department In determining whether a parent’s belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary
In Matter of Nicole J v Joshua J,--- N.Y.S.3d ----, 2022 WL 2068682, 2022 N.Y. Slip Op. 03780 (3d Dept.,2022) a custody modification and family offense proceeding, the evidence established that, in addition to perpetrating acts of domestic violence against the mother, the father, who had supervised visitation, frequently became frustrated with the child and would yell and curse at her. During the incident that prompted the mother to file the family offense petition, the father had difficulty managing the then two-year-old child’s desire to play with toys in an adjoining room. The father “yelled” and, according to the initial supervisor, “grabbed the child by the arm and threw her on a chair pretty aggressively, causing her to cry for an extended period of time. The father then cursed at the child, called her names and likened her to her mother in a disparaging way. There was evidence that the father had been similarly impatient and physically aggressive with the mother’s other children. The interim report resulting from a Family Ct Act § 1034 investigation, which was admitted into evidence, stated that there were child protective concerns related to the father’s temper. In independently reviewing the record to determine whether a fair preponderance of the evidence supported a finding that the father committed one of the qualifying family offenses the Appellate Division found that the proof established that the father committed the family offense of harassment in the second degree and that he was not entitled to a justification defense. As relevant here, a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]; see Family Ct Act § 812[1]). However, a child’s caretaker may use reasonable physical force for the purpose of discipline (Penal Law § 35.10[1]). In determining whether a parent’s belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary. The evidence demonstrated that the father used an aggressive amount of physical force to grab the two-year-old child by her arm and throw her in a chair, after which he yelled profane and disparaging insults at the child. The father’s conduct and language toward the child, which did not constitute reasonable disciplinary measures, evinced an intent to alarm the child. It found that the proof adduced at the hearing sufficiently established, by a preponderance of the evidence, that the father committed the family offense of harassment in the second degree (Penal Law § 240.26[1]; Family Ct Act § 812[1]).
Appellate Division, Fourth Department
A father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship, even if he has not as yet actually been able to form that relationship.
In Matter of Adoption of William, --- N.Y.S.3d ----, 2022 WL 2092955, 2022 N.Y. Slip Op. 03831 (4th Dept.,2022) the Appellate Division affirmed an order that determined that the consent of respondent-petitioner Douglas W.M. (father) was required for the adoption of William, his biological son and awarded custody of the child to the father. It found a sound and substantial basis to support the determination that the father demonstrated “his willingness to take parental responsibility” (Matter of Raquel Marie X., 76 N.Y.2d 387[1990]. It held that a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship. It found that the father did everything possible to manifest and establish his parental responsibility’ under the circumstances. He publicly acknowledged his paternity from the outset of the pregnancy, and, although he did not pay any expenses in connection with the pregnancy or the birth, he testified that all of those expenses were paid by the military. Prior to the child’s birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing “items” in anticipation of obtaining custody of the child upon birth. Based on the mother’s commitment, the father enlisted the help of his military commanding officers to obtain custody of his child, and made plans for relatives or family friends to help care for the child until his enlistment in the military ended. It found that the father established his ability to assume custody of the child. Custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. The father reasonably and sincerely believed that the biological mother would not surrender the child for adoption, and she frustrated his efforts to become involved with the child. The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father.
June 8, 2022
Appellate Division, First Department
Finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with public policy legalizing marijuana In Matter of Saaphire A.W., 204 A.D.3d 488, 166 N.Y.S.3d 627, 2022 N.Y. Slip Op. 02382 (1st Dept.,2022) the Appellate Division held that the evidence that the mother smoked marijuana while pregnant with her youngest daughter, and that the mother and child both tested positive for marijuana at the time of the birth, was insufficient, in and of itself, to sustain a finding that the child was physically, mentally or emotionally impaired, or was in imminent danger of being impaired. There was no evidence that the mother’s marijuana use impacted her judgment or behavior, or that the child was impaired or placed in imminent risk of impairment by the mother’s drug use. Furthermore, the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with this State’s public policy legalizing marijuana, as reflected in the amendment to the Family Court Act (Family Court Act § 1046[a][iii] [L 2021, ch 92, § 58, eff March 31, 2021]).
Appellate Division, Third Department
Family Ct Act § 1046(a)(iii) specifically forecloses a prima facie neglect finding based solely upon the use of marihuana In Matter of Micah S.--- N.Y.S.3d ----, 2022 WL 1786627, 2022 N.Y. Slip Op. 03554 (3 Dept.,2022) the Appellate Division observed in a footnote that the Marihuana Regulation and Taxation Act (L 2021, ch 92) amended Family Ct Act § 1046(a)(iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided “that there is a separate finding that the child’s physical[,] mental or emotional condition was impaired or is in imminent danger of becoming impaired.”
In Matter of Andreija N., 2022 WL 1786662 (3d Dept.,2022) Respondent and Tiffany O. (mother) were the parents of a child (born in 2012). In July 2018, the petitioner commenced this proceeding alleging that respondent had abused, severely abused and repeatedly abused the child by committing sex offenses against her. The petition also alleged that respondent neglected the child by threatening to harm the mother and others, purportedly causing the child to experience fear and emotional distress. Family Court determined that petitioner failed to meet its burden to demonstrate that respondent abused or neglected the child and, dismissed the petition. Petitioner and the mother appealed. The Appellate Division dismissed the mothers appeal noting that the mother was not a proper party to this appeal. A nonrespondent parent in a child protective proceeding has a limited statutory role and narrow rights under Family Ct Act § 1035(d) related to issues of custody: to (1) pursue temporary custody of his or her child/children during fact-finding; and (2) seek permanent custody during the dispositional phase. It has been observed that the notice requirements of that statute are designed to ensure that the nonrespondent parent, often the noncustodial parent, is notified of the proceedings and allowed to intervene and be heard on temporary or permanent custody more often as alternative custodians for a child rather than foster care placements. Family Ct Act § 1035(d) was amended the year after its enactment to clarify the narrow role of nonrespondent parents, limiting their participation to arguments and hearings at fact-finding insofar as they affect the temporary custody of the child and to all phases of a dispositional hearing. Thus, the role of a nonrespondent parent in a Family Ct Act article 10 proceeding has been carefully circumscribed, and the scope of a nonrespondent parent’s participation on appeal in such a proceeding is therefore similarly narrow. There is no question that the mother has an interest in the child’s welfare. However, allowing her to participate with full party status would significantly expand the intended role of a nonrespondent parent in this type of proceeding. As the arguments advanced by the mother did not directly pertain to a custody determination made within this proceeding, her appeal was dismissed.
June 1, 2022
The court is not required to hold a hearing on this interim fee application In Adler v Adler, --- N.Y.S.3d ----, 2022 WL 1739077, 2022 N.Y. Slip Op. 03468 (1st Dept.,2022) the Appellate Division affirmed an order which awarded the plaintiff wife, pendente lite, custody-related counsel fees totaling $600,000. It observed that as reflected in the legal bills at issue and counsel’s description of the work to be done imminently, a significant portion of legal fees were incurred and will be incurred in connection with specific custody-related matters not addressed in the parties’ prenuptial agreement, and that could not even have been contemplated by the parties when they executed the agreement, before the first of their four children was born. These included disputes over visitation and parenting time, efforts to resolve such disputes via stipulation, matters concerning the Attorney for the Children and appointed forensics, therapy issues and communications with the children’s pediatrician, parenting issues arising from the COVID pandemic, issues surrounding one child’s graduation, and disputes concerning the children’s activities such as tennis lessons and art classes. The prenuptial agreement did not address these matters, and thus the counsel fee waiver did not apply. The court was not required to hold a hearing on this interim fee application (see Matter of Balber v. Zealand, 169 AD3d 500 [1st Dept 2019]). The court carefully considered the bills and the issues, as shown by its reduction of the wife’s $900,000 interim counsel fee request to $600,000. The husband did not show the court failed to consider whether the billing was excessive or redundant, or that it miscalculated the extent to which the fees awarded were, in fact, custody-related. As the award is subject to reallocation at the end of the case, a hearing would be premature and an unnecessary expenditure of resources in an already heavily litigated case.
First Department holds that (1) its precedents support a smaller percentage distribution to the nontitled spouse of the value of a business created and managed by the titled spouse; (2) Because of the tax consequence it was appropriate to award plaintiff a smaller distribution of assets for which defendant will have to sell property awarded to her in equitable distribution in order to pay him; and (3) appreciation in value of defendant’s pre-marital business, during the marriage constituted marital property subject to distribution where appreciation was due to defendant’s active efforts and that there was “some nexus” between plaintiff’s limited indirect contributions as a supportive spouse and active parent, and the success of defendant’s business. The nontitled spouse is not required to quantify the connection between the titled spouse’s efforts and the increase in value of separate property during the marriage “with mathematical, causative or analytical precision. In Culman v Boesky, --- N.Y.S.3d ----, 2022 WL 1670167, 2022 N.Y. Slip Op. 03440(1st Dept.,2022) the parties appealed from a judgment of divorce, valuing the subject art work by including the “buyer’s premium,” awarding plaintiff 7.5% of the appreciation in value of defendant’s business, Art Works Inc., during the marriage, 10% of the marital value of M&E, LLC, without awarding defendant a separate property credit, 10% of the marital value of the real property located in the Chelsea property, 20% of the marital value of the parties’ condominium in Aspen, Colorado, 20% of the appreciation in the cash surrender value of defendant’s AXA life insurance policy, 10% of the marital value of defendant’s personal art collection, and 50% of the remaining assets, including the value of the parties’ club memberships, vehicles, wine collection, bank accounts, and investment and retirement funds, directing defendant to pay plaintiff his equitable share of illiquid assets within four years of judgment at 3% interest, and awarding plaintiff $320,000 in counsel fees.
Plaintiff commenced this divorce action on January 19, 2016. The parties stipulated that they would identify and evaluate marital assets as of May 15, 2015. At the time of trial, plaintiff was 51 and defendant was 52. They met in 2001 and married on June 28, 2003. They had one child born in 2004. At the date of marriage, plaintiff was employed in the financial industry, and defendant was the owner of an art gallery, incorporated as Art Works, Inc. (AWI), which she had established in 1995. Throughout the marriage, the parties paid their living expenses primarily with defendant’s income, and did so exclusively after 2008, when plaintiff left his employment. Plaintiff then engaged in several business ventures, some of which were funded by defendant, but none of which were remunerative. After 2008, he did not contribute economically, either to defendant’s business or the parties’ living expenses, except for a deposit of $200,000 into the AWI account from an inheritance he received in 2011. However, plaintiff was primarily responsible for managing the payment of the family’s expenses. Both parties participated in parenting their daughter, with the assistance of a nanny five days per week. The nanny also accompanied the family on trips to Aspen and Nantucket. The trial court found that there was “some evidence” that plaintiff helped care for the child when defendant was traveling without the child, and on Saturdays from September to June when defendant was at work, which included taking the child to classes and skiing on Saturdays in the winter, starting in 2011. Plaintiff took the child to school and activities when the nanny did not. However, the trial court also found that plaintiff “engaged in conduct that was potentially detrimental” to the child when defendant was away on business. Plaintiff attended events with defendant related to her gallery, but he was not involved with the day-to-day work of defendant’s business. The trial court found that plaintiff’s contributions to the marriage, both economic and non-economic, began to diminish beginning in or about 2008, to the extent that, after 2012 or 2013, “he failed to make any significant contributions to the marriage.” Plaintiff executed the contract of sale for the Chelsea property on November 5, 2004, and the closing took place in January 2005. The Chelsea property was owned by an LLC formed for that purpose on October 28, 2004. Initially, defendant owned 100% of the LLC, but in 2011, she transferred 20% of it to a trust of which the parties’ daughter is the beneficiary. While defendant used some of her separate property funds to acquire the property, she also used some marital funds to pay the costs of the construction and renovation. In 2007, construction was completed on the residential portion of the building, which then became the marital residence. The majority of the Chelsea property was used by the gallery, and the residence occupied approximately 10% of the building. AWI had a lease with the LLC pursuant to which it paid rent to the LLC. The parties resided in the residential portion of the building rent-free.
Plaintiff objected globally to the trial court’s distribution of assets on the grounds that he was awarded only 10.2% of the marital estate, according to his calculations. Plaintiff complained that the overall distribution of assets to him constitutes a de minimis percentage of the parties’ total assets. However, equitable distribution does not require equal distributions. Its precedents support a smaller percentage distribution to the nontitled spouse of the value of a business created and managed by the titled spouse. In a situation like this, where the complex marital estate is composed of multiple assets of varying natures, many of which cannot be distributed in kind, the court must carefully consider the equitable distribution of each asset based on the applicable statutory equitable distribution factors, which frequently leads to an unequal distribution that is nevertheless equitable.
As defendant’s business was the parties’ largest asset, the application of the general principle that business assets are generally less evenly divided than other assets results in a greater overall distribution in defendant’s favor. Plaintiff failed to account for the tax consequences that defendant will bear in paying plaintiff his distributive award. In order for defendant to pay plaintiff its increased award to him of 15% of the marital portion of AWI, she would have to liquidate approximately 30% of the marital portion of AWI’s value,. Accordingly, taking into account the tax impact of the distribution to plaintiff, defendant would retain not 85% of the marital value of AWI, but closer to 70%. On the other hand, it affirmed the distribution to plaintiff of 50% of those marital assets that can be distributed in kind without any tax impact, including the value of the parties’ vehicles, wine collection, bank accounts, and investment and retirement funds. Because of the tax consequence it was appropriate to award plaintiff a smaller distribution of assets for which defendant will have to sell property awarded to her in equitable distribution in order to pay him.
The Appellate Division held that plaintiff met his burden to show that the appreciation in value of defendant’s pre-marital business, AWI, during the marriage constituted marital property subject to distribution. The record, including defendant’s own testimony, supported the trial court’s determination that the appreciation was due to defendant’s active efforts and that there was “some nexus” between plaintiff’s limited indirect contributions as a supportive spouse and active parent, at least in the early years of the marriage, and the success of defendant’s business. The nontitled spouse is not required to quantify the connection between the titled spouse’s efforts and the increase in value of separate property during the marriage “with mathematical, causative or analytical precision” (Citing Price v. Price, 69 N.Y.2d 8 (1986) and Hartog v. Hartog, 85 N.Y.2d 36 (1995)).
The Appellate Division found that an award to plaintiff of significantly less than half of the marital portion of AWI was justified by the following facts: defendant started her business years before she met plaintiff; plaintiff was not involved with defendant’s acquisition or sale of art; plaintiff’s conduct was at times problematic and even a hindrance to defendant’s business success; plaintiff’s contributions to the marriage diminished over time; and defendant would bear substantial tax consequences when she sells art to pay plaintiff a distributive award (see Domestic Relations Law § 236[B][5][d][7], [8], [11]). However, the trial court’s distribution of only 7.5% of the marital appreciation in AWI to plaintiff was an improvident exercise of discretion, given the court’s findings that plaintiff made indirect contributions to defendant’s business as a supportive spouse and parent, at least in the early years of the marriage, and deposited $200,000 into the AWI account from an inheritance he received in 2011. He also attended many events with her, and provided occasional assistance, particularly following Hurricane Sandy. It found that plaintiff’s share of AWI’s appreciation during the marriage should be 15%, or $3,486,821.
The Appellate Division held that with respect to M&E, an entity established during the marriage and partly owned by a trust benefitting the parties’ daughter, the award of 10% of the marital value to the plaintiff was an improvident exercise of discretion; instead, it found that his share should be 15%. Defendant’s role as sole arbiter of the acquisition and disposition of artwork held by M&E, plaintiff’s lack of any direct contribution to this asset, and his diminishing indirect contributions as a spouse and parent over time, as well as the tax consequences to defendant from selling assets to pay plaintiff’s distributive award justified a relatively small award to plaintiff of this asset (see Klauer v. Abeliovich, 149 A.D.3d 617 [1st Dept. 2017], supra). However, the trial court found that plaintiff made indirect contributions as a spouse and parent in the early years of the marriage.
The Appellate Division further found that defendant was entitled to a separate property credit for art that was gifted to her, valued at $991,400, as detailed in tax returns (see Domestic Relations Law § 236B[1][d][1]). The stipulated value of the art held by M&E, taking into account the buyer’s premium, was $10,529,638. After deducting defendant’s separate property credit and the 33 1/3% interest of the trust benefitting the parties’ child, the amount subject to equitable distribution was $6,359,143, of which plaintiff was entitled to 15%, or $953,871.45.
For similar reasons, the Appellate Division found that the award to plaintiff of 10% of the value of defendant’s personal art collection was an improvident exercise of discretion and that the distribution to him should be 15%, or $215,812.50, with the buyer’s premium.
The Appellate Division held that trial court’s award to plaintiff of only 10% of the marital value of the Chelsea property, which housed defendant’s art gallery and the parties’ former marital residence, was an improvident exercise of discretion. The award did not give sufficient weight to the facts that marital funds were used to construct, renovate, maintain, and operate the building and that plaintiff was involved during the construction process. On the other hand, after 2008, plaintiff ceased to earn an income and therefore did not contribute financially, and the parties did not pay rent or a mortgage to live in the marital residence since it was situated in a commercially zoned space. Considering all of these facts, it found that plaintiff was entitled to 30% of the marital value, or $3,708,233.28.
Similarly, plaintiff was entitled to 40% of the marital value of the parties’ condominium in Aspen, instead of the 20% awarded by the trial court. The parties purchased and renovated this property during the marriage. The record showed that, although plaintiff was not earning income to contribute financially, he paid the bills associated with the property and handled the occasional summer rental.
The Appellate Division held that trial court providently exercised its discretion in awarding plaintiff 50% of the value of the parties’ vehicles and the cost of their club membership fees. Defendant’s use of the cash proceeds from the sale of her separate property art to help fund these purchases did not render them her separate property, because those funds were commingled with marital funds in her account and used for the parties’ joint benefit.(see generally Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]).
The Appellate Division held that the court providently exercised its discretion in giving defendant four years to pay plaintiff his distributive award of the non-liquid assets, at 3% postjudgment interest, and 60 days to pay him his share of liquid assets, given the illiquid nature of the assets to be sold, the related tax consequences, and the effect of the pandemic on the economy in general and the art market in particular, of which the trial court took judicial notice
The judgment of divorce was modified, on the law and the facts, to award plaintiff 15% of the marital appreciation of Art Works Inc., 15% of the marital value of M&E LLC after awarding defendant a separate property credit of $991,400, 30% of the marital value of the Chelsea property, 40% of the marital value of the condominium in Aspen, Colorado, 0% of the appreciation in the cash surrender value of defendant’s AXA life insurance policy, and 15% of the marital value of defendant’s personal art collection, and otherwise affirmed
Evidence of an offer to purchase is generally inadmissible at trial to show fair market value. In Lauren S v Alexander S., --- N.Y.S.3d ----, 2022 WL 1668835, 2022 N.Y. Slip Op. 03443 (1st Dept.,2022) the Appellate Division found that the Supreme Court erred in imposing a minimum value on the parties Southampton marital property based on a purchase offer of $20 million rejected by defendant, as evidence of an offer to purchase is generally inadmissible at trial to show fair market value.
Relocation to Ireland permitted wife and young child where meaningful extended vacations could compensate for the loss of regular visitation In Lavery v O’Sullivan, --- N.Y.S.3d ----, 2022 WL 1653929, 2022 N.Y. Slip Op. 03378 (2d Dept.,2022) plaintiff, who was a dual citizen of the United States and Ireland, and the defendant, who was a citizen of Ireland, married in 2015, and lived and worked in New York. They hade one child, who was born in 2016. Both parties had traveled frequently to Ireland to visit extended family. In October 2019, the plaintiff commenced this action seeking, inter alia, a judgment of divorce. Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the child and permitted her to relocate with the child to Ireland. The Appellate Division affirmed. It found Supreme Court’s determination to be supported by a sound and substantial basis in the record. “ The Supreme Court found credible the plaintiff’s testimony that she was the child’s primary caregiver, that the defendant had engaged in alcohol abuse and subjected the plaintiff to instances of domestic violence and verbal abuse, and that if she were permitted to relocate with the child to Ireland, the child’s quality of life would be improved. In Ireland, the plaintiff and the child could live cost free in a guest house on the maternal grandparents’ property, the cost of living in the town was less than it is in New York, where the parties were struggling financially, and in Ireland the plaintiff had been offered a job as a clerical administrator in a nursing home. In addition, the plaintiff would have her parents, siblings, and cousins in the vicinity to offer her support, as well as the defendant’s extended family. The court properly concluded that, while relocation would disrupt the defendant’s regular contact with the child, meaningful extended vacations could compensate for the loss of regular visitation
In Matter of Yarelis E. --- N.Y.S.3d ----, 2022 WL 1653962 (Mem), 2022 N.Y. Slip Op. 03385 (2d Dept.,2022) a finding of neglect was entered against the father and after an order of disposition was issued, the father moved, inter alia, pursuant to Family Court Act §§ 1051(c) to vacate the finding of neglect and to dismiss the petition. Family Court denied the father’s motion. The Appellate Division affirmed. It held that Family Court did not improvidently exercise its discretion in denying the father’s motion to vacate the finding of neglect and to dismiss the petition under Family Court Act § 1051(c), as the motion was made after the disposition and was, therefore, untimely. In any event, the father failed to demonstrate that the aid of the court was not required (see Family Ct Act § 1051[c]).
In Buck v Buck, --- N.Y.S.3d ----, 2022 WL 1572173 (Mem), 2022 N.Y. Slip Op. 03335 (1st Dept.,2022) Judgment was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and Supreme Court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. At the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. The Appellate Divisoin held that before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary (see CPLR 1201, 1203) Because there was no inquiry, it vacated the judgment and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity. The earlier decision of the court was recalled and vacated.
May 18, 2022
Family Court providently exercised its discretion in granting the father’s motion for an attorneys’ fees, since it was reasonable for the court to conclude that the mother’s repetitive motions and other dilatory tactics were undertaken primarily to delay or prolong the resolution of the litigation
In the Matter of Aponte v Jagnarain, --- N.Y.S.3d ----, 2022 WL 1481726, 2022 N.Y. Slip Op. 03111 (2d Dept.,2022) the mother moved to vacate the final order of protection, entered upon her default, and to change venue from Nassau County to New York County, where the child resided. After that motion was denied, the mother made a successive motion for the same relief, and the father cross-moved for an award of attorneys’ fees. Family Court denied the mother’s motions and granted the father’s cross motion and awarded him attorneys’ fees of $2,200. The Appellate Divison affirmed. It held that the mother failed to provide a reasonable excuse for her failure to appear on the day the hearing was scheduled to resume. The mother had discharged her attorney on the eve of the continued hearing, and the court had denied her request for an adjournment, which was a provident exercise of discretion, particularly since the mother had previously discharged counsel under similar circumstances. The mother had no reason to believe that her request for an adjournment had been granted, and despite the court’s numerous attempts to reach the mother by telephone over the course of two days before proceeding with the hearing, the mother did not respond to any of the detailed voicemail messages left by the court for the mother and her sister. It also held that the Family Court providently exercised its discretion in granting the father’s cross motion for an award of attorneys’ fees, since it was reasonable for the court to conclude that the mother’s repetitive motions and other dilatory tactics were “undertaken primarily to delay or prolong the resolution of the litigation” (citing 22 NYCRR 130–1.1[c][2]; see Matter of Mancuso, 48 A.D.3d 570, 849 N.Y.S.2d 909; Ofman v. Campos, 12 A.D.3d 581, 582, 788 N.Y.S.2d 115).
In Matter Aponte v Jagnariain, --- N.Y.S.3d ----, 2022 WL 1481731, 2022 N.Y. Slip Op. 03112 (2d Dept.,2022) the factual and procedural background was set forth in Matter of Aponte v. Jagnarain, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 1481726 [decided herewith]). There the Family Court conducted a fact-finding hearing in the family offense proceeding, in which the father alleged that the mother had committed the family offense of harassment in that she repeatedly had falsely accused him of sexually abusing the parties’ child, and, upon the mother’s failure to appear at the hearing, issued a final order of protection directing the mother to stay away from the child except for supervised parental access. Thereafter, the Family Court conducted a hearing on the father’s petition to modify the prior orders of custody and parental access issued in this matter by limiting the mother’s parental access with the child to supervised parental access. At the hearing, the court heard testimony from the father, and incorporated the testimony of a witness who, at the hearing in the family offense proceeding, had recounted the accusations made by the mother against the father. In an order dated March 9, 2021, the court, among other things, in effect, granted the father’s petition to modify the prior orders of custody and parental access, and directed the mother to stay away from the child, except for supervised parental access. The Family Court determined that there had been a change in circumstances sufficient to warrant a modification of parental access based on evidence that the mother repeatedly made unfounded allegations that the father had sexually abused the child, and that those accusations required the child, at the age of four, to be subjected to intrusive physical examinations. This Appellate Division affirmed. It held, inter alia, that the Family Court did not err in incorporating into the record of the custody and parental access proceeding the testimony of the witness who had testified at the hearing in the family offense proceeding. A witness’s testimony may be incorporated into a later proceeding if “it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine” (Fleury v. Edwards, 14 N.Y.2d 334, 338–339). Here, the prior testimony was given under oath and referred to the same subject matter, and the mother was allowed to cross-examine the witness at the earlier hearing, but declined to avail herself of that opportunity when she voluntarily absented herself from that hearing. In addition, the mother had the opportunity to call the witness to testify at the hearing in the custody and parental access proceeding, and, if necessary, to request that the court deem her to be a hostile witness so that the mother could impeach her, but she failed to do so.
While an isolated incident cannot support a finding of harassment under Penal Law § 240.26(3) a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding. In Matter of Breval v Martinez, --- N.Y.S.3d ----, 2022 WL 1481748 (Mem), 2022 N.Y. Slip Op. 03113 (2d Dept.,2022) the petitioner filed a family offense petition alleging that the respondent had committed various family offenses. After a hearing, the court determined, inter alia, in effect, that the petitioner failed to establish by a fair preponderance of the evidence the elements of a family offense and, in effect, denied the petition and dismissed the proceeding. The Appellate Division affirmed. It observed that as relevant here, a person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she ‘engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose’ ” (Penal Law § 240.26[3]). While there is no question that an isolated incident cannot support a finding of harassment, a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding. It held that the Family Court properly found that the evidence adduced at the hearing failed to identify more than an isolated incident. The court’s determination was based on its credibility assessments and supported by the record.
In Matter of Grace --- N.Y.S.3d ----, 2022 WL 1481401, 2022 N.Y. Slip Op. 03119 (2d Dept.,2022) the Appellate Division reversed an order which terminated the mothers parental rights on the ground of abandonment. It observed that termination of parental rights is authorized by Social Services Law § 384–b(4)(b). In order to demonstrate that the mother abandoned the children, the petitioner was required to demonstrate by clear and convincing evidence that during the six months prior to the petitions being filed, the mother evinced an intent to forego her parental rights, as manifested by her failure to visit or communicate with the children or the petitioner although able to do so and not prevented or discouraged from doing so by the petitioner (see id. § 384–b[3][g][i]; [4][b]; [5]). It found that the petitioner failed to establish by clear and convincing evidence that the mother evinced an intent to forego her parental rights. The record demonstrated that, during the six-month abandonment period, the mother visited with the children on two occasions, saw the children on at least one additional occasion at a family gathering, purchased clothing for the children, spoke with the case worker on the phone multiple times, and objected to the goal for the children’s placement changing to a kinship adoption rather than returning the children to the mother. Under these circumstances, the Family Court should have denied the petitions on the merits, insofar as asserted against the mother. It noted that the record contained testimony from a case worker that, during family visits subsequent to the filing of the petitions, the mother’s interactions with the children were “very positive.” While a parent’s conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent.
May 11, 2022
Appellate Division, First Department
Submission of the retainer agreement with Mother’s reply papers was not fatal to her motion for counsel fees, since the Family Court Act is clear that an award of counsel fees is mandatory In Bernadette R v Anthony V.L., --- N.Y.S.3d ----, 2022 WL 1462648, 2022 N.Y. Slip Op. 03087 (1st Dept.,2022) the Appellate Division held that Family Court properly concluded that the submission of the retainer agreement with petitioner mother’s reply papers was not fatal to her motion for counsel fees, since the Family Court Act is clear that an award of the counsel fees is mandatory, not discretionary (Family Court Act §§ 454[3]; 438[b]). However, the entry of a money judgment when no order directing payment of counsel fees had been entered was inconsistent with the procedure established by Family Court Act § 460, since the father was not in default in payment of an order.
In Levin v Levin, --- N.Y.S.3d ----, 2022 WL 1414967 (Mem), 2022 N.Y. Slip Op. 03050 (1st Dept.,2022) on a motion for pendente lite support Supreme Court directed plaintiff to pay $4,750 per month for child support, plus 57% of add-on expenses, $60,000 for defendant’s interim counsel fees, and $6,085 per month for the majority of carrying costs for the marital home. The Appellate Division modified the order and remitted the matter to Supreme Court to clarify and recalculate the amount of child support and/or carrying costs for the marital residence. It held that a pendente lite award should only be modified rarely and the general rule is that an aggrieved party’s remedy for perceived inequities in a pendente lite award is a speedy trial. However, a pendente lite award may be modified where a court awards an impermissible double shelter allowance resulting from directing the payment of both a child support award under the Child Support Standards Act and the carrying costs on the marital residence. It held that here, the pendente lite award should be modified as the court directed the plaintiff to pay both child support as well as the majority of the carrying costs on the marital residence, resulting in a double shelter allowance. The court did so even though neither party sought a directive regarding carrying costs on the marital residence and the court failed to provide any explanation as to why it was awarding both child support and carrying costs on the marital residence. It declined to reach the merits of plaintiff’s argument that the pendente lite award should be modified with respect to plaintiff’s obligation to pay retroactive child support and defendant’s counsel fees because plaintiff’s remedy for such perceived inequities is a speedy trial.
In Matter of Gray v Tyson --- N.Y.S.3d ----, 2022 WL 1414933, 2022 N.Y. Slip Op. 02998 (2d Dept.,2022) the Appellate Division held that the Family Court should not have directed the parties to equally share the costs of the mother’s supervised parental access, without evaluating the parties’ economic realities, including the mother’s ability to pay and the actual cost of each visit. It remitted the matter to the Family Court, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the mother’s supervised parental access.
In Shvalb v Rubinshtein, --- N.Y.S.3d ----, 2022 WL 1231633, 2022 N.Y. Slip Op. 02827 (2d Dept.,2022) the parties were married in 2007 and had two children born in 2010. The Appellate Division observed that a party’s obligation to pay maintenance and child support terminates upon that party’s death. The death of a payor spouse, however, may cause financial injury to a former spouse or children who, but for the payor spouse’s death, would have continued to receive maintenance, a distributive award, or child support. Accordingly, the legislature has provided that a court may require a payor spouse to maintain life insurance to prevent that financial injury (see Domestic Relations Law § 236[B][8][a ). Thus, where life insurance is appropriate, it should be set in an amount sufficient to achieve that purpose. Here, the Supreme Court should have directed the plaintiff to maintain a life insurance policy for the benefit of the parties’ children until their emancipation. It remitted the matter to the Supreme Court, for a determination of the amount of life insurance sufficient to secure the plaintiff’s child support obligations.
Where a child justifiably relies on the representations of a man that he is his or her father with the result that he or she will be harmed by the man’s denial of paternity, the man may be estopped from making such a denial where it is in the Childs best interest In Mitches- Lewis v. Lewis, --- N.Y.S.3d ----, 2022 WL 1231541, 2022 N.Y. Slip Op. 02787 (2d Dept.,2022) the parties were married on April 18, 2008. On August 21, 2008, the subject child was born. In August 2018, the plaintiff commenced this action for a divorce. Thereafter, the plaintiff moved, inter alia, for an award of interim counsel fees and to direct the defendant to pay pendente lite child support for the child. The defendant cross-moved to direct the parties and the child to submit to genetic marker testing, asserting that he was not the biological father of the child. Supreme Court, awarded interim counsel fees of $7,000. In a separate order the court denied the defendant’s cross motion to direct the parties and the child to submit to genetic marker testing. The Appellate Division affirmed. It pointed out that where a child justifiably relies on the representations of a man that he is his or her father with the result that he or she will be harmed by the man’s denial of paternity, the man may be estopped from making such a denial. However, before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child’s biological parent, the court must be convinced that applying equitable estoppel is in the child’s best interest’ . Here, the Supreme Court providently exercised its discretion in determining that the defendant should be equitably estopped from denying paternity. While the defendant was not present for the child’s birth because he was on overseas military duty at the time, the defendant has not refuted the plaintiff’s assertion that his mother was present for the child’s birth. The defendant was named as the child’s father on the child’s birth certificate, and the child was given the defendant’s surname. Although the parties ended their relationship in September 2008, shortly after the child’s birth, the defendant acknowledged that he voluntarily provided financial support for the needs of the child for around nine years prior to the time he first denied paternity in May 2018. The defendant made no effort to deny his status as the child’s father until after he received a letter in March or April 2018 from a child support enforcement office. The defendant also indicated that he received military benefits for the child since the child’s birth, and provided for health, vision, and dental insurance for the child. Moreover, the child, who was now 13 years old, had only ever known the defendant to be his father. Under the circumstances, the court providently exercised its discretion in determining that it was in the best interest of the child to apply the doctrine of equitable estoppel.
In Martin v Martin --- N.Y.S.3d ----, 2022 WL 1243095, 2022 N.Y. Slip Op. 02840 (3D Dept., 2022) the parties agreement provided that "the parties . . . shall obtain three (3) appraisals, from licensed appraisers, and the arithmetic mean of these appraisals shall be considered the fair market value of the premises." In a post-judgment enforcement proceeding the husband argued that one appraisal had to be disregarded because the appraiser did not comply with the provisions and standards set forth in the Uniform Standards of Professional Appraisal Practice. The agreement specifically required appraisals from licensed appraisers. The Appellate Division pointed out that pursuant to Executive Law article 6-E, the Board of Real Estate Appraisal adopts regulations establishing standards for appraisals and prescribing the form and content of appraisal reports (see Executive Law § 160-d [1] [d]; [2], [3]). Under these regulations, every appraisal by a certified or licensed real estate appraiser must comply with the provisions and standards set forth in the Uniform Standards of Professional Appraisal Practice (hereinafter USPAP) (see 19 NYCRR 1106.1 [a]), a -4- 532482 document "published by the Appraisal Foundation, which is authorized by the United States Congress as the source of appraisal standards" (19 NYCRR 1106.1 [b]). Thus, a reasonable implication of the agreement was that the parties, by specifying that the appraisers be licensed, intended for the appraisers to comply with appraisal standards mandated for state licensed and certified appraisers. It noted that there is a distinction between state certified real estate appraisers and state licensed real estate appraisers (see e.g., Executive Law §§ 160; 160-a [6] [a], [b]; 160-b [1]; 160-h); certified appraisers have met higher training standards. The Appellate Division held that if it was established that appraiser did not substantially comply with the mandatory USPAP standards (see 19 NYCRR 1106.1 [a]), his appraisal should not be considered as one of the three appraisals required by the parties' agreement. However, if the court determines following this hearing that he substantially complied with USPAP standards in compiling his appraisal report and reaching an opinion on the value of the property, his appraisal should be considered along with those of the other two appraisers, and the husband must pay the wife to purchase her share of equity in the property based upon the mean of those three appraisals.
Although none of judicial surrender documents expressly prohibit contacting the child, such a condition is necessarily included by implication in a judicial surrender which states that Family Court informed respondent that the surrender would result in her “giving up all rights to have custody, visit with, speak with, write or learn about the child, forever,” unless respondent and the local social services agency agreed upon different terms. In Matter of Riley XX, --- N.Y.S.3d ----, 2022 WL 1243115, 2022 N.Y. Slip Op. 02839 (3d Dept.,2022) the Appellate Division held that enforcement of the post adoption contract agreement was not in the child’s best interests. It found a sound and substantial basis in the record for Family Court’s conclusions that the child’s best interests would be served by prohibiting respondent from contacting the child and that an order of protection was necessary to do so. Further, as respondent was attempting to inappropriately initiate contact with the child and repeatedly posting her pictures in public spaces despite the stated objections of petitioners, the court did not abuse its discretion in refusing to enforce the condition of the post-adoption contact agreement requiring petitioners to provide respondent with pictures and updates. Although none of the documents expressly prohibited respondent from contacting the child, the Appellate Division found such a condition is necessarily included by implication in a judicial surrender which states that Family Court informed respondent that the surrender would result in her “giving up all rights to have custody, visit with, speak with, write or learn about the child, forever,” unless respondent and the local social services agency agreed upon different terms as specified therein. The surrender also stated that it is subject to conditions contained in an attachment, which notes – under a heading of post-adoption communication or contact – that respondent “will receive updates and pictures at least twice per year.” No visitation or other contact with the child is mentioned. If parties to a contract omit terms – particularly, terms that are readily found in other, similar contracts — the inescapable conclusion is that the parties intended the omission”. Thus, by negative implication, the limited affirmative condition in the agreement indicated that no other type of contact had been agreed upon. Family Court apparently recognized that an appropriate method for petitioners to present their concerns about respondent’s attempts to contact the child would have been by a petition for enforcement of the post adoption contact agreement, pursuant to Domestic Relations Law § 112–b (4) (see Social Services Law § 383–c [2][b]). That statutory subdivision provides that “[a]n order incorporating an agreement regarding [postadoption] communication or contact ... may be enforced by any party to the agreement or the attorney for the child by filing a petition in the family court in the county where the adoption was approved. Such petition shall have annexed to it a copy of the order approving the agreement regarding communication or contact. The court shall not enforce an order under this section unless it finds that the enforcement is in the child’s best interests” (Domestic Relations Law § 112–b [4]). Although petitioners did not directly follow that procedural path, they nonetheless met the underlying requirements; they filed their motions in the proper court, attached a copy of the agreement and adoption order, and clearly stated the relief that they requested. Family Court expressly found that respondent “had notice of the relief sought, [was] well aware of the issues, and had the full opportunity to present evidence and argument[s]” at the hearing. Thus, respondent did not demonstrate prejudice arising from the manner in which this matter was initiated. Courts are permitted to ignore a defect in the form of a proceeding, and to convert a motion into a special proceeding (see CPLR 103[c]; 2001; Family Ct Act § 165[a]). It expressly deemed petitioners’ filings to be an application for enforcement of the postadoption contact agreement.
In Matter of Frank Q., --- N.Y.S.3d ----, 2022 WL 1243176, 2022 N.Y. Slip Op. 02843 (3d Dept.,2022) the Appellate Division reversed an order which dismissed petitioner’s application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected. Respondent was the mother of the subject child (born in 2018). Several months after the child’s birth, petitioner commenced a Family Ct Act article 10 proceeding alleging that the child was neglected by respondent and the child’s father. Thereafter, the parties consented to a temporary order of removal of the child and placement with Kaline S., a suitable person known to them. By order of Family Court, a permanency hearing was scheduled for June 2019 “if the child remains in foster care or is directly placed pursuant to [Family Ct Act §§ ] 1017 or 1055.” Thereafter, respondent consented to a finding of neglect and Family Court issued an order of fact-finding and disposition in May 2019, which ordered, pursuant to Family Ct Act § 1055, that the child is “directly placed” with Kaline S. In December 2019, while the child was still in a direct placement with Kaline S., petitioner commenced this permanent neglect proceeding seeking to terminate respondent’s parental rights, alleging that the child had been in the “care of an authorized agency” for a continuous one-year period. Following a five-day fact-finding hearing, although Family Court found “overwhelming evidence” of respondent’s neglect, it dismissed the petition on the ground that the child had not been “in the care of an authorized agency for a period of at least one year prior to [petitioner] filing a permanent neglect petition.” Family Court reasoned that, based on the language in Family Ct Act § 1017(2)(a), there was a clear distinction between a “direct release to a suitable person” like Kaline S. and a “placement with an authorized agency” like petitioner. Although the word “care” is not defined by statute, Family Court held that petitioner’s actions in providing services for the benefit of the child did not rise to that level, such as to “bathe, feed, cloth, educate or do any of the things required to care for the child.” Family Court distinguished this case from Matter of Dale P., 84 N.Y.2d 72, 614 N.Y.S.2d 967, 638 N.E.2d 506 (1994), and noted that the legislative intent of Social Services Law § 384–b was to prevent children from languishing in the foster care system, and it was undisputed that the child had never been in foster care. Petitioner appealed.
The Appellate Division found that Family Court’s interpretation of Social Services Law § 384–b too narrow and calling for a result that is “unnecessarily circuitous”, and ultimately contrary to the stated legislative intent. Regarding the phrase “care of an authorized agency,” courts have consistently held that a direct placement authorized by Family Court, like the order of fact-finding and disposition issued in May 2019 pursuant to Family Ct Act § 1055, falls within the purview of Social Services Law § 384–b. In Matter of Dale P., 84 N.Y.2d at 75–76, 78–79, 614 N.Y.S.2d 967, 638 N.E.2d 506, the Court of Appeals rejected the argument that a child had to be formally placed in foster care, where a finding of abandonment had been made and a child’s care had been with a suitable person pursuant to Family Ct Act § 1055. Similarly, this Court had rejected the “narrow definitional approach” adopted by Family Court that a child who was directly placed with a suitable person was not within the “care of an authorized agency. Other Departments of the Appellate Division have also embraced the validity of a direct placement to satisfy Social Services Law § 384–b (see Matter of Hannah D., 292 A.D.2d 867, 867, 740 N.Y.S.2d 537 [4th Dept. 2002] [holding that “we reject the contention of (the mother) that the proceeding to terminate her parental rights on the ground of permanent neglect could not be maintained where, as here, the children had been placed directly with relatives”]; Matter of Anthony Julius A., 231 A.D.2d 462, 462, 647 N.Y.S.2d 212 [1st Dept. 1996] [finding “no merit to (the mother’s) contention that her parental rights could not be terminated unless the child had first been placed in the care of an authorized agency. Direct placement authorized by the Family Court can also be a predicate for a termination of parental rights proceeding”]). The Court agreed here that the child had been in the care of petitioner to satisfy the statute. Petitioner evaluated Kaline S., performing a background check and interview, before ultimately approving her as a suitable person to care for the child. Although Kaline S. declined a foster care subsidy, she agreed to comply with monitoring and the requests of petitioner, and she further submitted to Family Court’s jurisdiction, consenting to “cooperate with respect to making the child available for court-ordered visitation with respondent[ ], siblings and others, appointments with the child’s attorneys and clinicians and other individuals or programs providing services to the child[ ], [and] visits (including home visits) by the child protective agency.” The record reflected close involvement and coordination between petitioner and Kaline S. during the pendency of this matter. Accordingly, it found that, in further consideration of Social Services Law § 384–b (1)(b), Family Court erred in dismissing the petition on the basis that the child had not been in the “care of an authorized agency.”
An allegation in petition that the parent wanted more parenting time with the child so that they could participate in more activities did not constitute a change in circumstances warranting a hearing as to whether modification would serve the child’s best interests. In Matter of Joshua KK., v. Jaime.--- N.Y.S.3d ----, 2022 WL 1243133, 2022 N.Y. Slip Op. 02847 (3d Dept.,2022) the Appellate Division reversed an order granted the fathers petition and awarded the father additional parenting time, including overnight visits. It held that the father, as the party seeking modification of a prior custody order, had the threshold burden of showing a change in circumstances since the entry of that prior order so as to trigger an examination as to whether modification would serve the child’s best interests. As a change in circumstances, the father alleged in the petition that he wanted more parenting time with the child so that they could participate in more activities. The father likewise testified at the hearing about the activities that he engaged in with the child during his parenting time and what he would do with her if given more parenting time. Family Court found that a change in circumstances existed – namely, that the father wanted to have a closer relationship with the child and the amount of parenting time provided in the January 2019 order was insufficient to develop that relationship. Even crediting the father’s testimony, the father’s mere dissatisfaction with the amount of parenting time provided in the January 2019 order and the desire for more time did not constitute a change in circumstances.
In Matter of Jereline Z v Joseph A, 2022 WL 1243172 (3d Dept.,2022) Family Court issued an order finding that respondent had committed family offenses and determined that the appropriate disposition was a one-year order of protection in favor of petitioner and the child. Respondent appealed from that order, arguing, among other things, that meaningful review was impossible because the transcript of the fact-finding hearing omitted potentially significant testimony. The Appellate Division observed that the hearing was recorded by an electronic recording system – not a court reporter – and the transcript provided in the record was prepared over seven months later by a commercial transcription service. One of the witnesses called at the hearing was respondent’s mother, who witnessed a November 2019 incident and testified as to what she observed. Although the transcript of the hearing included in the record on appeal reflected that counsel posed over 80 questions to respondent’s mother and that the parties and Family Court could hear her resulting answers, the transcript provides the witness’s answer to only four of those questions, with 77 answers reported as “inaudible.” Petitioner suggested that the absence of that testimony was immaterial, as respondent’s mother testified with regard to a November 2019 incident and Family Court only found that respondent had committed family offenses during an April 2020 incident. The Appellate Division found that it could not assess that argument without the testimony of respondent’s mother, which therefore constituted “a potentially significant portion of the transcript” . As the absence of that testimony made meaningful appellate review an impossibility, it reversed and remitted for a new hearing.
In Matter of Jared MM., v. Mark KK., --- N.Y.S.3d ----, 2022 WL 1414524, 2022 N.Y. Slip Op. 03032 (3d Dept.,2022) the Appellate Division affirmed an order which terminated the fathers visitation where the father routinely failed to avail himself of the parenting time that he was afforded, requiring the grandfather (who was awarded custody) and his wife to distract the child or simply not tell her about possibly seeing the father so as to avoid her confusion or disappointment when he ultimately failed to show up. The father was also the only person to testify at the hearing that he and the child enjoyed a relationship that was in any way beneficial to her. Most significantly, the credible evidence at the hearing demonstrated, by a preponderance of the evidence that the child’s health and safety were compromised while in the father’s custody, and that continuing risk to her was detrimental to her welfare.
The Appellate Division pointed out in a footnote that as a consequence of an order which vacated the father’s prior judicial consent to a private placement adoption because no adoption had taken place it was required to treat his claim to the child as that of a parent. Contrary to the conclusion of Family Court the father was not required to himself establish extraordinary circumstances to proceed on his own petition.
In the Matter of Nathan PP., v. ANGELA PP., --- N.Y.S.3d ----, 2022 WL 1414475, 2022 N.Y. Slip Op. 03031 (3d Dept.,2022) the Appellate Division affirmed Family Court’s order granting the mother’s motion to dismiss the father amended petition to modify custody. It held that generally, in order to survive a motion to dismiss, the petitioner is required to establish a change in circumstances warranting an inquiry into whether the best interests of the child would be served by modifying the existing custody arrangement. However, parties to a custody proceeding may, like here, stipulate that either party can later seek modification of the custody order without demonstrating a change in circumstances. Despite eliminating that threshold burden of demonstrating a change in circumstances, a party still show that modification of the underlying order is necessary to ensure the child’s continued best interests. Although an evidentiary hearing is generally necessary, not every petition in a Family Court Act article 6 proceeding is automatically entitled to a hearing, including where the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child’s best interests.
The Appellate Division cannot treat a document as a notice of appeal when nothing in it suggests that it was intended to be one In Matter of Washington County Department of Social Services on Behalf of Vernon v. Oudekerk, --- N.Y.S.3d ----, 2022 WL 1414592 (Mem), 2022 N.Y. Slip Op. 03038 (3d Dept.,2022) the Appellate Division pointed out that the power of an appellate court to review a judgment or order is subject to an appeal being timely taken. An appeal is taken from a Family Court order by filing an original notice of appeal with the clerk of the family court in which the order was made and from which the appeal is taken, then serving that notice upon any adverse party as provided for in CPLR 5515(1) and upon the child’s attorney, if any, within the time allowed by Family Ct Act § 1113 (Family Ct Act § 1115). Where an appealing party fails to complete both steps by timely filing a notice of appeal in the proper court and by serving it on the individuals entitled to notice the Court lacks subject matter jurisdiction to hear the appeal. The record did not contain a notice of appeal, with the father instead providing a “notice of poor person requesting permission to proceed” that served the different purposes of requesting poor person relief and the assignment of counsel in anticipation of an appeal from one or more of the January 2021 orders. It held that although a mistake, omission, defect or irregularity in a notice of appeal may be disregarded (CPLR 2001), and it may deem a notice of appeal to be valid where it is premature or contains an inaccurate description of the judgment or order appealed from (CPLR 5520[c]), it cannot treat a document as a notice of appeal when nothing in it suggests that it was intended to be one. Further, the record gave no indication that the document was served upon petitioner as required for a notice of appeal. As the record was devoid of proof that a notice of appeal was filed or served in a timely manner, the appeal was dismissed.
April 27, 2022
Appellate Division, Second Department
Parent’s disrespect for the court’s authority is not a sufficient basis to modify custody. In Matter of Corcoran v Liebowitz, --- N.Y.S.3d ----, 2022 WL 1160899 (Mem), 2022 N.Y. Slip Op. 02542 (2d Dept.,2022) the Appellate Division reversed an order which, without a hearing, granted the mother’s motion to award her sole legal custody of the children and remitted for a new hearing before a different judge. It held that in order to modify an existing court-sanctioned custody or parental access agreement, there must be a showing that there was a sufficient change in circumstances so that modification is required to protect the best interests of the child. Although a parent seeking a change of custody is not automatically entitled to a hearing custody determinations should generally’ be made ‘only after a full and plenary hearing and inquiry. Where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required. The record did not demonstrate the absence of unresolved factual issues so as to render a hearing unnecessary. The record suggested that the award of sole legal custody to the mother served more as a punishment to the father for his misconduct than as an appropriate custody award in the children’s best interests. While the Family Court’s determination was initially limited to awarding the mother only decision-making authority as to education for the parties’ youngest child, the court abruptly awarded sole legal custody of both children to the mother in response to the father stating that the court’s decision was “ridiculous” and “demand[ing] we go to trial.” The court advised the father that his interjections “[c]hanged my mind,” and that “I was going to give you the option ... to remain a joint custodian, but ... you didn’t let me even finish my thought.” While the father’s disrespect for the court’s authority should not be countenanced, this was not a sufficient basis to modify custody.
In Felgueiras v Cabral --- N.Y.S.3d ----, 2022 WL 1097247, 2022 N.Y. Slip Op. 02410 (2d Dept.,2022) the Appellate Division vacated that part of an order which after modifying custody to award custody to the father and provide the mother with parental access, directed that in the event that the mother ceases attending a Personalized Recovery Oriented Services (PROS) program before being successfully discharged, or has any unsupervised parental access with the child without prior court approval, parental access shall be immediately suspended. It held that these provisions did not appear to give the mother the opportunity to judicially challenge the father’s determinations concerning her compliance with the Personalized Recovery Oriented Services (PROS) program or whether she had unsupervised parental access with the child, and, consequently, constituted an improper delegation of authority by the Family Court to the father to determine when the child can have parental access time with the mother.
Where the court possesses information sufficient to afford a comprehensive, independent review, a hearing pursuant to Family Court Act § 1061 is not required In the Matter of Sebastian P., --- N.Y.S.3d ----, 2022 WL 1097215 (Mem), 2022 N.Y. Slip Op. 02415 (2d Dept.,2022) the Appellate Division pointed out that pursuant to Family Court Act § 1061, the Family Court may set aside, modify, or vacate any order issued in the course of an article 10 proceeding for “good cause shown. This statute expresses the strong Legislative policy in favor of continuing Family Court jurisdiction over the child and family so that the court can do what is necessary in the furtherance of the child’s welfare. The conducting of a hearing under section 1061 is not mandated, but is left entirely to the Family Court’s discretion. Where the court possesses information sufficient to afford a comprehensive, independent review, a hearing is not required .The Family Court was not required to conduct a hearing before determining the mother’s motion pursuant to Family Court Act § 1061, since the material facts underlying the motion were not in dispute.”
Appellate Division, Fourth Department
The Court has the power to impose restrictions on the childs interactions with third parties during visitation if it is in the child’s best interests to do so In Matter of Hall v Velez, --- N.Y.S.3d ----, 2022 WL 1196681 (Mem), 2022 N.Y. Slip Op. 02676 (4th Dept., 2022) the Appellate Division affirmed an order that, among other things, modified a prior order of custody and visitation by prohibiting any contact between the parties’ children and the mother’s male friend. It observed that Family Court is ‘afforded wide discretion in crafting an appropriate visitation schedule’ ... and ‘has the power to impose restrictions on [the children’s] interactions with third parties during visitation if it is in the child[ren]’s best interests to do so. The evidence in the record established that the mother’s friend engaged in acts of violence in the presence of the children, repeatedly used drugs with the mother and, along with the mother, frequently and flagrantly violated the court’s temporary order that the children not be in his presence. Consequently, the court properly determined that allowing the mother’s friend to have contact with the children created an unnecessary risk to their health and well-being. It concluded that the court’s determination that it is in the children’s best interests to have no contact with the mother’s friend had a sound and substantial basis in the record.
It held that the court providently exercised its discretion in imputing income to the parties. The Referee properly imputed income of $250,000 to defendant based on the cash gifts he received from his parents during the three years preceding the hearing, and omitting earlier gifts used to purchase his current residence and to pay the parties’ legal fees. The Referee properly rejected plaintiff’s contention that additional income should be imputed to defendant based on his earning capacity, given the evidence demonstrating that the 60–year–old defendant was terminated from his job before the marriage and had not worked full-time since 2008, three years before the commencement of this divorce action. Plaintiff presented no expert testimony to establish defendant’s earning capacity at the time of the hearing, and there was no evidence that defendant intentionally diminished his income to avoid his support obligations.
Although plaintiff argued that the Referee relied on an outdated lifestyle analysis in fashioning a child support award and that the award does not capture the economic realities of raising now teenaged children, she failed to demonstrate that the award, based on a $250,000 income cap, was insufficient to meet the children’s “actual needs” to live an “appropriate lifestyle” (Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400 [1st Dept. 2006]. The trial evidence reflected that the parties lived a comfortable upper-middle-class lifestyle and that both parties had significant financial resources to support the use of a $250,000 cap.
It rejected Plaintiff’s argument that awarding defendant a $291,513.40 credit against future add-on expenses for his overpayment of child support during the pendency of this matter violated public policy because it will effectively extinguish his child support obligation. While public policy forbids offsetting over payments against basic child support, it does not forbid offsetting against add-on expenses. Given that plaintiff had sufficient financial resources at her disposal, it found that defendant was entitled to use any overpayment, retroactive to the agreed-upon date of January 27, 2017, to offset his share of future add-on expenses.
In Rennock v Rennock, 2022 WL 960872 (1st Dept., 2022) the Appellate Division found that the husband’s arguments concerning maintenance were unavailing. The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and he did not show that the award to the wife of $2,500 per onth, with such payments to cease in July 2022, when she will be age 66 and able to receive social security benefits, was an abuse of such discretion.
As to the $2,559 per month in child support, the Special Referee’s reliance on the husband’s 2014 income, and the inclusion of capital gains in assessing that year’s income for CSSA purposes, was a provident exercise of discretion. The Special Referee canvassed his income from other years and, as its summary of such income shows, the 2014 income was not the anomaly he claimed it to be. Nor did he show reason to revisit the inclusion of capital gains in the income calculation.
It affirmed the $162,500 counsel fee award (Domestic Relations Law § 237). The husband claimed the wife and her counsel drove up litigation costs, but the Special Referee and the court found both parties caused delays and took intransigent positions that prevented settlement. Further, such award is not based solely on litigation conduct; the paramount factor is financial need a factor whose application here the husband showed no reason to revisit.
Appellate Division, Second Department
The child’s fear and anxiety was a sound and substantial basis to limit parental access with the child to letters, and weekly one-hour telephone or video sessions as consented to by the child. In Matter of Walker v. Sterkowicz-Walker, --- N.Y.S.3d ----, 2022 WL 960668, 2022 N.Y. Slip Op. 02190 (2d Dept.,2022) after two court-ordered “observation and evaluation” virtual visits between the mother and the child, which were supervised by two licensed social workers, and upon supplemental findings, the court awarded the mother parental access with the child only to the extent of allowing the mother to communicate with the child through written letters either by regular mail or electronically, and by speaking with the child weekly by telephone or by Skype, Zoom, or other electronic video platform for up to one hour, provided that the child consents. The Appellate Division affirmed. It held that the determination of appropriate parental access is entrusted to the sound discretion of the Family Court, and the determination will not be set aside unless it lacks a sound and substantial basis in the record. Here, a sound and substantial basis existed in the record to limit her parental access with the child to letters, and weekly one-hour telephone or video sessions as consented to by the child. The testimony of the father and the child’s therapist as to the child’s fear and anxiety surrounding parental access, the social workers’ observation of physical symptoms of that fear and anxiety in the child, and the therapist’s testimony that visitation between the mother and the child would be “very damaging” to the child, all supported limiting parental access to letters, and to weekly one-hour telephone or video sessions as consented to by the child.
The state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state. A state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction In Matter of Salim v Freeman, --- N.Y.S.3d ----, 2022 WL 1020819 (Mem), 2022 N.Y. Slip Op. 02268 (2d Dept.,2022) the mother and the father were the parents of a child who was born Virginia in 2007. In September 2020, the father commenced a proceeding in New York for child support pursuant to the Uniform Interstate Family Support Act (UIFSA). The Support Magistrate issued a temporary order of support directing the mother to pay child support to the father. The mother moved to dismiss the petition on the ground, among others, in effect, that the Family Court lacked jurisdiction because there was a prior child support order that had been issued by a court in Virginia. The Support Magistrate granted the mother’s motion, dismissed the petition, and vacated the temporary order of support. Family Court, granted the father’s objections and reinstated the temporary order of support. The Appellate Division reversed. It observed that the UIFSA, adopted in New York as article 5–B of the Family Court Act, grants continuing, exclusive jurisdiction over’ a child support order to the state that issued the order (Family Ct Act § 580–205[a]). Under the Full Faith and Credit for Child Support Orders Act and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state. A state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction . In this context, a “modification” is defined to mean “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B[b][8]). Support for the parties’ child was previously awarded to the mother in an order issued by a court within the jurisdiction of Virginia prior to the filing of the father’s petition. Accordingly, his petition was in the nature of a “modification” petition, rather than a “de novo” application. Since the father resided in the Commonwealth of Virginia, that entity retained continuing, exclusive jurisdiction of its child support order, and New York did not have jurisdiction to modify it.
In Louie v Louie, --- N.Y.S.3d ----, 2022 WL 959399, 2022 N.Y. Slip Op. 02172 (3rd Dept.,2022) the Plaintiff (wife) and defendant ( husband) were married in 1975 and had one emancipated child (born in 1976). The parties separated in 2007, and, in 2019, the wife commenced a divorce action. A bench trial was conducted to determine the issues of maintenance, equitable distribution and classification of the assets. Following the trial, Supreme Court adopted the findings of fact and conclusions of law submitted by the husband and issued a judgment of divorce. The judgment distributed the marital assets, directed the sale of certain properties and found that certain financial accounts were the husband’s separate property, but declined to award the wife maintenance or counsel fees.
The Appellate Division noted that the amount and duration of a maintenance award are addressed to the sound discretion of the trial court, and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding or declining to award maintenance. Supreme Court wholly adopted verbatim the husband’s proposed findings of fact and conclusions of law, without articulating the factors it considered or providing a reasoned analysis for its rulings on the proposed findings of fact and conclusions of law. Findings of fact submitted pursuant to CPLR 4213(a) cannot constitute the decision of the court as mandated by Domestic Relations Law § 236(B)(5)(g). (Capasso v. Capasso, 119 A.D.2d 268, 269, 506 N.Y.S.2d 686 [1986].
The trial testimony established that this was a 44–year marriage and both parties were retired, with the husband having retired in 1999 and the wife in 2016. The proof demonstrates that the wife earned approximately $31,582 per year and the husband earned approximately $117,000. The wife paid for a family health insurance plan through her former employer, and the husband and the wife also have Medicare. The parties’ predivorce standard of living was very comfortable. Given the lengthy term of the marriage, the significant disparity between the parties’ incomes and the unlikelihood that the wife will be able to close that gap despite her receiving additional assets from the equitable distribution of the marital property, as a majority of the husband’s income is from his separate property, it found that the husband should pay the wife monthly maintenance of $2,1391 for a period of 20 years. With regard to the effective date of the maintenance award, generally, awards are retroactive to the date an action for divorce is commenced. It found that the wife, who requested maintenance in both the summons with notice and the complaint, was entitled to a retroactive award of maintenance to the commencement of the divorce action.
The Appellate Division affirmed the denial of the wife’s request for counsel fees. The record failed to demonstrate that the wife properly supported her claim by filing a copy of the retainer agreement and a detailed affidavit setting forth the charges incurred (see Domestic Relations Law § 237[a]; 22 NYCRR 1400.3). An award of counsel fees requires that an evidentiary basis be established as to two elements: the parties’ respective financial circumstances and the value of the legal services rendered. Although the wife was the less-monied spouse, the record evidence indicating the amount of counsel fees that she expended, without more, failed to furnish a meaningful way to gauge the value of the services rendered.
The Appellate Division rejected the wife’s argument that Supreme Court erred in characterizing the husband’s funds in his Sterling Bank account and Citibank account as separate property. The husband testified, without contradiction, that he inherited funds from his parents and that he placed those funds in an account in his name only at Sterling Bank. The funds remained in his name, and the funds were never placed in the wife’s name. As to the Citibank account, the husband testified that this account was initially in his mother’s name. The husband’s name was added to the account to assist in paying his mother’s expenses. The wife’s name was never added to the account. Moreover, the wife failed to demonstrate that the account was later transmuted into marital property by commingling the funds.
In Giulilano v Giuliano,--- N.Y.S.3d ----, 2022 WL 959403, 2022 N.Y. Slip Op. 02160 (3d Dept.,2022) Plaintiff (husband) and defendant ( wife) were married in 1993 and had three children (born in 1994, 1998 and 2007). In 2015, the husband commenced the divorce action.
The Appellate Division rejected the wife’s argument that Supreme Court erred in imputing income to her. Income may be imputed based upon a prior employment experience, as well as such person’s future earning capacity in light of that party’s educational background. At trial, the wife testified that she was a registered nurse and that she applied for various full-time nursing jobs. She had worked part time as a nurse but also taught yoga classes. The wife explained that she could not work on a full-time basis because of the needs of the youngest child. The wife’s friend, however, was asked at trial whether the wife made any comment to her to the effect that returning to full-time work would hurt her divorce case, to which the friend responded, “I believe so.” The friend also testified that she did not tell the wife about nursing opportunities because “[t]here was no interest.” The Appellate Division held that although the wife argued that Supreme Court improperly relied on the friend’s testimony in imputing income to her, it was within the province of the court, as the trier of fact, to credit such testimony. Furthermore, the court considered that there was no proof indicating that the wife was not capable of full-time employment as a nurse. In view of the record evidence and taking into account that the court’s credibility determinations are entitled to deference, the court providently exercised its discretion in imputing income to the wife. Supreme Court did not err in imputing income to her in the amount of $58,000. The court reached this $58,000 amount based upon the wife’s capability of full-time work, her testimony regarding her hourly wage as a nurse and by taking into account a 40–hour work week. Because the court did not abuse its discretion in its calculation of imputed income, would not be disturbed.
The Appellate Division rejected the wife’s challenge to Supreme Court’s determination reducing her maintenance from the presumptive amount to a monthly amount of $450 for a period of three years. The amount and duration of a maintenance award are addressed to the sound discretion of the trial court and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not analyze and apply each and every factor set forth in the statute, but must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. Supreme Court found, and the record confirmed, that the wife was in good health and was capable of economic independence based on her work as a registered nurse and a yoga instructor. The court also considered that the husband paid most of the college expenses for the middle child, as well as medical costs for the middle and youngest children. The court’s decision provided a reasoned analysis for deviating from the presumptive maintenance amount and, therefore, the court’s determination was not disturbed .
The Appellate Division rejected the wife challenges to Supreme Court’s determination reducing the presumptive child support amount to be paid by the husband. The court’s decision reflected that it considered the husband’s contributions to the college expenses and medical costs of the children. Having reviewed the record in its entirety, its determination would not be disturbed.
The wife correctly contended that the reduced maintenance and child support awards should have been retroactively ordered. The matter was remitted for the purpose of determining the amount of retroactive maintenance and child support and the amount of credits, if any, to which the husband is entitled.
The wife took issue with Supreme Court’s determination awarding her 5% of the value of the husband’s business. The wife relied on her testimony that she performed tasks for the business and assisted with administrative and operational matters. The husband, however, offered proof to the contrary as to the wife’s direct contributions to his business. Presented with conflicting proof, the court did not credit the wife’s testimony, and no basis existed to disturb its credibility determination.. As to the wife’s indirect contributions, the court noted, and the evidence discloses, that the wife cared for the children and contributed to the overall household income while the husband worked. Upon review of the record it held that the wife should have been awarded 15% of the value of the husband’s business
In the Matter of David VV., v. Alison., --- N.Y.S.3d ----, 2022 WL 959420, 2022 N.Y. Slip Op. 02165 (3d Dept.,2022) Petitioner and the attorney for the child argued that the appeal in this termination of parental rights proceeding had to be dismissed because the challenged order was entered upon respondent’s default. The Appellate Division disagreed and found that under the circumstances Family Court abused its discretion in holding respondent to be in default. The order was reversed and the matter remitted for a new fact-finding hearing on the issue of abandonment. In light of the determination that the order was not entered upon respondent’s default, respondent’s failure to move to vacate the default finding did not preclude his appeal.
A modification of maintenance pursuant to Domestic Relations Law § 236(B)(9)(b)(1) is generally not appropriate where one spouse has the present ability to obtain higher paying employment, but brings about a reversal of financial condition by the spouse’s own actions or inactions. In Hickman v Hickman, --- N.Y.S.3d ----, 2022 WL 1037788, 2022 N.Y. Slip Op. 02318 (3d Dept.,2022) Plaintiff ( wife) and defendant (husband) were divorced in 2012. The parties’ divorce judgment required the husband to pay the wife spousal maintenance of $50,000 per year (or approximately $4,167 per month) for five years, as well as child support for their two children. In May 2020, after the maintenance obligation had terminated, the wife moved to modify the maintenance provision of the divorce judgment pursuant to Domestic Relations Law § 236(B)(9)(b)(1), seeking spousal maintenance of $7,000 per month. Supreme Court denied the wife’s motion. The Appellate Division affirmed. It pointed out that Domestic Relations Law § 236(B)(9)(b)(1) provides that a court in a matrimonial action may modify a maintenance award of any prior order or judgment made after trial “upon a showing of the payee’s inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship.” The party seeking the modification of a maintenance award has the burden of establishing the existence of the change in circumstance that warrants the modification”. Determining whether a substantial change has occurred and the extent of relief occasioned by such a change are matters addressed to the discretion of the trial court, with each case turning on its particular facts. A modification is generally not appropriate where one spouse has the present ability to obtain higher paying employment, but brings about a reversal of financial condition by the spouse’s own actions or inactions. A hearing is not required on a maintenance modification application unless the movant makes a prima facie showing of entitlement to a modification and demonstrates the existence of genuine issues of fact regarding a substantial change in circumstance. In the divorce judgment and the decision upon which it was based, Supreme Court imputed annual income of $55,000 to the wife. The court acknowledged that she had ceased full-time employment to be a mother and homemaker for 14 years during the marriage. However, the court noted, based on her education and prior work experience, that she was qualified and capable of obtaining employment and, although it might take some time, she could work toward self-sufficiency during the five-year duration of ordered maintenance payments. The court also noted that the wife had been aware of the divorce proceedings and her need to support herself for several years at that time, but had not yet taken steps leading to her return to self-sufficiency, had not engaged in serious efforts to find employment, and appeared to lack interest in returning to the workforce. Accepting as true the wife’s assertions in her application for modification, she applied for more than 100 jobs over 18 months, finally being offered one position with an annual salary of $40,000. After 15 months in that position, which had work hours from 9:00 a.m. to 5:00 p.m., she quit her job because she felt that she needed more flexibility to transport her children, then both teenagers, to after school activities. The wife then purchased a nonmedical home care business, despite having no experience in that field. The business experienced net losses each year, and she lacked capital to advertise and market its services. The wife avers that she unsuccessfully continued to look for jobs and tried to sell the business. Due to the expenses of the marital residence, the wife agreed to sell it earlier than required by the divorce judgment. Using some of the money from that sale along with a large mortgage, she purchased a spacious, expensive house, just five months before the maintenance payments were scheduled to cease.
The Appellate Division held that although the record demonstrated that the husband’s income increased significantly after the divorce, that is not determinative and does not necessarily present a substantial change in circumstance warranting a modification to increase maintenance. The wife was not required to show a change in circumstance that was unexpected, but she was required to establish a substantial change in circumstance or an inability to support herself. The record supported the conclusion that the wife’s behavior was at least partially responsible for her current financial situation, considering that she voluntarily left her job, purchased a house beyond her means and, contrary to advice from professionals, purchased a business that resulted in no profit. Despite some proof of her 18–month job search before gaining employment, the wife did not demonstrate that she was unable to find employment after quitting that job or discovering that her business was unprofitable. As the wife failed to make a prima facie showing of an inability to be self-supporting or a substantial change in circumstance that would warrant reinstating spousal maintenance, she was not entitled to a hearing on her application.
Although only 1 month passed between the custody order and the father’s modification petition, the mother’s attempted suicide and her being pushed down a flight of stairs by her boyfriend while the child was in her care, reflected a change in circumstances that warranted a review of the custodial arrangement In Matter of Devin W, --- N.Y.S.3d ----, 2022 WL 1037792, 2022 N.Y. Slip Op. 02316 (3d Dept.,2022) Petitioner ( father) and respondent ( mother) were the parents of a daughter (born in 2016). Pursuant to an order entered upon consent in January 2019, the parties were awarded joint custody of the child, with the child being placed with the mother during the week and with the father from 6:00 p.m. on Friday to 7:00 p.m. on Monday. In February 2019, the father filed a modification petition seeking sole physical custody of the child due to the mother’s mental and physical health issues. Family Court issued a December 2019 decision finding that the mother’s January 2019 suicide attempt and her involvement in a domestic violence incident constituted a change in circumstances that warranted revisiting the custodial arrangement. The court further found that the best interests of the child lie in awarding the father physical placement of the child and the mother supervised visitation. Family Court contemporaneously issued an order awarding the parties joint legal custody of the child, the father primary physical placement and the mother supervised visitation on alternating weekends, a week in the summer and as agreed by the parties. The Appellate Division affirmed. It held that although little time had passed between the stipulation that led to the January 2019 order and the father’s February 2019 modification petition, the mother’s own testimony reflected that, shortly after the parties had agreed to the terms of that order, she attempted suicide and was pushed down a flight of stairs by her then-boyfriend during a domestic dispute that occurred while the child was in her care, those developments reflected a change in circumstances that warranted a review of what custodial arrangement would be in the child’s best interests. Although the inquiry into whether a “change in circumstances has occurred should be limited to occurrences since the date of the prior custody order, a best interests inquiry is broader and may include other facts that give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party’s fitness as a parent”
March 30, 2022
Appellate Division, First Department
Confidential mental health records may only be disclosed upon a finding that the interests of justice significantly outweigh the need for confidentiality. Under Family Court Act § 1038(d) the court must conduct a balancing test to weigh the need of the moving party for the discovery against any potential harm to the child In Matter of Briany T., 202 A.D.3d 408, 161 N.Y.S.3d 79, 2022 N.Y. Slip Op. 00629 (1st Dept.,2022) Respondent sought disclosure of records relating to the prior and current mental health treatment of the 13–year–old child who reported that he sexually abused her, claiming that those records are material and necessary to his defense that the child is fabricating her allegations. The Appellate Division held that confidential mental health records may only be disclosed upon a finding by a court that “the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must conduct a balancing test to weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery”. It held that although a close question, given respondent’s need to prepare his defense, his right to impeach the child’s credibility as she was likely to be a witness, and the child’s diminished interest in the confidentiality of older records from an institution that was not currently providing services to her, an in camera review of the NYP records was warranted (Matter of Dean T., Jr., 117 A.D.3d at 492, 985 N.Y.S.2d 518). It remanded the matter to the Family Court to review the child’s mental health records from NYP in camera to determine whether there was any information in those records that tended to support respondent’s defense that the child had previously made a false allegation when she was approximately four years old and had underlying mental health issues relating to the earlier disclosure.
Default judgment of divorce vacated where husband’s absence was likely attributable to his mental health and there should have been an inquiry into whether a guardian ad litem was necessary. In Richard v Buck, --- N.Y.S.3d ----, 2022 WL 903740 (1st Dept.,2022) the Appellate Division reversed a Judgment that was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and supreme court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. At the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. Thus, before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary. Because there was no inquiry, the judgment was vacated and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity.
Appellate Division, Second Department
Pendente lite maintenance properly denied without prejudice here wife failed to submit statement of net worth In Yin v. Qiao, --- N.Y.S.3d ----, 2022 WL 791392 (Mem), 2022 N.Y. Slip Op. 01839 (2d Dept.,2022) the Appellate Division held, among other things, that the Supreme Court properly denied that branch of plaintiff’s motion which was for an award of pendente lite maintenance, without prejudice, because she failed to attach a statement of net worth to her motion papers (see 22 NYCRR 202.16[k][2]; Barton v. Barton, 137 A.D.3d 723, 724, 27 N.Y.S.3d 572).
Supreme Court improvidently exercised its discretion in awarding the defendant husband, who was the monied spouse, attorney’s fees where the plaintiff’s motion was not so lacking in merit as to justify such an award. Award of prospective sanctions on the plaintiff in future litigation improvident exercise of discretion. In Assad v Assad, 200 A.D.3d 831, 161 N.Y.S.3d 92, 2021 N.Y. Slip Op. 06978 (2d Dept., 2021) the parties were divorced by judgment dated September 13, 2016, which incorporated, but did not merge, a stipulation of settlement of the parties dated January 29, 2016. Pursuant to the stipulation of settlement, the parties shared joint legal custody of their three children, with primary residential custody to the plaintiff and a parental access schedule for the defendant. The stipulation also provided that the plaintiff was prohibited from relocating with the children outside of New York City without prior written consent of the defendant, or court order. On June 16, 2020, the plaintiff moved, inter alia, to modify the stipulation of settlement to permit her to relocate with the children to Texas, or in the alternative, to upwardly modify the defendant’s child support obligation and award her sole custody of the children. The defendant cross-moved for an award of attorney’s fees. In an order entered January 4, 2021, the Supreme Court, inter alia, denied, without a hearing, those branches of the plaintiff’s motion, granted that branch of the defendant’s cross motion to the extent of awarding him attorney’s fees of $5,000, and, sua sponte, enjoined the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court, and directed that if the plaintiff attempted to re-litigate the same issues in the future, sanctions would be imposed against her for the defendant’s full costs and fees of defending the action.
The Appellate Division held that Supreme Court properly denied the plaintiff’s motion to permit her to relocate with the children to Texas or to award her sole custody of the children. However, the Supreme Court erred in summarily denying the plaintiff’s motion which was to modify the stipulation of settlement to upwardly modify the defendant’s child support obligation. Since the parties did not opt out of the provisions of Domestic Relations Law § 236(B)(9)(b)(2)(ii), the plaintiff was not obligated to demonstrate a substantial change in circumstances where, as here, she demonstrated that three years had passed since the last order concerning child support was entered Moreover, the plaintiff also demonstrated that the defendant’s gross income had increased by 15% or more during that time.
The Appellate Division also held that a court has the authority to award an attorney’s fee in custody proceedings when warranted under the circumstances of the case (see Domestic Relations Law § 237[b]). Here, the Supreme Court improvidently exercised its discretion in awarding the defendant attorney’s fees. The plaintiff’s motion did not attempt to re-litigate previously waived claims, and it represented the plaintiff’s first request for permission to relocate, sole custody of the children, and an upward modification of the defendant’s child support obligation since the judgment of divorce was entered in 2016. Moreover, the defendant was the monied party and the plaintiff’s motion “was not so lacking in merit as to justify such an award.”
For similar reasons, the Supreme Court improvidently exercised its discretion in enjoining the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court and in imposing prospective sanctions on the plaintiff in future litigation.
Both voluntary child support payments which were made prior to a pendente lite order and payments made pursuant to a pendente lite order may be credited toward a party’s retroactive child support. In Ford v Ford, 200 A.D.3d 854, 161 N.Y.S.3d 103, 2021 N.Y. Slip Op. 06988 (2d Dept., 2021) the parties were married in 1998, and had three children. The plaintiff commenced an action for a divorce on May 4, 2012. On March 6, 2013, the plaintiff moved for pendente lite relief. In an amended order dated August 2, 2013, the Supreme Court directed the defendant, inter alia, to continue to pay to the plaintiff unallocated maintenance and child support and to pay 100% of various carrying charges on the marital residence, which was in the plaintiff’s exclusive use and occupancy in accordance with a stipulation of the parties and awarded the plaintiff interim counsel fees of $3,000. On December 15, 2016, the parties entered into a stipulation of settlement in which they agreed, inter alia, to the defendant’s prospective child support obligation. The parties agreed to submit to the court for determination the issues of retroactive child support and additional counsel fees on behalf of the plaintiff. A judgment of divorce was entered April 26, 2017. The Appellate Division held, inter alia, that a party is entitled to a credit for any amount of temporary child support already paid as well as for carrying charges on the marital home. Both voluntary child support payments which were made prior to a pendente lite order and payments made pursuant to a pendente lite order may be credited toward a party’s retroactive child support. It noted that payments made by the defendant toward counsel fees on behalf of the children do not constitute basic child support.
Petitioner deprived of her statutory right to counsel where Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary. Court’s determination, after brief questioning of the petitioner, did not constitute a hearing to determine subject matter jurisdiction.
In Matter of Minor v Birkenmeyer, 200 A.D.3d 1044, 161 N.Y.S.3d 209, 2021 N.Y. Slip Op. 07546 (2d Dept.,2021) the petitioner commenced a family offense proceeding against the respondent, with whom she alleged she had resided in the past. At the initial court appearance, the Family Court advised the petitioner that she had a right to counsel, that “[h]aving an attorney can be helpful” but that having an attorney “is not something that we force people to do.” The court advised the petitioner that it could give her time to consult with or hire an attorney or that the petitioner could ask the court to determine if the petitioner would be eligible to have an attorney assigned to represent her at no cost. The court also informed the petitioner that she also had the right to represent herself and inquired if, for purposes of the proceedings that day, she wanted to be represented by counsel. The petitioner responded, “[f]or today’s purposes no I don’t think so.” The court then asked the petitioner several questions about the petitioner’s relationship with the respondent. Thereafter, in an order dated January 13, 2021, the Family Court dismissed, with prejudice, the proceeding for lack of subject matter jurisdiction. The Appellate Division reversed. It held that a party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel. Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary. Thus, the petitioner was deprived of her statutory right to counsel. It also held that the Family Court also should have conducted a hearing prior to determining that it lacked subject matter jurisdiction on the ground that the parties did not have an intimate relationship within the meaning of Family Court Act § 812(1)(e). The court’s determination, after brief questioning of the petitioner, without affording the petitioner the opportunity to testify or proffer any evidence as to whether the relationship she had with the respondent constituted an intimate relationship within the meaning of Family Court Act § 812(1)(e), did not constitute a hearing. It remitted the matter to the Family Court for a hearing to determine whether the Family Court had subject matter jurisdiction and for further proceeding, if warranted. It directed that upon remittitur, the court must conduct an appropriate inquiry as to whether the petitioner wishes to waive her right to counsel.
Appellate Division, Third Department
Parents retain the right to make certain medical decisions for their children in foster care.Appellate Division establishes standard for determining if children in foster care can have covid-19 vaccine despite objection by parent. In Matter of Athena Y., 201 A.D.3d 113, 161 N.Y.S.3d 335, 2021 N.Y. Slip Op. 06908 (3d Dept.,2021) Petitioner commenced a proceeding in August 2020 alleging that respondent neglected her four children. In February 2021, petitioner effected an emergency removal of the children and placed them in foster care. In response to respondent’s motion for their return, Family Court held a hearing and denied that motion. Several months later, the attorney for the children (AFC) informed Family Court that the two oldest children, then 13 and 15 years old, wished to receive the COVID–19 vaccine, but respondent did not consent. In response to the court’s request for the parties’ positions, the AFC, petitioner and the children’s father all submitted letters in support of allowing the children to be vaccinated, while respondent opposed the vaccination. After reviewing the parties’ submissions, Family Court held that the children had the right to decide whether to receive the COVID–19 vaccine and ordered that they shall be given the vaccine if they still consent.
The Appellate Division reversed. It held that parents have a fundamental right to raise their children in the manner they choose, subject to the state’s ability to intervene to protect children in narrow circumstances. By statute, the right to make health care decisions for oneself belongs to anyone at least 18 years old. Under common law, parents generally have the right to make health care decisions for their minor children, though some exceptions exist, such as for emergency situations. Even when the state intrudes on a family by obtaining a temporary order of custody due to abuse or neglect, “parents retain the right to make certain medical decisions for their children in foster care,” up until the moment that parental rights are terminated. Family Court determined that the situation is “similar to reproductive health services for children in foster care,” as governed by regulations permitting children ages 12 and older to make their own decisions after being informed about such relevant services (see 18 NYCRR 463.1, 463.2[b]). The Appellate Division held that Respondent was entitled to a hearing before Family Court issued an order authorizing vaccination of the children. Due process generally requires notice and an opportunity to be heard before medical treatment is imposed upon a patient by court order (see Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 224, [1990]), but the opportunity to be heard does not always require a formal procedure. Family Court gave the parties notice that it was considering the AFC’s request and directed the parties to submit their positions to the court in writing, thus providing some limited opportunity to be heard. Having reviewed those submissions, the court rendered its decision. The court made specific findings that the subject children “have been fully informed regarding COVID–19 and the vaccine” and that they “have the capacity to consent.” These factual findings were made without evidence and based solely on hearsay, through unsworn letters containing representations by counsel. This did not constitute a sufficient basis to support these findings. At such a hearing, the court must focus on whether respondent’s refusal to authorize vaccination constitutes “an acceptable course of medical treatment for [her] child[ren] in light of all the surrounding circumstances,” while heeding the Court of Appeals’ cautionary point that courts cannot “assume the role of a surrogate parent” (Matter of Hofbauer, 47 N.Y.2d at 656). As the Office of Children and Family Services’ guidance documents prohibit local agencies from administering a COVID–19 vaccine if the child refuses to consent, the hearing must address whether the subject children have been fully informed about COVID–19 and the vaccine and whether they have the capacity to consent. After the hearing, the court must carefully balance the risks and benefits of the potential vaccination to decide whether to authorize it for the subject children). It remitted for Family Court to promptly conduct a hearing on the issue, applying this standard.
Where all parties were in agreement that there was no concern over equitable estoppel and that a genetic marker test as to respondent should be ordered Family Court exceeded its authority by ordering that another party should be named respondent in this proceeding. A court cannot, on its own initiative, add or direct the addition of a party.
In the Matter of Schenectady County Department of Social Services on Behalf of Desiree CC v. Noah DD.,200 A.D.3d 1509, 161 N.Y.S.3d 442, 2021 N.Y. Slip Op. 07587 (3d Dept.,2022) nine months prior to the child’s January 2017 birth, Petitioner was in a sexual relationship with respondent, and the two resided together in North Carolina. She entered into a relationship with Rory EE., a resident of New York, in November 2017, when the child was 10 months old. About four months later, petitioner filed an application on behalf of the mother against respondent seeking an order of filiation. By January 2019, after the child had just turned two years old, all parties were in agreement that there was no concern over equitable estoppel in this matter and that a genetic marker test as to respondent should be ordered (see generally Family Ct Act § 532[a]). Family Court nonetheless determined that a hearing and written findings as to equitable estoppel were required before a test could be ordered and it subsequently added Rory EE. as a named respondent in this proceeding. The Appellate Division held Family Court exceeded its authority by adding him. Although a court may raise the absence of a necessary party at any stage of the proceedings upon its own motion a court cannot, on its own initiative, add or direct the addition of a party. Rather, the court may only summon a person who should be joined, if the court has jurisdiction over the person; if jurisdiction over the person can be obtained only by his or her consent or appearance, the court must determine whether the proceeding should be permitted to proceed in that person’s absence. Family Court plainly did not have the authority to make Rory EE. a named party to this proceeding. . Family Court also failed to obtain jurisdiction over Rory EE. No petition or summons, or supplemental summons, was filed against or served upon him (see Family Ct Act §§ 522–525), no party moved to add him as a necessary party and there was no stipulation to that end (see CPLR 1003), and he had not appeared before Family Court or otherwise consented to the court’s jurisdiction (see CPLR 320[b]). It reversed and remitted for further proceedings, “at which time the parties remain free to move for or stipulate to Rory EE. being added as a necessary party, or not, and, absent such a motion or stipulation, and if his joinder is deemed to be necessary, the court is limited to directing that reasonable efforts be made to join him as a party or considering whether this matter should proceed in his absence (see CPLR 1001)”.
Enforcement of a post-adoption contact agreement will only be ordered if it is determined to be in the child’s best interests In Matter of Jennifer JJ., v. Jessica JJ., 2022 WL 867119 (3d Dept.,2022) the Appellate Division pointed out that pursuant to Domestic Relations Law § 112–b (4), birth parents and adoptive parents may enter into a legally enforceable agreement regarding post-adoption contact that may thereafter be enforced by filing a petition in Family Court. It held that enforcement of a post-adoption contact agreement will only be ordered if it is determined to be in the child’s best interests. The hearing court’s determination of best interests will only be disturbed if it lacks a sound and substantial basis in the record.
A former judge is automatically prohibited, as a matter of law, from acting as an attorney in any action, claim, matter, motion or proceeding, which has been before him or her in his or her official character. In Corey O v Angela P, 2022 WL 867063 (3d Dept.,2022) the Appellate Division affirmed an order which awarded the parties joint legal custody of the children with the father having primary physical custody and the mother having parenting time. The Appellate Division observed that the attorney for the children ( AFC) was previously a judge who, in 2014, decided a custody case involving the mother her. It noted that a former judge is automatically prohibited, as a matter of law, from acting as an attorney “in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character” (Judiciary Law § 17). Here, the custody case neither involved the subject children nor the subject children’s father. It was an entirely separate proceeding involving different children and a different father. The mother did not allege any factual ties between these underlying proceedings and the prior custody case. The only common tie between them was that the mother was a litigant. Only the mother, and not her present custody claim over the subject children, had been before the AFC during his tenure as a judge. Although not explicitly clear from the record, the mother’s fitness as the custodial parent presumably was an issue presented in her prior custody case. It was also an issue present here. Equating a discrete issue with a “matter” provided in Judiciary Law § 17, however, impermissibly stretches the meaning of “matter” such that it does not comport with “action, claim, ... motion or proceeding” – the other terms in Judiciary Law § 17. Moreover, in view of the jurisdiction of Family Court and the particular cases such court hears, a party’s fitness as a custodial parent frequently arises as an issue whether directly or indirectly. By giving an expansive view to “matter,” the AFC, a former Family Court judge who had presided over countless proceedings in the past, would be disqualified from representing any party in any future case where another party in such case was previously before the AFC in one of those past proceedings, a result that would occur without regard to the nature of either the past proceeding or future case. It held that based on the circumstances of this case, neither a new hearing nor automatic disqualification of the AFC under Judiciary Law § 17 was required.
Appellate Division, Fourth Department
The costs of providing suitable housing, clothing and food for child do not qualify as extraordinary expenses so as to justify a deviation from the presumptive child support amount. Entertainment, including sports, is not an extraordinary visitation expense for purposes of calculating child support. In Matter of Livingston County Support Collection Unit on behalf of Yusko v. Sansocie, --- N.Y.S.3d ----, 2022 WL 819070, 2022 N.Y. Slip Op. 01914 (4th Dept., 2022) there was a shared custody arrangement in which the father was the primary custodial parent. The Support Magistrate determined that, because the children spent approximately 50% of the parenting time with the mother and because the mother incurred expenses for the children’s “food, clothing, shelter, utilities, cell phones, transportation[,] and extracurricular activities” during the times they were with her, she should be granted a variance from the presumptive support obligation. That was error. Although “extraordinary expenses incurred by the non-custodial parent in exercising visitation” with a child not on public assistance may support a finding that the presumptive support obligation is unjust or inappropriate (Family Ct Act § 413 [1] [f] [9] [I]), “[t]he costs of providing suitable housing, clothing and food for [a child] during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount”, “nor is the cost of entertainment, including sports, an extraordinary visitation expense for purposes of calculating child support”. The Appellate Division concluded that the Support Magistrate’s determination “was merely another way of [improperly] applying the proportional offset method” which has been rejected. It remitted the matter to Family Court for a determination of respondent’s support obligation upon an adequate record.
Family Court
Family Court holds that attorneys can recoup fees that are expended while attempting to recover counsel fees in family offense proceedings
In Matter of a Custody/Visitation Proceeding Article 8 of the Family Court Act M. M., v. A. A., .74 Misc.3d 202 (Fam Ct, 2021) Respondent was a physician who earned upwards of $300,000 a year. Petitioner was a stay-at-home mother who does not have an independent source of income. Petitioner commenced a family offense proceeding which resulted in a stipulated final order of protection. Petitioner’s counsel brought a motion for legal fees in excess of $40,000 dollars pursuant to Family Court Act § 842 (a) and (f). The Court granted the motion in part. It noted that Family Court Act § 842(f) states that if an order of protection is either obtained or enforced, the wrongdoer may be required “to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order.” See Family Court Act § 842(f). The Family Court Act is silent as to whether attorneys can recoup additional fees that are expended while attempting to recover underlying counsel fees, and there is a very limited body of case law which addresses “fees for fees” in family offense proceedings. However ,the Court of Appeals has held that they are authorized. (O'Shea v O'Shea, 93 NY2d 187, 193 (1999)). It explained that the Parties’ respective financial positions are a threshold consideration in determining whether to award attorney’s fees. Other factors to be considered are “the nature and extent of the services rendered, the complexity of the issues involved, and counsel’s experience, ability, and reputation.” Thereafter, the court must determine the “reasonable” value of the services provided through an evidentiary hearing. The court can consider the same factors used in determining whether legal fees should be awarded when assessing their reasonable value and total amount to be paid. In utilizing its discretion regarding the total amount of legal fees to be paid, the court should assess facts, including the parties’ finances, relative to each other. For instance, in a fee hearing involving a more monied Respondent father, the same factors which support an award of counsel fees also militate against granting the mother’s request that respondent be responsible for her entire fee.
In its analysis the Appellate Division observed that CPLR 510(1) provides that the court, upon motion, may change the place of trial of an action where the county designated for that purpose is not a proper county. CPLR 503(a) provides that except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced. The leading Court of Appeals case on the issue of the meaning of “reside” is Yaniveth R. v. LTD Realty Co. (27 NY3d 186). In that case, the Court of Appeals concluded that a child who did not live in the subject apartment but spent approximately 50 hours per week there with a caregiver did not “reside” in the apartment In doing so, the Court of Appeals reviewed, among other things, venue cases interpreting CPLR 503(a) and its predecessor, and synthesized from them the following definition of “residence”: “[r]esidence means living in a particular locality, even if a person does not intend to make that place a fixed and permanent home, i.e., a domicile…. [A] person’s ‘residence’ entails something more than temporary or physical presence, with some degree of permanence and [an] intention to remain. Thus, [a]lthough it is true that a person may have more than one residence[,]…to consider a place as such, he [or she] must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency”.
This Court has held that “[r]esidence requires more stability than a brief sojourn for business, social or recreational activities.” Thus, in Doe v. Hall (36 AD3d 651), the Court held that the affidavit of the plaintiff’s son, who stated that at the time of the commencement of the action the plaintiff maintained a residence at her son’s apartment in Queens County and would “reside” there when she came back to Queens County during holidays and other times, was insufficient to establish that the plaintiff resided in Queens County at the time the action was commenced. Similarly, in Stern v. Epstein (29 AD3d 778), this Court held that the plaintiffs’ use of their medical office in Kings County to sleep over for convenience a couple of nights a week did not render them residents of Kings County for venue purposes. And in Katz v. Siroty (62 AD2d 1011), the plaintiff, whose primary residence was in Scarsdale, retained the exclusive use of a bedroom in his sister and brother-in-law’s home in Brooklyn, where he slept between 50 and 100 times per year when he visited his Manhattan law office or when he had to see people in localities such as Patchogue, Long Island. This Court concluded that the plaintiff’s “occasional use of a bedroom in his sister and brother-in-law’s home when he transacts business in the New York metropolitan area does not support his contention that he has a second residence in Brooklyn”.
This case presented two issues relating to the parties’ residence: (1) whether the parties’ seasonal use of the Southampton house on weekends prior to March 2020 made them residents of Suffolk County; and (2) whether the defendant’s retreat to the Southampton house at the outset of the COVID-19 pandemic made her a resident of Suffolk County. The Appellate Division concluded that neither of these things made the parties residents of Suffolk County. The defendant clearly established that the parties primarily resided in New York County. The defendant submitted, among other things, copies of: the parties’ income tax returns, listing their address in New York County as their residence and reflecting their payment of New York City income taxes; the defendant’s voter registration showing that she was registered to vote in New York County; the defendant’s driver license listing her address in New York County; motor vehicle records showing that the parties’ cars were all registered in New York City or were in the process of having the registration transferred from New Jersey to New York City; an email from the plaintiff to the parties’ art insurance carrier stating that the parties did not have any intention of adding any art to the Southampton house; and bank statements listing the Beresford apartment and the plaintiff’s Manhattan office as the parties’ addresses.
Although a person may have more than one residence, the defendant demonstrated that neither party resided in Suffolk County at the time of the commencement of the action. With respect to the parties’ use of the Southampton house prior to 2020, the Appellate Division observed that a highly instructive case was Daley v. Daley (257 AD2d 593) which held that a seasonal residence was not sufficient to establish a party’s residency for venue purposes, at least where the party frequently resided in another location during the workweek. Here, in her affidavit submitted in support of her motion, the defendant averred that prior to 2020, the Southampton house was only used by the parties on weekends in the summertime, with limited exceptions, and that the only time the parties stayed in the Southampton house outside of the summer season was a few days over the Christmas holiday break in 2018. The plaintiff’s affirmation submitted in opposition to the motion does not contain anything disputing these averments. Since it was undisputed that, prior to 2020, the parties only stayed in the Southampton house on weekends in the summer, with limited exceptions, contrary to the plaintiff’s contention, neither party resided in Suffolk County at any time prior to 2020.
Contrary to the Supreme Court’s conclusion, the time the defendant spent in the Southampton house in 2020 during the COVID-19 pandemic was not enough to make her a resident of Suffolk County. Although the defendant retreated to the Southampton house in March 2020, it was undisputed that the defendant planned only to stay there temporarily to assist her immunocompromised daughter and newborn grandchild when the COVID-19 pandemic was at its zenith in New York City. Under the circumstances of this case, the defendant did not have the bona fide intent to retain [Suffolk County] as a residence with at least some degree of permanency (See Yaniveth R. v. LTD Realty Co., 27 NY3d at 193 ; Morreale v. 105 Page Homeowners Assn., Inc., 64 AD3d at 690; see also Ray-Ollenu v. Kaufman Mgt. Co., 107 AD3d 476; Sibrizzi v. Mount Tom Day School, 155 AD2d at 338).
A party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children. In Matter of Gerety v Gerety, --- N.Y.S.3d ----, 2022 WL 697433, 2022 N.Y. Slip Op. 01455 (2d Dept.,2022) the Appellate Division held that the party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification. In determining whether there has been a change in circumstances warranting modification of a parent’s child support obligation, the court must consider several factors, including the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children. A substantial change in circumstances may be measured by comparing the parties’ financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.
In Matter of Santana v Barnes, --- N.Y.S.3d ----, 2022 WL 731173 (Mem), 2022 N.Y. Slip Op. 01634 (4th Dept., 2022) a custody and visitation proceeding the Appellate Division rejected the mother’s contention that the court erred in failing to appoint an attorney for the child (AFC). The determination whether to appoint an AFC in a custody and visitation proceeding is discretionary. Although a court may appoint an AFC on its own motion it held that, given that the child was less than one year old at the time and thus would have been unable to express his wishes to an AFC, the court did not abuse its discretion in not appointing an AFC.
In Matter of Deborah K v Richard K, --- N.Y.S.3d ----, 2022 WL 618996 (Mem), 2022 N.Y. Slip Op. 01391(1st Dept.,2022) the Appellate Division found that the father’s objections to the amended orders of the Support Magistrate were untimely (Family Court Act § 439[e]), and that he failed to proffer a reasonable excuse for the delay. Nevertheless, it exercised its discretion to entertain this appeal (see Family Court Act § 1112), to the extent it implicated the Family Court’s subject matter jurisdiction to modify the parties’ stipulation of settlement agreement, dated February 26, 2013 (see Matter of Georgette D.W. v. Gary N.R., 134 A.D.3d 406, 406, 21 N.Y.S.3d 41 [1st Dept. 2015]). It observed that a stipulation of settlement which is incorporated but not merged into the parties’ judgment of divorce may be reformed only in a plenary action and that Family Court does not have jurisdiction to modify a separation agreement.
In Nizen v Jacobellis, --- N.Y.S.3d ----, 2022 WL 610030 (Mem), 2022 N.Y. Slip Op. 01299 (2d Dept.,2022) the father filled objections to an order dated January 19, 2021, asserting that the order failed to adequately credit him for payments he made toward the arrears. The father attempted to effectuate service of his objections upon the mother, who was not represented by counsel, via email. The mother did not file a rebuttal to the father’s objections. Family Court denied the father’s objections on the ground of improper service. The Appellate Division affirmed. It held that Family Court properly denied his objections on the ground of improper service. Family Court Act § 439(e) provides, in pertinent part, that a party filing objections shall serve a copy of such objections upon the opposing party, and that proof of service upon the opposing party shall be filed with the court at the time of filing of objections. Since Family Court Act § 439(e) does not set forth the permissible methods for service of objections, the provisions of the Civil Practice Law and Rules are applicable. Pursuant to CPLR 2103(b), papers to be served upon a party, which includes an “opposing party” as described in Family Court Act § 439(e), shall be served upon the party’s attorney (CPLR 2103[b]), and may be served by, inter alia, transmitting the papers to the attorney by email when the transmission by email is made “upon the party’s written consent” ( § 2103[b][7]). However, if a party has not appeared by an attorney, service shall be upon the party” (§ 2103[c]), and may be made by certain methods set forth in CPLR 2103(b), such as personal delivery (§ 2103[b][1]; [c]). Service by email is not one of the permissible methods of service of papers upon a party who has not appeared by an attorney. Since the father failed to serve his objections upon the mother in compliance with CPLR 2103(c), the father’s proof of service of the objections upon the mother was deficient. Therefore, the father failed to fulfill a condition precedent to filing timely written objections and, failed to exhaust the Family Court procedure for review of his objections. Consequently, the father’s contentions regarding the merits of his objections were not reviewable.
The Appellate Division found that the testimony at trial established that the husband was 63 years old and in good health at the time of trial. At the time of trial, the husband was working as a sales supervisor earning $48,000 per year. For additional income, the husband was driving for Uber earning, on average, $250 per week, but he was not compensated for gas mileage or wear and tear on his vehicle. In 1985, the wife purchased property located in Feura Bush, Albany County. Three years later, the husband transferred his interest in the property to the wife. Since 1991, the husband lived with a woman and that they split household expenses. He indicated that he had credit card debt amounting to $2,600. He owed $500 in back taxes. At the time of trial, the wife was 63 years old, in good health and was residing in the marital residence. She had an Associate’s degree in secretarial science. Most of her work had been administrative. She was not employed at the time of trial, having retired, and was receiving $750 monthly through Social Security benefits. Her 2016 tax return indicated that she earned $6,878 in income. The wife could not explain why her earnings were low considering her employment history. Her resume indicated that she has various computer skills, which she had retained. The wife indicated that she had received insurance through Medicaid. She had a savings account, which was not reflected on her statement of net worth. which reflected varying balances in excess of $2,000, which the wife alleged was an error. The wife was unable to state who deposited the funds. “My supports.” The wife heavily relied on spousal support payments the husband had been ordered to make and received Supplemental Nutrition Assistance Program payments. The wife indicated that she had not applied for any jobs recently, but there was no reason that she cannot work in certain positions. The wife testified that, in approximately 2001, a family friend paid off the mortgage and now owned the residence but she was still listed on the deed. She stated that she had certain maintenance payments for the house and paid the homeowners’ insurance, but the owner took care of most expenses. Although she testified that she had not paid rent since 2005, her financial affidavit reflected rent or mortgage payments of $550. This same family friend assisted with the wife’s counsel fees. There was no evidence that she could not work, Supreme Court imputed income to the wife based on her administrative skill set and her ability to earn $10 per hour on a part-time basis. Based on the wife’s imputed income and the husband’s income, the court calculated the presumptive postdivorce maintenance obligation and then, after reviewing the statutory factors in Domestic Relations Law § 236(B)(6)(e)(1), determined that this award was unjust and inappropriate. The Appellate Division affirmed. The court determined that the wife could support herself through her Social Security income and food stamps, her ownership of the marital residence, her support from family and friends and her ability to work. The Appellate Division found that this deviation was supported by the record, especially considering that the wife conceded that the spousal support payments were for the mortgage and the mortgage had since been paid in full. It noted that upon the entry of the divorce judgment by Supreme Court, all prior support orders of Family Court became null and void in the absence of Supreme Court’s adoption and incorporation of those orders in the divorce judgment” (Family Ct Act § 412[1][c]).
The Appellate Division rejected the wife’s argument that Supreme Court erred in denying her any portion of the husband’s retirement accounts because the court did not consider certain statutory factors outlined in Domestic Relations Law § 236(B)(5)(d). Domestic Relations Law § 236(B)(5)(d) directs that “the court shall set forth the factors it considered and the reasons for its decision and such may not be waived” (Domestic Relations Law § 236[B][5][g]). However, the factors do not have to be specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered. The court’s award will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236(B)(5)(d) . The record revealed that, as of June 2018, defendant’s 401(k) account had just over $10,000. He also had a pension plan that would pay him $500 per month, contingent on the stock, when he reaches the age of 65. In its order, Supreme Court explicitly stated each factor it must consider under Domestic Relations Law § 236(B)(5)(d) and then analyzed each factor that was relevant, while indicating what factors it deemed irrelevant to the analysis. After analyzing each factor, Supreme Court looked at each asset to determine what distribution would be appropriate and found it appropriate to award the entirety of the retirement assets to the husband. With that being said, the court awarded the entire marital residence to the wife and any other property not discussed was distributed to “the party holding title or possession.” In support of its determination, the court stated that “it is appropriate, equitable and just to award the husband [the retirement] assets in light of the fact that the parties had been physically and financially separated for at least 14 years when the husband started working at Golub [Corporation] and in light of the [c]ourt’s award of the marital residence to the wife without any distribution to the husband of a portion of the equity.” Although the court did not explicitly state which factors contributed to the decision regarding the retirement assets, the order expressly stated each factor and assessed its relevance against the facts and circumstances of the case, and it was clear from the order that the parties’ respective incomes, the duration of the marriage and other financial circumstances were heavily considered. Based on the foregoing it could not be said that the court abused its discretion in awarding the husband 100% of his retirement assets.
Family Court’s determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record. In Matter of Gabrielle N, --- N.Y.S.3d ----, 2022 WL 547209, 2022 N.Y. Slip Op. 01213 (3d Dept.,2022) a neglect proceeding, the Appellate Division affirmed an order which modified a permanency goal to placement for adoption. It observed that at the conclusion of a permanency hearing, the court has the authority to modify an existing permanency goal and must enter a disposition based upon the proof adduced and in accordance with the best interests of the children. While the aspiration is to return children to their parents, where such goal proves impossible because the parents are unable to correct the conditions that led to the removal, the goal then becomes finding a permanent, stable solution for the children. Family Court’s determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record.
The mere fact that the court adopted petitioners’ proposed findings of fact did not compel a conclusion that it did not undertake an independent evaluation of the record. In Matter of Baby S, --- N.Y.S.3d ----, 2022 WL 547137, 2022 N.Y. Slip Op. 01219 (3d Dept.,2022) after petitioners commenced a proceeding to adopt her child, respondent filed a notice of revocation of her extrajudicial consent to the adoption. Petitioners opposed the revocation. Following a hearing, Family Court adopted the proposed findings of fact and conclusions of law submitted by petitioners in its entirety and found that the extrajudicial consent was valid and that her notice of revocation was null and void. The Appellate Division affirmed. It held that in view of respondent’s timely revocation of her extrajudicial consent and petitioners’ timely opposition, at issue was whether petitioners’ adoption of the child, as permitted by Family Court, served the child’s best interests (Domestic Relations Law § 115–b [6][d][ii]) as the custody of the “ child shall be awarded solely on the basis of the best interests of the child, and there shall be no presumption that such interest will be promoted by any particular custodial disposition” (Domestic Relations Law § 115–b [6][d][v]). It rejected that argument that Family Court improperly delegated its responsibility to make factual findings when it adopted petitioners’ proposed findings of fact in total. It found that the court directed the parties to submit their own proposed findings of fact, and it was permitted to receive them and “pass upon [them]” (CPLR 4213[a]). The mere fact that the court adopted petitioners’ proposed findings of fact did not compel a conclusion that it did not undertake an independent evaluation of the record. The court presumably “did exactly that and, as a result, concurred with the proposed findings submitted” (Gerenstein v. Williams, 282 A.D.2d 786, 787, 723 N.Y.S.2d 255 [2001]). In a footnote it pointed out that a court’s wholesale copying of the prevailing party’s proposal, although occasionally allowable, is rarely advisable, particularly in such a delicate case. The better practice is for a court to craft its own decision stating] the facts it deems essential” (CPLR 4213[b]), even if it incorporates many of the findings submitted by one party.
Although a subsequently issued permanency order effectively supersedes prior permanency orders, an appeal from a prior order is not moot if that prior order modified the permanency goal. In Matter of Jaylynn WW, 2022 WL 547172 (3d Dept.,2022), a neglect proceeding, the Appellate Division observed that although CPLR 2101(c) requires the caption of a summons and complaint in a civil matter to include the names of all parties, captions in petitions for Family Ct Act article 10 proceedings often include the names of the children and the respondent parents or other adults responsible for the abuse or neglect but do not always include the name of the petitioning child protective agency. However, defects in the form of papers shall be disregarded by the court unless a substantial right of a party is prejudiced, and objections to defects in form are waived unless the paper is returned with particular objections within 15 days of receipt (see CPLR 2101[f]). Under that statutory provision, the father waived any objection to the form of the caption in the petition and he had not demonstrated any prejudice. For these reasons, the petition was not jurisdictionally defective.
The Appellate Division held that although a subsequently issued permanency order effectively supersedes prior permanency orders, an appeal from a prior order is not moot if that prior order modified the permanency goal; because, by changing the goal, “Family Court altered [the local social service agency’s] obligations in future permanency hearings from working toward reunification” with a parent to working toward a different permanent placement, any new permanency orders will be a direct result of the orders appealed from and the issue of whether those orders were proper will still affect the father’s rights. Accordingly, the appeal from the orders entered after the third permanency hearing was not moot.
Appellate Division, First Department
While not all provisions of the CPL are applicable to proceedings under the Family Court Act under the circumstances here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40, 2021 N.Y. Slip Op. 06794 (1st Dept., 2021) a juvenile delinquency proceeding, appellant sought an order directing the presentment agency to provide the discovery sought in his Discovery Demand, including impeachment evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was unconstitutional to deny him those materials solely because he was an alleged juvenile delinquent. The presentment agency opposed the motion and argued that it provided all discovery required by the Family Court Act, and that CPL article 245 did not apply to juvenile delinquency proceedings. The Family Court “deemed satisfied” appellant’s motion because the presentment agency had provided the relief requested in his motion. The Family Court denied any request for “further witness information” stating that “the provisions of the CPL cited by [appellant] are expressly inapplicable and preempted in juvenile delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division held that while not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant, and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Because appellant asked only that the information be provided under Family Court Act article 3 timelines, it held that it need not address whether any different time frame contained in the Criminal Procedure Law must apply under equal protection principles.
Appellate Division, Third Department
Where father moved to Florida and mother was awarded custody, Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL 479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after the father relocated to Florida with his wife to take care of certain family members with failing health. Family Court awarded the parties joint legal custody of the children with primary physical custody to the mother, as the parties had agreed. The father was awarded set parenting time. So long as the father paid a minimum of $100 per week in child support and was not more than six weeks behind in his current child support obligation, the parties were to split the transportation costs associated with effectuating the father’s Christmas break parenting time in odd years and for one of the visits each summer. In all other instances, the father would be solely responsible for transportation costs, and an annual cap of $750 was set for the mother’s share of transportation expenses. The Appellate Division found that Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate. The parties were “on fairly equal footing” financially at the time of the hearing. Although it is relevant that the father’s voluntary relocation to Florida led to the increased transportation costs the father still bears a substantial portion of the costs under the order.
In Matter of Charity K v Sultani L, --- N.Y.S.3d ----, 2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed from an order which denied her petition for modification of a custody order and argued, with the support of the appellate attorney for the child, that the record did not support continuing the child’s physical placement with the father. In affirming, the Appellate Division held that since the attorney for the child did not appeal from Family Court’s order she was “barred from seeking affirmative relief not sought by the mother.
Mother failed to meet her burden and equitable estoppel did not apply to Petitioner where respondent transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father In Matter of John D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d Dept.,2022) the Appellate Division affirmed an order which ordered a genetic marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a genetic marker test on the basis of equitable estoppel. It found that respondent, who was listed falsely on as the father on the childs birth certificate, signed an acknowledgment of paternity, was present at the hospital when the child was born and participated in the care of the child for the first year and a half of her life, transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father, and the child, who was six years old at the hearing, had been raised with the understanding that respondent was not her father. The mother testified that she now indicates to the child that respondent is her father, knowing with certainty that he is not. As the record failed to establish that the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if this proceeding were permitted to go forward, it found that contrary to Family Court’s order, the mother failed to. By contrast, a parent-child relationship between petitioner and the child had evolved since their initial contact in early January 2020. The mother testified that she stopped allowing the child to see petitioner after petitioner became “demanding” about having regular weekend parenting time with the child at his home and outside of the mother’s presence. Accordingly, equitable estoppel did not bar issuance of an order for genetic marker tests.
In Matter of Commissioner of Broome County Social Services on Behalf of Harbst v Wagner, 2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order which granted petitioner’s application, to hold respondent in willful violation of two prior orders of support. It observed that in a proceeding to enforce a support order, personal jurisdiction may be obtained over the respondent through personal service of the summons and petition at least eight days before the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the affidavit of service the person who served process checked the box for “summons,” but did not check the box for “petition.” The statute requires service of both the summons and the petition (see Family Ct Act § 427[a]). As such, the Support Magistrate and Family Court erred in accepting the affidavit as proof of adequate service without further inquiry on the matter at a traverse hearing.
Where custody order was entered on the parents’ consent but over the AFC’s objection, the child was aggrieved given that she did not receive her desired outcome with respect to the custodial arrangement In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d Dept.,2022) before a fact-finding hearing on the custody petition was held, the mother and the father came to an agreement whereby the father would have primary physical custody and the mother would have weekend visits every other week and certain other parenting time. Upon the parents’ consent, but over the objection of the AFC, Family Court entered an order in July 2020 effectuating the agreement. The court entered a fact-finding and dispositional order as to the mother’s neglect proceeding thereinafter, in December 2020. The AFC appealed from both orders. The AFC argued that, by merely accepting the parents’ agreement, Family Court abdicated its responsibility to ensure that the custodial arrangement furthers the child’s best interests, and the AFC requested that the matter be remitted for a full evidentiary hearing. The Appellate Division affirmed. It held that Family Court is not required to hold a hearing in every custody matter, and a hearing is not necessary where none is requested and the court has “sufficient information to undertake a comprehensive independent review of the child’s best interests”. Here, there was no request for a hearing following Family Court’s acceptance of the agreement. In addition, the court had sufficient information to consider the child’s best interests. No hearing was required here. In a footnote the Court pointed out that the custody order was entered on the parents’ consent but over the AFC’s objection, and the child was aggrieved thereby given that she did not receive her desired outcome with respect to the custodial arrangement. However, the child was not aggrieved by the finding of neglect against the mother as the AFC consented to the entry of an order to that end.
In State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517, 2022 N.Y. Slip Op. 22044 (Sup Ct, 2022) Mr. E. filed a petition permitting him to immediately take M. to London based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a (7), and 76-c and the Hague Convention. Currently M. Was with his mother, Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted the court to assume temporary emergency jurisdiction of M. under Domestic Relations Law section 76-C and because M. is imminent danger for among other things, he will miss the starts of the school semester. He asked the court to determine an emergency under New York’s Domestic Relation Law to avoid a possible negative outcome in San Francisco California, where a custody action between the parties was pending that pre-dated this New York case. The court denied the petitioner’s application to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.
Supreme Court denied Mr. E.’s request for a ruling that under the Hague convention England was M.’s “habitual residence” and that he should be immediately returned to his care. The Court observed that to determine habitual residence, “the court must also inquire into the shared intent of those entitled to fix the child’s home (usually the parents) at “the latest time that they had the same interests”. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parent’s home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.
Supreme Court noted that the “habitual residence” determination is “fact driven,” and “courts must be sensitive to the case’s unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct. 719, 723 [2020]). The residence must have the “quality of being habitual.” The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021. Ms. C. never abandoned her apartment in San Francisco and never consented to M. relocating permanently to England in December 2019. Nothing indicatef M. acclimated to England. The court found that Mr. E. did not create a situation that changed M.’s “habitual residence” to England. His actions in San Francisco and New York, indicated he did not rely on a Hague Convention case setting a new “habitual residence.” The court found that both parents had a shared intent that New York would become M.’s habitual residence as of July 2021 and that the facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied.
February 23, 2022
Appellate Division, First Department
While not all provisions of the CPL are applicable to proceedings under the Family Court Act under the circumstances here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40, 2021 N.Y. Slip Op. 06794 (1st Dept., 2021) a juvenile delinquency proceeding, appellant sought an order directing the presentment agency to provide the discovery sought in his Discovery Demand, including impeachment evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was unconstitutional to deny him those materials solely because he was an alleged juvenile delinquent. The presentment agency opposed the motion and argued that it provided all discovery required by the Family Court Act, and that CPL article 245 did not apply to juvenile delinquency proceedings. The Family Court “deemed satisfied” appellant’s motion because the presentment agency had provided the relief requested in his motion. The Family Court denied any request for “further witness information” stating that “the provisions of the CPL cited by [appellant] are expressly inapplicable and preempted in juvenile delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division held that while not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant, and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Because appellant asked only that the information be provided under Family Court Act article 3 timelines, it held that it need not address whether any different time frame contained in the Criminal Procedure Law must apply under equal protection principles.
Appellate Division, Third Department
Where father moved to Florida and mother was awarded custody, Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL 479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after the father relocated to Florida with his wife to take care of certain family members with failing health. Family Court awarded the parties joint legal custody of the children with primary physical custody to the mother, as the parties had agreed. The father was awarded set parenting time. So long as the father paid a minimum of $100 per week in child support and was not more than six weeks behind in his current child support obligation, the parties were to split the transportation costs associated with effectuating the father’s Christmas break parenting time in odd years and for one of the visits each summer. In all other instances, the father would be solely responsible for transportation costs, and an annual cap of $750 was set for the mother’s share of transportation expenses. The Appellate Division found that Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate. The parties were “on fairly equal footing” financially at the time of the hearing. Although it is relevant that the father’s voluntary relocation to Florida led to the increased transportation costs the father still bears a substantial portion of the costs under the order.
In Matter of Charity K v Sultani L, --- N.Y.S.3d ----, 2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed from an order which denied her petition for modification of a custody order and argued, with the support of the appellate attorney for the child, that the record did not support continuing the child’s physical placement with the father. In affirming, the Appellate Division held that since the attorney for the child did not appeal from Family Court’s order she was “barred from seeking affirmative relief not sought by the mother.
Mother failed to meet her burden and equitable estoppel did not apply to Petitioner where respondent transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father In Matter of John D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d Dept.,2022) the Appellate Division affirmed an order which ordered a genetic marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a genetic marker test on the basis of equitable estoppel. It found that respondent, who was listed falsely on as the father on the childs birth certificate, signed an acknowledgment of paternity, was present at the hospital when the child was born and participated in the care of the child for the first year and a half of her life, transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father, and the child, who was six years old at the hearing, had been raised with the understanding that respondent was not her father. The mother testified that she now indicates to the child that respondent is her father, knowing with certainty that he is not. As the record failed to establish that the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if this proceeding were permitted to go forward, it found that contrary to Family Court’s order, the mother failed to. By contrast, a parent-child relationship between petitioner and the child had evolved since their initial contact in early January 2020. The mother testified that she stopped allowing the child to see petitioner after petitioner became “demanding” about having regular weekend parenting time with the child at his home and outside of the mother’s presence. Accordingly, equitable estoppel did not bar issuance of an order for genetic marker tests.
Family Ct Act § 427[a] requires service of both the summons and the petition to obtain personal jurisdiction in support proceeding. Traverse ordered where affidavit of service indicated service of summons only.
In Matter of Commissioner of Broome County Social Services on Behalf of Harbst v Wagner, 2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order which granted petitioner’s application, to hold respondent in willful violation of two prior orders of support. It observed that in a proceeding to enforce a support order, personal jurisdiction may be obtained over the respondent through personal service of the summons and petition at least eight days before the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the affidavit of service the person who served process checked the box for “summons,” but did not check the box for “petition.” The statute requires service of both the summons and the petition (see Family Ct Act § 427[a]). As such, the Support Magistrate and Family Court erred in accepting the affidavit as proof of adequate service without further inquiry on the matter at a traverse hearing.
Where custody order was entered on the parents’ consent but over the AFC’s objection, the child was aggrieved given that she did not receive her desired outcome with respect to the custodial arrangement In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d Dept.,2022) before a fact-finding hearing on the custody petition was held, the mother and the father came to an agreement whereby the father would have primary physical custody and the mother would have weekend visits every other week and certain other parenting time. Upon the parents’ consent, but over the objection of the AFC, Family Court entered an order in July 2020 effectuating the agreement. The court entered a fact-finding and dispositional order as to the mother’s neglect proceeding thereinafter, in December 2020. The AFC appealed from both orders. The AFC argued that, by merely accepting the parents’ agreement, Family Court abdicated its responsibility to ensure that the custodial arrangement furthers the child’s best interests, and the AFC requested that the matter be remitted for a full evidentiary hearing. The Appellate Division affirmed. It held that Family Court is not required to hold a hearing in every custody matter, and a hearing is not necessary where none is requested and the court has “sufficient information to undertake a comprehensive independent review of the child’s best interests”. Here, there was no request for a hearing following Family Court’s acceptance of the agreement. In addition, the court had sufficient information to consider the child’s best interests. No hearing was required here. In a footnote the Court pointed out that the custody order was entered on the parents’ consent but over the AFC’s objection, and the child was aggrieved thereby given that she did not receive her desired outcome with respect to the custodial arrangement. However, the child was not aggrieved by the finding of neglect against the mother as the AFC consented to the entry of an order to that end.
Supreme Court
“Habitual residence” determination is fact driven. Court must inquire into shared intent of those entitled to fix child’s home at the latest time that they had the same interests and should inquire whether evidence unequivocally concludes that child has acclimatized to the new location notwithstanding any conflict with parents’ latest shared intent.
In State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517, 2022 N.Y. Slip Op. 22044 (Sup Ct, 2022) Mr. E. filed a petition permitting him to immediately take M. to London based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a (7), and 76-c and the Hague Convention. Currently M. Was with his mother, Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted the court to assume temporary emergency jurisdiction of M. under Domestic Relations Law section 76-C and because M. is imminent danger for among other things, he will miss the starts of the school semester. He asked the court to determine an emergency under New York’s Domestic Relation Law to avoid a possible negative outcome in San Francisco California, where a custody action between the parties was pending that pre-dated this New York case. The court denied the petitioner’s application to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.
Supreme Court denied Mr. E.’s request for a ruling that under the Hague convention England was M.’s “habitual residence” and that he should be immediately returned to his care. The Court observed that to determine habitual residence, “the court must also inquire into the shared intent of those entitled to fix the child’s home (usually the parents) at “the latest time that they had the same interests”. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parent’s home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.
Supreme Court noted that the “habitual residence” determination is “fact driven,” and “courts must be sensitive to the case’s unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct. 719, 723 [2020]). The residence must have the “quality of being habitual.” The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021. Ms. C. never abandoned her apartment in San Francisco and never consented to M. relocating permanently to England in December 2019. Nothing indicatef M. acclimated to England. The court found that Mr. E. did not create a situation that changed M.’s “habitual residence” to England. His actions in San Francisco and New York, indicated he did not rely on a Hague Convention case setting a new “habitual residence.” The court found that both parents had a shared intent that New York would become M.’s habitual residence as of July 2021 and that the facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied.
February 16, 2022
Generally, where the asset to be valued is the marital residence, the valuation date employed should be the date of trial In Kattan v Kattan, --- N.Y.S.3d ----, 2022 WL 385950, 2022 N.Y. Slip Op. 00856 (2d Dept.,2022) the parties were married in 1989 and had four children together, the youngest of whom was currently 20 years old. On January 8, 2009, the plaintiff commenced this action for a divorce. The Supreme Court conducted a nonjury trial over 45 nonconsecutive days between May 9, 2011, and May 15, 2014, and issued a decision after trial dated May 3, 2018. A judgment of divorce dated December 11, 2018, (1) awarded the defendant title to the marital residence and awarded the plaintiff $1,637,500 for his interest in the marital residence; (2) awarded the defendant $1,190,301.18 for her contribution to the appreciation in value of the plaintiff’s separate property in Deal, New Jersey ( which the Appellate Division reduced on this appeal); (3) awarded the defendant title to certain marital property on Ditmas Avenue in Brooklyn, and awarded the plaintiff the sum of $532,294.27 for his interest in that property; (4) awarded the plaintiff $807,408.60 for his interest in certain marital property on Avenue P in Brooklyn; (5) awarded the defendant $472,500 for her interest in certain marital property on 20th Avenue in Brooklyn; (8) awarded the defendant 30% of the appreciated value of the plaintiff’s premarital interest in Madison Maidens and 50% of the plaintiff’s postmarital interest in Madison Maidens; (9) awarded the defendant maintenance of $5,000 per month for a period of 18 months; (10) directed the plaintiff to pay the defendant basic child support of $2,250 per month plus 71.08% of statutory add-on expenses for the parties’ unemancipated child; (12) awarded the defendant 50% of the cash surrender value of an AVIVA life insurance policy.
The Appellate Division, inter alia, held that the Supreme Court providently exercised its discretion in awarding the defendant title to the marital residence and in calculating the plaintiff’s 50% interest in that property based upon the value of that property as stipulated to by the parties during the trial of this action in 2012. Generally, where the asset to be valued is the marital residence, “the valuation date employed should be the date of trial” (Wegman v. Wegman, 123 A.D.2d 220, 232, 509 N.Y.S.2d 342). The court explained in its decision that it determined to award the defendant title to the marital residence upon consideration of the totality of the circumstances, including the court’s distribution awards with respect to the remainder of the parties’ marital property, and the defendant’s position as custodial parent of the parties’ then-unemancipated child. However, the Supreme Court should have awarded the plaintiff a credit for separate property funds he used to purchase and renovate the marital residence. The plaintiff’s proof at trial established that he used $991,416.54 in separate property funds to purchase and renovate the marital residence. It modified the judgment to award the plaintiff $2,133,208.27 for his interest in the marital residence, constituting $991,416.54 in credits for his separate property contribution plus $1,141,791.73, which was 50% of the stipulated value of the marital residence of $3,275,000, as reduced by the amount of the plaintiff’s separate property contribution.
The Appellate Division also modified the judgment by deleting the provision awarding the defendant $1,190,301.18 for her contributions to the appreciation in value of the plaintiff’s separate property in Deal, New Jersey, and substituting a provision awarding the defendant $595,150.59 for her contributions to the appreciation in value of that property; and by deleting the provision awarding the defendant $472,500 for her interest in certain marital property on 20th Avenue in Brooklyn, and substituting a provision awarding the defendant $428,492.50 for her interest in that property;
Family Court Act § 439(e) is mandatory insofar as it plainly states that the court shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.” In Matter of Liu v Ruiz, 200 A.D.3d 68, 158 N.Y.S.3d 25, 2021 N.Y. Slip Op. 06089 (1s Dept.,2021) after Family Court failed to issue a timely ruling on the mother’s objections to findings of fact issued by support magistrate in proceedings on her child support violation petition, the mother filed petition for mandamus relief against the Chief Administrative Judge of the Family Court, to compel a decision on mother’s objections and for reasonable attorney fees under State Equal Access to Justice Act (EAJA). After a judge was assigned to the support proceeding and issued a favorable decision on the mother’s pending objections, the State, on behalf of the Chief Administrative Judge, cross-moved to dismiss the mandamus proceeding. The Supreme Court denied the petition and dismissed the proceeding as moot. The Appellate Division held that the failure by Chief Administrative Judge to assign judge to hear the mother’s objections within 15 days violated a clear obligation in the statute governing support magistrates and the mother was entitled to attorney fees as “prevailing party” under EAJA. It held that Family Court Act § 439(e) was violated. The statute is mandatory insofar as it plainly states that the court shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.”
February 9, 2022
Appellate Division, First Department
So long as disclosure sought from nonparty witness is relevant to the prosecution or defense of an action, it must be provided by the nonparty In Gross v Hazan-Gross, --- N.Y.S.3d ----, 2022 WL 243140 (Mem), 2022 N.Y. Slip Op. 00501(1s Dept.,2022) the Appellate Division affirmed an order which granted defendant wife’s motion to compel nonparty appellant (Langman) to produce documents responsive to a subpoena and to appear for examination before trial, unanimously affirmed, with costs. It held that the motion court providently exercised its discretion in ordering Langman to comply with the Subpoena. Langman failed to show that the discovery sought by defendant via the Subpoena was “utterly irrelevant” or that the “futility of the process to uncover anything legitimate is inevitable or obvious” (Matter of Kapon v. Koch, 23 N.Y.3d 32 [2014]) So long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.
Respondent was a person legally responsible (PLR) for the children where parties represented he was the child’s biological father, he maintained communication with the mother and failed to appear or testify to dispute the evidence, allowing the court to draw a negative inference against him. In Matter of Tristian B., 2022 WL 243150 (1st Dept.,,2022) the Appellate Division reversed an order which dismissed the petition alleging neglect or derivative neglect of the child for lack of standing, and found respondent to have neglected the subject child. Petitioner demonstrated by a preponderance of the evidence that respondent was a person legally responsible (PLR) for the subject child, as well as for the child’s three older siblings. Respondent and the children’s mother were in a romantic relationship and lived together before the child was born, and they both represented to caseworkers that respondent was the child’s biological father. There was evidence that, although he was excluded from the home because of an order of protection against him, respondent maintained communication with the mother and slept at the home at least on occasion, sharing the mother’s bed. Respondent failed to appear or testify to dispute the evidence that he was the child’s biological father or a PLR for him. The fact that respondent was excluded from the household before the child’s birth as a result of having committed acts of excessive corporal punishment against the child’s eldest sibling did not outweigh the evidence that demonstrated that he was a PLR for the child. The finding that respondent was a PLR for the child was further supported by his failure to appear in court, allowing the court to draw a negative inference against him.
Appellate Division, Second Department
While court has considerable discretion in imputing income, the imputed income figure must be rationally based. Where the imputed income amount was entirely speculative it should not have been imputed to the plaintiff. Expenses for extracurricular activities are not specifically delineated as an “add-on” under the CSSA. In Tuchman v Tuchman, --- N.Y.S.3d ----, 2022 WL 221204, 2022 N.Y. Slip Op. 00454 (2d Dept.,2022) the plaintiff and the defendant were married in January 1985 and had four children, two of whom were unemancipated at the time of trial, born 1997 and 2005, respectively. On November 27, 2012, the plaintiff commenced this action for a divorce. Midway through a nonjury trial the parties entered into a stipulation of settlement resolving the issues of equitable distribution, separate property, businesses, counsel fees, and professional fees. Following the trial, the Supreme Court issued a decision setting forth its determinations regarding the outstanding issues. In the decision, the court determined to impute an annual income of $800,000 to the defendant and an annual income of $62,231.46 to the plaintiff. The judgment of divorce, which incorporated the June 2017 stipulation, insofar as appealed from (1) awarded the plaintiff nondurational maintenance of $25,000 per month commencing May 1, 2018, and continuing for a period of five years,$20,000 per month for an additional period of five years, and $12,000 per month thereafter until the death of either party or the remarriage of the plaintiff; (2) directed the defendant to pay basic child support for the parties’ youngest child of $4,611 per month and 93% of the costs of the extracurricular activities of that child; (3) directed the defendant to pay 100% of the unreimbursed healthcare costs of the parties’ two youngest children; .(4) directed the plaintiff to reimburse the defendant $7,500 toward the total costs of the trial transcripts. The court also granted a money judgment for arrears under the stipulation in favor of the plaintiff and against the defendant in the principal sum of $110,000.
The Appellate Division affirmed, as a proper exercise of discretion, the imputation of income to the defendant for purposes of awarding maintenance. It held that in computing child support, the Supreme Court improvidently exercised its discretion by imputing to the plaintiff $62,231.46 in annual income. While the court has considerable discretion in imputing income, the imputed income figure must be rationally based. Here, the imputed income amount was entirely speculative, based upon assumptions as to the plaintiff’s purported investment return from her distributive award, unsupported by evidence in the record. It was undisputed that the plaintiff left the workforce over 30 years ago at the defendant’s request. Therefore, annual income should not have been imputed to the plaintiff in determining child support. It modified the judgment to direct the defendant to pay the plaintiff $4,958.33 per month in basic child support for the parties’ youngest child.
In addition to the defendants’ basic child support obligation, the Supreme Court directed the defendant to pay his pro rata share of the costs of the extracurricular activities of the parties’ youngest child, including summer camp. The Appellate Division held that although such expenses may be appropriately considered as an “add on expense” for child care the plaintiff failed to establish an entitlement to child care expenses. Although the defendant acknowledged that it was in the child’s best interest to attend summer camp, and, during the marriage, all of the parties’ children attended summer camp, the child’s standard of living during the marriage was taken into account in awarding basic child support using the defendant’s income in excess of the statutory cap. Expenses for extracurricular activities are not specifically delineated as an “add-on” under the Child Support Standards Act. It held that the substantial basic child support award should be sufficient to cover the child’s expenses, including her extracurricular activities.
The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning. In Moradi v Buhl, . --- N.Y.S.3d ----, 2022 WL 221153 (Mem), 2022 N.Y. Slip Op. 00421 (2d Dept.,2022) the parties were married in 2003, and were the parents of a daughter born in 2004. The plaintiff commenced this action for a divorce in February 2014. Supreme Court awarded the defendant residential custody of the child and directed the plaintiff to pay $2,599.58 per month in child support. The Appellate Division observed that where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both (see Domestic Relations Law § 240[1–b][c][3]). The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning why there should or should not be a departure from the prescribed percentage. It found that the Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income, the needs of the child, and the fact that the defendant was not seeking any add-on contributions from the plaintiff for the child’s expenses, other than basic child support. Under the circumstances presented, the court providently exercised its discretion in applying the child support percentage to the parties’ income over the statutory cap.
In Keren v Keren, --- N.Y.S.3d ----, 2022 WL 221138 (Mem), 2022 N.Y. Slip Op. 00412(2d Dept.,2022) the parties were married on September 1, 1991. In 2016, the plaintiff commenced this action for a divorce. At trial, the defendant testified that he owned a percentage interest in Manhattan Bridge Car Wash, Inc. (MBCW), which was incorporated during the marriage. MBCW owned a lease to a car wash in Brooklyn, but sold that lease in 2007 and used the proceeds of that sale to purchase a building in Manhattan. In 2016, MBCW sold the building in Manhattan and used the proceeds of that sale to buy a building in Huntington, which was leased by Walgreens. The defendant testified that he had no personal responsibility for the Huntington property, but, as a shareholder of MBCW, he received a portion of the monthly rent from the Walgreens lease. Supreme Court awarded the plaintiff 50% of the defendant’s interest in MBCW, and 50% of the defendant’s interest in the Huntington property in the event the property was ever sold. The defendant appeals.
The Appellate Division held that Supreme Court did not improvidently exercise its discretion in awarding the plaintiff 50% of his interest in MBCW. Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. The defendant’s brother testified at the trial that he gifted the defendant his interest in MBCW. However, this assertion was not confirmed by any documentary evidence, and the Supreme Court found the defendant’s brother’s testimony to be incredible. Accordingly, the defendant did not meet his burden of establishing that his interest in MBCW was separate property.
The Appellate Division observed that when both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible .Here, both parties were involved with MBCW during this 25–year marriage, and the equal distribution of the defendant’s interest was a provident exercise of the Supreme Court’s discretion
Father’s disruptive behavior which was grossly disrespectful to the Supreme Court and precipitated his removal from the virtual courtroom constituted a knowing and wilful default In Matter of Smith v Bullock, --- N.Y.S.3d ----, 2022 WL 302511 (Mem), 2022 N.Y. Slip Op. 00671 (2d Dept.,2022) Supreme Court granted the petition of the nonparent Judith Smith for custody of the child on default. The Appellate Division dismissed the fathers appeal as no appeal lies from an order that was entered upon the default of the appealing party, except with respect to matters which were the subject of contest . The record demonstrated that the father’s disruptive behavior over the course of the proceedings, and specifically, during a conference on January 27, 2021, was grossly disrespectful to the Supreme Court and precipitated his removal from the virtual courtroom. Therefore, it held that the court acted properly in excluding the father from further participation in the proceedings, as the father’s conduct was sufficient to constitute a knowing and willful default (citing Matter of Bartosz B. [Andrzej B.], 187 A.D.3d 894, 896, 134 N.Y.S.3d 45; Matter of Nyree S. v. Gregory C., 99 A.D.3d 561, 562, 951 N.Y.S.2d 874; Matter of Kondratyeva v. Yapi, 13 A.D.3d 376, 788 N.Y.S.2d 394; Matter of McConnell v. Montagriff, 233 A.D.2d 512, 650 N.Y.S.2d 768). The determinations made after the father was found in default were not subject to direct appellate review (see CPLR 5511)
Appellate Division, Fourth Department
A case that involves an initial custody determination cannot properly be characterized as a relocation case to which the factors set forth in Matter of Tropea v. Tropea need be strictly applied In Matter of Hochreiter v Williams, --- N.Y.S.3d ----, 2022 WL 262962 (Mem), 2022 N.Y. Slip Op. 00543 (4th Dept., 2022) the Appellate Division held that a case that involves an initial custody determination, cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v. Tropea (87 N.Y.2d 727 [1996]) need be strictly applied. Although a court may consider the effect of a parent’s [proposed] relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination The relevant issue is whether it is in the best interests of the child to reside primarily with the mother or the father.
22 NYCRR 202.6 - Request for judicial intervention Rule Amended Effective February 1, 2022 to include in subdivision (b) that a request for judicial intervention shall be filed, without fee for an application for a “change of sex designation” Section 202.6. Request for judicial intervention (a) At any time after service of process, a party may file a request for judicial intervention. Except as provided in subdivision (b) of this section, in an action not yet assigned to a judge, the court shall not accept for filing a notice of motion, order to show cause, application for ex parte order, notice of petition, note of issue, notice of medical, dental or podiatric malpractice action, statement of net worth pursuant to section 236 of the Domestic Relations Law or request for a preliminary conference pursuant to section 202.12(a) of this Part, unless such notice or application is accompanied by a request for judicial intervention. Where an application for poor person relief is made, payment of the fee for filing the request for judicial intervention accompanying the application shall be required only upon denial of the application. A request for judicial intervention must be submitted, in duplicate, on a form authorized by the Chief Administrator of the Courts, with proof of service on the other parties to the action (but proof of service is not required where the application is ex parte).
(b) A request for judicial intervention shall be filed, without fee, for any application to a court not filed in an action or proceeding, as well as for a petition for the sale or finance of religious/not-for-profit property, an application for change of name or change of sex designation, a habeas corpus proceeding where the movant is institutionalized, an application under CPLR 3102(e) for court assistance in obtaining disclosure in an action pending in another state, a retention proceeding authorized by article 9 of the Mental Hygiene Law, a proceeding authorized by article 10 of the Mental Hygiene Law, an appeal to a county court of a civil case brought in a court of limited jurisdiction, an application to vacate a judgement on account of bankruptcy, a motion for an order authorizing emergency surgery, or within the City of New York, an uncontested action for a judgment for annulment, divorce or separation commenced pursuant to article 9, 10 or 11 of the Domestic Relations Law, and an application for an extreme risk protection order.
(c) In the counties within the City of New York, when a request for judicial intervention is filed, the clerk shall require submission of a copy of the receipt of purchase of the index number provided by the County Clerk, or a written statement of the County Clerk that an index number was purchased in the action. Unless otherwise authorized by the Chief Administrator, the filing of a request for judicial intervention pursuant to this section shall cause the assignment of the action to a judge pursuant to section 202.3 of this Part. The clerk may require that a self-addressed and stamped envelope accompany the request for judicial intervention. February 1, 2022
Appellate Division, First Department
Courts may not direct the sale of marital property held by spouses as tenants by the entirety, prior to entry of a judgment altering the legal relationship between spouses, unless the parties have consented to sell.
In Taglioni v Garcia, 200 A.D.3d 44, 157 N.Y.S.3d 7, 2021 N.Y. Slip Op. 05936 (1st Dept.,2022) the Appellate Division reversed an order which ordered the sale of the marital residence pendente lite. It observed that it is well-settled that, prior to entry of a judgment altering the legal relationship between spouses by granting divorce, separation or annulment, courts may not direct the sale of marital property held by spouses as tenants by the entirety, unless the parties have consented to sell. Moreover, courts must respect conditions placed on a party’s consent to the sale of such property, and lack the authority to direct a sale where those conditions have not been met. It found that the record did not reflect a meeting of the minds and did not contain specific terms sufficient to evince the wife’s consent to the ordered sale. The record established that, contrary to the determination of the court below, the parties did not agree to listing their jointly owned townhouse at $6 million or to the sale of the townhouse. Although the parties identified targets of their negotiations, neither the wife nor her counsel ever explicitly agreed to the contemplated sale pendente lite. As indicated during the parties’ conferences before the court and by the parties’ competing proposed orders, the wife’s negotiating targets remained at all times contingent on stipulation of other disputed material terms. Additionally, the court erred in imposing conditions on the sale of the property that were not discussed or agreed to on the record, namely, that the townhouse be listed before the repairs were made, that the price be reduced in specified amounts at set dates, and that the parties accept a purchase price offer of 95% or more of the list price.
Appellate Division, Second Department
When determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle.
In Hepheastou v Spaliaras, 2022 WL 164200 (2d Dept.,2022) the parties were married in May 2013, and had two children. In June 2016, the plaintiff commenced this action for a divorce. On March 22, 2017, the parties entered into a stipulation which provided that they would have equal parental access. After trial, by judgment of divorce entered October 13, 2020, the Supreme Court, inter alia, awarded sole residential and legal custody of the children to the plaintiff, calculated the defendant’s child support obligation to be $3,072 per month for the two children based upon the parties’ income in excess of the statutory cap, directed the defendant to pay 50% of the health insurance premiums for the children, directed the defendant to pay child support arrears, and awarded the plaintiff counsel fees in the sum of $30,000.
The Appellate Division observed that with respect to combined parental income exceeding that amount, the court has the discretion to apply the statutory child support percentage, or to apply the factors set forth in Domestic Relations Law § 240(1–b)(f) or to utilize “some combination of th[ose] two” methods. The court must “articulate its reason or reasons for [that determination], which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage”. In addition to providing a record explanation for deviating or not deviating from the statutory formula, a court “must relate that record articulation” to the factors set forth in Domestic Relations Law § 240(1–b)(f). The factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed if the parties had remained together. While the Supreme Court based its decision to calculate child support on combined parental income in excess of the statutory cap so as to increase the defendant’s child support obligation from $1,896.19 per month to $3,072 per month on certain statutory factors set forth in Domestic Relations Law § 240(1–b)(f), the record did not support this determination. The court stated that it considered the standard of living the children would have enjoyed had the household remained intact (see Domestic Relations Law § 240[1–b][f][3]), as well as the financial resources of the parties. The record, however, did not demonstrate that the children are not living in accordance with the lifestyle they would have enjoyed had the household remained intact. Moreover, when determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle. The record demonstrated that the plaintiff had no extraordinary expenses, lived rent-free at her parents’ house, reported no child care costs, and reported minimal costs for education and extracurricular activities. Under these circumstances, it found it appropriate to apply the statutory percentage to the statutory cap of $154,000, with no further child support obligation based on the combined income over that amount.
Income may be imputed based on a party’s earning capacity, as long as the court articulates the basis for imputation and the record evidence supports the calculations.
In Nosratabdi v Aroni, 198 A.D.3d 976, 157 N.Y.S.3d 49, 2021 N.Y. Slip Op. 05862 (2d Dept, 2021) the parties were married on August 8, 1999 and there were three children of the marriage. The plaintiff commenced the action for a divorce on or about June 12, 2013, and both parties agreed to have the matter heard and determined by a referee. Prior to the start of trial, the parties stipulated to the custody of the children. The defendant was awarded sole legal and residential custody of the eldest child, and the plaintiff was awarded sole legal and residential custody of the two younger children. The referee imputed an annual income of $80,000 to the defendant and calculated his monthly child support obligation to the plaintiff for the two younger children to be $1,666.77. The referee determined the plaintiff’s annual income for maintenance and child support purposes to be $23,943.31 and her monthly child support obligation for the eldest child to be $339.12. The referee also awarded the plaintiff maintenance of $1,500 per month for four years. Additionally, the referee awarded the marital residence solely to the plaintiff. The Appellate Division held that the referee’s discretionary determination to impute an annual income to the defendant of $80,000 for the purpose of calculating child support and maintenance, based upon the defendant’s prior work experience in the real estate business, as well as money received from his father, was supported by the record. However, the referee erred in determining the plaintiff’s annual income for maintenance and child support purposes to be only $23,943.31. Here, the referee failed to take into account the plaintiff’s full ability to provide support, Income may be imputed based on a party’s earning capacity, as long as the court articulates the basis for imputation and the record evidence supports the calculations. instead determining her annual income based solely on a tax return for the 2015 fiscal year, in which the plaintiff had worked only from May through December. More recent income information was available from 2016 earnings statements provided by the plaintiff’s employer, which the referee should have used to estimate the plaintiff’s income for a full year. It remitted the matter to the Supreme Court for a new determination of maintenance and child support.
Property acquired by the plaintiff after the execution of the separation agreement was separate property where defendant did not challenge the plaintiff’s testimony that she used separate funds from an inheritance to pay for the property
In Daoud v Daoud, 198 A.D.3d 952, 157 N.Y.S.3d 33, 2021 N.Y. Slip Op. 05849 (2d Dept.,2021) the parties were married on February 9, 1978. On November 15, 2007, they entered into a separation agreement, which they filed in Nassau County. In 2015, the plaintiff commenced this action for a divorce. Supreme Court entered a judgment of divorce, inter alia, awarding the plaintiff maintenance arrears of $70,239.91 and awarded the plaintiff real property located in Tabarja, Lebanon as separate property. The Appellate Division affirmed. It held that the Supreme Court correctly determined that the Tabarja property was the plaintiff’s separate property. The term “marital property” is defined by statute as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action” (Domestic Relations Law § 236[B][1][c]). Here, it was undisputed that the Tabarja property was acquired by the plaintiff after the execution of the separation agreement in 2007, and the defendant did not challenge the plaintiff’s testimony that she used separate funds from an inheritance to pay for the Tabarja property. Moreover, the separation agreement specifically provided that “[e]ach party shall hereafter own independently of any claim or right of the other party, all of the items of real property to which he or she now or hereafter shall have legal title.”
Appellate Division, Third Department
Summary judgment is an appropriate vehicle for resolving family offense “proceedings where no triable issues of fact exist
In Matter of Stephanie R v Walter Q, --- N.Y.S.3d ----, 2022 WL 119510, 2022 N.Y. Slip Op. 00219 (3d Dept.,2022) a family offense proceeding the Appellate Division held that Summary judgment is an appropriate vehicle for resolving family offense “proceedings where no triable issues of fact exist. Collateral estoppel comes into play when four conditions are fulfilled:(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. (Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [2015])
Family Court lacks authority to order a child protective agency, such as DSS, to commence a neglect proceeding against a parent
In Matter of Donald QQ v Stephanie RR, 198 A.D.3d 1155, 156 N.Y.S.3d 467, 2021 N.Y. Slip Op. 05760 (3d Dept.,2021) a custody proceeding commenced to modify a prior order of custody the Appellate Division reversed an order of the Family Court which sua sponte directed the Department of Social Services (DSS) to commence neglect proceeding against the mother and father. The Appellate Division held that Family Court lacks authority to order a child protective agency, such as DSS, to commence a neglect proceeding against a parent; abrogating Matter of Gage II, 156 A.D.3d 1208 and Matter of Johnson v. Johnson, 279 A.D.2d 814, and in the absence of any express grant of authority by statute, Family Court erred in sua sponte directing DSS to commence a neglect proceeding against father and mother. Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute. The relevant statute provides that a proceeding under Family Ct Act article 10 may be “originate[d]” either by “a child protective agency” or “a person on the court’s direction” (Family Ct Act § 1032[a], [b]).That authority is limited to directing only a “person” to do so, which DSS is not.
December 29, 2021
Appellate Division, Second Department
Family Court is not divested of subject matter jurisdiction over a family offense proceeding by virtue of the complainant attaining the age of 21. The question of subject matter jurisdiction is generally confined to whether a qualifying offense has been committed between parties in a qualifying relationship.
In Matter of Vellios v. Vellios, --- N.Y.S.3d ----, 2021 WL 6057543, 2021 N.Y. Slip Op. 07276 (2d Dept.,2021) in June 2018, the petitioner filed a family offense petition against the respondent on behalf of the parties’ developmentally disabled then 19–year–old child (complainant). During the hearing, after the complainant had attained 21 years of age, the respondent moved to dismiss the petition on the ground that the Family Court was divested of jurisdiction. The court determined that it was divested of jurisdiction when the complainant turned 21 years of age, and therefore granted the respondent’s motion and dismissed the proceeding without prejudice. The Appellate Division reversed. It held that the Family Court was not divested of subject matter jurisdiction over this family offense proceeding by virtue of the complainant attaining the age of 21. In the context of a family offense proceeding, the question of subject matter jurisdiction is generally confined to whether a qualifying offense has been committed between parties in a qualifying relationship (see Family Ct Act §§ 115[e]; 812[1], irrespective of the complainant’s age. Thus, the fact that the complainant attained the age of 21 during the hearing did not deprive the court of jurisdiction to hear and determine this matter.
The Appellate Division also held that to the extent the respondent’s motion may be construed as challenging the petitioner’s ability to prosecute the matter in a representative capacity for the complainant, this did not amount to a jurisdictional defect requiring dismissal of the proceeding. An incapacitated individual who has not been judicially declared incompetent may sue or be sued in the same manner as any other person” and courts must not “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such.
Appellate Division, Third Department
Supreme Court did not err in failing to award husband postdivorce maintenance. Maintenance is appropriate where the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor.
In Hughes v Hughes, --- N.Y.S.3d ----, 2021 WL 6066467, 2021 N.Y. Slip Op. 07322(3d Dept.,2021) Plaintiff ( husband) and defendant ( wife) were married in July 2013 and were the parents of a son (born in 2014). In January 2018, the husband commenced this action for divorce, Supreme Court granted a judgment of divorce to the husband, which incorporated June 2018 joint custody order.
The Appellate Division rejected the husbands argument that Supreme Court erred in failing to award him postdivorce maintenance. The parties, who married in July 2013, were 40 years old at the time of trial and in good health. At the time the action was commenced both parties were gainfully employed. The husband testified to earning $8.25 per hour plus commissions working 37 to 40 hours per week with occasional overtime. His W–2 statements from 2017 and 2018 reflected an increase in his income from $36,110.73 in 2017 to $41,3100.41 in 2018. He currently earned between $2,100 to $3,100 per month. The wife’s earnings in 2018 were estimated to be $101,740,2 an increase from $82,475 in 2017. The wife testified that, throughout the marriage, the husband was often unemployed and at times received unemployment, and she often worked two jobs to support the family. The wife testified to having $63,000 in student loan debt.
The Appellate Division held that maintenance is appropriate where the marriage is of long duration, and the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor. In any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the’ guidelines set forth in the statute” considering the payor’s annual salary up to an annual income cap of $184,000 (Domestic Relations Law § 236[B][6][c], [d]). During this marriage of relatively short duration, the wife’s earnings were consistently higher but their incomes were proportionally the same as when they first married. The wife was saddled with student loan debt. The husband’s income was stable and he demonstrated an ability to earn extra income to supplement his current employment when necessary. Supreme Court, considered the wife’s efforts to assist the husband in getting a better job and giving him ample opportunity to go to school and better his career, which he refused. The husband had not sacrificed anything in his career by virtue of the marriage and provided no assistance to enhance the wife’s career. It saw no abuse of discretion in Supreme Court’s denial of maintenance to the husband.
The Appellate Division held that with regard to child support, Supreme Court appropriately deemed the wife, the parent with greater income in an equally shared physical custody arrangement, to be the noncustodial parent for child support purposes It found no merit to the husband’s claim that the award of child support was unjust or inappropriate because it represented a downward deviation by 60% from the presumptively correct amount of child support under the Child Support Standards Act. Supreme Court completed the three-step formula to arrive at a basic support obligation of $22,457 per year, calculating the wife’s pro rata share of 71% to be $1,329 per month. In deviating from the obligation to an award of $500 per month, with arrears in the amount of $50 per month retroactive to the date of the commencement of the action, Supreme Court considered the relevant statutory factors. Supreme Court also properly considered the ability of the wife to maintain a household for the child while managing significant debt if she were required to pay the basic child support obligation of $1,329 per month. In deviating from the basic child support obligation, Supreme Court ordered the wife to maintain health, dental and vision insurance for the child and pay 100% of the premiums associated therewith.
The Appellate Division found no abuse of discretion in the direction that the wife pay $5,279 to the husband for reimbursement of one half of the payment on the mortgage delinquency on the wife’s separate property. Although the husband failed to produce documentary evidence that the money came from an account held by his mother funded with an inheritance from his father, he testified that the money came from his mother. The wife did not refute that it was the husband’s separate property. When one spouse contributes separate property toward the purchase of a marital asset, such as a marital home, the contributing spouse is generally entitled to a credit representing the amount of that separate property contribution. The use of separate funds to purchase a marital asset does not mandate that a court give a credit, however, the court may consider the use of separate property when exercising its discretion in arriving at an equitable distribution of that asset. In directing reimbursement to the husband of 50% of his contribution of separate property, Supreme Court deemed it inequitable for the wife and her ex-husband who own the house jointly to benefit from the husband’s financial loss. There was no abuse of discretion in the credit to the husband of 50% of his contribution, since the husband did not regularly contribute to the mortgage payments due to his frequent periods of unemployment during the marriage.
In view of the husband’s lower income, he was the less-monied spouse presumptively entitled by statute to counsel fees. The wife’s actions in commencing an annulment action after the action was commenced and filing, prior to trial, an unsigned order to show cause in Family Court, later withdrawn, in an effort to prove that she was the custodial parent, added unnecessarily to the husband’s litigation costs.
Award of visitation to mother “ as she and the children were able to agree” based on rational that “a teenager cannot be forced to do something that he or she does not want to do”, does not satisfy courts obligation to provide mother with frequent and regular access.
In Matter of Cecelia BB v Frank CC, --- N.Y.S.3d ----, 2021 WL 6066583, 2021 N.Y. Slip Op. 07323 (3d Dept.,2021) after a hearing, Family Court ordered that the father was to have sole legal and physical custody of both children and that the mother would have visitation with the children as she and the children were able to agree. The Appellate Division held that unless visitation is inimical to the child’s welfare, the court is required to structure a schedule which results in frequent and regular access by the noncustodial parent. The court cannot delegate to anyone, including a child, its authority to do so as such delegation can have the practical effect of denying a parent his or her right to visitation with his or her child indefinitely without the requisite showing that visitation would be detrimental to the child’s welfare. Family Court’s rationale for its parenting schedule, that a teenager cannot be forced to do something that he or she does not want to do, fell far short of satisfying its obligation to provide the mother with frequent and regular access to the younger child and did nothing to support a healthy, meaningful relationship between the two. Although the younger child did not want to visit with the mother at the time of the underlying proceedings, there was nothing in the record to demonstrate that visits with her would be harmful to him, and, given his feelings toward the mother at that time, visitation conditioned upon his agreement was untenable. It remitted the matter to Family Court for the fashioning of an appropriate, more definitive visitation schedule and the allocation of any other suitable resources to restore their relationship.
Absent a motion pursuant to CPLR 2221(d) or 5015(a), Family Court lacks the authority to issue an amended or corrected order that alters its dismissal of a petition from “without prejudice” to “with prejudice
In Matter of Brian W v Mary X, --- N.Y.S.3d ----, 2021 WL 6066610, 2021 N.Y. Slip Op. 07332 (3d Dept.,2021) a family offense proceeding, the Appellate Division held that Family Court erred in sua sponte amending an October 13, 2020 dismissal order, made in an earlier family offense proceeding, from “without prejudice” to “with prejudice.” Family Court may, in its discretion, correct or amend an order, so as to cure mistakes, defects or irregularities in the order that do not affect a substantial right of a party (see CPLR 5019[a]) or to resolve any ambiguity in the order to make it comport with what the court’s holding clearly intended. However, in the absence of a motion pursuant to CPLR 2221(d) or 5015(a), Family Court lacks the authority to issue an amended or corrected order that alters its dismissal of a petition from “without prejudice” to “with prejudice,” as such alteration is one of substance. It reversed the amended order entered December 11, 2020 to the extent that it dismissed the March 2020 violation petition with prejudice.
Appellate Division, Fourth Department
When a party is seeking arrearages or a money judgment, the six-year statute of limitations applies whether a party commences a plenary action or simply moves for that relief. This applies to a motion seeking “retroactive arrearages” due from defendant’s pension.
In Mussmacher v Mussmacher, --- N.Y.S.3d ----, 2021 WL 6072116, 2021 N.Y. Slip Op. 07413 (4th Dept.,2021) Plaintiff wife and defendant husband were divorced by a judgment entered in 1994. The judgment of divorce incorporated but did not merge the parties’ written stipulation providing that defendant’s pension plan shall be divided between the parties in accordance with the Majauskas formula (see Majauskas v Majauskas, 61 NY2d 481, 489-491 [1984]). Although a qualified domestic relations order (QDRO) was entered in Supreme Court, shortly thereafter, it apparently was never sent to defendant’s employer, Niagara Mohawk Power Corporation. Defendant retired in 2003 after 32 years at Niagara Mohawk. At that time, his pension was in the “National Grid Incentive Thrift Plan II,” with an option of “a maximum 10-year distribution period to commence at the election of, and in amounts determined by, the participant.” Defendant elected to commence distributions in 2010, and the lump sum amount of his pension was transferred to Vanguard Fiduciary Trust Company and distributed to him in approximately $25,000 increments until it was depleted at the end of 2018. On July 29, 2019, plaintiff filed a motion in Supreme Court seeking “retroactive arrearages” due and owing to her from defendant’s pension. After a hearing, Supreme Court issued a judgment awarding plaintiff $75,804.08, representing plaintiff’s Majauskas share of the lump sum distribution of defendant’s pension that was transferred to Vanguard in 2010, plus interest.
The Appellate Division held that the court improperly calculated the amount owing to plaintiff because the statute of limitations applied to plaintiff’s motion seeking arrearages for her share of defendant’s pension. An action seeking money damages for violation of a separation agreement is subject to the six-year statute of limitations for breach of contract action. It was irrelevant that plaintiff sought the arrearages by way of motion rather than by commencement of a plenary action. Although motions to enforce the terms of a stipulation are not subject to the statute of limitations in this case plaintiff was seeking arrearages, or money damages, for the amounts that she did not receive because the QDRO was never received by Niagara Mohawk. When a party is seeking arrearages or a money judgment, the statute of limitations applies whether a party commences a plenary action (see Tauber, 65 NY2d at 597-598) or, as here, simply moves for that relief (see Bielecki, 106 AD3d at 1455). Thus, plaintiff’s claim was timely only to the extent that she sought her share of pension payments made within six years prior to her motion filed on July 29, 2019. It concluded that plaintiff was entitled to a judgment in the amount of $52,325.93, plus interest, and modified the judgment accordingly.
December 22, 2021
Court of Appeals holds that non-compliance with the signature acknowledgment requirements of Domestic Relations Law § 236 (B) (3) renders a nuptial agreement unenforceable unless it is reaffirmed by the parties. The signatures must be acknowledged contemporaneously within a reasonable time of signing. Where the signatories have satisfied the prerequisites for a valid certificate of acknowledgment and the defect in the certificate of acknowledgment is occasioned by the notary's or other official's error, the defect may be overcome, if extrinsic evidence supports that the acknowledgment was properly made in the first instance.
In Anderson v Anderson and Matter of Koegel, --- N.E.3d ----, 2021 WL 5935382 (N.Y.), 2021 N.Y. Slip Op. 07058 (2021) decided last month, the Court of Appeals addressed issues unresolved in Matisoff and Galetta.
In Anderson v Anderson, it was presented the issue of whether non-compliance with the signature acknowledgment requirements of Domestic Relations Law § 236 (B) (3) renders a nuptial agreement irrevocably unenforceable. The opinion by Judge Rivera pointed out that the parties' compliance must be confirmed in a manner adequate under the law. The certificate of acknowledgment establishes that the “signer made the oral declaration compelled by Real Property Law § 292” and the “notary or other official either actually knew the identity of the signer or secured 'satisfactory evidence' of identity ensuring that the signer was the person described in the document”. A properly executed certificate is the means by which the parties document that past events comply with the statutory requirements. Because both Anderson and Koegel involved only the acknowledgment procedure set forth in the Real Property Law, the Court limited its analysis to that methodology and its requirements.
Candy Anderson signed and acknowledged a nuptial agreement with Jack Anderson the month after their wedding. It was undisputed that regardless of when Jack signed the agreement, his signature was not acknowledged until nearly seven years later, shortly before he commenced a divorce action and in anticipation of Candy’s divorce filing. Jack attempted to validate the agreement with full knowledge that Candy intended to end the marriage, and after his attorney informed him that his signature had not been acknowledged as required by Domestic Relations Law § 236 (B) (3). He appeared before a notary public where he orally acknowledged that the signature on the agreement was his. Jack commenced divorce proceedings five days later. Candy then filed for divorce and, in an ancillary action, moved for summary judgment to set aside the nuptial agreement. Supreme Court denied the motion. The Appellate Division reversed and concluded that because Jack’s signature had not been contemporaneously acknowledged and the parties had not reaffirmed the agreement when the signature was acknowledged, the agreement was invalid and unenforceable.
The Court of Appeals concluded that the signature must be acknowledged contemporaneously within a reasonable time of signing. Because the wife signed and acknowledged the agreement the month after the wedding, while the husband delayed nearly seven years before acknowledging his signature and did so shortly before he commenced a divorce action, the husband's acknowledgment was ineffective and the nuptial agreement unenforceable. The only remedy under the circumstances was for the parties to reaffirm the agreement's terms, which did not occur in this case.
Matter of Koegel, the companion case, presented the issue of whether a defective acknowledgment may be overcome by proof of the occurrence of the events anticipated by the statutory mandates. Irene and William Koegel executed a nuptial agreement approximately one month before their marriage. The agreement provided that neither party would claim any part of the other’s estate and that they both waived their respective elective or statutory share. Both parties signed the agreement. Irene’s signature was acknowledged by her lawyer and William’s signature was acknowledged by his law firm partner. The certificates of acknowledgment followed the statutory requirements in all but one respect: both lawyers failed to attest that the signer was known to them, although that was the case. William passed away during the marriage. His son John filed a petition to probate will, which provided that the parties had entered the antenuptial agreement, that “[t]he bequests to and other dispositions for the benefit of [Irene] contained in this Will [we]re made by [him] in recognition of and notwithstanding said antenuptial agreement,” and that the will controlled in case of any inconsistencies, but in all other respects the “antenuptial agreement shall be unaffected by this Will.” Irene invoked her surviving spouse elective share pursuant to Estates, Powers and Trusts Law 5-1.1-A. John, as executor of William’s estate, filed a petition to invalidate Irene’s election and for a declaration that she was not entitled to the statutory share based, in part, on her express waiver of her elective rights in the antenuptial agreement. Irene responded that neither her nor William’s signature was acknowledged in accordance with the statutory requirements. Therefore, the agreement was unenforceable, and she was entitled to her elective share. Irene also moved to dismiss the petition to set aside her notice of election pursuant to CPLR 3211 (a) (1) and DRL § 236 (B) (3). In opposition to Irene’s motion, John argued, that the antenuptial agreement complied with the then-applicable EPTL 5-1.1 requirements and substantially complied with the other relevant statutory mandates. He submitted separate written affirmations from the lawyers who had acknowledged the signing. Irene’s lawyer stated that he recalled taking her acknowledgment of her signature and that she did not need to provide proof of identification because she was known to him at the time based on their prior professional relationship. William’s lawyer stated the same with respect to William and his signature, and also explained the basis of his professional knowledge of William’s identity. Surrogate’s Court denied Irene’s motion. The Appellate Division affirmed and concluded that the defect could be and was cured by the Executor’s submissions. Surrogate’s Court granted John’s motion for summary judgment and the Appellate Division affirmed.
Justice Rivera noted that EPTL 5-1.1-A provides that the waiver of the surviving spouse's elective share must “be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property.” EPTL 5-1.1-A [e] [2]. Given the similarity in language between DRL § 236 (B) (3) and the EPTL, and the respective conditions that the nuptial agreement and spousal waiver accord with the recording statutes, the Court held that its analysis of DRL § 236 (B) (3) applied with equal force to Irene's appeal. However, the different context in which the signatures here were acknowledged was dispositive and led it to conclude the antenuptial agreement and its statutory spousal share waiver were enforceable.
In Matter of Koegel, the acknowledgments of each party were made contemporaneously with the signing of the nuptial agreement, but the certificates of acknowledgment were defective because the parties' lawyers failed to include in their certificates the undisputed fact that the signer was personally known to them at the time of signing. The Court held that where, as here, the signatories have satisfied the prerequisites for a valid certificate of acknowledgment and the defect in the certificate of acknowledgment is occasioned by the notary's or other official's error and not by a flaw in the parties' actual signing and acknowledgment, a reaffirmation of the agreement terms is unnecessary. This defect in the certificate may be overcome, with extrinsic evidence of the official's personal knowledge or proof of identity of the signer. The signature and acknowledgment may satisfy the statutory mandates if extrinsic evidence supports “that the acknowledgment was properly made in the first instance” even if the certificate fails to “include the proper language” due to the notary’s or other official’s error. Only in those limited cases where the parties signed and properly acknowledged the agreement can they later seek to present evidence of their prior timely compliance.
Appellate Division, Second Department
Where a party has paid the other party’s share of what proves to be marital debt, such as the mortgage, reimbursement is required
In Bari v Bari, --- N.Y.S.3d ----, 2021 WL 5913165, 2021 N.Y. Slip Op. 06980(2d Dept., 2021) the parties were married on June 12, 1997, and had three children together. In April 2014, the plaintiff commenced this action for a divorce.
The Appellate Division held that Supreme Court improvidently exercised its discretion in declining to award the plaintiff a credit against the proceeds of the sale of the marital residence for payments he made to reduce the principal balance of the mortgage on the marital residence during the pendency of this action . Where a party has paid the other party’s share of what proves to be marital debt, such as the mortgage, reimbursement is required. Based upon the plaintiff’s payments toward the mortgage on the marital residence during the pendency of this action, which reduced the marital debt of the parties, we determine that the plaintiff is entitled to a credit in the sum of $26,240.21.
The Appellate Division held that Supreme Court providently exercised its discretion in directing that plaintiff was responsible for 100% of the debt on his American Express credit card and HSBC line of credit, and that he was not entitled to a credit for payments he made toward the defendant’s Bloomingdale’s credit card and landscaper fees. While expenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt, expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses. However, the court has broad discretion in allocating the assets and debts of the parties to a matrimonial action, and liability for the payment of marital debts need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law § 236(B)(5)(d)’. The evidence demonstrated that the earning capacity of the plaintiff, who had paid for all of the parties’ expenses during the marriage, was far greater than the earning capacity of the defendant. Since the payments made by the plaintiff toward the credit cards and line of credit, as well as the landscaper fees, were relatively minimal in relation to the plaintiff’s annual income, the court did not improvidently exercise its discretion in directing that the plaintiff was 100% responsible for the debt on the American Express credit card and HSBC line of credit, and in declining to award the plaintiff a credit for payments toward the Bloomingdale’s credit card and landscaper fees.
December 15, 2021
Family offense of aggravated harassment in second degree based on Penal Law § 240.30(1)(a) as it existed before amendment in 2014 vacated where statute unconstitutional
In Matter of Giovanni De M v Nick W., --- N.Y.S.3d ----, 2021 WL 5893750 (Mem), 2021 N.Y. Slip Op. 06947(1st Dept.,2021) the Appellate Division held that the determination that respondent committed the family offense of aggravated harassment in the second degree based on Penal Law § 240.30(1)(a) as it existed before amendment in July 2014 had to be vacated because the statute was held to be unconstitutionally vague (see People v. Golb, 23 N.Y.3d 455, 466–467 [2014])
Termination of eligibility for cash public assistance during the pendency of the support proceeding did not eliminate Family Court’s jurisdiction over the petition seeking support
In Matter of Commissioner of Social Services on behalf of Karla M. Assignor v Omar G., --- N.Y.S.3d ----, 2021 WL 5893751, 2021 N.Y. Slip Op. 06956(1st Dept., 2021) the DSS filed a petition seeking support for the child from respondent father. At the time the petition was filed, the child was receiving cash public assistance and Medicaid benefits. The petition requested an order of support payable to DSS or, in the event assignment to DSS ended, to the mother. It also requested a health insurance order. Cash public assistance for the child ended on January 31, 2020. The child’s Medicaid benefits remained active through January 2021. When the petition came before the Support Magistrate on February 11, 2020, the Magistrate dismissed the petition on the ground that Family Court lacked subject matter jurisdiction over DSS’s claims because DSS sought only retroactive support and health insurance costs. DSS objected to the order of dismissal, and Family Court denied the objection. The Appellate Division reversed and vacated the dismissal. It found that DSS properly filed its child support petition while the child was still receiving cash public assistance, and Family Court had jurisdiction to determine the petition. After a child support petition is filed, the Family Court is required pursuant to section 434 of the Family Court Act, to “make an order for temporary child support pending a final determination, in an amount sufficient to meet the needs of the child, without a showing of immediate or emergency need”. The temporary order should have continued after the child became ineligible for cash assistance, pending a final determination (see Family Court Act §§ 435[b]; 443; 571[3][a]). If not for Family Court’s adjournments, a temporary support order would have been issued before the child’s cash public assistance ended. The termination of eligibility for cash public assistance during the pendency of the proceeding did not eliminate Family Court’s jurisdiction over the petition seeking support and health insurance costs (Friedlander v. Friedlander, 244 A.D.2d 812, 666 N.Y.S.2d 257 [3d Dept. 1997]; see also Matter of Broome County Dept. of Social Servs. v. Kelley, 125 A.D.3d 1187, 4 N.Y.S.3d 617 [3d Dept. 2015]; Matter of Oneida County Dept. of Social Servs. v. Christman, 125 A.D.3d 1409, 3 N.Y.S.3d 222 [4th Dept. 2015]).
Disputes concerning child custody and visitation are not subject to arbitration
In Matsui v Matsui, --- N.Y.S.3d ----, 2021 WL 5816535 (Mem), 2021 N.Y. Slip Op. 06843 (2d Dept.,2021) the Appellate Division held that the Supreme Court erred in declining to exercise jurisdiction over the parties’ custody/parental access disputes on the basis that their stipulation of settlement, which was incorporated but not merged into their judgment of divorce, contained an arbitration clause (see Matter of Goldberg v. Goldberg, 124 A.D.3d 779, 780, 1 N.Y.S.3d 360; Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151; Glauber v. Glauber, 192 A.D.2d 94, 98, 600 N.Y.S.2d 740). Disputes concerning child custody and visitation are not subject to arbitration as the court’s role as parens patriae must not be usurped.
Termination after a hearing pursuant to Family Court Act § 1027 should not be disturbed unless it lacks a sound and substantial basis in the record. In Matter of Kai’ere D., --- N.Y.S.3d ----, 2021 WL 5816560 (Mem), 2021 N.Y. Slip Op. 06845 (2 Dept.,2021) the Appellate Division observed that at a hearing pursuant to Family Court Act § 1027, temporary removal is authorized only where the court finds it necessary to avoid imminent risk to the child’s life or health. There must be a showing of ‘near or impending’ imminent danger, ‘not merely possible’ danger to the child. Its determination in this regard should not be disturbed unless it lacks a sound and substantial basis in the record.
December 8, 2021
Appellate Division, Second Department
Trial court did not err in taking judicial notice of wife’s statement of net worth and its attachments which had been filed with the court, but were not admitted into evidence at trial, in awarding the husband an equitable share of her pension and retirement accounts.
In Garcia v Garcia, --- N.Y.S.3d ----, 2021 WL 5621987 (Mem), 2021 N.Y. Slip Op. 06674 (2d Dept.,2021) the marital residence was an apartment purchased by the plaintiff in July 2001, approximately two months prior to the date of the marriage. The defendant lived with the plaintiff in the marital residence for most, if not all, of the period from the date of the marriage until 2005, when the defendant relocated to the Philippines. The plaintiff commenced the action for a divorce in August 2010. The Appellate Division held that Supreme Court properly determined that the marital residence was the plaintiff’s separate property, since she purchased the apartment prior to the marriage. It observed that any appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. However, there was no evidence that the marital residence appreciated in value from any factor other than market forces. Therefore, the appreciation remained separate property.
In awarding the defendant an equitable share of the plaintiff’s pension and retirement accounts, the court relied upon the plaintiff’s statement of net worth with attached documents, which were not admitted into evidence at trial. The Appellate Division found that there was no merit to the plaintiff’s claim that the court erred in taking judicial notice of her statement of net worth and its attachments, which had been filed with the court (see Baumgardner v. Baumgardner, 98 A.D.3d 929, 931, 951 N.Y.S.2d 64). Plaintiff’s challenge to this award was without merit.
Generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. Where defendant had exclusive occupancy during the pendency of the action proper to award plaintiff half of the marital funds the defendant used to pay the carrying costs of the marital residence.
In Palazolo v Palazolo, --- N.Y.S.3d ----, 2021 WL 5622008, 2021 N.Y. Slip Op. 06696(2d Dept.,2021) the parties were married on June 22, 1991. The plaintiff commenced the action for a divorce on February 4, 2011.
The Appellate Division pointed out that the proceeds of an inheritance are separate property. However, where separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property. A party may overcome the presumption by presenting sufficient evidence that the source of the funds was separate property. Although the shares of stock the plaintiff inherited from her mother were placed in an investment account which also contained marital assets, the plaintiff sufficiently traced the source of the majority of those shares which listed a purchase date of either August 17, 2001, or August 6, 2002, to her inheritance, so as to rebut the presumption that those shares were marital property. The use of interest and dividends accrued on those shares for marital purposes did not transmute the shares themselves into marital property . However, the evidence revealed a discrepancy in the investment account statements with regard to certain shares of stock, which listed an August 17, 2001, purchase date, but could not have been part of the plaintiff’s inheritance. Due to this discrepancy, the plaintiff met her burden of tracing only 1,703 shares of the stock to her inheritance and the court should have awarded the plaintiff only 1,703 shares of the stock as her separate property, and should have divided the remaining 838 shares of the stock equally between the parties.
The Appellate Division noted that generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. The defendant had exclusive occupancy of the marital residence throughout the proceedings, and he used marital funds to pay the carrying costs of the marital residence, including taxes, insurance, common charges, and utilities. However, pursuant to an agreement, the parties had each received identical sums from their joint account to cover their household expenses during the proceedings. The defendant’s expenditures for the carrying costs of the marital residence were in addition to the funds he had already received pursuant to that agreement. Under these circumstances, the Supreme Court providently exercised its discretion in awarding the plaintiff $70,000, representing half of the marital funds the defendant used to pay the carrying costs of the marital residence.
The Appellate Division held that Supreme Court properly awarded the plaintiff half of the defendant’s New York State Teacher’s Retirement System pension benefits which were earned during the marriage prior to commencement of this action. The fact that the defendant’s former wife received a portion of the defendant’s pension benefit, pursuant to a qualified domestic relations order entered in connection with his prior divorce, does not diminish the marital portion of the defendant’s pension benefit, or the plaintiff’s entitlement to a share of the benefits earned during the marriage.
Appellate Divison, Third Department
Unjust and inappropriate to penalize the wife in making a maintenance award, for making the decision to earn significantly less money for the same reason as the husband. Where both parties violated the automatic orders to pay off debts, pay taxes, cover everyday expenses and pay legal fees Supreme Court properly canceled out each party’s alleged wasteful dissipation of the assets in coming to its determination on equitable distribution.
In Harris v Schreibman, --- N.Y.S.3d ----, 2021 WL 5701812, 2021 N.Y. Slip Op. 06724 ( 3d Dept.,2021) Plaintiff ( wife) and defendant (husband) were married in September 2004 and had three children together – one born in 2008 and twins born in 2010. The parties’ marital relationship informally ended in 2012, but they elected to defer formal divorce proceedings and continued to share a residence and co-parent their children.
Supreme Court awarded the wife, pursuant to the statutory guidelines, maintenance of $1,963.92 monthly, or $23,567 annually, for a duration of 3 years and 10 months. The court explicitly stated that it considered that factors in Domestic Relations Law § 236(B)(6)(e) and declined to deviate from the guidelines. Although the wife was earning substantially less money than she did in her previous employment, she lost her job through no fault of her own and was reluctant to take a position that would require her to commute into New York City or travel a lot, taking her away from the children. The husband testified that this was the same reason that he ran for a judgeship to which he was elected, a position that paid less than half of what he was previously earning while working as a partner in a New York City law firm. The Appellate Division held that it seemed unjust and inappropriate to penalize the wife for making the decision to earn significantly less money for the same reason as the husband. Additionally, although the wife was arguably self-sufficient, the court properly considered the standard of living that the parties established during the marriage in determining that the maintenance award was not unjust or inappropriate. It saw no abuse of discretion in Supreme Court awarding the wife maintenance in accordance with the statutory guidelines. Nor did it discern any abuse of discretion in Supreme Court ordering maintenance for 3 years and 10 months, which is the maximum length of time under the advisory schedule (see Domestic Relations Law § 236[B][6][f][1]). Because the court provided a reasoned analysis of the factors it ultimately relied upon in awarding maintenance and setting its duration, it declined to disturb the maintenance award. The Appellate Division found that both parties substantially reduced their income to be able to spend more time with their children. As determined by the court, neither party reduced resources or income in order to reduce or avoid the parties obligation for maintenance. Thus, the court did not err in declining to impute income based upon the wife’s prior earnings.
The Appellate Division held that Supreme Court erred in failing to require the wife to contribute to the cost of the children’s health insurance and in failing to prorate each party’s share of the premiums as required by the Child Support Standards Act. The Child Support Standards Act provides that,“[T]he cost of providing health insurance benefits shall be prorated between the parties in the same proportion as each parent’s income is to the combined parental income” (Domestic Relations Law § 240[1–b][c][5][ii]). “If the non-custodial parent is ordered to provide such benefits, the custodial parent’s pro rata share of such costs shall be deducted from the basic support obligation” (Domestic Relations Law § 240[1–b][c][5][ii]). Although Supreme Court failed to deduct the husband’s pro rata share of the health insurance from the basic child support obligation, the record was sufficient to allow it to adjust the child support accordingly.
The husband contended that Supreme Court erred in treating a $50,000 given to the parties by the wife’s mother as a loan and in granting the wife a $25,000 credit. “[I]t is well settled under the common law of this [s]tate that a party claiming that a transfer is a gift has the burden of proof by clear and convincing evidence that the gift was made with the requisite donative intent”. The evidence showed that the wife’s mother did not intend to be repaid the $50,000 and, even if she did, her intent was for those payments to go into 529 accounts for the children, not to receive them as cash payments. Accordingly, Supreme Court erred in determining that the parties were responsible for repaying the loan to the wife’s mother and awarding the wife a $25,000 credit from the husband for the payment.
Both parties argued that Supreme Court wrongly concluded that they violated the automatic stay orders and, at the same time each maintains that the other party wastefully dissipated marital property by violating them. The Appellate Division found that Supreme Court properly concluded that when the husband transferred $38,000 in cash to pay off campaign debts, he directly controverted the automatic order set forth in Domestic Relations Law § 236(B)(2)(b)(1). Similarly, the wife did not have the husband’s written consent to remove money from her retirement accounts to pay off debts (see Domestic Relations Law § 236[B][2][b][2]). Supreme Court properly concluded that both the husband and the wife violated the automatic orders. As for the wife’s use of the severance payment, the court properly declined to consider this wasteful dissipation of marital property because she used those funds for renovations to the marital residence, where both parties resided, food, outings with the children and other living expenses. However, it was clear from the testimony that, despite violating the automatic orders, the parties did so to pay off debts, pay taxes, cover everyday expenses and pay legal fees. As such, Supreme Court properly canceled out each party’s alleged wasteful dissipation of the assets in coming to its determination on equitable distribution.
Third Department holds that considering the mother’s extensive participation in the proceeding the order which granted the father custody upon default in her appearing for a Lincoln hearing scheduled during the trial of this matter was not a default situation.
In Matter of Patrick UU v Frances W, 2021 WL 5701826 (3d Dept.,2021) the mother appealed from an order which granted the father custody upon her default in appearing for a Lincoln hearing scheduled during the trial of this matter. The father and the AFC argued that the appeal must be dismissed because the order was properly entered on the mother’s default. The Appellate Division held that considering the mother’s extensive participation in the proceeding, this was not a default situation (citing Matter of Amanda I. v. Michael I., 185 A.D.3d 1252, 1253–125 [2020]; Matter of Leighann W. v. Thomas X., 141 A.D.3d 876, 877 [2016]). The mother made an opening statement, extensively cross-examined the father, whose testimony extended over the first three days of the hearing, partially completed cross-examination of the child’s teacher and filed a written summation. She made numerous objections during the hearing and offered several exhibits into evidence. Despite her failure to appear on March 6, 2020, it concluded that the order was not entered on default and that the mother’s appeal may be heard. That said, the record confirmed that the mother was on clear notice that the hearing would resume on March 6, 2020. By failing to appear or otherwise alert Family Court that she would be unable to attend that day, the court acted within its discretion in closing the proof.
The Appellate Division agreed with Family Court’s finding that a change in custody was in the child’s best interests. It found no abuse of discretion in Family Court drawing a negative inference against the mother for failing to bring the child to the rescheduled Lincoln hearing. A parent served with an order to produce a child for a Lincoln hearing is obligated to comply and may not simply ignore the court’s directive. A Lincoln hearing serves the vital purpose of allowing a court to ascertain a child’s preference and concerns, as well as corroborating information obtained during the fact-finding hearing. By failing to cooperate, the mother undermined the court’s opportunity to obtain this information. The mother’s failure was particularly troubling given that the AFC confirmed that the child was willing to participate. It found no error with the court drawing a negative inference to the extent that the child would have confirmed his attorney’s stated position that he wished to return to school and spend more time with his father.
Appellate Division, Fourth Department
Family Court
Family Court holds that a “best interests” standard applies to a non-respondent parent's request for release under Article 10-A of the Family Court Act.
In Matter of John A, --- N.Y.S.3d ----, 2021 WL 5753931, 2021 N.Y. Slip Op. 21326 (Fam Ct, 2021) Family court observed that Family Court Act §§ 1035(d), 1052(a)(ii), and 1054 were amended in 2015 to authorize the dispositional alternative of a release of the subject child to a non-respondent parent. Family Court Act Article 10-A was not similarly amended. The word “release” or the phrase “release to a non-respondent parent” does not appear anywhere in Family Court Act § 1089, the primary section governing permanency hearings. However, because permanency hearings have been held to constitute “phases” of the dispositional proceedings, the dispositional option of a release to a non-respondent parent must be a valid disposition at a permanency hearing. In re Demetria FF., 140 A.D.3d 1388, 1390, 33 N.Y.S.3d 570 [3d Dept. 2016]. In Matter of Elizabetta C., 60 Misc. 3d 603, 78 N.Y.S.3d 660 [Fam. Ct., 2018], the Court held, that once a parent intervenes in an article 10 action, the court may not place the child without the intervening parent’s consent, unless the party advocating placement demonstrates that the intervening parent is unfit to provide proper care for the child or that some other type of extraordinary circumstances exist. In Matter of Sabrina M.A., 195 A.D.3d 709, 145 N.Y.S.3d 376 [2d Dept. 2021] the non-respondent father appealed from a permanency hearing order which continued the subject child’s placement, arguing that “there was no showing that he is unfit or other extraordinary circumstances and the court should have immediately released the child to his care.” The Second Department held that the “best interests” of the child standard is applicable to the father’s request for a release of the subject child and that the non-respondent’s fitness would be a “primary factor” among others. Because the Third Department has not addressed the issue, the Court applied the law in Matter of Sabrina M.A., and applied a “best interests” standard to the facts of the present case.
December 1, 2021
Husband failed to demonstrate that the COVID–19 pandemic rendered service of process under the Hague Service Convention impracticable. Absent showing of impracticability “a court is without power to direct expedient service pursuant to CPLR 308(5)
In Joseph II v Luisa JJ, --- N.Y.S.3d ----, 2021 WL 5497256, 2021 N.Y. Slip Op. 06586 (3d Dept.,2021) the Appellate Division held that Supreme Court improperly authorized substituted service of the summons and complaint by email. Pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (20 UST 361, TIAS No. 6638 [1969] of which both the United States and Italy are signatories, requests for service of documents must be sent to a central authority within the receiving state, which then serves the documents “by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible with that law”. New York requires that, in an action for divorce, the summons and a copy of the complaint be personally served upon the defendant or, alternatively, a copy of the summons be “served on the defendant pursuant to an order directing the method of service ... in accordance with the provisions of [CPLR 308]” (Domestic Relations Law § 232[a]). As set forth in CPLR 308(5), “if service is impracticable under [CPLR 308(1), (2) and (4)],” then personal service shall be made “in such manner as the court, upon motion without notice, directs.” “Although impracticality does not require a showing of actual attempts to serve parties under every method in the aforementioned provisions of CPLR 308, the movant is required to make competent showings as to actual efforts made to effect service” . In support of his application for substituted service, the husband failed to come forward with sufficient proof demonstrating an actual effort to effectuate service upon the wife at her residence in Italy. The only proof submitted by the husband was an email dated August 12, 2020, more than two months after commencement of the action from an associate at a process service company that the husband’s counsel often used for service of process. The email estimated that service upon the wife in Italy in accordance with the Hague Convention would take roughly 18 to 20 weeks in total, which included “a few days” for Italian translation, 10 to 14 weeks for service and an additional two to four weeks for return of the proof of service. Although mindful that the COVID–19 pandemic remained an issue at the time of the August 2020 email, there was no indication in the email that the 18 to 20–week estimate was atypical or that the COVID–19 pandemic rendered service of process under the Hague Convention impracticable. Given the husband’s failure to make the requisite showing of impracticability and that “a court is without power to direct expedient service pursuant to CPLR 308(5) absent [such] a showing,” Supreme Court erred in authorizing service of the summons and complaint upon the wife via substituted service. As the husband failed to effectuate proper service upon the wife within the requisite 120 days following commencement of the action (see CPLR 306–b), it dismissed the complaint for lack of personal jurisdiction.
Although the court must set forth a valuation date between date of commencement and date of trial, setting such a date was not “practicable”, given that proof before the court was limited to the husband’s affidavits, tax documents and financial submissions
In Carter v Fairchild-Carter, 2021 WL 5496974 (3d Dept.,2021) the husband argued on appeal, among other things, that Supreme Court should have, in its discretion, set the valuation date of his businesses as the date of trial rather than the date of the commencement of the action. Domestic Relations Law § 236[B][4][b] provides: “As soon as practicable after a matrimonial action has been commenced, the [trial] court shall set the date or dates the parties shall use for the valuation of each asset.” The Appellate Division noted that while not dispositive, the fact that the businesses constitute ‘active’ assets weigh in favor of valuing them as of the date of commencement. In support of his valuation date motion, the husband cited, among other things, the passage of time since commencement of the action, his advancing age and the economic implications of the COVID–19 pandemic as bases for Supreme Court to set the valuation date as the date of trial rather than the commencement of the divorce action. The husband asserted that he would have “earned nothing” in 2020 if it were not for “the payroll protection program and disaster relief loans” and that this would be true for 2021 as well. Although the court must set forth a valuation date between date of commencement and date of trial, it discerned no abuse of discretion with Supreme Court’s determination that, at this juncture, setting such a date was not “practicable”, particularly given that the proof before the court was limited to the husband’s affidavits, tax documents and financial submissions, which the court found “suspect.”
Appellate Divison declines invitation to dismiss the appeal because of father’s failure to prepare a complete record
In Matter of Zachary C v Janaye D. --- N.Y.S.3d ----, 2021 WL 5496970, 2021 N.Y. Slip Op. 06585 (3d Dept.,2021) although the father omitted the mother’s modification petition and the written summations of the parties from the record the Appellate Division “obtained and took judicial notice of the former and was aware of the parties’ arguments from their briefs” and it declined the mother’s invitation to dismiss the appeal because of the father’s failure to prepare a complete record (citing CPLR 2001; Matter of Freed v. Hill, 176 A.D.2d 1065, 1066, 575 N.Y.S.2d 210 [1991]).
Where the decision and order are inconsistent the decision controls
In Matter of Cardona v McNeill, --- N.Y.S.3d ----, 2021 WL 5499903 (Mem), 2021 N.Y. Slip Op. 06615 (3d Dept, 2021) the Appellate Division held that an order must conform strictly to the underlying decision, and where an order is inconsistent with the underlying decision, the decision controls (see Valensi v. Park Ave. Operating Co., LLC, 169 A.D.3d 960, 962, 94 N.Y.S.3d 311; Matter of Schwarzenberger, 116 A.D.3d 868, 869–870, 984 N.Y.S.2d 386; Matter of Testa v. Strickland, 99 A.D.3d 917, 917, 951 N.Y.S.2d 910).
November 24, 2021
Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state In Matter of Phillip D.S. --- N.Y.S.3d ----, 2021 WL 5364714, 2021 N.Y. Slip Op. 06460 (1st Dept.,2021) the Appellate Division held that Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state (see Opportune N. v. Clarence N., 110 A.D.3d 430, 430–431, 972 N.Y.S.2d 245 [1st Dept. 2013]; Matter of Jose M. v. Angel V., 99 A.D.3d 243, 246, 951 N.Y.S.2d 195 [2d Dept. 2012]).
Argument that the father failed to establish a change in circumstances waived where mothers petition alleged that there had been such a change in circumstances’
In Allison v Seeley-Seek, --- N.Y.S.3d ----, 2021 WL 5410024, 2021 N.Y. Slip Op. 06524 (4th Dept.,2021) a proceeding to modify a prior custody order the Appellate Division rejected the mother’s argument that the father failed to establish a change in circumstances sufficient to warrant an inquiry into whether a modification of the prior order is in the best interests of the children. It held that she waived that contention “ ‘inasmuch as [she] alleged in her own ... petition[s] that there had been such a change in circumstances’ ” (Fowler, 198 A.D.3d at ––––, ––– N.Y.S.3d ––––, 2021 N.Y. Slip Op. 05436).
November 17, 2021 A court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.
In Trazzera v Trazzera, --- N.Y.S.3d ----, 2021 WL 5226238, 2021 N.Y. Slip Op. 06208 (2d Dept.,2021) the parties stipulation of settlement dated December 31, 2018 which was incorporated in their September 19, 2019 judgment of divorce provided for joint legal custody of their child, joint decision-making authority, and the defendant having residential custody of the child, subject to the plaintiff’s parental access.. The Appellate Division held that Supreme Court erred by, in effect, granting, without a hearing, defendant’s motion which was to modify the parties’ stipulation of settlement and judgment of divorce to award her sole legal custody of the child to the extent of awarding her final decision-making authority as to any major child-related issue about which the parties could not agree, and denying plaintiff’s cross motion to modify the stipulation of settlement and judgment of divorce so as to award him sole legal custody. A court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party. Although the plaintiff contended that the court ruled sua sponte, the court had before it motions by both parties seeking sole legal custody. The award of final decision-making authority was not “dramatically unlike” the relief requested, as decision making is part and parcel to legal custody. However, the court erred in granting this award without a hearing. It remitted the matter to the Supreme Court for a hearing .
A parent seeking custody or contesting a substantial infringement of her right to custody must be advised “before proceeding that she has the right to be represented by counsel of her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the where she is financially unable to obtain the same In Wondemagegehu v Edem, --- N.Y.S.3d ----, 2021 WL 5226212 (Mem), 2021 N.Y. Slip Op. 06213(2d Dept.,2021) the parties were married in 2005, and had two children. In 2014, the plaintiff commenced the instant action for a divorce. Throughout this highly contested action, the parties engaged in extensive motion practice and appeared on multiple occasions before the Supreme Court, resulting in the issuance of several orders, oral rulings, and a judgment of divorce. The Supreme Court(1) directed the defendant to pay the plaintiff maintenance of $1,438.82 per month for 36 months, (2) awarded the plaintiff sole legal and residential custody of the parties’ two children, with certain parental access to the defendant, and (3) directed the defendant to pay the plaintiff child support of $1,774.67 per month.
The Appellate Division pointed out that the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before 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. A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right. Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order. It modified the judgment of divorce by deleting the provision thereof awarding the plaintiff sole legal and residential custody of the children, without regard to the merits of the defendant’s position, and remitted the matter to the Supreme Court, for a determination of whether the defendant wishes to waive his right to counsel, the assignment of counsel if warranted, a new hearing and a new determination. It affirmed the support awards.
Generally, a process server’s affidavit of service establishes a prime facie case as to the method of service and, therefore, gives rise to a presumption of proper service
In Matter of Reyes v Munoz, --- N.Y.S.3d ----, 2021 WL 5226157 (Mem), 2021 N.Y. Slip Op. 06176(2d Dept.,2021) the parties were the parents of a child, who was born in December 2009. In October 2019, the mother filed a petition seeking custody of the child. The mother submitted an affidavit from a process server, accompanied by an affidavit of translation, attesting that the process server recognized the father personally, and on the process server’s third attempt, delivered the custody petition, motion for special findings, and notice of next court date to the father in Honduras. Family Court dismissed the petition for lack of jurisdiction over the father. The Appellate Division reversed and remitted for a hearing. It pointed out that Service without New York State may be made in the same manner as service is made within the state (see Domestic Relations Law § 75–g[1][a]; CPLR 313). Proof of service outside the state shall be by affidavit of the individual who made the service. (Domestic Relations Law § 75–g[2]). Generally, a process server’s affidavit of service establishes a prime facie case as to the method of service and, therefore, gives rise to a presumption of proper service. It held that the affidavit of service of the mother’s process server constituted prima facie evidence of proper service of the custody petition on the father. The record did not contain a sworn denial by the father of receipt of service with specific facts to rebut the statements in the process server’s affidavit. Therefore, no hearing on the validity of process of service was necessary and the Family Court should not have dismissed the petition.
Although the mother did not specifically seek an upward modification based on an increase in the father’s income by 15% or more, it was proper to modify the father’s child support obligation on this basis, as the parties declined to opt out of Family Court Act § 451(3)(b).
In Giraldo v Fernandez, --- N.Y.S.3d ----, 2021 WL 5226159, 2021 N.Y. Slip Op. 06170(2d Dept.,2021) the parties September 6, 2013, a stipulation regarding child support was incorporated in to their February 7, 2014, judgment of divorce but did not merge. The judgment of divorce provided: “Each party has the right to seek a modification of the child support order upon a showing of (I) a substantial change in circumstances, or (II) that three years have passed since the order was entered, last modified or adjusted, or (III) there has been a change in either party’s gross income by 15 percent or more since the order was entered, last modified or adjusted; however, if the parties have specifically opted out of subparagraphs (II) or (III) of this paragraph in a validly executed agreement or stipulation, then that basis to seek modification does not apply. The parties have not elected to opt[ ] out of subparagraphs (II) or (III).” On May 23, 2019, the mother filed a petition in the Family Court, Nassau County, for an upward modification of the father’s child support obligation pursuant to the terms of the judgment of divorce. She alleged a change in circumstances in that the father “makes more money, our son is older and requires more.” She further alleged that “[t]he parties have not specifically agreed otherwise in a validly executed agreement or stipulation and three years have passed since the order was entered, last modified or adjusted.” In support of her petition, the mother submitted the father’s 2018 federal tax return, which demonstrated that the father’s total income was $117,316, a substantial increase from his $45,000 annual income at the time the stipulation was entered.
After a hearing, in a fact-finding order dated March 13, 2020, the Support Magistrate found that the mother “has met her burden of proving a substantial change in circumstances” in that the father’s income has increased by at least 15% since the entry of the judgment of divorce. The Support Magistrate determined that the mother and father have a respective child support obligation of 46% and 54%, and modified the father’s child support obligation to $522.55 biweekly. The father filed objections to the Support Magistrate’s order. Her alleged that the order granted relief based on a cause of action never alleged by the mother and granted relief that was not requested or supported by the record, and the support obligation was unjust and inappropriate. Family Court denied the father’s objections. The Appellate Division affirmed. It noted that the court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances” (Family Ct Act § 451[3][a]). Additionally, unless the parties have specifically opted out, “[s]ection 451 of the Family Court Act permits a court to modify an order of child support where (1) either party’s gross income has changed by 15% or more since the order was entered or modified, or (2) three years or more have passed since the order was entered, last modified, or adjusted” (Family Ct Act § 451[3][b][I], [ii]). Although the mother did not specifically seek an upward modification based on an increase in the father’s income by 15% or more, it was proper for the Support Magistrate to modify the father’s child support obligation on this basis, as the parties declined to opt out of Family Court Act § 451(3)(b). In any event, the mother demonstrated a substantial change in circumstances and that three years had passed since the order was entered, last modified, or adjusted, warranting an upward modification of the father’s child support obligation. A substantial change in circumstances may be measured by comparing the parties’ financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued. The mother demonstrated her entitlement to an upward modification by providing the father’s 2018 federal income tax return, showing that his current income has more than doubled since the time the stipulation was entered. Additionally, the stipulation and the judgment of divorce were never modified or adjusted, and more than three years had passed, triggering review pursuant to Family Court Act § 451(3)(b)(I).
Where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken
In Weichman v Weichman, --- N.Y.S.3d ----, 2021 WL 5226234, 2021 N.Y. Slip Op. 06211 (2d Dept.,2021) the parties were married in 2005. There is one child of the marriage, born in 2006. The child was raised in accordance with the parties’ Orthodox Jewish Chasidic faith and attended an Orthodox Chasidic yeshiva from the age of two. In March 2015, the plaintiff commenced this action for a divorce. The plaintiff identified as a member of the LGBTQ community, and considers herself an Orthodox Jew. Supreme Court awarded the defendant sole custody of the child, with the plaintiff to have specified periods of parental access. The court imposed certain restrictions on the plaintiff’s periods of parental access, including a requirement that: “The [plaintiff] shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith. Thus, the [plaintiff] shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square.” The Appellate Division vacated Supreme Court’s direction that, during her periods of parental access, she “shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith”. In the absence of a written agreement, the custodial parent may determine the religious training of a child. Courts may properly direct noncustodial parents, during periods of parental access, to respect the children’s religious beliefs and practices and make reasonable efforts to ensure the children’s compliance with their religious requirements. However, a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. A religious upbringing provision “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. Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken. Here the provisions of the judgment which expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access and the breadth of the provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith had the same effect as the provisions this Court struck down in Cohen v. Cohen, 182 A.D.3d at 547, 122 N.Y.S.3d 650 and Weisberger v. Weisberger, 154 A.D.3d at 53, 60 N.Y.S.3d 265. The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. The defendant’s testimony at the trial supported this conclusion.
Equal Distribution of martial property appropriate in 32–year given the parties relatively advanced ages, and the plaintiff’s longtime indirect contributions to the businesses by supporting the defendant and affording him the time to manage the family enterprises.
In Silvers v Silvers, 197 A.D.3d 1195, 153 N.Y.S.3d 548, 2021 N.Y. Slip Op. 04987 (2d Dept.,2021) the plaintiff commenced this action for a divorce in 2012, following a 32–year marriage of the parties, whose two children were emancipated at the time of commencement. Supreme Court determined that the defendant, during the parties’ marriage, purchased from his father the family’s longtime insurance business, Ralph Silvers Agency, and that the Agency was marital property subject to equitable distribution. The court directed that $595,000, the stipulated value of the Agency, should be divided equally between the plaintiff and the defendant. The court determined that the defendant was the owner of a 10% interest in a real estate holding company known as JAVE Properties Corporation, which was marital property subject to equitable distribution, and its then unknown value should be divided equally between the parties. The court directed that upon the plaintiff’s request, the defendant may buy out her ownership interest in JAVE for the sum of $38,375. The court awarded the plaintiff a credit of $30,000 to offset the defendant’s wasteful dissipation of certain marital assets. The court awarded the plaintiff maintenance of $1,375 per month for a period of 13 years from the commencement of the action and the sum of $20,000 for attorneys’ fees and expenses incurred in connection with the defendant’s conduct in failing to timely provide disclosure, which resulted in unnecessary delay. The Appellate Division affirmed.
The Appellate Division held that Supreme Court providently exercised its discretion in determining that the defendant’s interest in the Agency was acquired during the marriage and that the Agency constituted marital property. The court, which was in the position to see the witnesses in person at trial and to assess the credibility of their testimony, found the defendant’s claim that he first received the Agency as a gift in 2008 to lack credibility, as it was belied by the defendant’s tax returns filed between 2000 and 2011, in which he repeatedly and unambiguously represented that he was the sole proprietor of the Agency. It also providently exercised its discretion in determining that the defendant failed to meet his burden of demonstrating that JAVE was his separate property. The relevant tax returns demonstrated that the defendant had an interest in JAVE as a sole owner as far back as 2007, both before and after a purported stock surrender, and other documentary evidence undercut the defendant’s claim that JAVE constituted separate property.
The Supreme Court did not improvidently exercise its discretion in determining that an equal distribution of the defendant’s interest in the Agency and JAVE was appropriate. Particularly given the 32–year duration of the parties’ marriage, the plaintiff’s and the defendant’s relatively advanced ages of 67 and 70, respectively, at the time of trial, and the plaintiff’s longtime indirect contributions to the businesses by supporting the defendant and affording him the time and energy to manage the family enterprises, and given that the defendant’s testimony concerning both the Agency and JAVE was found to lack credibility, the court’s award to each party of 50% of the defendant’s interest in the Agency and JAVE was proper.
Appellate Division, Fourth Department
Appellate Divison finds no basis to disturb the monthly payment of the distributive award set by the court despite the unusual manner in which it calculated the interest.
In Mehlenbacher v Mehlenbacher, --- N.Y.S.3d ----, 2021 WL 5275369, 2021 N.Y. Slip Op. 06219 (4th Dept., 2021) the Appellate Division rejected defendant’s contention that the court abused its discretion in setting the monthly payment for the distributive award owed to her. Although the court determined that the $272,831 distributive award would be paid to her over 15 years in monthly installments at five percent interest, the figure for monthly payments awarded by the court, $1,590, was inaccurate if the interest is compounded monthly. Rather than compounding the interest monthly, the court divided the amount of the distributive award by the total number of months to arrive at an interest-free monthly payment of $1,515. Then, in determining the monthly payment owed to defendant, the court simply added five percent of $1,515 to each monthly payment to calculate the amount awarded. Based on the size of the distributive award, the nonliquid nature of plaintiff’s assets, and plaintiff’s ability to pay, there was no basis to disturb the monthly payment set by the court despite the unusual manner in which it calculated the interest.
The Appellate Division held that the court did not err in declining to award maintenance to her. The court did not abuse its discretion in light of the size of the distributive award. For the same reason, the court did not err in reducing plaintiff’s child support obligation from his pro rata share of the presumptively correct amount of child support
In a proceeding to revoke an extra judicial surrender the determination that a best interests hearing was required following the revocation and that the situation was “no different than a private placement adoption” constituted error.
In Matter of Tony S.H., --- N.Y.S.3d ----, 2021 WL 5275507, 2021 N.Y. Slip Op. 06238 (4th Dept., 2021) a guardianship and custody proceeding pursuant to Social Services Law § 383-c, the Appellate Division observed that the statute allows the birth parent to revoke an extra-judicial surrender within a specified period (§ 383-c [6] [a]). Here, it was undisputed that the birth mother timely revoked her extra-judicial surrender within the required 45-day period. Nonetheless, despite the arguments to the contrary raised by the birth mother the court initially determined that a best interests hearing was required by Social Services Law § 383-c and later reasoned that the situation was “no different than a private placement adoption” and, thus, Domestic Relations Law § 115-b applied, which required a best interests hearing following the revocation. It held that those determinations constitute error. First, the plain language of Social Services Law § 383-c (6) (a) mandates that a timely revocation shall render the extra-judicial surrender a nullity and that the child shall be returned to the care and custody of the authorized agency, and the statute contains no language providing for a best interests hearing in the event of such a timely revocation. Second, the court erroneously determined that the agency adoption as governed by Social Services Law § 383-c was indistinguishable from a private placement adoption as governed by Domestic Relations Law § 115-b. There is a critical difference between the statutes regarding the consequences that flow from a timely revocation. Where the adoptive parents in a private placement adoption oppose the birth parents’ timely and proper revocation of consent, the court must hold a best interests hearing to determine what disposition should be made with respect to the custody of the child (see Domestic Relations Law § 115-b [6] [d]). The statute governing revocations of extra-judicial surrenders in agency adoptions, by contrast, does not provide for a best interests hearing (see Social Services Law § 383-c [6]). Thus, the court here had no statutory basis for refusing to deem the surrender a nullity, denying the birth mother’s motion, and instead conducting a best interests hearing.
It rejected the argument that the court had a contractual basis for conducting a best interests hearing because the language of the surrender indicated that such a hearing might be required upon the birth mother’s timely revocation. Social Services Law § 383-c (5)—which sets forth the required form of surrenders does not provide that a revocation is effective only upon a determination after a best interests hearing (see § 383-c [5] [d] [ii]). New Hope deviated from the statute by inserting language in the surrender indicating that, even if the birth mother attempted to revoke the surrender within 45 days, a best interests hearing may be required. Inasmuch as that language contravened the governing statute, it did not provide a valid basis for the court’s refusal to give effect to the birth mother’s timely revocation. It held that the court erred in refusing to deem the surrender a nullity, denying the birth mother’s motion seeking that relief, and granting New Hope’s petition seeking approval of the surrender.
Appellate Division holds that the court erred in considering the mother’s motion, which was mailed eight days before the return day because it was untimely. (See CPLR 2214 (b))
In Matter of Streiff v Streiff, --- N.Y.S.3d ----, 2021 WL 5275559, 2021 N.Y. Slip Op. 06252 (4th Dept., 2021) on January 29, 2020, which was eight days before the scheduled hearing on the petitions, respondent mother filed a motion seeking, inter alia, to preclude the father from offering into evidence certain materials. A return date was not initially provided on January 29, 2020, but Family Court later advised the mother’s counsel that the motion would be returnable on February 6, 2020, which was the previously scheduled date for the hearing on the father’s petitions. The father did not respond to the motion. Prior to beginning the hearing, the court stated that the father had not responded to the motion. The father’s counsel replied that the motion was untimely. The mother’s counsel explained that she had mailed the motion to the father’s counsel on January 29, 2020, and the court suggested that the eight-day period between mailing and the return date was sufficient. The father responded that he had not received the motion papers until that Monday, i.e., February 3, 2020. The court rejected the father’s contention that the motion was untimely stating that it was “going to entertain the motion.” The father’s counsel addressed the merits of the motion. The court repeated that the father had not responded to the motion, and granted those parts of the motion seeking to preclude the materials and to strike the allegations in the petitions related thereto. Based on a request to withdraw the petitions by the father’s counsel following the court’s decision to grant the mother’s motion in part, the court dismissed the petitions, with prejudice. The Appellate Division held that the court erred in considering the mother’s motion because it was untimely. Pursuant to CPLR 2214 (b), “[a] notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard.” Although service is complete upon mailing, five days must be added to any relevant time period measured from the date of service when service is effected by mail (see CPLR 2103 [b] [2]). At the hearing, the mother’s counsel stated that she served the motion papers by mailing them on January 29, 2020, i.e., eight days before the return date on February 6, 2020. Adding five days to the typical eight-day period, the father’s counsel lacked adequate notice of the motion and that the court erred in considering it (see generally State Bank of Texas v. Kaanam, LLC, 120 A.D.3d 900, 901, 991 N.Y.S.2d 818 [4th Dept. 2014]).
November 11, 2021
Appellate Division, First Department
First Department holds that Family Court Act § 439(e) is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.
In Matter of Liu v Ruiz, --- N.Y.S.3d ----, 2021 WL 5183560, 2021 N.Y. Slip Op. 06089 (1st Dept.,2021) on February 5, 2020, petitioner filed a child support violation petition in Family Court seeking to enforce child support arrears against the father. On October 15, 2020, after a hearing, the Support Magistrate issued findings of fact, concluding that the father did not willfully violate the child support order. On November 13, 2020, petitioner served her objections to the findings of fact and, on November 24, 2020, the father served his rebuttal. Pursuant to Family Court Act § 439(a), a ruling on the objections was required to be issued no more than 15 days later. However, a Family Court judge had not even been assigned to the matter when that period of time elapsed. On December 28, 2020, the mother commenced this proceeding by order to show cause, pursuant to CPLR 7803(1). The petition sought mandamus relief against Judge Jeanette Ruiz, in her official capacity as Chief Administrative Judge of the New York City Family Court (CAJ), to compel a decision on the mother’s objections, in compliance with Family Court Act § 439(e). The mother asserted that because the child, now 15 years old, was autistic and had more than $8,000 in monthly expenses, not receiving child support was “crushing.” Petitioner also sought reasonable counsel fees under CPLR 8601(a), including as “a catalyst to obtaining finally a decision on the objections.” The Appellate Division held that Family Court Act § 439(e) was violated in this instance. The statute is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it (see Rubin v. Della Salla, 107 A.D.3d 60, 67, 964 N.Y.S.2d 41 [1st Dept. 2013]. Because the CAJ responded to the mother’s petition by assigning a Family Court judge to rule on her objections, and because the CAJ offered no substantial justification for not having enforced Family Court Act § 439(e) before the petition was filed, the matter was remanded for an assessment of the mother’s attorneys’ fees under the State EAJA.
Appellate Division, Second Department
Supreme Court improvidently applied a discount to the average appreciation value of the plaintiff’s minority interest in Long Island Plastic Surgical Group, due to his lack of control as a minority owner to transfer his interest, which far exceeded the 15–20% discount that both experts agreed was appropriate. It determined that a 20% discount should be applied
In Davenport v Davenport, --- N.Y.S.3d ----, 2021 WL 5099033, 2021 N.Y. Slip Op. 05946 (2d Dept.,2021)1 the parties were married on July 3, 2010, and had no children. The plaintiff was a surgeon with a minority interest in Long Island Plastic Surgical Group (hereinafter LIPSG). The defendant was a pediatric nurse practitioner who worked intermittently throughout the marriage. In April 2016, the plaintiff commenced the action for a divorce. Supreme Court, among other things, determined that the marital portion of the plaintiff’s interest in LIPSG was $500,000 and awarded the defendant 10% of this amount, awarded the defendant 10% of the stipulated value of business entities known as Portman, LLC, Big Bang Beverage, LLC, and TK Styles Properties, LLC, awarded the defendant 10% of the stipulated value of certain investment accounts with Pershing Advisors Solutions, LLC, and RM Stark Investment, awarded the defendant 25% of the stipulated value of certain bank accounts, and awarded the defendant 25% of the stipulated value of the marital residence after deducting the plaintiff’s separate property credit.
The Appellate Division held the Supreme Court providently determined that the methodology and valuations of the defendant’s forensic expert, Karl Jahnsen, were more objective than that of the court-appointed neutral forensic expert. The court also providently determined, based upon the expert testimony, that a discount should be applied to the average appreciation value of the plaintiff’s interest in LIPSG, due to his lack of control as a minority owner to transfer his interest, which results in a lack of marketability. However, in valuing the marital appreciation of the plaintiff’s interest in LIPSG at only $500,000, the court improvidently applied a discount to Jahnsen’s average appreciation value which far exceeded the 15–20% discount that both experts agreed was appropriate for this lack of marketability. It determined that a 20% discount should be applied, and valued the marital appreciation of the plaintiff’s interest in LIPSG at $1,344,686.50. In arriving at the value, it first subtracted the husbands experts calculation of the value of the plaintiff’s interest in LIPSG at the date of marriage pursuant to the relative unit method ($5,108,561), from his calculation of the value of the plaintiff’s interest in LIPSG at the date of commencement of the action pursuant to the relative unit method ($6,552,653), and then discounted that amount by 20%, which equaled $1,155,274. It then subtracted his calculation of the value of the plaintiff’s interest in LIPSG at the date of marriage pursuant to the reasonable compensation method ($6,733,054), from his calculation of the value of the plaintiff’s interest in LIPSG at the date of commencement of the action pursuant to the reasonable compensation method ($8,650,678), and then discounted that amount by 20%, which equaled $1,534,099. It then added the values of both methods, and divided that sum by 2. It further held that it was not an improvident exercise of the Supreme Court’s discretion to award the defendant only 10% of the marital appreciation in the plaintiff’s interest in LIPSG, in light of the brief duration of the marriage and the defendant’s minimal contribution to the practice.
The evidence presented at trial did not indicate that the plaintiff’s involvement in certain business entities involved anything more than investing marital monies into the companies. Further, although certain investment accounts were actively managed, the plaintiff admitted that he only spoke to the manager every couple months. As such, it was improper to distribute these marital assets in the same manner as the plaintiff’s interest in LIPSG, instead of the same manner as the plaintiff’s bank accounts. The defendant was awarded 25% of the stipulated value of each of those entities and accounts.
The defendant was also awarded 40% of the stipulated value of the marital residence, taking into consideration her significant direct contributions to the construction, design, and decoration of the home, and that the plaintiff was to receive a significant separate property credit for any premarital money that he invested in the home.
Supreme Court providently exercised its discretion in awarding the plaintiff 1% of the value of defendant’s retirement accounts where she made no contributions to the accounts, which accumulated funds while the parties were separated but prior to the commencement of this action.
In Cuomo v Moss, --- N.Y.S.3d ----, 2021 WL 5099014, 2021 N.Y. Slip Op. 05945 (2d Dept.,2021) the parties were married on October 5, 1996, and had no children. On February 27, 1997, the defendant and the plaintiff’s mother each acquired a one-half interest in certain real property in Suffolk County where the parties lived together (hereinafter the marital residence). The parties both made payments toward the mortgage on the marital residence until 2011, when the defendant left the marital residence to live in Tennessee for a job. After the defendant left the marital residence, the plaintiff solely paid the remaining balance due on the mortgage of $68,000. During the marriage, the defendant obtained a home equity line of credit (HELOC), which she solely paid after leaving the marital residence in 2011. In November 2017, the plaintiff commenced the action for a divorce. The Supreme Court, inter alia, (1) awarded the plaintiff 50% of the defendant’s interest in the marital residence, (2) declined to award the defendant a credit for payments she made toward the HELOC, (3) awarded the plaintiff a credit of $34,000 for payments he made toward the mortgage on the marital residence, and (4) awarded the plaintiff 1% of the value of the defendant’s retirement accounts.
The Appellate Division held that the Supreme Court providently exercised its discretion in awarding the plaintiff 1% of the value of the defendant’s retirement accounts. The court sufficiently took into account that the plaintiff made no contributions to the defendant’s retirement accounts, which accumulated funds while the parties were separated but prior to the commencement of this action, by awarding the plaintiff only 1% of the value of the defendant’s retirement accounts.
However, the Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence. Where a party has paid the other party’s share of what proves to be marital debt during the pendency of the action, including payments toward the mortgage on the marital residence, reimbursement is required. However, as a general rule, where the payments are made before either party is anticipating the end of the marriage, ... courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415) Here, the plaintiff’s payments toward the mortgage, which was satisfied in October 2017, were made prior to the commencement of this action, and thus, the plaintiff was not entitled to a credit for those payments.
Where there was an agreement but no custody order, the children were not being illegally detained by the mother, and the father could not establish a right to habeas corpus relief
In Toussaint v Doucey, --- N.Y.S.3d ----, 2021 WL 5099056, 2021 N.Y. Slip Op. 05972 (2d Dept.,2021) the parties, who had two children together, were never married. For the summer of 2020, the mother and the children moved from New York to France, where the mother’s relatives resided. The father, who resided in Haiti, demanded that the mother send the children to New York for the month of July, where he had previously planned to visit with the children during that time. When the mother refused to do so, offering instead to pay for the father’s airfare to France to visit with the children, the father filed a petition for a writ of habeas corpus and custody of the parties’ children, arguing, that the mother had abducted the children to France. The Family Court dismissed the petition. The Appellate Division affirmed. It noted that a parental agreement executed by the parties in 2018 provided that the children would reside with the mother, and specifically contemplated the mother’s place of residence to be either in the United States or Europe, depending upon her place of employment. Thus, the father could not establish that he was unaware of the potentiality of the children’s move to Europe, as the parties’ agreement specifically provided for such a potentiality. As there was no other custody order in place, and the father had no greater right to the custody of the children than the mother, the children were not being illegally detained by the mother, and the father could not establish a right to habeas corpus relief (see Matter of Kiara B. v. Omar R., 147 A.D.3d 476, 46 N.Y.S.3d 417).
Improper to impute income to the father as the sole shareholder of a subchapter S corporation where Court utilized the gross receipts of the corporation to calculate the additional income, without accounting for returns and allowances or the cost of goods sold.
In Matter of Ho v Tsesmetzis, --- N.Y.S.3d ----, 2021 WL 5099025, 2021 N.Y. Slip Op. 05968 (2d Dept.,2021) the mother filed a child support petition pursuant to the Uniform Interstate Family Support Act. After a hearing, the Support Magistrate imputed income to the father from a subchapter S corporation of which he was the sole shareholder and granted the mother’s petition. The Appellate Division reversed and remitted for a new hearing. It observed that in the exercise of its considerable discretion, the court may impute income to a party based on the party’s past income or demonstrated future potential earnings .However, the court must provide a clear record of the source of the imputed income, the reasons for such imputation, and the resultant calculations. A determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. While the Support Magistrate properly determined that additional income should be imputed to the father as the sole shareholder of the subchapter S corporation the amount imputed was not supported by the record, as the Support Magistrate improperly utilized the gross receipts of the corporation to calculate the additional income to impute to the father, without accounting for the corporation’s returns and allowances or the cost of goods sold. The Support Magistrate should have used the corporation’s gross profits for its calculation of additional income to be imputed.
Supreme Court
Grandparent visitation was denied as not in theb est interest of the child where the facts proved that the level of animosity between the grandparents and parents was stratospheric.
In D.A.D. & P.C.D., v. D.A.S. & A.M.S., 2021 WL 5184295 (Table), 2021 N.Y. Slip Op. 51043(U) (Supreme Court, 2021) Supreme Court denied a a petition by grandparents for visitation with their granddaughters. It found that under Wilson v. McGlinchey, 2 NY3d 375 (2004), “best interests” could not be established. The principle that emerged from the Court of Appeals decision was undeniable: “worsening relations between the litigants” when combined with “strenuous objections by the parents” precludes grandparent visitation because the child’s best interests can only be advanced “by shielding the child from the animosity and dysfunction between the parent and grandparents.” The Court of Appeals refined the test for grandparent visitation in E.S. v. P.D., 8 NY3d 150 (2007) in which the Court told trial courts that they should examine, as a factor, “the reasonableness” of a parent’s objection to grandparent access. In applying these tests, whether the denial of visitation was “reasonable” or whether the denial was based on elevated animosity that would preclude a finding that visitation was in the “best interests” of the grandchildren, the New York courts have examined a variety of factors. Here, the undisputed facts proved, beyond any reasonable criteria, that the level of animosity would never permit grandparent visitation. The level of animosity between the grandparents and parents in this instance was stratospheric and swamped any other factor in evaluating this petition. Under the Court of Appeals reasoning in Wilson v. McGlinchey and the associated case law, the petition could not be justified.
Supreme Court held that under the doctrine of comity a duly executed unacknowledged prenuptial agreement executed in a foreign nation in accordance with that nation’s laws was valid and enforceable in New York.
In Oleiwi v Shlahi, --- N.Y.S.3d ----, 2021 WL 5184166, 2021 N.Y. Slip Op. 21301(Sup Ct., 2021) the parties were married in Iraq and signed a Mahr which mandates certain payments from the husband to his wife at the time of marriage and thereafter, if a divorce occurs. The mahr was executed in accordance with the marriage laws of Iraq. After the husband commenced a divorce action in New York, the wife sought to enforce the mahr and the husband argued that was not acknowledged in accordance with New York law and unenforceable. The Court observed that a mahr is a marriage agreement in accordance with Islamic law where the husband pledges to pay the wife a “deferred dowry” in the event of a divorce. Khan v. Hasan, 201 NY Misc Lexis 4673 (Sup. Ct. Nassau Cty 2021) suggested that if the mahr were executed in New York but not properly acknowledged, then it is unenforceable in a matrimonial action.. Here the mahr was executed in Iraq and, in the Court’s view, the ruling in Khan v. Hasan applied only to mahrs executed in New York. The Court observed that DRL §236(B)(3) 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. The mahr in this case was signed by a witness and marked by the husband and wife and did not, on its face, satisfy the requirements of DRL §236(B)(3). See Matisoff v. Dobi, 90 NY2d 127 (1997); Galetta v. Galetta, 21 NY3d 186 (2013). The Court found that the mahr was executed in Iraq and there was no dispute that the document was authentic and would be enforced in Iraq. New York has long held that comity should be extended to uphold the validity of foreign nuptial matters unless recognition of the judgment would do violence to a strong public policy of New York. Supreme Court held that under the doctrine of comity a duly executed prenuptial agreement executed in a foreign nation in accordance with that nation’s laws will be found to be valid and enforceable in New York. The wife’s motion for a judgment declaring the mahr enforceable against the husband was granted.
Appellate Division, Third Department An appeal from a custody award was rendered moot and dismissed where neither party presently resided in New York. Under Domestic Relations Law 76a [1][b] the courts of this state were divested of jurisdiction and could not make a determination that would directly affect any interest or right of the parties.
In Matter of Richard Y v Victoria Z., N.Y.S.3d , 2021 WL 4994146, 2021 N.Y. Slip Op. 05899 (3d Dept.,2021) Family Court granted the father sole legal and physical custody of the children, affording the mother supervised parenting time to be exercised in New York. The mother appealed. Although not raised by the parties or the attorneys for the children, the Appellate Division dismissed the appeal as moot. Where a court in this state has made a custody determination, it retains exclusive, continuing jurisdiction over the determination until ... a court of this state or a court of another state determines that the child, the childs parents, and any person acting as a parent do not presently reside in this state (Domestic Relations Law 76a [1][b]). Here, the mother continued to reside in New Mexico and, since entry of Family Courts August 2019 custody order, the father relocated with the children to Florida where the Circuit Court for the Sixth Judicial Circuit in Pinellas County, Florida determined that Florida is the children’s home state for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5A), and the parties both made appearances, with counsel, in that court with respect to their competing petitions seeking modification of the extant custody order. As neither party presently resided in New York, the courts of this state were divested of jurisdiction and cannot now make a determination ... that would directly affect any interest or right of the parties. This appeal was rendered moot and, was dismissed.
Parties cannot be permitted to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns. By claiming lottery winnings as income on their joint tax returns, the parties represented that such winnings were not a gift.
In Hughes v Hughes, --- N.Y.S.3d ----, 2021 WL 4896914, 2021 N.Y. Slip Op. 05765 (3d Dept.,2021) the parties were married in 1991. In 2018, the husband filed for divorce. Following a nonjury trial, Supreme Court determined, among other things, that money received by the wife after her mother purchased a winning lottery ticket was marital property, the marital residence and a vacation home were marital property that should be sold and divided 45% to the husband and 55% to the wife, and the husband was not required to pay the wife any spousal maintenance.
The Appellate Division affirmed. It rejected the wife’s argument that the lottery winnings that her mother shared with her were not marital property because they were a gift. Whether a particular asset is marital or separate property is a question of law that a trial court must initially address to ascertain the marital estate. Property acquired during marriage is presumed to be marital unless the presumption is rebutted by the party asserting the separate property claim. It was undisputed that the wife’s mother purchased a scratch-off lottery ticket that won a grand prize of $7.5 million. Documentary evidence and testimony credited by Supreme Court established that the mother shared her winnings with her five children, with each of the six individuals receiving an equal pretax share of $1.25 million. State Gaming Commission documents showed that all six were considered winners, a giant check for publicity purposes listed all six names as winners, all six appeared at a public event at which the giant check was presented to them, each received a separate certificate of payment, an IRS form W–2G was issued by the Gaming Commission to each winner indicating that $1.25 million in gambling winnings was paid and the amount of taxes withheld, and equal direct deposit payments of the after-tax amount were issued to all six winners simultaneously. The wife’s mother did not file any gift tax returns related to the lottery winnings received by her children. The husband and the wife claimed the $1.25 million as income on their 2014 joint federal and state income tax returns, specifically denoting that it was gambling winnings. The Appellate Division pointed out that the Internal Revenue Code specifies that, for income tax purposes, “[g]ross income does not include the value of property acquired by gift” (26 USC § 102[a]). Courts “cannot, as a matter of policy, permit parties to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369 [2009). By claiming the lottery winnings as income on their joint tax returns, the husband and the wife necessarily represented that such winnings were not a gift. Therefore, Supreme Court properly determined that the lottery winnings were not a gift to the wife, so they were not her separate property but were marital property subject to equitable distribution.
The wife testified that she has been employed in the same position for 10 years. She testified that she worked full time for the first seven years and is able to work full time now, but starting in 2016 she chose to work only 20 to 24 hours per week. Under the circumstances, including that the wife failed to provide copies of her recent pay stubs to verify her pay rate, Supreme Court reasonably imputed income to her in an amount that was slightly less than double her part-time annual income. Using that imputed income when applying the statutory formula, the court properly calculated the guideline amount of postdivorce maintenance to be zero dollars (see Domestic Relations Law § 236[B][6][c][2]). The court did not abuse its discretion in declining to award maintenance to the wife.
Supreme Court properly precluded report and testimony of tax expert on tax implications of maintenance award where husband failed to file written report in a timely fashion, waiting until a few days before trial and the wife was prejudiced
In Headwell v Headwell, --- N.Y.S.3d ----, 2021 WL 4897585, 2021 N.Y. Slip Op. 05752 (3d Dept.,2021) the Plaintiff ( wife) and defendant ( husband) were married in 1994 and had three children (born in 1995, 2000 and 2002). The wife commenced this divorce action in 2018. The parties placed a stipulation on the record that resolved the issues of grounds, child custody and equitable distribution. Supreme Court awarded the wife maintenance of $2800 a month for nine years and child support. Supreme Court further directed the husband to maintain health insurance for the children until they reached the age of 21 or, if in college, until graduation.
The Child support award was vacated and remitted. Supreme Court failed to articulate the factors it considered in electing not to include income over the statutory cap ... in its final child support award,” and it was required to do so. It also erred in directing the husband to maintain health insurance for the parties’ children until they graduated from college, even if they graduated after they reached the age of 21 and his child support obligation otherwise terminated..
The Appellate Division rejected the husband’s contention that Supreme Court abused its discretion in precluding the report and testimony of his expert on the implications that recent enactments would have on the tax treatment of that maintenance award. The husband failed to file the expert’s written report in a timely fashion, waiting until a few days before trial (see 22 NYCRR 202.16[g][2]). The wife was prejudiced by that belated disclosure, as she was deprived of the opportunity to retain her own expert to review the report and request that the husband, who was in a far superior financial position, pay for that review. Supreme Court properly granted the wife’s application to preclude the report and potential testimony as untimely, further indicating that it saw no need for expert proof on a legal issue that it was capable of understanding without assistance. Supreme Court has “broad discretion in controlling discovery and disclosure,” including the power to preclude the use of a belatedly filed expert report where the delay was willful or caused prejudice to the opposing party, and the foregoing satisfied the court that there was no abuse of that discretion here (CPLR 3101[d][1][I]; 22 NYCRR 202.16[g][2].
Supreme Court found that the husband would earn at least $300,000 a year . Supreme Court imputed annual income to the wife of $58,800 to reflect the amount that she would be able to earn if she began working full time at her longstanding part-time job, a reasonable expectation given that her role as the primary caregiver for the parties’ children was easing as their youngest child neared adulthood .Having set forth a basis for imputation that was supported by the record and then articulating how the statutory factors justified an amount of maintenance that was an upward adjustment from the guideline obligation for a period within the guideline range, there was no abuse of discretion in its maintenance award.
In a footnote the Court pointed out that Supreme Court remains obliged to make an award of postdivorce maintenance “upon application by a party,” continuing the longstanding rule that the award becomes effective upon the initial request for maintenance (Domestic Relations Law § 236[B][6][a], as amended by L 2015, ch 269, § 4). The nine-year period accordingly began to run, by operation of law, on the date that the wife commenced this action and first requested maintenance in her summons and complaint.
The determination as to whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court . Although an AFC should not have a particular position or decision in mind at the outset of the case before gathering evidence, after an appropriate inquiry, it is entirely appropriate.
In Matter of Amanda YY. ,v. Faisal ZZ., --- N.Y.S.3d ----, 2021 WL 4897205, 2021 N.Y. Slip Op. 05750 (3d Dept.,2021) a custody case, the Appellate Division noted that pursuant to 22 NYCRR 217.1(a), Family Court must appoint an interpreter for “an interested parent ... of a minor party” if the court determines that the parent “is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings.” “The determination as to whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive an individual of his or her constitutional rights. The father did not request an interpreter. He testified that, although his native language is Urdu, he had lived in the United States for 20 years, had passed the citizenship test and was awaiting the oath ceremony, his children speak only English, he single-handedly ran his own restaurant for approximately 10 years and he understood 98% of the English spoken in the courtroom, including the questions asked by both his counsel and the mother’s counsel. He stated that he would “speak up” if he could not understand what was going on at the hearing, and a few times he indicated that he did not understand, resulting in questions being reframed. Under the circumstances, Family Court did not abuse its discretion by failing to sua sponte appoint an English language interpreter.
The Appellate Division also held that although an AFC should not have a particular position or decision in mind at the outset of the case before the gathering of evidence, after an appropriate inquiry, it is entirely appropriate, indeed expected, that an AFC form an opinion. As it is the role of the AFC to advocate for the children, taking a position contrary to one of the parents is not an indication of bias. The AFC had strong opinions from the outset of these proceedings arising from his role and service as AFC for the father’s older children in prior custody proceedings. It was not inappropriate for the AFC to form opinions from evidence of the father’s parenting style and abilities that he gleaned from those prior proceedings.
Absence of proper service of a motion in accordance with CPLR 2103(b) deprives the court of jurisdiction to entertain the motion
In Matter of Regina R v Frederick S, --- N.Y.S.3d ----, 2021 WL 4897280, 2021 N.Y. Slip Op. 05749 (3d Dept.,2021) the Appellate Division affirmed an order which denied the father’s motion to vacate his default in this custody proceeding. It found that the father failed to comply with the service requirements of CPLR 2103. CPLR 2103(b) provides that, “[e]xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending [proceeding] shall be served upon the party’s attorney.” The father’s motion to which was filed by the father’s attorney, was served only on the mother herself and not her attorney, in contravention to CPLR 2103(b). Nor was the attorney for the child served with the motion. Absence of proper service of a motion deprives the court of jurisdiction to entertain the motion. The father’s failure to properly serve the mother’s attorney and the attorney for the child deprived Family Court of jurisdiction to entertain the motion.
Where a party seeks modification of custody an evidentiary hearing should be conducted unless the party fails to make a sufficient evidentiary showing to warrant a hearing, or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests.
In Matter of Sarah OO., v. Charles OO, 2021 WL 4897582 (3d Dept.,2021) the Appellate Division restated the rule that the threshold inquiry in any custody modification proceeding is whether there has been a change in circumstances since entry of the prior custody order that, if established, warrants a review of the issue of custody to ensure the continued best interests of the child. While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, an evidentiary hearing is generally necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests. In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner.
It was error in the context of a motion for violation of an order of supervision for Family Court to find that respondents were in “technical” compliance with the order but were nonetheless in violation of the order.
In Matter of Nicholas L,. --- N.Y.S.3d ----, 2021 WL 4896912, 2021 N.Y. Slip Op. 05746 (3d Dept.,2021) the Family Court found the children to be neglected, placed them in foster care and ordered respondents to comply with the terms and conditions of the order of supervision and the orders of protection that were made a part of the January 2018 order. In June 2018 after a hearing, Family Court found that respondents violated the order of supervision and the orders of protection and that good cause existed to extend the order of supervision and continue the children’s placement. Family Court found that even though respondents were in “technical” compliance with the order of supervision, they willfully violated the order on the theory that “[p]arents are expected to actually gain insight and modify their behaviors to ensure compliance with a [c]ourt’s order of supervision” and respondents “have failed to acknowledge the trauma their actions have caused the children,” “have failed to comprehend the risks associated with maintaining contact with [the partner]” and have “openly continu[ed] a relationship with a person [who] has been [c]ourt ordered to have no contact with their children.” Family Court found that “compliance with an order of supervision pursuant to Family Ct Act §§ 1052 [and] 1055 both require more than mere participation in services allowing a parent to simply check off the term as done, i.e., technical compliance,” and that respondents lacked insight into the reasons why the terms and conditions were ordered. The Appellate Division held that it was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. The quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence, which was not established here. Family Court’s determination that respondents willfully violated the order of supervision was an abuse of discretion.
Increase in mother’s income by more than 15% entitled father to modification of the parties’ respective basic child support obligations, irrespective of whether any decrease in the father’s income was an apparent result of his own voluntary actions
In Matter of Castelli, v Maiuri-Castelli, --- N.Y.S.3d ----, 2021 WL 4763261, 2021 N.Y. Slip Op. 05558(2d Dept.,2021) the judgment of divorce entered in 2017, directed the father to pay basic child support to the mother of $768.59 per week, as well as 100% of the children’s health insurance premiums, unreimbursed medical and dental expenses, child care, and life insurance premiums. In 2019, the father’s weekly basic child support obligation was increased to $854 pursuant to a cost of living adjustment. The father filed a petition in, 2020, for a downward modification of his child support obligation, alleging that the mother’s income had increased by more than 15% since entry of the judgment of divorce. The father also requested a commensurate decrease in his pro rata share of the “add-ons”. At a hearing the father submitted evidence that the parties’ respective existing child support obligations were calculated based upon a gross income of $0 for the mother, who was unemployed at the time of entry of the judgment of divorce, and a gross income of $175,269.25 for the father, who was employed as an attorney. He also submitted evidence that the mother had obtained employment and that, in 2019, she earned a gross salary of $44,366. The father testified that he had been suspended from the practice of law on July 1, 2015, prior to entry of the judgment of divorce, and introduced evidence that, in 2019, he earned a gross salary of $58,038.38. The Support Magistrate granted the father’s petition to the extent of directing that the father would be responsible for 77% and the mother responsible for 23% of the children’s health insurance premiums, unreimbursed medical and dental expenses, child care, and life insurance premiums, and otherwise denied the petition. The Support Magistrate acknowledged in his findings of fact that the mother’s income had “increased substantially” since entry of the judgment of divorce, but denied the father’s petition for a downward modification of his basic child support obligation, explaining that “[b]ecause the [father’s] loss of income is an apparent result of his own voluntary actions, it would be impermissible, under current case law, to grant his request to reduce his ongoing child support obligation.”
The Appellate Division remitted for a new determination. It held that the Family Court should have granted the father’s objections . His evidence demonstrated that the mother’s income had increased by more than 15% since entry of the judgment of divorce, which warranted a new determination of the parties’ respective child support obligations (see Family Ct Act § 451[3][b][I], [ii]). Contrary to the finding of the Support Magistrate, the increase in the mother’s income entitled the father to new determination of the parties’ respective basic child support obligations, irrespective of whether any decrease in the father’s income could also properly be considered (see Matter of Vetrano v. Vetrano, 177 A.D.3d at 892, 115 N.Y.S.3d 104).
Biological parent whose parental rights have been terminated is not entitled to seek custody of the child, including where parental rights have been terminated voluntarily
In Mehmeti v Dautaj, --- N.Y.S.3d ----, 2021 WL 4764204 (Mem), 2021 N.Y. Slip Op. 05569 (2d Dept.,2021) following the petitioner’s incarceration she voluntarily surrendered her parental rights and the children were adopted by the respondents. After she was released from prison she commenced a proceeding for custody of the children. Family Court dismissed the petition for lack of standing. The Appellate Division affirmed. It held that a biological parent whose parental rights have been terminated is not entitled to seek custody of the child, including where parental rights have been terminated voluntarily. At the time the petitioner commenced this proceeding, she was not a person entitled to seek custody of the children
Error for Court to grant sua sponte relief which is “dramatically unlike” the relief requested by the attorney
In Matter of M.T. v. DeSabato, --- N.Y.S.3d ----, 2021 WL 4763181, 2021 N.Y. Slip Op. 05574 (2d Dept.,2021) a custody modification proceeding the child. After the father petitions were dismissed and the mother’s petition was settled the court stated that it understood that the petition filed by attorney for the child sought temporary relief, all counsel declined the opportunity to make additional arguments, and the court marked the petition “submitted.” Thereafter, the court determined the petition filed by the attorney for the child by awarding sole legal and residential custody of the child to the mother and supervised therapeutic parental access to the father. The mother’s second modification petition, seeking sole custody of the child, was subsequently withdrawn.
The Appellate Division reversed. It held that the relief granted by the Family Court was “dramatically unlike” the relief requested by the attorney for the child. While the attorney for the child requested an award of temporary custody to the mother and a temporary suspension of the father’s parental access, the court issued an order that “superceded [sic]” the prior order of custody and any orders that incorporated the prior order of custody, and awarded sole legal and physical custody of the child to the mother and supervised therapeutic parental access to the father. The petition filed by the attorney for the child sought temporary relief, and as such, the father was not on notice that the court would issue a final custody determination on this petition. The court erred in, sua sponte, granting such relief.
At dispositional stage of proceeding to terminate parental rights, there is no presumption that interests of child will be served best by a return to the biological parent
In Matter of Lee D., --- N.Y.S.3d ----, 2021 WL 4763138, 2021 N.Y. Slip Op. 05559 (2d Dept., 2021) the Appellate Division held that at the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the child” (Family Ct Act § 631) The factors to be considered in making the determination include the parent or caretaker’s capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect. At disposition, there is no presumption that those interests will be served best by a return to the biological parent.
Proper to calculate child support based on parents income as of the completion of the hearing, rather than claimed prior earnings, where based on credibility determinations and supported by the record
In Matter of Aslam v Younas, --- N.Y.S.3d ----, 2021 WL 4763155, 2021 N.Y. Slip Op. 05555 (2d Dept.,2021) the Appellate Division held that, the Support Magistrate providently exercised his discretion in calculating the father’s child support obligation based upon the father’s income as of the completion of the hearing. The Support Magistrate’s determination to consider the father’s income as of the completion of the hearing, rather than his claimed prior earnings, was based on credibility determinations and supported by the record, and thus, should not be disturbed.
October 1, 2021
Appellate Division, First Department
International Travel with Children to Non-Hague Convention Country not permitted in absence of showing it was in best interests of young children.
In Matter of Naamye Nyarko B., v. Goodwin Edwin C., --- N.Y.S.3d ----, 2021 WL 4733960 (Mem) (1st Dept., 2021) the Appellate Division reversed an order which permitted respondent father to travel with the subject children internationally on 60 days upon written notice to petitioner mother. It held that Family Court erred in granting the father’s request to modify the custody and visitation order to permit him to travel internationally with the children, particularly to Ghana, which is not a party to the Hague Convention on Civil Aspects of International Child Abduction, as there was no sound and substantial basis in the record to support a finding that such unrestricted international travel was in the best interests of the young children.
Appellate Division, Second Department
Where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court.
In Matter of Schoepfer v Colon, --- N.Y.S.3d ----, 2021 WL 4561106 (Mem), 2021 N.Y. Slip Op. 05344 (2d Dept.,2021) the Appellate Division held that where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court. The criminal court has authority to determine whether its order of protection is subject to subsequent orders pertaining to custody and parental access, and can decline to amend an order of protection to so provide. Where the temporary orders of protection that were entered in the criminal action did not state that they were subject to subsequent court orders pertaining to custody and parental access and had not been vacated or modified, an order of the Family Court awarding parental access would have countermanded the provisions of the temporary orders of protection. Therefore, no hearing was necessary to deny the mother’s motion, in effect, for supervised parental access with the children.
CSSA does not permit court to determine a party’s income for child support purposes by averaging a party’s earnings over several years. Court may impute income to a party when it is shown that the marital lifestyle was such that, there is a basis to conclude that the party’s actual income and financial resources were greater than what he or she reported.
In Koutsouras v Mitsos-Koutsouras, --- N.Y.S.3d ----, 2021 WL 4558397 (Mem), 2021 N.Y. Slip Op. 05328(2d Dept, 2021) the parties were married in 2009, and had two children born in 2013. In 2015, the plaintiff commenced the action for a divorce. The parties agreed that the Supreme Court would determine retroactive and prospective child support based upon their submissions. The court directed the plaintiff to pay the defendant $343.56 per week in child support. The Appellate Division reversed. It pointed out that the Child Support Standards Act does not permit the court to determine a party’s income for child support purposes by averaging a party’s earnings over several years. It noted that the court may impute income to a party based on the party’s employment history, future earning capacity, educational background, resources available to the party, including ‘money, goods, or services provided by relatives and friends or when it is shown that the marital lifestyle was such that, under the circumstances, there is a basis for the court to conclude that the party’s actual income and financial resources were greater than what he or she reported on his or her tax return. It held that Supreme Court improperly determined the parties’ income by averaging their reported earnings over the preceding four years. Furthermore, under the circumstances of this case, where the plaintiff was employed by his family and his tax returns showed substantial downward fluctuations in income, the court should have conducted an analysis as to whether to impute income to the plaintiff. The matter was remitted to the Supreme Court for a hearing to determine the parties’ income for the purpose of calculating the plaintiff’s child support obligation, and a recalculation of that obligation.
Support Magistrate properly calculated father’s income from employment based upon his most recent tax return. Although Support Magistrate had discretion to consider the father’s recent pay increase, which took effect approximately one month before the hearing, it was not required to do so.
In Matter of Remsen v Remsen, --- N.Y.S.3d ----, 2021 WL 4561330, 2021 N.Y. Slip Op. 05342 (2d Dept.,2021) a child support proceeding the Appellate Division held that the Support Magistrate providently exercised its discretion in determining to impute annual income to the mother based upon her ability to work full time for minimum wage The record established that, although the mother had worked only part time during the course of the parties’ marriage, the mother had a college degree. She offered no evidence to support her assertions that she was unable to work full time because she was needed to care for her elderly parents and the parties’ younger child, and because of undisclosed health limitations.
The Support Magistrate also providently exercised its discretion in determining to impute income to the mother for monthly housing costs paid by her brother-in-law. In imputing income to a party for the purpose of calculating support obligations under the CSSA, a court may consider, inter alia, money received from relatives or friends. Although such contributions may properly be excluded where the obligor party refuses to provide support during the pendency of the proceedings here, the father had consistently made voluntary support payments to the mother since the parties’ separation in 2015.
The Support Magistrate did not err in failing to impute income to the father on the ground that he lived in an uncle’s home with no obligation to pay rent. The evidence demonstrated that the father was living in his uncle’s home in exchange for having assisted the uncle with refinancing the home and acted as a cosigner for the new mortgage loan without taking an interest in the real property.
The Support Magistrate properly calculated the father’s income from employment based upon his most recent tax return (see Family Ct Act § 413[1][b][5][i]). While the Support Magistrate had the discretion to consider the father’s recent pay increase, which took effect approximately one month before the hearing, it was not required to do so.
Appellate Division, Third Department
Improper to rely on hearsay testimony in Fact Finding portion of Neglect proceeding where only competent, material and relevant evidence may be admitted
In the Matter of Aiden J. ,197 A.D.3d 798, 151 N.Y.S.3d 558, 2021 N.Y. Slip Op. 04637 (3d Dept.,2021) neglect proceedings against respondent stemming from allegations that he left the middle and youngest children in the mother’s care while knowing that the mother was highly intoxicated Family Court found, inter alia, that respondent neglected the middle and youngest children. The Appellate Division reversed. It pointed out that at a hearing to establish neglect, “only competent, material and relevant evidence may be admitted” (Family Ct Act § 1046[b][iii]). The record disclosed that at respondent’s hearing, which the mother was not a party to, petitioner’s caseworker testified as to what the mother had told her based upon their conversations. The caseworker stated that the mother told her that, while the middle and youngest children were with her, she had been drinking heavily, that the mother believed that she may have assaulted one of the children and that, after respondent took the children for a while, he came back to her with some vodka, which she drank. It held that Family Court improperly relied on this hearsay testimony – i.e., what the mother told the caseworker – in reaching its determination and the error in doing so was not harmless (compare Matter of Jack NN. [Sarah OO.], 173 A.D.3d 1499, 1503 [2019]).
Parent seeking modification of custody order who alleges change of circumstances in own petition waives contention that the other parent failed to establish a change of circumstances in support of his own petition
In Matter of Fowler v Rothman, --- N.Y.S.3d ----, 2021 WL 4704210, 2021 N.Y. Slip Op. 05436 (4th Dept., 2021) a custody modification proceeding, the Appellate Division held that the mother waived her contention that the father failed to establish a change of circumstances warranting an inquiry into the best interests of the children inasmuch as she alleged in her own petition that there had been such a change in circumstances.
An agency generally does not need to establish diligent efforts when a court is determining whether to revoke a suspended judgment. Lapses on the part of petitioner do not excuse the failure to comply with the terms of the suspended judgment.
In Matter of Christina S., --- N.Y.S.3d ----, 2021 WL 4704056 (Mem), 2021 N.Y. Slip Op. 05430 (4th Dept., 2021) the Appellate Division affirmed an order that, inter alia, granted petitioner’s motion to revoke a suspended judgment that had been entered upon the father’s admission to permanently neglecting the child and freed the child for adoption. Although the father placed the blame for his failure to comply on lapses by petitioner agency and its supervisory obligations and its failure to consult with an expert, even lapses by an agency during a suspended judgment do not relieve a parent of his or her duty to comply with the terms of the suspended judgment. The father’s further contention regarding petitioner’s purported failure to establish that it exercised diligent efforts to encourage and strengthen his parental relationship with the child lacked merit. An agency generally does not need to establish diligent efforts when a court is determining whether to revoke a suspended judgment. Any lapses on the part of petitioner do not excuse the failure to comply with the terms and conditions of the suspended judgment.
Supreme Court
In-person parental access by defendant denied as not in the child’s best interests, where he refused to be vaccinated against Covid-19
In C.B., v. D.B., Defendant, --- N.Y.S.3d ----, 2021 WL 4696606, 2021 N.Y. Slip Op. 21268 (Sup. Ct.,2021) the Court found that in-person parental access by defendant was not in the child’s best interests, where he refused to be vaccinated against Covid-19, and there were exceptional circumstances that supported granting plaintiffs motion for temporary suspension of visitation in person. It found that requiring defendant and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing to be in the child’s best interests
Failure to specifically request equitable distribution is not a waiver of claim for equitable of marital property where pleading requests “such other and further relief.”
In N.O. v T.F. O, 2021 WL 4448980 (Sup. Ct., 2021) an action for a judgment of divorce, the answer filed by the husband demanded a judgment of divorce and “such other and further relief as to the Court may seem just and proper.” Supreme Court rejected the wife’s claim that the failure to specifically request equitable distribution, particularly when he did request “such other and further relief,” constituted a waiver of the husband’s claim for equitable of marital property. Because this matter was a matrimonial matter, it seemed reasonable that “the other and further relief” requested would include all financial and other issues that arise in a divorce action, including equitable distribution and support. Schiller v. Weinstein, 45 Misc. 591 (Sup. Ct App. Term 1904)(nature of the relief asked in a decree must be such as could bring it within the meaning of “other and further relief,”).
Numerous errors by Trial Court Require Remittal for New Determinations
In Kiani v Kiani, --- N.Y.S.3d ----, 2021 WL 4185717, 2021 N.Y. Slip Op. 04971 --- N.Y.S.3d ----, 2021 WL 4185717, 2021 N.Y. Slip Op. 04971(2d Dept.,2021) the plaintiff and the defendant were married in Pakistan on October 29, 2006. They had two children of the marriage, one born in 2008 and the other in 2011. The parties separated in June 2012, and the plaintiff commenced the action for a divorce in 2014 . Following the trial, he court, inter alia, determined that the defendant was obligated to pay to the plaintiff $1,961.83 per month for child support and $14,250 per year for maintenance, determined that the plaintiff was entitled to $42,018.55 in attorney’s fees, a credit of $22,000 for payments already made to reduce a mortgage and an award of 50% of the defendant’s credit accounts and 401(k) accounts, and determined that the defendant was required to return the plaintiff’s jewelry or pay her $5,000.
The Appellate Division held that Supreme Court erred in calculating the defendant’s child support obligation based on testimony regarding his yearly income instead of his most recent tax return. “The Child Support Standards Act requires the court to establish the parties’ basic child support obligation as a function of the ‘gross (total) income’ that is, or should have been, reflected on the most recently filed income tax return (Family Ct Act § 413[1][b][5][I])”.
The amount and duration of a maintenance award are a matter within the sound discretion of [the] Supreme Court, and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. Here, the court offered no explanation for its award of maintenance.
The Appellate Division further held that the Supreme Court improperly calculated the parties’ pro rata shares of the plaintiff’s attorney’s fees. The income imputed by the Supreme Court to the parties to determine their pro rata shares of the plaintiff’s attorney’s fees was not supported by the record.. It further held that Supreme Court erred in valuing the plaintiff’s jewelry at $5,000, as no evidence existed in the record to support that valuation.
Finally, the Supreme Court failed to explain which, if any, factors it considered in reaching its conclusion concerning equitable distribution of the defendant’s credit accounts and 401(k) accounts.
The Appellate Division modified the judgment of divorce and the matter was remitted to the Supreme Court for a new determination of the amount of the defendant’s child support obligation, a new determination, with explanation, as to the amount, if any, of the defendant’s maintenance obligation, a new determination as to the amount, if any, to be awarded to the plaintiff for her attorney’s fees, a determination as to the value of the plaintiff’s jewelry and a new determination, with explanation, as to the equitable division of the defendant’s credit accounts and 401(k) accounts.
Agency must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination for custodial statements of juvenile to be admissible. Issue is determined upon an inquiry into the totality of the circumstances
In Matter of Tyler L, 150 N.Y.S.3d 747 (2d Dept.,2021) the Presentment Agency filed a petition alleging that the appellant, who was then 15 years old, committed acts which, if committed by an adult, would have constituted crimes with respect to his 11–year–old sister. Upon arrest, the appellant was interviewed by law enforcement officials in the presence of his grandfather. During the 35–minute interview, which was videotaped, the appellant made certain incriminating statements. The appellant moved to suppress his statements to law enforcement officials. After a hearing, the Family Court denied the appellant’s motion. The Appellate Division held that Family Court properly denied the appellant’s motion to suppress his statements to law enforcement officials. The Presentment Agency must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination for custodial statements to be admissible (see People v. Cleverin, 140 A.D.3d 1080, 1081, 34 N.Y.S.3d 136). “Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation, including the defendant’s age, experience, education, background, and intelligence, and ... whether he [or she] has the capacity to understand the warnings given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights”. Here, the videotape showed that the appellant and his grandfather were brought into an interview room of a police precinct, where Miranda warnings for juveniles were read and written copies of the warnings were given to the appellant and his grandfather. The videotape also showed that, while the written Miranda form was never signed, both the appellant and his grandfather waived the appellant’s Miranda rights after the rights had been read. The videotape demonstrated that the Miranda warnings were read in a manner that was clear and deliberate, and that the appellant and his grandfather understood those rights and voluntarily waived them. The appellant’s expert stated that the appellant had a basic comprehension and understanding of Miranda rights at the time of his testing consistent with other 15–year–old adolescents of comparable abilities. The conclusion of the appellant’s expert that the appellant could not have made an intelligent, knowing, and voluntary waiver of his Miranda rights during police questioning was undermined by evidence of the appellant’s completion of a test that required answers to 189 written questions in 20 minutes. Thus, the Family Court’s determination that the appellant’s Miranda waiver was voluntary, knowing, and intelligent was supported by the evidence. The absence of a signed waiver form required no different result.
Appellate Division, Third Department
Where plaintiff spouse seeks an annulment based upon fraud in the inducement, the fraud must be proven by clear and convincing evidence.
In Travis A v Vilma B., 2021 WL 4200934 (3d Dept.,2021) the Plaintiff (husband), a United States citizen, and defendant ( wife), a citizen of the Philippines, met online in February 2018 and got engaged in June 2018, during the first of the husband’s two trips to the Philippines. In April 2019, the wife entered the United States on a K–1 (fiancée) visa and moved in with the husband. Several weeks later, on June 8, 2019, the parties were married. However, the marriage rapidly deteriorated, with the wife moving out of the marital home less than two weeks after the wedding. In July 2019, the husband commenced this action seeking an annulment based upon the wife’s alleged fraud in the inducement. The husband alleged that the wife married him “with the sole purpose of becoming a U.S. [c]itizen.” The wife denied the husband’s allegation of fraud in the inducement and asserting that the husband had perpetrated acts of domestic violence against her and that she “removed herself from the marital premises for her own safety.” Supreme Court found that the wife had fraudulently induced the husband to marry her to obtain citizenship and that the husband was entitled to an annulment. The Appellate Division reversed. It observed that where the plaintiff spouse seeks an annulment based upon fraud in the inducement, the fraud must be proven by clear and convincing evidence. The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act.
Appellate Division, Fourth Department
Unilateral Relocation nunc pro tunc permitted where mother alleged a “continuous and relentless cycle of domestic violence” perpetrated by the father causing her to fear for her safety
In Matter of Robert C. E., v. Felicia,197 A.D.3d 100, 151 N.Y.S.3d 301, 2021 N.Y. Slip Op. 04306 (4th Dept.,2021) a prior order of custody and visitation awarded the mother sole custody of the child with visitation to the father. That order included a provision prohibiting either parent from permanently removing the child from Monroe County without the written consent of the other parent or a court order. Despite that provision, the mother unilaterally relocated to Arizona with the five-year-old child. Approximately one year later, the father discovered the mother’s whereabouts and commenced this proceeding by way of petition seeking custody of the child. The mother filed a cross petition seeking permission to relocate nunc pro tunc. She asserted that she relocated due to a “continuous and relentless cycle of domestic violence” perpetrated by the father.At a hearing on the petition and cross petition, the mother testified about instances of domestic violence perpetrated by the father. As a result of incidents of domestic violence causing her to fear for her safety the mother and her fiancé decided to move cross-country in order to ensure her safety and that of the child. She chose a location in Arizona based on the quality of the schools, affordability, and relative closeness to family in California. She did not inform the father or request permission of the court out of fear of retaliation from the father. The father denied the allegations of domestic violence, . He did not have a job or a driver’s license. He lived with his brother in exchange for providing child care. He had never paid child support. If he were awarded custody of the child, he would rely on his brother to pay for and transport the child to private school. The trial court found the father’s testimony not to be credible. The mother, in contrast, “gave honest and truthful testimony,” particularly concerning instances of domestic violence perpetrated by the father in the child’s presence and threats made towards the mother. The child’s maternal grandmother, who corroborated portions of the mother’s testimony at the hearing, gave “exceptionally credible” testimony. The court found that the mother’s fear of the father “was not feigned or pre-textual,” and that her decision to relocate without informing him was not to deprive him of visitation, but to protect her own safety. Although the court stated that her conduct in doing so “cannot be condoned,” it denied the father’s petition for custody due to his own “fundamental unfitness,” granted the mother’s cross petition for permission to relocate with the child, and awarded visitation to the father in Monroe County.
The Appellate Division affirmed. It held that although the unilateral removal of the child from the jurisdiction is a factor for the court’s consideration an award of custody must be based on the best interests of the child and not a desire to punish a recalcitrant parent. In determining the best interests of the child, the court is free to consider and give appropriate weight to all of the factors that may be relevant to the determination” (Matter of Tropea v. Tropea, 87 N.Y.2d 727). Courts place considerable weight on the effect of domestic violence on the child, particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety, or where the father minimized the past incidents of domestic violence. Where domestic violence is alleged in a petition for custody, the court must consider the effect of such domestic violence upon the best interests of the child. In making its determination, the court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence. Although the court did not countenance the mother’s decision to relocate without permission, it was the father’s violent conduct that prompted her move to Arizona in the first instance and triggered the resulting disruption of his relationship with his daughter. Furthermore, although the court did not expressly engage in the analysis required under Tropea, there was a sound and substantial basis in the record supporting the court’s determination that relocation would enhance the child[’s life] economically, emotionally, and educationally, and that the child’s relationship with the father could be preserved through a liberal parental access schedule including, but not limited to, frequent communication and extended summer and holiday visits.
Disposition of prior petition to terminate mother parental rights which was favorable to the biological mother, did not preclude the findings of extraordinary circumstances in later kinship guardianship proceeding.
In Matter of Guardianship of Nicolas Jude B., 195 A.D.3d 402, 150 N.Y.S.3d 58 (1st Dept.,2021) ,in 2008, the biological mother was found to have neglected the child. The child was subsequently placed in the care of the foster mother when the child was approximately four years old and remained in her care for over 10 years. Family Court granted the foster mother’s petition to be appointed kinship guardian of the child. The Appellate Division affirmed. It found that the evidence established that extraordinary circumstances existed as a result of the prolonged separation between the biological mother and child (see Matter of Caron C.G.G. [Alicia G.–––Jasmine D.], 165 A.D.3d 476, 85 N.Y.S.3d 430 [1st Dept. 2018]). Although more than 10 years had passed since the finding of neglect, the biological mother failed to gain insight into or even acknowledge the conditions that led to the child’s removal from her home. Instead, she denied any mental health-related issues and maintained that the child remained in foster care because the agency wanted to fraudulently collect foster care payments from the government. Her contact with the child continued to be limited to telephone calls and daytime visits in the community because she refused to allow a caseworker to conduct a home visit. She made minimal progress with her service plan. At the time of the fact-finding hearing, she had not been in touch with the agency for approximately six months. Even prior, she failed to attend the family team meetings and provide the agency with any information about her compliance with mental health services. The Appellate Division also held that the disposition of a prior petition to terminate her parental rights in 2013, which was favorable to the biological mother, did not preclude the findings in this later kinship guardianship proceeding.
Appellate Division, Third Department
Improper to discredit Respondent’s denial of paternity on the basis that he never definitively took steps to dissuade the child or anyone else that he was NOT the father
In Matter of Montgomery County Dept of Social Services o/b/o Donavin E, v Trini G 195 A.D.3d 1069, 149 N.Y.S.3d 667 (3d Dept.,2021) petitioner commenced a proceeding seeking to establish paternity and collect child support on behalf of the child (born in 2005), who was in its care. The child was 13 years old, and had no adjudicated father and no father listed on his birth certificate. The proceeding was initially brought against respondent Trini G., with whom the mother and the child lived for approximately nine years and who was alleged to have held himself out as the child’s father. In June 2018, based upon allegations that respondent Reymond F. was the child’s father, Reymond F. was added as a named respondent to the petition. Reymond F. then sought an order for a genetic marker test, which petitioner opposed on the ground of equitable estoppel. Family Court denied the request, finding that Reymond F., who “never definitively took steps to dissuade the child or anyone else that he was NOT the father,” was equitably estopped from denying paternity. Family Court granted petitioner’s application.
The Appellate Division vacated the order and directed a genetic marker test. It observed that Petitioner, as the party asserting equitable estoppel here, must first make prima facie showing that [Reymond F.] and the child had a parent-child relationship, so as to shift the burden to [Reymond F.] to prove that it was nonetheless in the child’s best interests to order genetic marker testing.” Pursuant to Family Ct Act § 532(a), a genetic marker test may not be ordered if it is not in the best interests of the child on the basis of equitable estoppel. In the application of the doctrine of equitable estoppel it is the child’s justifiable reliance on a representation of paternity that is considered. It held that Family Court erred in denying Reymond F’s request for a genetic marker test, resulting in equitably estopping him from denying paternity. The trial testimony established that the mother and Trini G., the mother’s boyfriend with whom she and her children lived for nine years (from the time the child was two to three months old), “co-parented” all of the children by contributing financially to their care and feeding, bathing and playing with them. Trini G. referred to the child as “stepson” and the child called him “daddy.” The record established that Reymond F. had no contact with the child since birth, except during sporadic visits between Reymond F. and his two older children. Reymond F. testified that he did not do “anything” with the child during these visits, was not called “dad” and did not call the child “son.” He testified that he never called the child on the phone, never gave him gifts and never checked on his educational or medical issues. The mother testified that, while she did not encourage the child to have a relationship with Reymond F., the child knew that Reymond F. was his biological father. Family Court, in crediting the mother’s testimony that she and Reymond F. were in an exclusive sexual relationship at the time the child was conceived, discredited Reymond F.’s denial of paternity since “[h]e never definitively took steps to dissuade the child or anyone else that he was NOT the father.” However, the court may have overlooked the absence in the record of any indication that Reymond F. played a significant role in raising, nurturing or caring for the child provided food, clothing and shelter for the child for most of his life or otherwise carried out all the traditional responsibilities of a father. It found that petitioner failed to make prima facie showing of a recognized and operative parent-child relationship where the status interests of the child needed to be protected by imposing equitable estoppel. A review of the record did not reveal that the child would suffer irreparable loss of status or other physical or emotional harm if a genetic marker test were ordered. It found that Family Court’s determination to apply equitable estoppel to preclude genetic marker testing was not supported by a sound and substantial basis in the record. The order was reversed and the matter remitted for a genetic marker test to be administered.
Appellate Division, Fourth Department
Despite rebuttable presumption that counsel fees shall be awarded to less monied spouse denial of attorney’s fees not an abuse of discretion where largely based on courts assessment of defendant’s credibility regarding her own finances, her failure to fully account for large sums of money, and to fully account for assets belonging to plaintiff that she purportedly used for his benefit
In Iannazzo v Iannazzo, --- N.Y.S.3d ----, 2021 WL 3782924, 2021 N.Y. Slip Op. 04852(4th Dept., 2021) the parties were married in October 2006 and physically separated in 2014. Supreme Court subsequently appointed a guardian for plaintiff pursuant Mental Hygiene Law 81. Plaintiff commenced the divorce action in 2019. Following a trial, Supreme Court denied denying defendant’s motion seeking, among other things, attorney’s fees, and granted plaintiff a divorce.
The Appellate Division held that the court did not err in denying the wife’s her request for attorney’s fees. “The award of reasonable counsel fees is a matter within the sound discretion of the trial court. In exercising its discretion to award such fees, a court may consider all of the circumstances of a given case, including the financial circumstances of both parties, the relative merit of the parties’ positions ..., the existence of any dilatory or obstructionist conduct ..., and the time, effort and skill required of counsel. Pursuant to Domestic Relations Law § 237 (a), there exists “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Here, the court’s determination to deny defendant’s request for attorney’s fees was largely based on its assessment of defendant’s credibility at trial regarding the state of her own finances, her failure to fully account for large sums of money that she had received, and her failure to fully account for assets belonging to plaintiff that she purportedly used for his benefit during the period they were separated. Giving due deference to the court’s credibility determinations it concluded that the court did not abuse its discretion in denying defendant’s request for attorney’s fees.
The Appellate Division agreed with defendant that the court erred in its calculation of post-divorce maintenance under the guidelines prescribed by Domestic Relations Law § 236 (B) (6). Specifically, when determining the amount of plaintiff’s income for the purposes of fashioning a post-divorce maintenance award, the court excluded plaintiff’s military pension. Although the court properly determined that the military pension was separate property and not subject to equitable distribution, that pension should have been included as income for the purposes of determining post-divorce maintenance. By failing to include plaintiff’s pension in its calculation of income for purposes of post-divorce maintenance, the court’s initial calculation of the amount of maintenance under the guidelines (see § 236 [B] [6] [c]) was incorrect. It remitted the matter for recalculation and a new determination.
The essential element of the equitable defense of laches is delay prejudicial to the opposing party. The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches.
In Taberski v Taberski, --- N.Y.S.3d ----, 2021 WL 3782794, 2021 N.Y. Slip Op. 04804 (4th Dept.,2021) Plaintiff and defendant were divorced in February 2009 . The j]udgment incorporated but did not merge a stipulation of the parties that, inter alia, provided that plaintiff would receive her marital share of defendant’s retirement benefits under the New York State and Local Retirement System (NYSLRS) pursuant to the Majauskas formula. A Domestic Relations Order (DRO) was filed in December 2010. In December 2011, defendant received a letter from NYSLRS approving the submitted DRO. The letter stated that the DRO was “silent” regarding what would happen if defendant retired under a disability and that NYSLRS would calculate plaintiff’s distribution using the disability retirement allowance, which was apparently pursuant to its standard policy. Defendant retired in August 2016 and filed a disability retirement application at the same time. The parties began receiving their respective shares of defendant’s service retirement benefit soon thereafter, but it was not until February 2019 that NYSLRS approved defendant’s disability retirement application, retroactive to his retirement date. The resulting lump sum retroactive payment and increased monthly benefits were both apportioned between plaintiff and defendant. Before the retroactive payment was distributed, defendant’s attorney contacted plaintiff and put her on notice that defendant was disputing her entitlement to a portion of defendant’s disability retirement benefit. In August 2019, defendant moved to amend the DRO to specify that plaintiff was not entitled to any portion of his disability retirement benefit and to recoup the retroactive payment via a reduction in plaintiff’s monthly benefits. Supreme Court granted defendant’s motion to the extent that it sought to amend the DRO to specify that plaintiff was entitled only to the service retirement benefit payments, retroactive to the date the motion was filed. The court held, however, that under the doctrine of laches defendant was not entitled to recoup the retroactive payment made to plaintiff when the disability retirement application was approved in 2019.
The Appellate Division held that the court abused its discretion in determining that the doctrine of laches applies to this case. Laches is defined as such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity ... The essential element of this equitable defense is delay prejudicial to the opposing party. The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches” (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 816 [2003]). Here, the court found that defendant should have sought to amend the DRO in 2011, after receiving the letter from NYSLRS. But at that time, defendant was not eligible for and had not applied for a disability retirement. When his disability retirement application was approved in February 2019 and defendant became aware that plaintiff’s distribution would accordingly increase, he promptly moved to amend the DRO. Moreover, even if there was a delay here, plaintiff utterly failed to make a showing of prejudice. The court’s determination that plaintiff “relied to her detriment upon [d]efendant’s apparent acquiescence to [the] NYSLRS disability benefit determination” had no basis in the record. Plaintiff was aware that defendant was disputing her entitlement to the disability retirement allowance before she ever received the retroactive payment.
Supreme Court
Unacknowledged deferred mahr that granted the Wife $50,000 upon some unspecified occasion was unenforceable in plenary action under Matisoff v. Dobi and Galetta v. Galetta
In Khan v Hasan, 2021 WL 4075247 (Sup. Ct., 2021) Supreme Court observed that a nikah agreement is a mutual agreement signed by spouses during their religious marriage ceremony that is typically verified by two male witnesses and includes a mahr provision. A mahr provision, or sadaq, is a term in the nikah agreement whereby the husband gives something of value to the wife. The mahr provision functions to protect the bride’s financial interests and independence and is typically only awarded in the case of divorce or upon the husband’s death. The mahr is usually paid in two parts, the first is paid immediately at the time of the religious ceremony and the second is deferred until one of the two previously stated occurrences. The Court held that an unacknowledged deferred mahr that granted the Wife $50,000 upon some unspecified occasion was unenforceable. It agreed with the Husbands argument that Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209 (1997) and Galetta v. Galetta, 21 N.Y.3d 186, 969 N.Y.S.2d 826 (2013)) are controlling precedent as they collectively establish that a proper acknowledgment is an “essential prerequisite” to comply with the terms of DRL 236(B)(3) and that the document is signed by two witnesses, instead of being acknowledged, does not satisfy the requirements of DRL 236(B)(3). The language, history, and subsequent New York statutory law of DRL 236(B)(3), including the case precedent of Matisoff and Galetta, have clearly created no exception to the acknowledgment requirement.
September 1, 2021
Appellate Division, First Department
Under Domestic Relations Law § 236(B)(5)(a) “legal rights to specific marital property vest upon the judgment of divorce, with inchoate rights becoming actual ownership interests by virtue of an equitable distribution judgment
In Tiozzo v Dangin, --- N.Y.S.3d ----, 2021 WL 3668438, 2021 N.Y. Slip Op. 04739 (1st Dept.,2021) in construing the provisions of the parties divorce agreement which was incorporated into their 2004 judgment of divorce the Appellate Division observed that in Pangea Capital Mgt., LLC v. Lakian, 34 N.Y.3d 38, 108 N.Y.S.3d 425 (2019) the Court of Appeals held that under Domestic Relations Law § 236(B)(5)(a) “legal rights to specific marital property vest upon the judgment of divorce, with inchoate rights becoming actual ownership interests by virtue of an equitable distribution judgment.” Plaintiff argued that her interest in the subject property vested upon the filing of the judgment of divorce. It held that this case differed from Pangea in that the parties provided for (an albeit limited) joint ownership of real property after the divorce. Divorcing couples may provide in a judgment of divorce for continued co-ownership of property. Here, the nature of the ongoing joint ownership was limited and was based solely on the parties’ agreement to avoid jeopardizing the existing mortgage on the property. With respect to Tiozzo, Dangin gave up any right to continue to use the property or to share in any proceeds of the sale. He also agreed not to take any action that could interfere with Tiozzo’s “exclusive use and occupancy of the said property, including the sale of the said property.” The stipulation of divorce thus divested Dangin of his rights in the subject property. Under CPLR article 52 a judgment creditor may only seek to enforce its money judgment against a judgment debtor’s property. “Property” under CPLR 5201(b), whether realty or personalty, is defined broadly as an interest that is present or future, vested or contingent. However, the determining factor as to whether a judgment debtor’s interest can constitute property vulnerable to a judgment creditor is whether it “could be assigned or transferred” (CPLR 5201[b]). In the stipulation of divorce Dangin gave up any right to assign or transfer to a third party an interest in the subject property. The subject property was therefore beyond the reach of Lenz. Under Pangea, Tiozzo’s interest in the subject property vested when the judgment of divorce was entered. Her decision to delay her demand for a quitclaim deed from Dangin was pursuant to a right provided to her under the stipulation of divorce.
Appellate Division, Second Department
Neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence.
In Pulver v Pulver, --- N.Y.S.3d ----, 2021 WL 3641419, 2021 N.Y. Slip Op. 04727 (2d Dept.,2021) in 2013, the plaintiff commenced an action for a divorce and the matter was referred to a Referee to hear and report on “the trial of all issues.” The Referee presided over a trial during which the plaintiff called the defendant to testify as an adverse witness. On August 22, 2017, the defendant failed to appear. On that date, the Referee granted the plaintiff’s application to preclude the defendant from presenting a case, except to the extent of permitting the defendant’s attorney to submit a written closing statement. The Referee determine that the defendant was able to appear in court but chose not to do so. The plaintiff proceeded to complete her case, and the Referee issued a report making findings of fact on issues pertaining, inter alia, to equitable distribution and maintenance based solely upon the plaintiff’s case. Supreme Court granted the plaintiff’s motion to confirm the Referee’s report and denied defendants cross-motion to reject the Referee’s report on the grounds, inter alia, that the Referee exceeded her authority by precluding him from presenting any evidence at trial. The Appellate Division reversed. It held that a referee derives his or her authority from an order of reference by the court, and the scope of the authority is defined by the order of reference. A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction. Where, as here, the parties did not consent to the determination of any issues by the referee, and the order of reference directed the referee to hear and report (see CPLR 4317[a]), “the referee had the power only to hear and report his [or her] findings. The Referee exceeded her authority to hear and report her findings based upon the evidence presented at trial by making a determination to preclude the defendant from presenting a case. Neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence. CPLR 4320(a) provides that “[a] referee to report shall conduct the trial in the same manner as a court trying an issue without a jury,” which simply imposes the requirement on a referee assigned to hear and report to conduct a trial in the same manner as a court trying a nonjury trial. While the referee overseeing a trial, by necessity, has the discretion to grant or deny an application for an adjournment a referee assigned to hear and report lacks the authority to preclude a party from presenting evidence, which effectively prevents the court reviewing the referee’s report from considering potential evidence. CPLR 4320 did not give the Referee the authority to preclude the defendant from presenting a case at trial.
Father’s constitutional rights not violated by his exclusion during the child’s testimony in chambers where attorney present
In Matter of Ayden F., 194 A.D.3d 709, 148 N.Y.S.3d 481, 2021 N.Y. Slip Op. 02794 (2d Dept.,2021) a neglect proceeding, the Appellate Division held that Family Court providently exercised its discretion in permitting the child to testify in camera with the parties’ attorneys present. The right of a respondent parent to be present at every stage of a Family Court Act article 10 proceeding is not absolute. The Family Court must balance the due process rights of the respondent parent with the mental and emotional well-being of the child. Here, the court properly balanced the respective interests of the parties and reasonably concluded that the child would suffer emotional trauma if compelled to testify in front of the father or by utilizing electronic means . Moreover, because the father’s attorney was present during the child’s testimony and cross-examined him on the father’s behalf, the father’s constitutional rights were not violated by his exclusion during the child’s testimony in chambers (see Matter of Deshawn D.O. [Maria T.O.], 81 A.D.3d at 962, 917 N.Y.S.2d 874; Matter of Q.-L.H., 27 A.D.3d at 739, 815 N.Y.S.2d 601).
Supreme Court
Service of Order to Show Cause in Colorado on a Sunday is absolutely void. Under CPLR § 313, Plaintiff was required to serve the Defendant in accordance with New York State laws.
In V.D., v. P.D., --- N.Y.S.3d ----, 2021 WL 3671518, 2021 N.Y. Slip Op. 21222 (Sup. Ct.,2021) |the Plaintiff moved for, among other things an Order pursuant to 28 USC § 1738, affording full faith and credit to the “Judgment of Divorce” and “Divorce Agreement,” filed in the Middlesex Probate and Family Court in the State of Massachusetts, and directing the Clerk of the Court to register it pursuant to Article 54 of the CPLR. The parties had resided in Sudbury, Massachusetts. In 2017, the Plaintiff commenced an action for divorce in the Middlesex Probate and Family Court of the State of Massachusetts. The parties were divorced pursuant to a Judgment of Divorce dated June 30, 2017 (the “Judgment”) which incorporated portions and merged portions of the parties agreement. The Judgment and the Agreement were authenticated by the Middlesex Probate and Family Court of the State of Massachusetts on April 1, 2021 and on April 8, 2021, the Plaintiff filed the authenticated Judgment and Agreement with the Nassau County Clerk’s Office. The Plaintiff argued that, pursuant to 28 USC § 1738, the “judgment of a state court shall have the same credit, validity, and effect, in every other court of the United States, which it has in the state where it was pronounced,” and that the Judgment is considered a “foreign judgment” under CPLR § 5401. According to the Plaintiff, pursuant to NY CPLR § 5402, if filed in New York within ninety (90) days of its authentication, the Judgment may be enforced by this Court in the same manner as though it were a domestic judgment. The Plaintiff argued that because she filed the authenticated Judgment with the Nassau County Clerk’s Office within this ninety (90) day period, it must be recognized and enforced by the Court. Supreme Court observed that FCA § 580-601 provides that “a support order ... issued in another state or a foreign support order may be registered in this state for enforcement.” Once registered, the procedure is provided for in FCA § 580-602. FCA § 580-603 (b) provides that “[a] registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Here, the Agreement specifically excluded child support “in light of” the unallocated support provision and, as such, clearly fell under the definition of a “support order” in FCA § 580-102. Supreme Court held that the Judgment, which incorporated the Agreement, was entitled to be registered and enforced in this State in the same manner as a domestic judgment.
The Court noted that General Business Law § 11, entitled “Serving civil process on Sunday”, provides that: All service or execution of legal process, of any kind whatever, on the first day of the week is prohibited, except in criminal proceedings or where service or execution is specially authorized by statute. Service or execution of any process upon said day except as herein permitted is absolutely void for any and every purpose whatsoever. The Defendant was a non-resident and was domiciled in Colorado. He was personally served with “the Order to Show Cause and accompanying papers” in Colorado on a Sunday. Under CPLR § 313, the Plaintiff was required to serve the Defendant in accordance with New York State laws. Thus, the service was defective and the order to show cause was dismissed for improper service.
August 16, 2021
Appellate Division, Second Department
A determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion.
In Weiss v Nelson, --- N.Y.S.3d ----, 2021 WL 3177791, 2021 N.Y. Slip Op. 04573 (2d Dept.,2021) the parties were married on June 14, 1987. There were three emancipated children of the marriage. The plaintiff commenced this action for a divorce on April 27, 2015. After a nonjury trial the court issued a judgment of divorce, which among other things, imputed an annual income to the plaintiff of $80,000, directed the defendant to pay taxable maintenance to the plaintiff of $1,500 per month until the plaintiff reaches the age of 62, directed the posttrial valuation of Feng Shui Institute, LLC, the plaintiff’s business, and awarded the defendant 50% of that value, awarded the defendant 50% of the value of the plaintiff’s LVMHF stock, and directed the defendant to pay 70% of the plaintiff’s counsel fees.
The Appellate Division observed that while a court is afforded considerable discretion in determining whether to impute income to a party, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. Here, the Supreme Court improvidently exercised its discretion by imputing an annual income of $80,000 to the plaintiff when calculating her maintenance award. During this 28–year marriage, notwithstanding her college degree and various certifications, the plaintiff, who was 55 years old at the time of trial, had been a stay at home mother and homemaker for almost 10 years and had never earned more than $19 per hour from employment upon returning to work outside the home, while the defendant was the primary wage earner for the family and earned a substantial income. Moreover, the plaintiff’s business was not a financial success. Based upon the record, there was no evidence that the plaintiff’s past income or demonstrated future earning potential amounted to $80,000 annually. It held that under the facts of this case, the court should have imputed an annual income to the plaintiff in the amount of $35,000 .
The Appellate Division held that Supreme Court improvidently exercised its discretion in awarding maintenance to the plaintiff of only $1,500 per month until she reaches 62 years of age. Considering the relevant factors, an award of taxable maintenance in the sum of $3,500 per month until the earliest of the plaintiff’s attainment of the age at which she becomes eligible for full Social Security retirement benefits, her remarriage, or the death of either party was appropriate. This was a long-term marriage of 28 years, where the plaintiff and the defendant were 55 and 56 years old, respectively, at the time of trial. The defendant was the primary wage earner throughout the marriage, earning well over $200,000 annually at the time of commencement of the action, while the plaintiff had not earned any significant income upon returning to the work force, having been a stay at home mother with the parties’ three children for almost 10 years. The defendant disagreed with the plaintiff’s excessive spending and testified to examples of it. The defendant claimed that the plaintiff did not significantly contribute to the parties’ finances which caused stress during the marriage. However, this was the lifestyle of the parties during their marriage; economic decisions made during their marriage should not be second guessed by the Supreme Court.
The Supreme Court also erred in directing the posttrial valuation of the plaintiff’s business and awarding the defendant 50% of that value. The defendant, as the party seeking an interest in the business, failed to submit evidence as to the value of the business. Therefore, the court should not have directed a posttrial valuation, and should not have awarded the defendant any portion of the value of the plaintiff’s business.
No valid marriage where defendant and his witness were credible, and only written evidence of marriage was ketubah which defendant denied he signed, and testified that signature in Hebrew could not be his because he did not write in Hebrew.
In Yusupov v Baraev, --- N.Y.S.3d ----, 2021 WL 3378803 (2d Dept., 2021) the plaintiff commenced this action for a divorce and alleged that the parties had married on November 24, 1998, at a Jewish ceremony performed by a rabbi. The defendant moved to dismiss the complaint, arguing that the parties were never married. The Supreme Court held a hearing. At the hearing, the plaintiff testified and presented testimony from the rabbi who performed the ceremony, her mother, and her cousin. Their testimony indicated that the parties were married at a ceremony on November 24, 1998, at the apartment of the plaintiff’s mother, and that the defendant signed, in Hebrew, a religious marriage contract, referred to as a ketubah. There were no photographs of the wedding, and the plaintiff never indicated on her tax returns that she was married. The defendant and his mother each testified that there was no wedding ceremony. The defendant testified that he never signed the ketubah, and that his purported signature on the ketubah was not made by him because he only wrote in Russian or English. No marriage certificate was issued by any governmental agency, and there was no other document referring to a marriage. Supreme Court granted the defendant’s motion to dismiss the complaint on the ground that there was no valid marriage between the parties. The Appellate Division affirmed. It held that a marriage is solemnized where the parties “solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife” (Domestic Relations Law § 12). Under New York law, the marriage between parties will be valid, even without a marriage license, in instances where it is solemnized. Pursuant to Domestic Relations Law § 12, “[n]o particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife”. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony. The Supreme Court determined that the defendant and his witness were credible, and the only written evidence of a marriage was the ketubah in the plaintiff’s possession, which the defendant denied he ever signed, and further testified that the signature in Hebrew could not be his because he did not write in Hebrew. Based upon the evidence the determination was proper.
Family Court
Documents and body camera footage from related sealed criminal cases are not admissible in Family Court Article 10 proceedings
In Matter of Joshua F., Kanan O., --- N.Y.S.3d ----, 2021 WL 3359827, 2021 N.Y. Slip Op. 21205 (Fam Ct.,2021) although the written police reports related to the arrest were now sealed and cannot be used at this fact-finding neglect hearing, ACS sought to admit the domestic incident reports (”DIRs”) and body camera footage from this incident, contending that these items were not sealed. The Court, among other Family Courts, had previously held that documents from related sealed criminal cases are not admissible in Family Court Article 10 proceedings pursuant to CPL § 160.50(1). See In re T.P., 51 Misc 3d 738 [Fam Ct 2016] (arrest documents & DIR were sealed & inadmissible though officer’s memo book was not document intended to be sealed under sealing statute; striking testimony was warranted based on officer’s simultaneous review of both memo book and much more detailed documents); In re Carolina K., 55 Misc 3d 352 [Fam Ct 2016] (911 recording sealed); In re Samantha R., 55 Misc 3d 338 [Fam Ct 2016] (holding that documents, DIR and photographs that officer reviewed were legally sealed, photographs were inadmissible, but striking of officer’s testimony was not required because officer had credible independent recollection); Matter of T/R, Fam. Ct. Kings County, May 19, 2016, Barnett, J. Docket nos. NN-22206-9/15(DIRs, photographs, criminal complaint, arrest report, memo book, and Criminal Court temporary order of protection are sealed); Matter of B/L Children, Fam. Ct., Kings County, Feb. 22, 2011, Gruebel, J., Docket nos. NN-30879-80/10(DIRs are sealed); In re J G 2009 WL 7292304 [Fam Ct, Bronx County 2009] (DIR sealed). In Matter of Carolina K., supra and Matter of Diyorhjon K., 65 Misc 3d 788 [Fam Ct 2019], this Court applied the same rationale to 911 recordings sought to be introduced by ACS in those cases and In Matter of Samantha R. and In re T.P., supra, to excluding domestic incident reports when they result in an arrest that is later sealed.
The Court noted that CPL § 160.50(1)(c) states in pertinent part, “all official records or papers relating to the arrest or prosecution including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency.” CPL § 160.60 states that an arrest terminated in favor of an accused “shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.” Thus, when a criminal case is dismissed and sealed, ALL documents or other official records relating to that arrest must be sealed as well or the protection applied to these individuals by the sealing statute is rendered meaningless, especially in the age of internet searches where even one unsealed document can be enough to negatively impact the future of the arrested individual. The language of CPL § 160.50(1)(c) is mandatory and unequivocal in precluding the provision of “all official records” to any public agency, the only exceptions being contained in paragraph (d), none of which applied here. Domestic incident reports (”DIRs”), which are required to be completed whenever the police respond to a domestic dispute are clearly “official records relating to the arrest or prosecution on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.” CPL 160.50(1)(c). Family Court held that as to the body camera footage, the plain language of the Criminal Procedure Law mandates that the footage cannot be used when the underlying criminal case is sealed.
In Matter of Scott v Adrat, --- N.Y.S.3d ----, 2021 WL 2944297, 2021 N.Y. Slip Op. 04361 Ileana Adrat and Jasmin Scott entered into a same-sex relationship in November 2008. The parties agreed to conceive and raise children together in December 2008 or January 2009. They began attempting to conceive through artificial insemination. In April 2010, Scott learned that she was pregnant with twins, and the children were born later that year. In April 2011, the parties terminated whatever relationship they had at the time. Adrat last saw the children at a court appearance in May or June 2011 and had not supported the children since that time. Family Court found that Adrat was the non-biological parent of the children, and, responsible for financially support them. The Support Magistrate, inter alia, in effect, directed Adrat to pay child support of $1,727 per month. The Appellate Division affirmed. It found that the credible evidence adduced at the hearing established that the parties planned jointly for the children’s conception, participated jointly in the process of conceiving the children, planned jointly for their birth, and planned to raise them together. The credible evidence demonstrated that both parties attended appointments with two fertility specialists, Adrat injected the sperm into Scott at one such appointment, Adrat paid for half of the out-of-pocket fertility treatment expenses, Adrat selected the location of the baby shower and distributed the invitations, Adrat paid for most of the baby shower, friends and family members of both parties attended the baby shower, Adrat attended prenatal appointments, Adrat was present for the birth of the children and cut the umbilical cord of at least one of them, Adrat assisted in selecting the name of one of the children, and Adrat purchased items for the children and shared in caring for them. Adrat also held herself out as the children’s mother during Scott’s pregnancy, called Scott her “baby mama,” and told friends and family that she was expecting babies with Scott. On the day of the children’s birth, Adrat signed Scott’s hospital admission documents voluntarily and without hesitation. After their birth, Adrat referred to the children as “my girls.” Accordingly, the Family Court properly found that Adrat was a parent of the children (see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14). Contrary to Adrat’s contention, it was not error for the Family Court to consider post-conception behavior in determining the existence of a preconception agreement. Also contrary to Adrat’s contention, the fact that the parties broke up in late 2009 did not require a finding that Adrat did not agree to conceive and raise the children together. The parties’ break-up was brief, and after the parties reconciled, Adrat actively took part in the in vitro fertilization process at a new fertility clinic.
Agreement regarding testamentary provisions, will be valid and enforceable only if it is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded In Prestigiacomo v Prestigiacomo, 2021 WL 2944415 (2d Dept.,2021) in 1997, Joseph Prestigiacomo, Sr. and Katie Prestigiacomo, who had married in 1987, and who both had children from prior marriages, entered into a postnuptial agreement to delineate the inheritance rights of their respective children. The 1997 agreement provided that any modification of the agreement must be “in writing, witnessed and acknowledged and executed simultaneously by both parties.” The Appellate Division held that an agreement between the parties to a marriage, including an agreement regarding testamentary provisions, will be valid and enforceable only if it is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded (see Domestic Relations Law § 236[B][3]; Galetta v. Galetta, 21 N.Y.3d 186, 191, 969 N.Y.S.2d 826, 991 N.E.2d 684; Matter of Koegel, 160 A.D.3d 11, 21, 70 N.Y.S.3d 540). It also held that the agreement was effectively revoked.
July 14, 2021 Appellate Division, Second Department
Mother had no obligation to provide the father with notice of her expert witness where no CPLR 3101(d)(1)(I) demand served.
In Matter of Pena v Chadee, --- N.Y.S.3d ----, 2021 WL 2672745 (Mem), 2021 N.Y. Slip Op. 04140 (2d Dept.,2021) the mother was ordered to pay child support to the father. The father commenced a proceeding against the mother alleging a violation of the child support order and the mother commenced a proceeding against the father seeking a downward modification of her child support obligation. The Appellate Division held, inter alia, that the Family Court did not err in permitting the mother’s expert witness to testify at the hearing in the absence of notice to the father. CPLR 3101(d)(1)(I) provides, in pertinent part, “[u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial”. Here, the father’s demand for discovery that was in effect at the time failed to request any information concerning expert witnesses and, accordingly, the mother had no obligation to provide the father with notice of her expert witness.
Renewal judgment must be sought by commencing separate action, rather than by motion in the original action
In Handakas v Handakas, --- N.Y.S.3d ----, 2021 WL 2816695 (Mem), 2021 N.Y. Slip Op. 04217(2d Dept.,2021) Supreme Court, inter alia, determined that the parties’ marital assets included the marital home valued at $1,105,695.70, $950,000 in marital funds that the plaintiff attempted to secret from the defendant by wire transfers to Greece, $100,082 seized from the plaintiff when he was arrested at the airport while attempting to leave the country, $350,000 that the plaintiff forfeited to the federal government in connection with his criminal conviction, and$60,000 from the sale of a boat. The court determined that the defendant was entitled to 50% of these marital assets, less $310,000 for sums she had already received, for a total distributive award of $972,888.80. After the trial but before an amended judgment of divorce was entered, the Supreme Court, inter alia, granted the defendant’s motion, made by order to show cause dated December 12, 2017, for a renewal judgment in favor of the defendant and against the plaintiff in the principal sum of $359,491.84 for pendente lite arrears. An amended judgment of divorce was entered on April 10, 2018. On the same date, the Supreme Court also entered four money judgments in favor of the defendant and against the plaintiff representing, inter alia, the distributive award to the defendant, in the principal sums of $34,000, $10,000, $497,888.80, and $475,000, respectively. The Appellate Division affirmed the awards. However, it held that the Supreme Court erred in granting the defendant’s motion for a renewal judgment. The defendant was required to seek such relief by commencing a separate action, rather than by motion in the original action, and her failure to do so required denial of her motion for the renewal judgment (see CPLR 5014; Guerra v. Crescent St. Corp., 120 A.D.3d 754, 991 N.Y.S.2d 343).
Matter of Bennett v. Jeffreys applies where parent opposes petition of nonparent seeking guardianship.
In Matter of Madelyn E.P. v Kevin O, 2021 WL 2816167 (2d Dept.,2021) the Appellate Division pointed out that as between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances” (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543). It applies this standard where, as here, a parent opposes the petition of a nonparent seeking guardianship.
Appellate Division, Third Department
CPLR 211(e) inapplicable to postjudgment motion to enforce the terms of the separation agreement brought under index number of the original divorce action
In Sangi v Sangi, --- N.Y.S.3d ----, 2021 WL 2828544, 2021 N.Y. Slip Op. 04270 (3d Dept.,2021) the parties 1992 separation agreement which was incorporated but not merged into a 1995 judgment of divorce. In December 1995, the court converted the obligation into a lump-sum payment, imposing a fine in the amount of $130,694.77. In 2005, the wife filed a motion seeking to reaffirm and recalculate the 1995 order based upon the husband’s additional defaults. In August 2005, Supreme Court granted the application and ordered the husband to pay the sum of $129,893.43 directly to the wife. In July 2018, the wife moved for an order directing the County Clerk to enter a money judgment in the amount of $129,893.43, plus statutory interest from the date of the 2005 order. The husband opposed the motion claiming that the wife’s motion was time-barred. Supreme Court granted the wife’s motion for a money judgment, based on the obligations under the separation agreement. The Appellate Division affirmed. It rejected the argument that the wife’s motion was an attempt to enforce his obligations under the separation agreement and, therefore, not subject to the six-year statute of limitations applicable to contract actions (see CPLR 213[2]) or to the 20–year statute of limitations applicable to actions brought to enforce an order of support (see CPLR 211[e]). A motion to enforce the terms of [a] separation agreement is not an action and thus not subject to the statute of limitations set forth in CPLR 213(2). Meanwhile, CPLR 211(e) provides that “[a]n action or proceeding to enforce any temporary order, permanent order or judgment of any court of competent jurisdiction which awards support, alimony or maintenance, regardless of whether or not arrears have been reduced to a money judgment, must be commenced within [20] years from the date of a default in payment.” Thus, as Supreme Court correctly determined, CPLR 211 governs the timeliness of actions upon a contractual obligation. Inasmuch as the present application was not an action, but rather a postjudgment motion to enforce the terms of the separation agreement brought under the index number of the original divorce action, CPLR 211(e) was inapplicable to, and did not bar the motion.
Appellate Division, Fourth Department
Where mother’s decision to relocate without permission was prompted by the father’s violent conduct relocation permitted nunc pro tunc.
In Ferris v Ferris, --- N.Y.S.3d ----, 2021 WL 2883199, 2021 N.Y. Slip Op. 04306 (4th Dept., 2021) the Appellate Division affirmed an order which allowed the mother to relocate with the child nunc pro tunc. A prior order of custody and visitation awarded the mother sole custody of the child with visitation to the father. That order included a provision prohibiting either parent from permanently removing the child from Monroe County without the written consent of the other parent or a court order. Despite that provision, the mother unilaterally relocated to Arizona with the five-year-old child. Approximately one year later, the father discovered the mother’s whereabouts and commenced this proceeding by way of petition seeking custody of the child. The mother filed a cross petition seeking permission to relocate nunc pro tunc. Therein, she asserted that she relocated due to a “continuous and relentless cycle of domestic violence” perpetrated by the father. The Appellate Division found a sound and substantial basis in the record for the determination. In observed that Courts place considerable weight on the effect of domestic violence on the child, particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety, or where the father minimized the past incidents of domestic violence., Where domestic violence is alleged in a petition for custody, “the court must consider the effect of such domestic violence upon the best interests of the child”. Here, in making its determination, the court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother “did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence.” Although the court did not countenance the mother’s decision to relocate without permission, “it was the father’s [violent] conduct that prompted [her] move to [Arizona] in the first instance and triggered the resulting disruption of his relationship with his daughter.”
Reduction for extended visitation permitted by FCA § 413 (1) (f) (9) applies only where the child is not on public assistance.
In Matter of Livingston County Department of Social Services on Behalf of Davis v Hyde, --- N.Y.S.3d ----, 2021 WL 2885671 (Mem), 2021 N.Y. Slip Op. 04316(4th Dept., 2021) the Appellate Division reversed the order, granted petitioner’s objections, granted the petition, and direct the father to pay child support in the amount of $74 per week retroactive to August 5, 2019. Petitioner commenced a proceeding on behalf of the mother of the child seeking an upward modification of respondent father’s child support obligation. The father and the mother shared legal and physical custody of the child, and the mother received public assistance to help support the child. A prior order directed him to pay $50 per month in child support. The Support Magistrate determined that the father’s support obligation based on his income was $74 per week, and further determined that the amount was unjust, and granted a variance by setting the father’s support obligation at $50 per week. The Appellate Division held that “the CSSA must be applied to all child support orders, regardless of a child’s receipt of public assistance” .The Support Magistrate purported to reduce the father’s obligation pursuant to Family Court Act § 413 (1) (f) (10) because the father made additional expenditures to maintain his house to permit the child to stay there during the time that he stayed with the father. Such a reduction for extended visitation is permitted by section 413 (1) (f) (9), however, and that subdivision of the statute applies only where “the child is not on public assistance”. A determination to grant a downward deviation from the presumptive support obligation on the ground that the noncustodial parent incurred expenses while the child was in his or her care “is merely another way of improperly applying the proportional offset method,’ and the proportional offset method of calculating child support has been explicitly rejected by the Court of Appeals (see Bast v. Rossoff, 91 N.Y.2d 723, 732, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998]).
June 30, 2021
Appellate Division, First Department
In determining length of the order of protection to impose, court not required to consider the length of time temporary order of protection had been in effect
In Matter of Sophia M v James M, --- N.Y.S.3d ----, 2021 WL 2545204 (1st Dept.,2021) the Appellate Division held that in determining the length of the order of protection to impose, the court was not required to consider the fact that a temporary order of protection had been in effect for about two years (see Family Court Act § 842; Matter of Sheila N. v. Rudy N., 184 AD3d 514, 514–515 [1st Dept 2020] ).
The Appellate Division also held that the provision of the order of protection prohibiting him from discussing petitioner or the case with anyone familiar with petitioner did not violate his First Amendment right to freedom of speech. Respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages was not protected by the First Amendment, because those repeated and unwanted communications served no legitimate purpose.
Family Court was required to confirm foreign child support order, and dismiss petition to vacate registration where he failed to establish lack of personal jurisdiction over him by Swiss Court, a defense under Family Court Act § 580–607(a).
In Alava v Caceres, --- N.Y.S.3d ----, 2021 WL 2459350 (Mem), 2021 N.Y. Slip Op. 03903 (1st Dept., 2021) the Appellate Division affirmed an order which dismissed the petition to vacate registration of a foreign child support order. It held that the father failed to meet his burden in proving that the Swiss court, a signatory to UIFSA, failed to establish personal jurisdiction over him, a defense under Family Court Act § 580–607(a). He admitted that he was advised by the Swiss court of the support proceedings pending against him and asked to provide a Swiss contact for further notifications in lieu of service via publication, which he failed to do, even though he was engaged in custody litigation in Switzerland at the time and was represented by counsel in those proceedings. It found hat the Swiss methods of service are consistent with our notions of procedure and due process in that he was given meaningful notice” of the foreign proceeding against him. Since the Swiss court properly exercised personal jurisdiction over the father, Family Court was required to confirm the foreign child support order, and the petition to vacate was properly dismissed.
Appellate Division, Second Department
Court may determine which parent is custodial parent based on reality of the situation. Reality of the situation, despite permitted parental access set forth in stipulation, was that plaintiff was custodial parent for child support purposes.
In Sexton v Sexton, --- N.Y.S.3d ----, 2021 WL 2558103 (Mem), 2021 N.Y. Slip Op. 04049 (2d Dept.,2021) the plaintiff commenced the action for a divorce on May 14, 2013. On October 18, 2016, the parties entered into a so-ordered stipulation that awarded the defendant legal custody of all three children and the plaintiff residential custody of all three children. The oldest child was to have parental access with the defendant at a minimum of alternating weekends. The other two children were to have parental access with the defendant on Fridays after school “until after Scouts,” every other weekend from Friday after school until Monday morning, and every Monday after school until Wednesday morning. The stipulation contained a clause that read as follows: “Given the ages of the children, even in light of the above schedule, should the children desire to not exercise the full parenting time, the children’s wishes should and must be respected.” At trial, the plaintiff testified that only the middle child was following the parental access schedule, while the other two children were not seeing the defendant at all. The plaintiff conceded that the defendant paid for certain expenses for the children. Supreme Court determined that the plaintiff was entitled to child support from the defendant because the plaintiff had residential custody of the children. The court utilized the Child Support Standards Act ( CSSA) calculation to determine that the defendant was responsible for 37.5% of the basic child support obligation, or the sum of $243 per week. However, the court concluded that there was a basis to deviate downward because the defendant readily incurred additional expenses for the children and directed the defendant to pay the sum of $175 per week in basic child support. The Appellate Division held that the Supreme Court correctly determined that the plaintiff was the custodial parent for child support purposes. The ‘custodial parent’ within the meaning of the [CSSA] is the parent who has physical custody of the child for the majority of the time (Matter of Conway v. Gartmond, 144 A.D.3d 795, 796, 41 N.Y.S.3d 90). The court may determine which parent is the custodial parent based on the reality of the situation (Riemersma v. Riemersma, 84 A.D.3d 1474, 1476, 922 N.Y.S.2d 616. Because the stipulation gave great weight to the children’s wishes, and because there was undisputed testimony that two of the three children were not following the parental access schedule, the reality of the situation, despite the permitted parental access as set forth in the stipulation, was that the plaintiff was the custodial parent for child support purposes.
Even though spouse changed character of the property from separate to marital by placing title to marital residence in both names, separate property credit not precluded when separate property transmuted into marital property.
In Philogene v Philogene, --- N.Y.S.3d ----, 2021 WL 2558027 (Mem), 2021 N.Y. Slip Op. 04045 (2d Dept.,2021) the plaintiff and the defendant were married on August 5, 2005. There were no children of the marriage. The defendant purchased the marital residence in 1993, and transferred the property into both parties’ names in 2006. On or about November 12, 2013, the plaintiff commenced the action for a divorce. Supreme Court, inter alia, awarded the plaintiff half of the stipulated appreciation in the value of the marital residence, in effect, determining that the defendant was entitled to a separate property credit for her contribution of separate property towards the creation of the marital residence as marital property. The Appellate Division affirmed. It held that Supreme Court providently exercised its discretion in awarding the defendant a credit, equal to the stipulated valuation of the marital residence as of March 2006, for her contribution of separate property towards the creation of marital property Even though the defendant changed the character of the property from separate property to marital property by placing the marital residence in both parties’ names, a separate property credit is not precluded as a matter of law when separate property has been transmuted into marital property.
Property acquired during marriage is presumed to be marital and party seeking to overcome presumption has burden of proving property in dispute is separate. Self-serving testimony, without more, is insufficient.
In Parkoff v Parkoff, --- N.Y.S.3d ----, 2021 WL 2558022, 2021 N.Y. Slip Op. 04025 (2d Dept.,2021) the parties were married on August 29, 1965, and had one emancipated child. At the time the trial commenced in 2015, both parties were 71 years old. In 1989, the defendant told the plaintiff that she wanted a divorce, and the plaintiff proceeded to unilaterally divide the parties’ bank accounts. However, no divorce action was commenced, and the parties continued to reside together. From that time forward, the plaintiff gave the defendant $1,400 per month to pay for food expenses, dry cleaning, and household expenses. The defendant used funds from her individual accounts for additional household expenses, including her clothing and psychotherapy, for which the plaintiff did not pay, and some of the expenses for the parties’ daughter. On October 23, 2012, after more than 47 years of marriage, the plaintiff commenced the action for a divorce. After the trial, Supreme Court, inter alia, equitably distributed the parties’ marital property equally, determined that the plaintiff’s shares of Verizon and Exxon Mobil stock were not his separate property, valued the parties’ investment accounts as of the commencement date of the action, and failed to award the defendant statutory interest on the funds held in the plaintiff’s investment accounts.
The Appellate Division affirmed. It held that there was no basis for an unequal distribution of marital assets. Supreme Court properly considered the relevant factors and took into consideration its findings that the defendant was credible, while the plaintiff’s testimony lacked credibility (see Greenberg v. Greenberg, 162 A.D.3d at 873, 81 N.Y.S.3d 58). While the plaintiff contended that the parties’ economic partnership terminated in 2001, mandating an unequal division of the marital assets, there was no merit to this contention. From 2001 until the commencement of the action, the parties continued to reside together, the plaintiff continued to provide the defendant with $1,400 monthly to pay for certain household expenses, the plaintiff continued to prepare and file the parties’ joint tax returns, the defendant prepared dinners for the plaintiff and took care of the household, and the plaintiff accompanied the defendant to two work-related award ceremonies, celebrated holidays with the defendant’s family, and attended some concerts with the defendant. Moreover, the defendant was the primary caretaker for the parties’ daughter and worked for all but approximately four years during this 47–year marriage, during which the parties amassed a substantial marital estate. While the parties maintained separate finances, under these circumstances, the economic decisions made by the parties should not be second-guessed by the court (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62; Achuthan v. Achuthan, 179 A.D.3d at 757, 117 N.Y.S.3d 667).
The Appellate Division held that Supreme Court providently exercised its discretion in determining that the plaintiff’s shares of Verizon and Exxon Mobil stock that were acquired during the marriage were marital property. Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. The plaintiff’s self-serving testimony, without more, was insufficient.
A finding of parental interference or alienation does not justify applying a per se rule requiring a change of custody, or even a rebuttable presumption that custody should be changed. It constitutes one fact, albeit an important one, in determining the best interests of the child.
In Matter of Brown v Simon, --- N.Y.S.3d ----, 2021 WL 2447400, 2021 N.Y. Slip Op. 03831(2d Dept.,2021) the Appellate Division observed that a child’s preference for a particular parent, while a factor to be considered, cannot be determinative. In weighing a child’s expressed custody preference, “the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. This is particularly true where there is evidence that the child’s feelings were fostered by the custodial parent’s hostility towards the noncustodial parent. The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children.
The record demonstrated that the child’s view of her mother was the result of her father’s negative influence. The child’s relationship with her mother plainly deteriorated during the periods when she was in the father’s custody, and the child has become strongly invested in pleasing solely her father. As the Family Court determined, the record was replete with examples of alienating behavior engaged in by the father. The record indicated that the father discussed these court proceedings with the child, and there was evidence that the child was actually instructed by her father to make false allegations against her older sister. The weight of the evidence established that the father’s numerous unfounded allegations of sexual assault undermined the mother’s attempts to form and maintain a relationship with the child. Given the father’s overt and public hostility towards the mother, it would be surprising indeed if the child was eager after her enforced separation to return to her mother. Under the circumstances, the expressed wishes of the child were, without more, insufficient to warrant the heavy restrictions imposed on the mother’s parental access award. The Family Court’s decision to formally restrict the mother’s legal right of access to supervised parental access with the child lacked a sound and substantial basis in the record. The record demonstrates that it is in the child’s best interest to have liberal, unsupervised parental access with the mother.
The Appellate Division rejected the mother’s argument that Family Court should have awarded her physical custody of the child. It held that a finding of parental interference or alienation does not justify applying a per se rule requiring a change of custody, or even a rebuttable presumption that custody should be changed. Rather, such a finding constitutes one fact, albeit an important one, in determining the best interests of the child. The record supported the mother’s contention that the father had been unable to place the needs of the child before his own need to express anger and hostility toward the mother, and that he was unable to foster a continuing relationship between the mother and the child. However, it agreed with the Family Court that physical custody of the child should nevertheless remain with the father. The record, including the expert evidence, established that it would be traumatic for the child to have the stability of her home life disrupted after so many years by transferring custody to the mother while the child still deeply mistrusts her. The award of joint legal custody to the parties was appropriate under the circumstances of this case
A person has right to assistance of counsel in any matter before Supreme Court, under circumstances where, if proceeding was pending in Family Court, the court would be required by FCA §262, to appoint counsel. The standard for effective assistance of counsel is whether, viewed in its totality, there was meaningful representation.
In Winter v Winter, --- N.Y.S.3d ----, 2021 WL 2447437, 2021 N.Y. Slip Op. 03865 (2d Dept.,2021) the Appellate Division reversed an order which held the plaintiff in contempt for wilful violation of a 2013 support order. It held that the plaintiff was denied effective assistance of counsel. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if the proceeding was pending in the Family Court, the court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 order and sought his incarceration (see Judiciary Law § 35[8]; Family Ct Act § 262). The standard for effective assistance of counsel in such cases is whether, viewed in its totality, there was meaningful representation. Here, the plaintiff’s attorney failed to present any medical evidence, whether in the form of admissible medical records or testimony of medical witnesses, to support the plaintiff’s defense that his failure to pay child support in accordance with the 2013 order was not wilful, but rather due to his medical condition which rendered him unable to work. The failure of the plaintiff’s attorney to obtain the relevant medical information that may have supported the plaintiff’s defense constituted a failure to meaningfully represent the plaintiff, and the plaintiff was therefore entitled to a new hearing.
In determining a motion to dismiss in a family offense proceeding for failure to establish a prima facie case the evidence must be accepted as true and credibility is irrelevant.
In Matter of Prince v Ford, --- N.Y.S.3d ----, 2021 WL 2345917 (Mem), 2021 N.Y. Slip Op. 03591(2d Dept.,2021) the petitioner filed an amended family offense petition against the respondent, her adult son, alleging, inter alia, that on certain dates between 2015 and 2019, the respondent had struck and slapped her, causing her pain and injury, cursed at her, taken her belongings, and collected her mail and her tenants’ rent without her permission. The Family Court held a hearing, and at the close of the petitioner’s case, granted the respondent’s motion to dismiss for failure to establish a prima facie case. The Appellate Division reversed. It held that in a family offense proceeding, the petitioner has the burden of establishing that the charged conduct was committed as alleged in the petition by a fair preponderance of the evidence (Family Ct Act § 832). In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom. The question of credibility is irrelevant, and should not be considered. Family Court failed to properly apply this standard. Viewing the petitioner’s evidence in the light most favorable to her, and accepting the evidence as true, it established a prima facie case. It held that respondent’s motion to dismiss the amended petition for failure to establish a prima facie case should have been denied.
Father neglected child where he falsely reported on multiple occasions that mother was sexually abusing child, allegations were made in presence of child, and he encouraged child to corroborate false allegations.
In Matter of Isabela P v Jacob P, --- N.Y.S.3d ----, 2021 WL 2345995, 2021 N.Y. Slip Op. 03590 (2d Dept.,2021) the Appellate Division affirmed the Family Court’s determination, made after an evidentiary hearing, that the father neglected the child. The evidence supported the court’s determination that the father falsely reported on multiple occasions in 2015 and 2017 that the mother was sexually abusing the child, that these allegations were made in the presence of the child, and that the father encouraged the child to corroborate these false allegations. The false reports resulted in the child being interviewed by detectives, social workers, and attorneys, and exposed her to the possibility of intrusive physical examinations. The evidence further supported the court’s determination that the father knew the allegations to be false when he made them, and that he intended to continue making false reports of sexual abuse against the mother. Overall, the father’s repeated allegations, which he made in an effort to damage the mother’s relationship with the child, presented an imminent danger of emotional impairment to the child and did not meet the minimum degree of care required of a reasonable and prudent parent.
Court not required to release child to father after permanency hearing where no showing that he was unfit or other extraordinary circumstances. Determinations following permanency hearing must made in accordance with best interests and safety of child.
In Matter of Savrina M.A. v Yana A, --- N.Y.S.3d ----, 2021 WL 2345963 (Mem), 2021 N.Y. Slip Op. 03583 (2d Dept.,2021) an abuse and neglect proceeding, the Appellate Division affirmed a permanency hearing order which, inter alia, continued the child’s placement until the completion of the next permanency hearing or pending further order of the Family Court and approved the continued permanency goal of reunification with parent(s). It rejected the father’s argument that there was no showing that he was unfit or other extraordinary circumstances and the court should have immediately released the child to his care. The Appellate Division observed that at the conclusion of each permanency hearing, Family Court enters an order of disposition, schedules a subsequent hearing, and may also consider whether the permanency goal should be approved or modified (Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d 275, 283). The court may direct that the placement of the child be terminated and the child returned to the parent, place the child in the custody of a fit and willing relative or other suitable person, or continue the placement of the child until the completion of the next permanency hearing. (Family Ct Act § 1089[d]). The court’s determinations following a permanency hearing must made in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent. The court must begin by weighing past and continued foster care against discharge to the biological parent (Matter of Michael B., 80 N.Y.2d 299). The fitness of the biological parent must be a primary factor. The court must also consider the agency’s plan for the child, what services have been offered to strengthen and reunite the family, what reasonable efforts have been made to make it possible for the child to return to the natural home, and if return home is not likely, what efforts have been or should be made to evaluate other options. Finally, the court should consider the more intangible elements relating to the emotional well-being of the child, among them the impact on the child of immediate discharge versus an additional period of foster care. The child’s emotional well-being must be part of the equation, parental rights notwithstanding. Great deference is accorded the Family Court, which saw and heard the witnesses, and its findings will not be disturbed unless they lack a substantial basis in the record.
Appellate Division, Third Department
Not abuse of discretion to award $20,000 to the wife as wasteful dissipation credit based upon husband’s expenditures for escort services, exotic massage parlors, hotel and spa expenses. DRL § 236(B)(5)(d) factors do not have to be specifically cited when findings of court adequately articulate they were considered.
In Ramadan v Ramadan, --- N.Y.S.3d ----, 2021 WL 2367686, 2021 N.Y. Slip Op. 03636(3d Dept.,2021) Plaintiff (wife) and defendant ( husband) were married in February 2010 and had two children (born in 2011 and 2014). In August 2016, the wife commenced the action for divorce. Following trial Supreme Court, granted the wife a divorce, equitably distributed the parties’ marital property, awarded child support to the wife and denied the parties’ respective requests for counsel fees. A judgment of divorce was entered in December 2018. The court thereafter entered a qualified domestic relations order (QDRO).
The Appellate Division rejected he husband’s assertion that reversal was required because Supreme Court’s decision did not reflect that the court considered the factors set forth in Domestic Relations Law § 236(B)(5)(d). The court’s findings revealed that the court considered the trial testimony and documentary evidence, as well as the relevant statutory factors. To the extent that the court did not cite to each factor in its decision, they do not have to be specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered.
The husband argued that he should have been awarded a credit based upon monies used to pay some of the wife’s separate debts. If marital assets are used to reduce one party’s separate indebtedness, the other spouse can recoup his or her equitable share of the expended marital funds. The Appellate Division held that he was entitled to a credit for marital funds used to pay the wife’s student debt, and a mortgage related to real property which was the wife’s separate property.
The wife testified that she discovered financial records and statements that caused her to conclude that the husband had contacted escort services and went to exotic massage parlors. When confronted about these expenses, his explanations consisted mainly of an inability to recall them. The husband also attempted to justify his hotel and spa expenses as family vacations, needing to get away due to marital difficulties or hosting friends, but Supreme Court apparently did not credit his testimony The Appellate Division held that the court did not abuse its discretion in awarding $20,000 to the wife as a wasteful dissipation credit based upon the husband’s expenditures.
Supreme Court may, either before or after the appeal is resolved, award appellate counsel fees to enable a spouse to defend an appeal. Court should review financial circumstances of both parties with all other circumstances of the case, which may include the relative merit of the parties’ positions.
In Curley v Curley, --- N.Y.S.3d ----, 2021 WL 2367679, 2021 N.Y. Slip Op. 03638 (3d Dept.,2021) in 2013, plaintiff (wife) obtained a judgment of divorce against defendant (husband). The husband appealed (first appeal), and the Court reversed, in part, and remitted the matter for further proceedings. While the first appeal was pending, the husband moved, inter alai, to restrain the distribution of funds held in escrow from the sale of the marital residence contending that the wife fraudulently withdrew funds from that account. The wife argued that the motion was frivolous, and cross-moved for sanctions. Supreme Court denied the motion, finding it to be frivolous, and, as a sanction, granted the wife counsel fees. The husband appealed and the Court affirmed. In September 2015, the wife moved for an order, inter alia, directing him to pay for storage and disposal of personal property. Supreme Court granted the motion, and the husband appealed. The Court affirmed. After the husbands second appeal had been decided and while his third appeal was pending, the wife moved for counsel fees incurred in defending the second and third appeals. The husband opposed the motion and cross-moved for counsel fees. Supreme Court granted the wife’s motion, denied the husband’s cross motion and determined to impose a sanction upon the husband for bringing his cross motion for counsel fees. Following a hearing, Supreme Court awarded the wife $21,450 in counsel fees and disbursements associated with defending the second and third appeals and related motion practice and imposed a $1,500 sanction upon the husband.
The Appellate Division affirmed. It held that Supreme Court may, either before or after the appeal is resolved, award appellate counsel fees to enable a spouse to defend an appeal. In exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions.” The order appealed from reflected that Supreme Court largely based its award of counsel fees to the wife upon its assessment that the appeals were frivolous and wholly without merit, an assessment that was supported by the record. The order also reflected that Supreme Court properly considered the parties’ respective financial circumstances, including the amount of legal services billed in connection with the appeals and related motion practice, and reasonably concluded that the parties’ relative net worth’s supported an award of counsel fees to the wife. Although the husband did not challenge the amount of counsel fees awarded, the record demonstrated that, in crafting its award, Supreme Court thoroughly and carefully examined the billing records and testimony received from the wife’s attorney. It discerned no abuse of discretion in Supreme Court’s determination.
Appellate Division, Fourth Department
Akin to abatement rule that applies in divorce action, support action, including any related claim for attorneys’ fees, abates upon decedent’s death
In Bomer v Dean, --- N.Y.S.3d ----, 2021 WL 2471033, 2021 N.Y. Slip Op. 03937(4th Dept.,2021) the Appellate Division agreed with defendant that, under the circumstances of this case, a 2014 support action and a 2016 divorce action abated upon decedent’s death, precluding the court from taking any further measures in either action. It is well settled that a divorce action abates upon the death of either party to the action because the marital relationship ceases to exist at that time (see Cornell v. Cornell, 7 N.Y.2d 164 [1959]. When abatement occurs, the court lacks jurisdiction to act. The abatement rule also typically applies to ancillary issues, such as maintenance and attorneys’ fees sought in a divorce action, which are “necessarily dependent on the existence of a divorce action” and, with respect to those issues, applies regardless of which spouse, payee or payor, has died. There are, however, some exceptions to the rule that divorce actions abate upon the death of a party. Specifically, courts have recognized that abatement does not occur when a party’s rights have vested prior to the death or when all that remains to be done in the action following a party’s death is for the court to effectuate a ministerial act. Here, neither exception applied with respect to the 2016 divorce action inasmuch as decedent had not acquired any vested rights with respect to maintenance or attorneys’ fees, nor were only ministerial acts remaining in that action.
The Appellate Division concluded that the 2014 support action, including any related claim for attorneys’ fees, also abated upon decedent’s death and should have been dismissed. Akin to the abatement rule that applies in the context of a divorce action, it noted that any order of support terminates upon the death of either party (see Family Ct Act § 412 [10] [d]). Inasmuch as no order of support was ever entered on decedent’s behalf with respect to the 2014 support action, it concluded that decedent did not acquire any vested rights to spousal support or any other ancillary relief in that action prior to her death, and therefore that action fully abated upon decedent’s death.
Failure to include transcripts and relevant papers related to ruling in record on appeal precludes review by Appellate Division
In Lapoint v Claypoole, --- N.Y.S.3d ----, 2021 WL 2471012 (Mem), 2021 N.Y. Slip Op. 03947(4th Dept.,2021) the Appellate Division rejected defendant’s contention that the court erred in failing to award him credits for certain carrying costs and expenses relating to the repair and sale of the marital home. To the extent that defendant challenged the court’s ruling that documentary evidence regarding those expenses was inadmissible, defendant failed to include the transcripts and relevant papers related to that ruling in the record on appeal, and therefore he, as the appellant, must suffer the consequences of having submitted an incomplete record.
AFC properly informed court of child’s wishes and advocate for a result different from the child’s position where mother’s persistent and pervasive pattern of alienating child from father was likely to result in a substantial risk of imminent, serious harm to the child.
In Matter of Vega v Delgado, --- N.Y.S.3d ----, 2021 WL 2471097 (Mem), 2021 N.Y. Slip Op. 03956 (4th Dept., 2021) the Appellate Division affirmed an order which awarded sole custody and primary physical residency of the child born in 2009 to respondent father, with visitation to the mother. It held that contrary to the mother’s contention, the Attorney for the Child (AFC) did not improperly substitute her judgment for that of the child by advocating a position that was contrary to the child’s express wishes. An AFC must zealously advocate the child’s position (22 NYCRR 7.2 [d]) and, if the child is capable of knowing, voluntary and consider] believes that what the child wants is not in the child’s best interests (22 NYCRR 7.2 [d] [2]; see Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680, 12 N.Y.S.3d 684 [4th Dept. 2015]). Where, however, 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, the AFC is justified in advocating a position that is contrary to the child’s wishes” (22 NYCRR 7.2 [d] [3]). The record supported the determination that the mother’s persistent and pervasive pattern of alienating the child from the father was likely to result in a substantial risk of imminent, serious harm to the child. It concluded that the AFC acted in accordance with her ethical duties by informing the court of the child’s wishes and then advocating for a result different from the child’s position.
Supreme Court
Notary’s completion of the certificate of acknowledgment to separation agreement within 4 days of execution was sufficiently timely so as to be legally valid under Executive Order No. 202.7.
In Ryerson v Ryerson, --- N.Y.S.3d ----, 2021 WL 2656884, 2021 N.Y. Slip Op. 21172 (Sup Ct, 2021) Supreme Court denied defendants motions to declare a March 29, 2020 separation agreement between the parties to be null and void for lack of a proper acknowledgment. The parties engaged McCoskery, who was a notary, to act as a mediator in assisting them in resolving matters attendant to their divorce. McCoskery prepared a separation agreement and emailed it to both parties for their review. Because the Governor had declared a state of emergency on March 7, 2020 and authorized the provision of notarial services by audio-video technology in Executive Order No. 202.7, McCoskery and the parties arranged for the separation agreement to be executed by them under his supervision via Zoom video conferencing and McCoskery would complete the acknowledgment of their signatures in accordance with Executive Order No. 202.7. The defendant contended that the signed agreement had to be electronically sent to McCoskery on the day the parties signed it in order for the acknowledgment to be legally valid under Executive Order No. 202.7. According to that Order, once the agreement was signed during the video conference a legible copy of the signed agreement was to be “transmit[ted] by fax or electronic means . . .directly to the Notary on the same date it was signed.” Here, because the agreement was mailed on the date it was signed and McCoskery completed the acknowledgment on a different date, the defendant asserted that the entire agreement must be declared legally invalid. Supreme Court held that McCoskery’s completion of the certificate of acknowledgment to the separation agreement within four days of the parties’ execution of that agreement was sufficiently timely so as to be legally valid and the agreement was not rendered invalid or void by that lapse of time.
When Judge acts as a fact finder Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge
In Gary G., v. Elena A.G., 2021 WL 2546596 (Sup Ct., 2021) the action was commenced in 2015 and during the trial the Court recused herself from the case and in 2019, the case was transferred Queens County to this Justice in his capacity as the Statewide Coordinating Judge for Matrimonial Cases. Supreme Court observed that Judiciary Law § 21 provides that, except in appellate courts, a Judge “shall not decide or take part in the decision of a question which was argued orally in the court, when he was not present and sitting therein as a judge.” In interpreting this provision, the Court of Appeals and Appellate Divisions of the First and Second Department have ruled that the statute does not preclude a successor Judge from determining a motion argued before another Judge so long as purely legal questions are involved (People v Hampton, 85 AD3d 1055, 1056 [2011], affd 21 NY3d 277 [2013]; Plunkett v Emergency Med. Serv. of NY City, 234 AD2d 162, 163 [1996]). Similarly, Judiciary Law § 21 “does not prevent the substitution of a Judge in a jury trial since the ultimate determination of guilt or innocence belongs to the jury and not the Trial Judge” (People v Thompson, 90 NY2d 615, 621 [1997]). However, it necessary follows from these rulings that when a Judge acts as a fact finder and is required to weigh the credibility of witnesses, Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge (People v Massey, 191 AD3d 1488 [2021]; People v Banks, 152 AD3d 816, 818 [2017]; Matter of Connelly-Logal v West, 272, AD2d 920 [2000]; Matter of Fellows v Fellows, 25 AD2d 865 [1966]). In such cases, a new hearing or trial before the successor Judge is required. Here, the issues before the Court during the hearing that she presided over were not purely legal in nature. The Court was acting as a fact finder and was required to weigh the credibility of the witnesses who testified before her. Under the circumstances, the court was precluded by Judiciary Law § 21 from taking judicial notice of the prior testimony before and continuing on with the hearing. Instead, a de novo hearing had to be conducted before this court.
June 16, 2021
Appellate Division, First Department
Family Court providently exercised its discretion in determining motion for costs and sanctions based on parties’ written submissions on the motion, which included documentary evidence and the parties’ sworn statements
In Matter of Kyraicos L v Hyunjung K.,--- N.Y.S.3d ----, 2021 WL 2148519 (Mem), 2021 N.Y. Slip Op. 03379 (1st Dept, 2021) the Appellate Division affirmed an order which granted the father’s motion for an award of counsel fees and sanctions against respondent mother. The mother did not advance any persuasive argument that her conduct was not frivolous or in bad faith, or was not designed to “harass or maliciously injure another”. The mother engaged in a comprehensive pattern of harassment against the father and his wife, by among other things, actively frustrating and impairing the father’s efforts to maintain a relationship with the parties’ child, and by repeatedly making false accusations of sexual abuse against the father and his wife which resulted in both criminal and child protective investigations being initiated against them. These allegations were thoroughly investigated and determined to be unfounded. Nevertheless, the mother persisted in repeating these allegations in subsequent unfounded claims. She also obstructed the father and his wife’s visitation with the child in violation of court orders and threatened and harassed them. The mother also filed numerous factual and legally baseless motions to hold the father’s wife and the attorney for the child in contempt of court. Under the circumstances, particularly where the mother exhibited a pattern of bad faith conduct throughout the proceedings despite repeated warnings not to do so, the sanctions imposed by the Family Court were entirely proper. The Family Court providently exercised its discretion in determining the father’s motion for costs and sanctions based on the parties’ written submissions on the motion, which included documentary evidence and the parties’ sworn statements.
Appellate Division, Second Department
Court erred in directing each party shall be responsible for unreimbursed medical, dental, pharmaceutical, and therapy expenses for parties’ child incurred by whichever party incurs the cost on behalf of the child
In Turisse v Turisse, --- N.Y.S.3d ----, 2021 WL 2125369, 2021 N.Y. Slip Op. 03343 (2d Dept. ,2021) the parties were married on March 2, 2012, and had one child together, who was born in 2012. On April 14, 2014, the plaintiff husband commenced the action seeking, inter alia, a divorce. By judgment of divorce entered August 16, 2018, the Supreme Court, among other things, granted a divorce, awarded the plaintiff custody, awarded the plaintiff child support commencing as of June 15, 2018, directed that each party shall be responsible for the unreimbursed medical, dental, pharmaceutical, and therapy expenses for the parties’ child incurred by whichever party incurs the cost on behalf of the child, directed that each party shall retain any marital assets in their individual names.
The Appellate Division observed that a less-monied spouse should not be expected to exhaust all, or a large portion, of available finite resources available, particularly where the more affluent spouse is able to pay his or her own legal fees without any substantial lifestyle impact. It held that Supreme Court improvidently exercised its discretion in awarding attorney’s fees to the plaintiff of $81,795.29. The defendant was the less-monied spouse, and the award had the effect of exhausting all of the defendant’s available resources. Moreover, the plaintiff was able to pay his own legal fees.
The Court noted that an order of child support is automatically retroactive to the date of the application therefor. The award of child support should have been made retroactive to the date of the commencement of this action, when he first requested child support, and that the court should have determined, as an add-on expense, the parties’ obligations as to child care expenses incurred by the plaintiff while this action was pending. It modified and remitted the matter to the Supreme Court, for the calculation of child support arrears, including the costs of child care incurred by the plaintiff while this action was pending.
The Appellate Division held that Supreme Court erred in directing that each party shall be responsible for the unreimbursed medical, dental, pharmaceutical, and therapy expenses for the parties’ child incurred by whichever party incurs the cost on behalf of the child. Responsibility for future reasonable unreimbursed health care expenses shall be prorated in the same DRL § 240[1–b] [c][5][v]). It modified the judgment to direct that the defendant be responsible for 49% and the plaintiff be responsible for 51% of the child’s unreimbursed medical, dental, pharmaceutical, and therapy expenses, the same proportion that the parties’ incomes are to the combined parental income.
Error to direct parties to equally share costs incurred for father’s supervised therapeutic parental access without evaluating parties’ “economic realities.”
In Matter of Livesey v Gulick, --- N.Y.S.3d ----, 2021 WL 2125555, 2021 N.Y. Slip Op. 03321 (2 Dept.,2021) the Appellate Division affirmed an order of custody and parental access which, inter alia, limited the father’s parental access with the children to supervised therapeutic parental access but vacated that part of the order that directed the parties to equally share the costs incurred for the father’s supervised therapeutic parental access without evaluating the parties’ “economic realities,” including the father’s ability to pay and the actual cost of each visit. It remitted the matter to the Family Court for a hearing to resolve those issues, and a determination regarding the parties’ respective shares of the costs for the father’s supervised therapeutic parental access.
Error to dismiss petition for upward modification of child support with prejudice. Family Court has continuing jurisdiction to modify.
In Rodriguez v Starks, --- N.Y.S.3d ----, 2021 WL 2125503, 2021 N.Y. Slip Op. 03325 (2d Dept.,2021) the Appellate Division held that Family Court should have granted the mother’s objection to that part of the Support Magistrate’s order as provided that the dismissal of her petition for an upward modification of the father’s child support obligation was with prejudice to the filing of any subsequent petition for modification of child support. The Family Court has continuing jurisdiction to modify a prior order of child support pursuant to Family Court Act § 451.
Family Court properly granted father’s motion, in effect, for summary judgment on issue of whether mother committed family offense on basis of her conviction in Justice Court which arose out of the same conduct as alleged in the petition.
In Matter of Parker v Parker, 2021 WL 2213403 (2d Dept., 2021) on June 25, 2019, the mother was convicted of harassment in the second degree in the Justice Court, Town of Newburgh, arising out of an incident that occurred on December 28, 2018, involving the child. The mother was sentenced to a conditional discharge upon the condition, inter alia, that she comply with a one-year order of protection directing her to refrain from committing certain acts against the child. The order of protection was “subject to modification by a Supreme Court or Family Court Judge.” On June 27, 2019, the father filed a family offense petition on behalf of the child in the Family Court, seeking, inter alia, an order of protection directing the mother to stay away from the child. At a hearing the court granted the father’s motion, in effect, for summary judgment on the issue of whether the mother committed a family offense on the basis of her conviction of harassment in the second degree, which arose out of the same conduct as alleged in the petition. The court issued an order of protection directing the mother to, among other things, stay away from the child for a period of two years, except during therapeutic family counseling. The Appellate Division affirmed. It held that Family Court and criminal courts have concurrent jurisdiction over proceedings involving the alleged commission of certain enumerated crimes when allegedly committed by one family member against another, i.e., family offenses, and a petitioner may pursue relief for the same acts in either or both forums (see Family Ct Act §§ 812[1][a]; 813[3]; CPL 100.07) Family Court properly proceeded to conduct a dispositional hearing upon the granting of the father’s motion, in effect, for summary judgment on the issue of whether the mother committed a family offense against the child.
Appellate Division, Third Department
Release from incarceration combined with a prior order that bases custody or visitation on a condition no longer in existence may warrant a finding of a change in circumstances
In Matter of Leah v Jose U, --- N.Y.S.3d ----, 2021 WL 2229707, 2021 N.Y. Slip Op. 03505 (3d Dept.,2021) a custody modification proceeding, the Appellate Division held that although release from incarceration is generally not enough on its own, such release combined with a prior order that bases custody or visitation on a condition no longer in existence may warrant a finding of a change in circumstances. Upon its review of the record, including that the prior order was based on the father’s incarceration and limited his contact with the children due to that circumstance, it found such a change.
Appellate Division, Fourth Department
“Dwelling place”’ is one at which party to be served is actually residing at the time of delivery and “usual place of abode” is place at which party lives with degree of permanence and stability and to which he or she intends to return
In Matter of William A, 192 A.D.3d 1474, 144 N.Y.S.3d 263, 2021 N.Y. Slip Op. 01580 (4th Dept., 2021) after being unable to locate the mother to deliver the summons and petition to her personally petitioner applied for an order permitting substituted service (Family Ct Act § 1036 [d]). Despite the order permitting service pursuant to CPLR 308 (4), petitioner attempted to serve the mother pursuant to CPLR 308 (2) by serving a person over the age of 18 at the address listed in that order, i.e., the alleged “dwelling house or usual place of abode” of the mother, and thereafter mailing the documents “by prepaid, first class mail.” The affidavit of service did not identify the address used for the mailing. The mother’s attorney moved to dismiss the petition against the mother for lack of personal jurisdiction, contending, inter alia, that the mother never lived at the residence where service was attempted and that the affidavit of service failed to identify the address to which the documents were mailed. The Appellate Division held that the court erred in denying the mother’s motion. Regardless of whether service was made pursuant to CPLR 308 (2) or (4), both subdivisions require that the initial act, i.e., the delivery or affixing of the summons, respectively, be made at the party’s actual dwelling place or usual place of abode. A dwelling place’ is one at which the party to be served is actually residing at the time of delivery and the usual place of abode is a place at which the party lives with a degree of permanence and stability and to which he or she intends to return. Both subdivisions require the requisite documents to be mailed to the party’s last known residence or actual place of business. Jurisdiction is not acquired pursuant to CPLR 308 (2) or (4) unless there has been strict compliance with both the delivery and mailing requirements. Although ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit. It held that petitioner failed in the first instance to establish that the documents were mailed to the mother’s last known address inasmuch as the affidavit of service says that the papers were mailed by prepaid, first class mail without identifying the address” to which they were mailed. In any event, even assuming, arguendo, that the process server’s affidavit was sufficient to create the presumption of valid service, the mother’s submissions were sufficient to rebut that presumption.
Surrogates Court
DRL § 110 does not contemplate a husband adopting his wife or a wife adopting her husband
In Matter of the Adoption of Diane B., 2021 WL 2277308 (Table), 2021 N.Y. Slip Op. 50517(U) (Sur. Ct., Essex Co) the court denied the petition of James D., who sought to adopt Diane B., his spouse. The petition specifically alleged that both parties are “married . . .and living together.” Both James D. and Diane B. signed the petition, Diane B. doing so as both adoptee and consenting spouse. Pursuant to Domestic Relations Law § 110, an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person. This language does not contemplate a husband adopting his wife or a wife adopting her husband. James D. did not have standing to adopt Diane B., his wife, nor was Diane B. a person who may be adopted by James D., her husband.
June 1, 2021
Appellate Division, Second Department
Party claiming an investment account was actively managed has the burden of proof with respect to the claim. Expenses of leisure, extracurricular and enrichment activities are encompassed within the basic child support award. A court can order a parent to pay these expenses over and above basic child support, but it is a deviation from the basic statutory formula and requires an analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f).
In Sinnott v Sinnott, --- N.Y.S.3d ----, 2021 WL 1901679, 2021 N.Y. Slip Op. 03073 (2d Dept,2021) the parties were married in 1989, and were the parents of one child born in 2003, as well as two emancipated children. The plaintiff commenced this action on February 16, 2016, by filing a summons and complaint. Pursuant to a so-ordered custody and parenting stipulation, the plaintiff had sole legal and residential custody of the child. The defendant appealed from so much of the judgment as denied him a separate property credit of $937,000, (2) directed him to pay child support and add-on expenses until the child reached the age of 22 years and six months under stated circumstances, (3) directed him to pay 80% of the child’s private high school tuition, fees, books, supplies, materials, class trips, enrichment activities, and all school-related expenses, and (4) directed that certain investment accounts be equally divided between the parties without specifying a date of valuation for those accounts or limiting distribution only to marital property. The plaintiff cross-appealed from so much of the judgment as (1) directed the defendant to pay child support of only $4,281.44 per month and only 80% of add-on expenses for the child, (2) declined to make the award of maintenance and child support retroactive to the date of commencement of the action, (3) declined to direct the defendant to pay the cost of health insurance for the plaintiff, and (4) declined to direct the defendant to obtain or maintain life insurance in an amount sufficient to secure his support obligations.
The defendant contended on appeal that the Supreme Court erred by failing to direct that the plaintiff’s investment accounts should be valued as of the date of commencement of the action, and that only marital property in those accounts should be subject to equitable distribution. The valuation date of a marital asset may be set “anytime from the date of commencement of the action to the date of trial. The court failed to set forth the valuation date for the investment accounts . The party claiming that an account was actively managed, or contained separate property not subject to equitable distribution, has the burden of proof with respect to those claims. The defendant failed to provide evidence as to whether the accounts in question were actively managed or passive. The Supreme Court therefore did not improvidently exercise its discretion in treating those accounts, in effect, as passive accounts, by its direction that the accounts be liquidated within 30 days from the entry of the decision after trial and that the resulting proceeds be divided 50–50. However, since assets must be valued at a date not earlier than an action’s commencement nor later than the trial it modified modify the judgment to the extent of directing that the accounts be valued as of August 28, 2018, the first date of trial.
The Appellate Division held that the Supreme Court made numerous errors when calculating the defendant’s basic child support obligation under the Child Support Standards Act (CSSA). Supreme Court incorrectly calculated his gross income for 2017. The defendant’s gross (total) income as should have been ... reported in the most recent federal income tax return was $1,037,044, and, the defendant’s gross income for CSSA purposes was $1,061,044.25. The defendant’s income for CSSA purposes was $975,399.57. The plaintiff’s income for CSSA purposes was $78,000 per year. The defendant’s share of the basic annual support obligation was 92.6% of $25,160 or the annual sum of $23,298.16. It modified the judgment of divorce to direct the defendant to pay the plaintiff $4,591.42 per month in basic child support.
Regarding the add-on for uncovered, unreimbursed medical and related expenses, responsibility for future reasonable unreimbursed health care expenses shall be prorated in the same proportion or percentage as each parent’s income bears to the combined parental income. It modified the judgment of divorce to provide that the defendant’s pro rata share of the child’s uncovered, unreimbursed medical and related expenses was 92.6%, the same proportion as his income was to the combined parental income
The Appellate Division noted that education expenses are not directly connected to the basic child support calculation” and are not necessarily prorated in the same proportion or percentage as each parent’s income bears to the combined parental income. Supreme Court did not improvidently exercise its discretion by directing the defendant to pay 80% of the child’s tuition at Marymount High School of New York, or a similar private high school, nor by requiring the defendant to pay 80% of the child’s fees, books, supplies, and materials.
The Appellate Division held that Supreme Court improvidently exercised its discretion by directing the defendant to pay 80% of the child’s class trips, enrichment activities, and all other school related expenses. Basic child support, when calculated properly, is presumed to meet all the child’s basic needs. Thus, the expenses of leisure, extracurricular and enrichment activities, such as after-school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award. A court can order a parent to pay these expenses over and above basic child support. However, if it does so, it is a deviation from the basic statutory formula and requires an analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f). Although all the factors do not have to present, the court needs to articulate its reasons for making such a deviation from basic child support and relate those reasons to the statutory paragraph (f) factors. Here, the Supreme Court did not provide a benchmark for what class trips, enrichment activities, and all other school related expenses could include and there was no cap on the total cost. In any event, under the circumstances of this case, it found that the award of basic child support was sufficient to meet these needs.
The Appellate Division held that Supreme Court improperly defendant to pay basic child-support and add-on expenses for the child after she reaches the age of 21. A parent has no legal obligation to provide for or contribute to the support of a child over the age of 21.
The Appellate Division held that Supreme Court should not have directed the defendant to pay maintenance and child support commencing on the first day of the first month following its decision after trial. A party’s maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made, which, in this case, was February 16, 2016. However, the party is also entitled to a credit for any amount of temporary maintenance and child support already paid. Here, the defendant may be entitled to credit for voluntary child support payments which were made prior to a pendente lite order dated August 16, 2017, and for voluntary maintenance payments made during the pendency of the action. In addition, he was entitled to a credit for any amount of temporary maintenance and child support which was paid pursuant to the pendente lite order. It remitted the matter to the Supreme Court, for a determination as to the amount of retroactive child support, including add-ons, and maintenance arrears from February 16, 2016, giving the defendant appropriate credits
The Appellate Division held that under the circumstances of this case, the Supreme Court should have directed the defendant to pay the plaintiff’s health insurance costs during the period the defendant is obligated to pay maintenance, and should have directed the defendant to obtain or maintain a policy of life insurance for the benefit of the plaintiff and the child in an amount sufficient to secure his maintenance, child support, and health insurance obligations.
Under UIFSA Florida retained exclusive jurisdiction over his child support obligation to the daughter, where mother died, and father remained in Florida although daughter moved to New York and under Florida law, his obligation to support the daughter ceased when she turned 18
In Matter of Nassau County Department of Social Services v Ablog, 2021 WL 1899886 (2d Dept.,2021) pursuant to a 2009 Florida judgment of divorce, the father was obligated to pay child support for the daughter “until the child attains the age of eighteen years or graduates from high school, as long as the child is progressing in school and will graduate before attaining the age of nineteen years.” The daughter resided with her mother following the judgment of divorce until February 2018, when the mother died and the father became the custodial parent. The daughter turned 18 years of age in September 2018. She moved to New York in 2019. The father continued to reside in Florida. The daughter applied for and began receiving public assistance in Nassau County. In July 2019, the Nassau County Department of Social Services filed a petition for support on behalf of the daughter. The father moved to dismiss the petition for lack of subject matter jurisdiction pursuant to the Uniform Interstate Family Support Act (UIFSA), arguing that Florida retained exclusive jurisdiction over his child support obligation to the daughter, and that under Florida law, his obligation to support the daughter ceased when she turned 18. The Support Magistrate denied the motion, finding that the subject application was not seeking to modify the father’s existing child support obligation in Florida, but, instead, was a de novo application for support. The Appellate Division reversed. It held that under the [Full Faith and Credit for Child Support Orders Act] and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” (Matter of Spencer v. Spencer, 10 N.Y.3d 60, 66, 853 N.Y.S.2d 274; see 28 USC § 1738B[d]; cf. Family Ct Act § 580–205). Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction. The federal statute defines a “modification” to mean “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B[b][8]). Under the plain language of the federal statute, the New York order of support was a “modification” of the Florida judgment. Since the father still resided in Florida, that state had continuing, exclusive jurisdiction of the child support order, despite the termination of his obligations under that order, and New York did not have subject matter jurisdiction to modify that order.
There is a rebuttable presumption that interim counsel fees shall be awarded to less monied spouse, and courts should normally grant a request made by the nonmonied spouse, in the absence of good cause to deny the request
In Tomassetti v Tomassetti, --- N.Y.S.3d ----, 2021 WL 1897796 (Mem), 2021 N.Y. Slip Op. 03075 (2d Dept.,2021) the plaintiff commenced an action for a divorce against the defendant in 2017. In April 2018, the Supreme Court awarded the plaintiff interim counsel fees of $200,000. In August 2018, the plaintiff filed a motion seeking additional interim counsel fees of $376,524. The court granted the plaintiff’s motion to the extent of directing the defendant to pay$165,000 to the plaintiff’s counsel. The Appellate Division observed that there is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse, and courts should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause to deny the request. It found that the significant disparity between the financial circumstances of the defendant, a real estate investor and developer with considerable disposable income and a net worth approaching $200 million, and those of the plaintiff could not seriously be disputed. It held that, the Supreme Court improvidently exercised its discretion in limiting, without good cause, the plaintiff’s award of additional interim counsel fees to $165,000, which was far less than the amount of legal fees the plaintiff had already incurred. It found that an award of additional interim counsel fees of $370,000 was appropriate.
Supreme Court
Contract for Preservations and Disposition of Embryos not violative of Domestic Relations Law §236(B)(3)
In K.G., v. J.G.,--- N.Y.S.3d ----, 2021 WL 2021873, 2021 N.Y. Slip Op. 21140 (Sup Ct, 2021) an action for a divorce, the plaintiff moved for declaratory judgment regarding her rights under a contract with her husband and Reproductive Medical Associates of New York (“RMA”) containing an agreement entitled “Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody.” Plaintiff argued that pursuant to this specific contract, she had the right to dispositional control of the embryos created by RMA with the parties’ genetic material. Defendant cross moved for summary judgment, arguing that the contract was unenforceable. The Consent agreement provided for of the embryos, and the procedures for using the embryos or for transferring the embryos should the parties wish another facility to preserve them. The contract was made with RMA’s pre-printed forms and was signed by the plaintiff and the defendant, but was not notarized or subscribed and acknowledged in the form required for a deed to be recorded. Supreme Court held that Domestic Relations Law §236(B)(3) which requires agreements between married couples to be subscribed and acknowledged in the form required for a deed to be recorded, was not applicable to this contract which included services from and benefits to a third party. The Court of Appeals in Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998) unequivocally stated that “agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding and enforced in any dispute between them.” Furthermore, IVF contracts such as this one are not violative of public policy and are specifically encouraged by the Kass decision. Plaintiff’s motion to declare that the post-marital dispositional election in the Consent agreement executed on May 18, 2016 was enforceable was granted; the defendant’s cross motion was denied.
Recent Legislation
Laws of 2021, Ch 56, Part L § 4 amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 353.7 to read as follows:
Placement in qualified residential treatment programs
1. The provisions of this section shall apply when a respondent is placed on or after September twenty-ninth, two thousand twenty-one and resides in a non-secure setting that is a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district or the office of children and family services in accordance with this article. 2. (a) When a respondent is in the care and custody of a local social services district or the office of children and family services pursuant to this article, such social services district or office shall report any anticipated placement of the respondent into a qualified residential treatment program as defined in section four hundred nine-h of the social services law to the court and the attorneys for the parties, including the attorney for the respondent, forthwith, but not later than one business day following either the decision to place the respondent in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district or office shall subsequently notify the court and the attorneys for the parties, including the attorney for the respondent, of the date the placement change occurred, such notice shall occur no later than one business day following the placement change. (b) When a respondent whose legal custody was transferred to a local social services district or the office of children and family services in accordance with this article resides in a qualified residential treatment program as defined in section four hundred nine-h of the social services law, and where such respondent's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district or the office of children and family services with legal custody of the respondent, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the respondent in the qualified residential treatment program commenced. 3. (a) Within sixty days of the start of a placement of a respondent referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (i) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (ii) Determine whether the needs of the respondent can be met through placement in a foster family home and, if not, whether placement of the respondent in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the respondent as specified in the respondent's permanency plan; and (iii) Approve or disapprove the placement of the respondent in a qualified residential treatment program. Provided that, where a qualified individual determines that the placement of the respondent in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the respondent in the qualified residential treatment program if: (A) the court finds, and states in the written order that: (1) circumstances exist that necessitate the continued placement of the respondent in the qualified residential treatment program; (2) there is not an alternative setting available that can meet the respondent's needs in a less restrictive environment; and (3) that continued placement in the qualified residential treatment program serves the respondent's needs and best interests or the need for protection of the community; and (B) the court's written order states the specific reasons why the court has made the findings required pursuant to clause (A) of this subparagraph. (iv) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. (b) At the conclusion of the review, if the court disapproves placement of the respondent in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the respondent and direct the local social services district or office of children and family services, as applicable, to make such other arrangements for the respondent's care and welfare that is in the best interest of the respondent and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 4. The court may, on its own motion, or the motion of any of the parties or the attorney for the respondent, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to clause (A) of subparagraph (iii) of paragraph (a) of subdivision three of this section and provide such written order to the parties and the attorney for the respondent expeditiously, but no later than five days. 5. Documentation of the court's determination pursuant to this section shall be recorded in the respondent's case record. 6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such respondent, including but not limited to the respondent's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 5 amended Family Court Act §355.5, effective September 29, 2021 subject to certain conditions, by adding a new subdivision 10 to read as follows:
10. Where the respondent remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the local social services district or the office of children and family services with legal custody of the respondent shall submit evidence at the permanency hearing with respect to the respondent: (a) demonstrating that ongoing assessment of the strengths and needs of the respondent cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals for the respondent, as specified in the respondent's permanency plan; (b) documenting the specific treatment and service needs that will be met for the respondent in the placement and the length of time the respondent is expected to need the treatment or services; and (c) documenting the efforts made by the local social services district or the office of children and family services with legal custody of the respondent to prepare the respondent to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, pt. L, § 6. amended Family Court Act §756-a, effective September 29, 2021 subject to certain conditions, by adding a new subdivision (h) to read as follows:
h) Where the respondent remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the local social services district with legal custody of the respondent shall submit evidence at the permanency hearing with respect to the respondent: (i) demonstrating that ongoing assessment of the strengths and needs of the respondent continues to support the determination that the needs of the respondent cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals of the respondent, as specified in the respondent's permanency plan; (ii) documenting the specific treatment or service needs that will be met for the respondent in the placement and the length of time the respondent is expected to need the treatment or services; and (iii) documenting the efforts made by the local social services district with legal custody of the respondent to prepare the respondent to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 7 amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 756-b to read as follows:
Court review of placement in a qualified residential treatment program.
1. The provisions of this section shall apply when a respondent is placed on or after September twenty-ninth, two thousand twenty-one and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district in accordance with this part. 2. (a) When a respondent is in the care and custody of a local social services district pursuant to this part, such social services district shall report any anticipated placement of the respondent into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the respondent, forthwith, but not later than one business day following either the decision to place the respondent in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district shall subsequently notify the court and the attorneys for the parties, including the attorney for the respondent, of the date the placement change occurred; such notice shall occur no later than one business day following the placement change. (b) When a respondent whose legal custody was transferred to a local social services district in accordance with this part resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such respondent's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the respondent in the qualified residential treatment program commenced. 3. (a) Within sixty days of the start of a placement of a respondent referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (i) Consider the assessment, determination and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (ii) Determine whether the needs of the respondent can be met through placement in a foster family home and, if not, whether placement of the respondent in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the respondent as specified in the respondent's permanency plan; and (iii) Approve or disapprove the placement of the respondent in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the respondent in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the respondent in the qualified residential treatment program if: (A) the court finds, and states in the written order that: (1) circumstances exist that necessitate the continued placement of the respondent in the qualified residential treatment program; (2) there is not an alternative setting available that can meet the respondent's needs in a less restrictive environment; and (3) that it would be contrary to the welfare of the respondent to be placed in a less restrictive setting and that continued placement in the qualified residential treatment program is in the respondent's best interest; and (B) the court's written order states the specific reasons why the court has made the findings required pursuant to clause (A) of this subparagraph. (iv) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. (b) At the conclusion of the review, if the court disapproves placement of the respondent in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the respondent and direct the local social services district to make such other arrangements for the respondent's care and welfare that is in the best interest of the respondent and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 4. The court may, on its own motion, or the motion of any of the parties or the attorney for the respondent, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to clause (A) of subparagraph (iii) of paragraph (a) of subdivision three of this section and provide such written order to the parties and the attorney for the respondent expeditiously, but no later than five days. 5. Documentation of the court's determination pursuant to this section shall be recorded in the respondent's case record. 6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such respondent, including but not limited to the respondent's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 8 amended the opening paragraph of Family Court Act §1017(5), effective September 29, 2021 subject to certain conditions, by designating it paragraph (a) and adding new paragraph (b) to read as follows:
(b) When a child whose legal custody was transferred to the commissioner of a local social services district in accordance with this section resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whereby such child's initial placement or change in placement in such program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with section one thousand fifty-five-c of this article. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 9 amended the opening paragraph of Family Court Act §1055(j), effective September 29, 2021 subject to certain conditions, by designating it paragraph (i) and adding new paragraph (ii) to read as follows:
(ii) When a child whose legal custody was transferred to the commissioner of a local social services district in accordance with this section resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such child's initial placement or change in placement in such program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (i) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with section one thousand fifty-five-c of this part. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 10 amended the family court act, effective September 29, 2021 subject to certain conditions, by adding a new section 1055-c to read as follows:
Court review of placement in a qualified residential treatment program.
1. The provisions of this section shall apply when a child is placed on or after September twenty-ninth, two thousand twenty-one and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to the commissioner of a local social services district in accordance with this article. 2. Within sixty days of the start of a placement of a child referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (b) Determine whether the needs of the child can be met through placement in a foster family home and, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; and (c) Approve or disapprove the placement of the child in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the child in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the child in the qualified residential treatment program if: (i) the court finds, and states in the written order that: (A) circumstances exist that necessitate the continued placement of the child in the qualified residential treatment program; (B) there is not an alternative setting available that can meet the child's needs in a less restrictive environment; and (C) that continued placement in the qualified residential treatment program is in the child's best interest; and (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph. (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. 3. At the conclusion of the review, if the court disapproves placement of the child in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the child and direct the local social services district to make such other arrangements for the child's care and welfare that is in the best interest of the child and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 4. The court may, on its own motion, or the motion of any of the parties or the attorney for the child, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision two of this section and provide such written order to the parties and the attorney for the child expeditiously, but no later than five days. 5. Documentation of the court's determination pursuant to this section shall be recorded in the child's case record. 6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such child, including but not limited to the child's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 11 amended Family Court Act §1089, (c)(5)(ix)(C), effective September 29, 2021 subject to certain conditions, by adding a new paragraph 6 to read as follows:
(C) if the child is over age fourteen and has voluntarily withheld his or her consent to an adoption, the facts and circumstances regarding the child’s decision to withhold consent and the reasons therefor; and (6) Where the child remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the social services district with legal custody of the child shall submit evidence at the permanency hearing with respect to the child: (i) demonstrating that ongoing assessment of the strengths and needs of the child continues to support the determination that the needs of the child cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; (ii) documenting the specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services; and (iii) documenting the efforts made by the local social services district to prepare the child to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 12 amended Family Court Act §1089, effective September 29, 2021 subject to certain conditions, by designating the opening paragraph of subdivision (d), 2 (vii)(H) item (I) and a new item (II) was added to read as follows:
(II) When a child whose legal custody was transferred to the commissioner of a local social services district in accordance with this section resides in a qualified residential treatment program as defined in section four hundred nine-h of the social services law and where such child's initial placement or change in placement in such program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to item (I) of this clause and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with section three hundred ninety-three of the social services law or section one thousand fifty-five-c, one thousand ninety-one-a or one thousand ninety-seven of this chapter. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 13. amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 1091-a to read as follows: Court review of placement in a qualified residential treatment program. 1. The provisions of this section shall apply when a former foster care youth is placed on or after September twenty-ninth, two thousand twenty-one, and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district or the office of children and family services in accordance with this article. 2. (a) When a former foster care youth is in the care and custody of a local social services district or the office of children and family services pursuant to this article, such social services district or office shall report any anticipated placement of the former foster care youth into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the former foster care youth, forthwith, but not later than one business day following either the decision to place the former foster care youth in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district or office shall subsequently notify the court and attorneys for the parties, including the attorney for the former foster care youth, of the date the placement change occurred; such notice shall occur no later than one business day following the placement change. (b) When a former foster care youth whose legal custody was transferred to a local social services district or the office of children and family services in accordance with this article resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such former foster care youth's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the former foster care youth in the qualified residential treatment program commenced. 3. Within sixty days of the start of a placement of a former foster care youth referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (b) Determine whether the needs of the former foster care youth can be met through placement in a foster family home and, if not, whether placement of the former foster care youth in a qualified residential treatment program provides the most effective and appropriate level of care for the former foster care youth in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the former foster care youth, as specified in the former foster care youth's permanency plan; and (c) Approve or disapprove the placement of the former foster care youth in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the former foster care youth in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the former foster care youth in the qualified residential treatment program if: (i) the court finds, and states in the written order that: (A) circumstances exist that necessitate the continued placement of the former foster care youth in the qualified residential treatment program; (B) there is not an alternative setting available that can meet the former foster care youth's needs in a less restrictive environment; and (C) that continued placement in the qualified residential treatment program is in the former foster care youth's best interest; and (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph. (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. 4. At the conclusion of the review, if the court disapproves placement of the former foster care youth in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the former foster care youth and direct the local social services district or office of children and family services, as applicable, to make such other arrangements for the former foster care youth's care and welfare that is in the best interest of the former foster care youth and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 5. The court may, on its own motion, or the motion of any of the parties or the attorney for the former foster care youth, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision three of this section and provide such written order to the parties and the attorney for the former foster care youth expeditiously, but no later than five days. 6. Documentation of the court's determination pursuant to this section shall be recorded in the former foster care youth's case record. 7. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such former foster care youth, including but not limited to the former foster care youth's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, Part L § 14 amended the family court act, effective September 29, 2021 subject to certain conditions, by adding a new section 1097 to read as follows:
Court review of placement in a qualified residential treatment program.
1. The provisions of this section shall apply when a child is placed on or after September twenty-ninth, two thousand twenty-one, and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district in accordance with this article. 2. (a) When a child is in the care and custody of a local social services district pursuant to this article, such social services district shall report any anticipated placement of the child into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the child, forthwith, but not later than one business day following either the decision to place the child in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district shall subsequently notify the court and attorneys for the parties, including the attorney for the child, of the date the placement change occurred, such notice shall occur no later than one business day following the placement change. (b) When a child whose legal custody was transferred to a local social services district in accordance with this article resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such child's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. 3. Within sixty days of the start of a placement of a child referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (b) Determine whether the needs of the child can be met through placement in a foster family home and, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; and (c) Approve or disapprove the placement of the child in the qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the child in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the child in the qualified residential treatment program if: (i) the court finds, and states in the written order that: (A) circumstances exist that necessitate the continued placement of the child in the qualified residential treatment program; (B) there is not an alternative setting available that can meet the child's needs in a less restrictive environment; and (C) that continued placement in the qualified residential treatment program is in the child's best interest; and (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph. (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. 4. At the conclusion of the review, if the court disapproves placement of the child in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the child and direct the local social services district to make such other arrangements for the child's care and welfare that is in the best interest of the child and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 5. The court may, on its own motion, or the motion of any of the parties or the attorney for the child, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision three of this section and provide such written order to the parties and the attorney for the child expeditiously, but no later than five days. 6. Documentation of the court's determination pursuant to this section shall be recorded in the child's case record. 7. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such child, including but not limited to the child's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
Laws of 2021, Ch 56, pt. L, § 17
“§ 17. This act shall take effect September 29, 2021; provided, however, that the provisions of section fifteen of this act shall expire and be deemed repealed December 31, 2026; and provided, further, that: (a)(i) notwithstanding any other provision of law, provisions in this act shall not take effect unless and until the state title IV-E agency submits to the United States Department of Health and Human Services, Administration for Children, Youth and Families, an amendment to the title IV-E state plan and the United States Department of Health and Human Services, Administration for Children, Youth and Families approves said title IV-E state plan amendment regarding when a child is placed in a qualified residential treatment program in relation to the following components: (1) the qualified individual and the establishment of the assessment by the qualified individual to be completed prior to or within 30-days of the child's placement as established by section three of this act; (2) the 60 day court reviews, including the ability to conduct at the same time as another hearing scheduled for the child, as established by sections one, two, four, seven, eight, nine, ten, twelve, thirteen and fourteen of this act; and (3) permanency hearing requirements as established by sections five, six and eleven of this act; (ii) provided however, that if the United States Department of Health and Human Services, Administration for Children, Youth and Families fails to approve or disapproves any of the components listed in paragraph (i) of this subdivision, such action shall not impact the effective date for the remaining components listed therein; (b) the office of children and family services shall inform the legislative bill drafting commission upon the occurrence of the submission set forth in subdivision (a) of this section and any approval related thereto in order that the commission may maintain an effective and timely database of the official texts of the state of laws of New York in furtherance of effectuating the provisions of section 44 of the legislative law and section 70-b of the public officers law; (c) for the purposes of this act, the term “placement” shall refer only to placements made on or after the effective date of the Title IV-E state plan to establish the 30-day assessment, 60-day court review and permanency hearing requirements set forth in this act that occur on or after its effective date; and (d) the office of children and family services and the office of court administration are hereby authorized to promulgate such rules and regulations on an emergency basis as may be necessary to implement the provisions of this act on or before such effective date.
May 16, 2021
Appellate Division, Second Department
Supreme Court had authority to modify child support under DRL § 236[B][9][b][2][i] upon showing substantial change in circumstances despite provision of agreement restricting modifications of child support
In Park v Park, --- N.Y.S.3d ----, 2021 WL 1653674, 2021 N.Y. Slip Op. 02536 (2d Dept., 2021) the parties were married in June 2000, and had two children, born in 2002 and 2008. On November 14, 2014, the parties entered into a stipulation of settlement in which they agreed to share joint legal custody of the children, with the plaintiff having primary residential custody. In an agreement dated March 24, 2016, the parties agreed that the defendant would pay maintenance to the plaintiff for a period of 18 months, and the defendant would also pay child support. A judgment of divorce dated September 16, 2016, incorporated but did not merge the stipulation of settlement and the maintenance and support agreement. The Appellate Division held, inter alia, that Supreme Court had the authority to modify the parties’ child support obligations upon a showing of a substantial change in circumstances despite the provision of the maintenance and support agreement restricting modifications of the child support obligation during the first 18 months following the parties’ divorce (citing Domestic Relations Law § 236[B][9][b][2][i]; Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317)
Comment
Domestic Relations Law § 236[B][9][b][2][i] provides, in part: The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. In Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317 (2d Dept.,2019) the parties' stipulation of settlement, which set forth the plaintiff's child support obligation, was executed after the effective date of the 2010 amendments to Domestic Relations Law § 236 (B) and Family Court Act § 451. Since the parties' stipulation of settlement post-dated the 2010 amendments, the defendant was not required to demonstrate a substantial and unanticipated change in circumstances resulting in a concomitant need, or that the stipulation of settlement was not fair and equitable when entered into, to establish her entitlement to an upward modification of the plaintiff's child support obligation. Additionally, the parties specifically opted out of those provisions of the Domestic Relations Law which allow for modification when “three years have passed since the order was entered, last modified or adjusted” or “there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236 [B] [9] [b] [2] [ii] [A], [B]). Thus, in order to establish her entitlement to an upward modification of the plaintiff's child support obligation, the defendant had the burden of establishing “a substantial change in circumstances” (Domestic Relations Law § 236 [B] [9] [b] [2] [i]; Family Ct Act § 451 [3] [a]). A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order or judgment sought to be modified was issued.
Where habeas corpus proceeding is brought pursuant to DRL§ 70, and children resided outside of this State, reference must be made to the UCCJEA to determine if this state has “home state” jurisdiction
In Matter of Kassim v Al-Maliki, --- N.Y.S.3d ----, 2021 WL 1774145 (Mem), 2021 N.Y. Slip Op. 02800 (2d Dept.,2021) the parties lived with their children in New York until approximately the spring of 2016, when they traveled together to Yemen. The mother alleged that the family traveled to Yemen for the Ramadan and Eid holidays with the intention of returning to New York at the end of the holidays. The father alleged that the parties jointly agreed to relocate the family to Yemen. According to the mother, after the family arrived in Yemen, the father confiscated the passports of the mother and the children, such that they could not return to New York. The mother alleged that she was not able to return to the United States until 2019, after she signed a divorce agreement in the presence of the father and several other men, all of whom were carrying weapons, including firearms and traditional swords. In exchange for signing the agreement, the father returned the mother’s passport to her. The mother returned to New York in 2019 and commenced a proceeding, seeking a writ of habeas corpus to compel the father to produce the children before the Family Court and custody of the children. On October 9, 2019, the court directed the father, who was in New York at the time, to return the children to the court’s jurisdiction, to surrender his passport, and to remain in the court’s jurisdiction. The father moved to dismiss the petition for lack of subject matter jurisdiction. Subsequently, the father returned to Yemen, and the mother moved to hold the father in civil and criminal contempt and to issue a warrant for the father’s arrest and to compel his appearance in court. The court, without a hearing, granted the father’s motion, dismissed the petition, and denied the mother’s motion, based on its finding that it lacked subject matter jurisdiction over the proceeding. The Appellate Division noted that pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award ... custody of such child to either parent.” Since the children resided outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]). The UCCJEA defines “home state” 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 [7]). It found that the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there were disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen. The court erred in concluding that it lacked subject matter jurisdiction to determine the mother’s petition without conducting a hearing. The petition was reinstated and the matter was remitted to the Family Court, for a hearing and new determination.
At dispositional stage of a proceeding to terminate parental rights, Family Court must make its determination based solely on the best interests of the child. The court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights
In Matter of Grace G, --- N.Y.S.3d ----, 2021 WL 1774163, 2021 N.Y. Slip Op. 02795(2d Dept.,2021) a proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appealed from an order which upon a finding that the mother had permanently neglected the child, terminated the mother’s parental rights. The Appellate Division reversed and remitted for entry of a suspended judgment. It observed that at the dispositional stage of a proceeding to terminate parental rights, the Family Court must make its determination based solely on the best interests of the child (see Family Ct Act § 631). Depending on the best interests of the child, the court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights (see Family Ct Act §§ 631, 633[b]; Social Services Law § 384–b[8][f]). A dispositional order suspending judgment provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child (see Family Ct Act § 633; Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60). Here, the Family Court’s determination to terminate the mother’s parental rights rather than to enter a suspended judgment was not in the child’s best interests. Although the child had been in foster care for several years, it was undisputed that the mother engaged in regular phone conversations with the child at least once a week; that, since March 2019, following a difficult pregnancy with her younger child which impeded her ability to travel from her apartment in upper Manhattan to the agency in Jamaica, Queens, where visitation occurred, she had been regularly visiting the child; that the child continued to refer to the mother as her mother and her foster parent as her auntie; and that there was a strong bond between the mother and the child and between the child and the mother’s younger child, who resided with the mother. In addition, the mother had completed a drug treatment program and was drug free, attended a parenting class with intentions to attend additional classes, underwent a mental health evaluation, and was receiving therapy and preventive services. Further, following the child’s placement in foster care, the mother, who, at the time that she gave birth to the child, was 20 years old and living in a group home, having entered foster care herself at the age of 17, obtained an associate’s degree and secured an apartment. Moreover, in a related derivative neglect proceeding filed with respect to the mother’s younger child, the mother was granted a suspended judgment which expired in July 2020. Consequently, under these circumstances, after the dispositional hearing, the court should have entered an order of disposition suspending judgment as requested by the mother and the attorney for the child, since the record demonstrated that such a disposition would have been in the child’s best interests.
Appellate Division, Third Department
Eight-year-old victim could testify as a sworn witness in juvenile delinquency proceeding despite preliminary questioning indicating his lack of knowledge of an oath where subsequent questioning established he understood difference between the truth and lie.
In Matter of Alexander CC, 191 A.D.3d 1113, 142 N.Y.S.3d 223, 2021 N.Y. Slip Op. 01101 (3d Dept.,2021) a juvenile delinquency proceeding, the Appellate Division held that the eight-year-old victim could testify as a sworn witness despite preliminary questioning indicating his lack of knowledge of an oath. Pursuant to Family Ct Act § 343.1, “[a] witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath” (Family Ct Act § 343.1[2]). Although preliminary questioning of the victim indicated that he did not know what an oath is, this fact was not determinative particularly where, as here, subsequent questioning of the victim by petitioner and Family Court established that he understood the difference between the truth and lie, understood that he was required to testify truthfully at the fact-finding hearing and promised that he would so testify. The victim also evinced an understanding that, if he were to tell a lie, he could “get in trouble” and be punished by the court.
Literal compliance with terms of the suspended judgment will not suffice to prevent finding a violation. Must also show progress has been made to overcome specific problems which led to the removal.
In Matter of Nahlaya MM., 2021 WL 1673597 (3d Dept.,2021) the Appellate Division affirmed an order pursuant to Social Services Law § 384–b, which granted petitioner’s motions to revoke a suspended judgment, and terminated respondent’s parental rights. It held that a suspended judgment is intended to provide a parent who has permanently neglected his or her children with a brief period within which to become a fit parent so that the children can be returned to him or her in safety. A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights. Literal compliance with the terms of the suspended judgment will not suffice to prevent a finding of a violation. A parent must also show that progress has been made to overcome the specific problems which led to the removal of the children. While a parent’s failure to comply with the conditions of a suspended judgment does not automatically compel termination of parental rights, that noncompliance constitutes strong evidence that termination is, in fact, in the best interests of the child.
Although father’s modification petition not technically a relocation application as he was not primary custodian “the practical effect of granting his request would be the relocation of the child, relocation must be considered within that framework”
In Matter of Jelani PP v Melissa QQ, --- N.Y.S.3d ----, 2021 WL 1675714, 2021 N.Y. Slip Op. 02577(3d Dept.,2021) Petitioner (father) resided in Florida. Pursuant to a July 2016 custody order, entered on consent, Family Court granted the parents joint legal custody of the child, the mother primary physical custody of the child and the father specified parenting time. In July 2018, the father commenced a custody modification proceeding seeking primary physical custody of the child, alleging that the mother failed to, among other things, adequately provide for the child’s educational well-being. Following a fact-finding hearing, Family Court continued the award of joint legal custody, with the mother maintaining primary physical placement of the child, but modified the order to provide for, among other things, expanded parenting time for the father during the child’s summer vacation. The Appellate Division affirmed. Initially, it noted that, despite being treated as such by Family Court, the father’s modification petition was not technically a relocation application inasmuch as he was not the primary custodian of the child pursuant to the July 2016 custody order. However, inasmuch as “the practical effect of granting the father’s request for modification of custody would be the relocation of the child relocation must be considered within that framework. Therefore, the father was required to demonstrate a change in circumstances, which would then warrant an inquiry into whether modification of the existing custody order was necessary to further the best interests of the child, with the proposed relocation being one of the factors for the court to consider in making its best interests determination.
Lincoln hearing will not be conducted if it will have a potential negative impact on the child
In Matter of Ellen H v Joseph H, --- N.Y.S.3d ----, 2021 WL 1676661, 2021 N.Y. Slip Op. 02567(3d Dept.,2021) the Appellate Division affirmed an order which modified the joint custody, shared physical custody order entered on consent and awarded the mother sole legal and physical custody. It rejected the fathers argument on appeal that Family Court erred for failing to conduct a Lincoln hearing. The determination of whether to hold a Lincoln hearing lies within Family Court’s discretion and such a hearing will not be conducted if it will have a potential negative impact on the child. The father’s attorney requested that Family Court conduct a Lincoln hearing at the conclusion of the fact-finding hearing. The court denied the request, agreeing with the AFC that a Lincoln hearing would only cause more unnecessary stress for the children, particularly since the relevant and available facts were already before the court. Although a Lincoln hearing is the preferred manner for ascertaining the children’s wishes, such a hearing is not mandatory, particularly where, as here, the record reflects that the hearing itself may do more harm than good.
There is no requirement that a notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers.
In Rosenheck v Schachter, 2021 WL 1795298 (3d Dept.,2021) the wife moved in Supreme Court for counsel fees related to certain post judgment motions made by the husband in the Court of Appeals. The husband argued on appeal that the wife’s notice of motion was defective because it failed to specify the grounds on which the motion was based, thus prejudicing the husband. The Appellate Division observed, citing CPLR 2214[a], a “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor, but there is no requirement that the notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. (Shields v. Carbone, 99 A.D.3d 1100, 1102 [2012]). In practice, the notice of motion specifies the time and place of the hearing as well as the relief requested while the affidavits, affirmations, and memorandum of law state the grounds for the relief. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides. In support of her motion, the wife submitted the Court’s 2018 order, finding that the wife was entitled to appellate counsel fees based on the agreement, as well as various correspondence exchanged between the parties’ attorneys, one of which communicated to the husband’s counsel that the wife would be seeking judicial intervention if the counsel fees were not rendered pursuant to the agreement. Although the husband contended that he was prejudiced by the wife’s alleged failure to provide the grounds of her motion, it noted that the husband provided Supreme Court with a timely and detailed reply with various exhibits, including a copy of the agreement. Given the clear lack of prejudice or misunderstanding, it found that the court properly rendered a determination after examining all of the motion papers submitted.
Where child of mixed race continued presence of confederate flag painted on a rock near her driveway would constitute a change in circumstances and factor in any future best interests analysis
In Christie BB v Isaiah CC, --- N.Y.S.3d ----, 2021 WL 1795373, 2021 N.Y. Slip Op. 02847 (3d Dept.,2021) following a fact-finding hearing, Family Court determined that the parties should continue to have joint legal and physical custody of the child, with parenting time on alternating weeks. However, the court expanded upon the prior order by adding a provision that the mother’s home shall be considered the child’s primary residence for the purpose of schooling. The Appellate Divison modified this portion of Family Court’s order. Although not addressed by Family Court or the attorney for the child, the Appellate Division pointed out that mother’s testimony at the hearing, as well as an exhibit admitted into evidence, revealed that she had a small confederate flag painted on a rock near her driveway. It stated, given that the child was of mixed race, it would seem apparent that the presence of the flag was not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag was a symbol inflaming the already strained relationship between the parties. While recognizing that the First Amendment protects the mother’s right to display the flag, it held that if it wasnot removed by June 1, 2021, its continued presence would constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.
Appellate Division, Fourth Department
Error to award maintenance for period of time in excess of recommendation in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating reliance on relevant statutory factors enumerated in DRL § 236 (B) (6) (e)
In Gutierrez v Gutierrez, --- N.Y.S.3d ----, 2021 WL 1711367 (Mem), 2021 N.Y. Slip Op. 02662 (4th Dept.,2021) the defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. The Appellate Division agreed with his argument that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). The Appellate Division also concluded that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in Domestic Relations Law § 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination. The determination must also reflect an appropriate balancing of the wife’s needs and the husband’s ability to pay. The court stated that it awarded plaintiff $750 per week, an amount deviating from the statutory guidelines, for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award, the length of the parties’ marriage is not a factor enumerated in Domestic Relations Law § 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities. Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award. Thus, the court failed to show that it considered any of the factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. It vacated the maintenance award and remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision.
May 1, 2021
Recent Legislation
Laws of 2021, Ch 56
Laws of 2021, Ch 56, Part L § 4 to § 14 amended the Family Court Act as follows. § 4. Family Court Act Section 353.7 was added § 5. Family Court Act Section 355.5 was amended by adding a new subdivision 10. § 6. Family Court Act Section 756-a was amended by adding a new subdivision (h). § 7. Family Court Act section 756-b was added § 8. Family Court Act section 1017, subdivision 5 opening paragraph was designated paragraph (a) and a new paragraph (b) was added. § 9. Family Court Act section 1055 subdivision (j), opening paragraph was designated paragraph (i) and a new paragraph (ii) was added. § 10. Family Court Act section 1055-c was added. § 11. Family Court Act section 1089, subdivision (c), paragraph 5, subparagraph (ix), Clause (C) was amended, and a new paragraph 6 was added. § 12. Family Court Act section 1089, subdivision (d), subparagraph (vii), paragraph 2, clause (H), opening paragraph was designated item (I) and a new item (II) was added. § 13. Family Court Act section 1091-a was added. § 14. Family Court Act section 1097 was added. § 17. This act is effective September 29, 2021 subject to certain conditions.
Appellate Division, Second Department
Children do not have right to participate in litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution. Participation of Children’s attorneys limited to matters in which children are the “subject of the proceeding”
In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396138 (Mem), 2021 N.Y. Slip Op. 02286 the parties were married on July 23, 2003, and had three children. Before their marriage, they entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. Supreme Court denied the plaintiff’s motion to set aside the prenuptial agreement. Thereafter, the attorney for the children (AFC) moved to vacate which denied the plaintiff’s motion contending that case law issued subsequent to the hearing on the validity of the prenuptial agreement held that he should have been permitted to participate in the hearing to represent the interests of the children. Supreme Court granted the AFC’s motion, and directed a new hearing. The Appellate Division reversed. It held that contrary to Matter of Barbara T. v. Acquinetta M., 164 A.D.3d 1, 82 N.Y.S.3d 416, which pertained to the impact of an adoption subsidy upon an award of child support, the children here did not have standing to move to vacate the order that denied plaintiff’s motion to set aside the prenuptial agreement. “Although children have certain rights with respect to issues of child support, custody, and visitation in matrimonial actions, children do not have a right to participate in the litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.” While children’s attorneys are expected to participate fully in proceedings in which they are appointed their participation is limited to matters in which the children are the “subject of the proceeding” (Family Court Act § 249; see Judiciary Law § 35[7]). Given that children are not bound by agreements entered into by their parents they are not the “subject” of proceedings to determine the validity of their parents’ prenuptial agreement related to maintenance and equitable distribution (Family Court Act § 249).
Where plaintiff demonstrated she presently had no assets and was reliant on public assistance Court should have held hearing on her motion to set aside prenup on ground it was against public policy.
In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396147 (Mem), 2021 N.Y. Slip Op. 02285 the parties were married on July 23, 2003, and had three children. The day before their marriage, the parties entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. At the time of the agreement, the plaintiff was employed in the field of technology and compliance, earning approximately $75,000 to $80,000 a year, and the defendant, a physician, operated a private practice, earning approximately $900,000 a year. The defendant also owned two properties in Queens. In 2008, the plaintiff ceased working outside of the home and became a full-time homemaker. In January 2015, the plaintiff commenced the action for a divorce. She moved, inter alia, to set aside the prenuptial agreement. In her affidavit submitted in support of the motion, the plaintiff averred, among other things, that she had no assets and had been required to seek public assistance. She annexed exhibits to her motion demonstrating that she was then reliant on public assistance. In an order dated August 4, 2018, made after a hearing, the Supreme Court, inter alia, denied plaintiff’s motion which was to set aside the parties’ prenuptial agreement, finding that she failed to sustain her burden of proof that the agreement was the product of duress, fraud, overreaching, or unconscionability. The Appellate Division reversed and remitted for a hearing and determination on the issue of whether the prenuptial agreement was unconscionable at the time this action was before the court. It observed that an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered. The plaintiff submitted evidence with her motion papers in support of her argument that the prenuptial agreement should be set aside as a matter of public policy since, at the time of her motion, she was unemployed, had become reliant on public assistance for herself and her children, and had no financial resources Supreme Court failed to address the plaintiff’s contention that the enforcement of the agreement would result in the risk of her becoming a public charge.
Where wife moved for interim counsel fees and motion was granted in part, her attorneys did not have standing to appeal from the order where they did not ask for any relief
In Youngwall v Youngwalll, 2021 WL 1395688 (2d Dept.,2021) an action for a divorce the defendant moved, inter alia, for an award of interim counsel fees in the sum of $350,000. The Supreme Court granted the motion only to the extent of awarding her $35,000, payable to the nonparty Advocate, LLP. Advocate, LLP, appealed, asserting that because the defendant was the nonmonied spouse, she was entitled to an award of $350,000. The appeal was dismissed, with costs to the plaintiff payable by the nonparty-appellant (see CPLR 5511). The Appellate Division held that “a person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part. Here, while the interim counsel fees awarded to the defendant on her motion were made payable to Advocate, LLC, it did not seek any relief in the Supreme Court that was denied in whole or in part. Accordingly, Advocate, LLC, was not aggrieved by the order, and the appeal had to be dismissed.
A defect in subject matter jurisdiction may be raised at any time by any party
In Hook v Snyder, --- N.Y.S.3d ----, 2021 WL 1567049 (Mem), 2021 N.Y. Slip Op. 02458 (1st Dept.,2021) the Appellate Division reversed an order which denied respondent mother’s motion to dismiss the custody modification petition on the ground of lack of subject matter jurisdiction, and granted the motion. It held among other things that contrary to petitioner’s contention, respondent’s prior appearances and execution of a stipulation in Family Court in New York did not constitute a waiver of her lack of subject matter jurisdiction defense; a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent (Matter of Nemes v. Tutino, 173 A.D.3d 16, 23, 101 N.Y.S.3d 538 [4th Dept. 2019]
Where a prior action for a divorce is discontinued, and the parties reconcile or continue the marital relationship, and receive the benefits of the relationship, property acquired after the discontinuance may be deemed marital property. To determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution.
In Potvin v Potvin, --- N.Y.S.3d ----, 2021 WL 1556056, 2021 N.Y. Slip Op. 02429(2d Dept.,2021) the parties were married in 1974 and had two adult children. On July 9, 2015, the plaintiff commenced this action for a separation, and the defendant counterclaimed for a divorce. At trial, testimony was elicited that the parties previously separated in 1991. The plaintiff commenced a prior action for a divorce in 1996, and the defendant agreed to pay child support in the sum of $1,200 per month. The plaintiff discontinued the prior divorce action in 1998. The defendant then moved back into the marital residence. The plaintiff testified, however, that the parties entered into an oral agreement that they were not reconciling and that each waived any right to the other’s assets. The defendant denied entering into such an agreement and claimed it was his understanding that the parties had reconciled. However, the defendant continued to pay the plaintiff $1,200 per month as his contribution toward household expenses until 2012. In a decision and order dated November 22, 2017, made after the trial, the Supreme Court, inter alia, denied the defendant’s motion for an award of counsel fees. The court also found that there was no “economic partnership” between the parties at any time following their separation in 1991, and that “each party shall retain ownership of the assets under his or her dominion and control,” including cash accounts, stocks, stock options, pension and retirement accounts, life insurance policies, and deferred compensation plans. In a judgment of divorce dated December 19, 2017, the court, among other things, directed that each party shall retain sole ownership of the assets in their own names, and awarded the plaintiff the marital residence, with a directive that the plaintiff pay the defendant 25% of the appraised value of the marital residence, less the $25,500 interim award and the sum of $1,972.60 advanced by the plaintiff for the cost of the trial transcript. The court also directed the plaintiff to pay the defendant maintenance of $1,414 per week for one year, and directed that each party shall bear the cost of their own counsel fees.
The Appellate Division observed that where a prior action for a divorce is withdrawn or discontinued, and the parties “either reconcile or continue the marital relationship, and continue to receive the benefits of the relationship,” property acquired after the withdrawal or discontinuance of the prior divorce action may be deemed marital property (Iwanow v. Iwanow, 39 A.D.3d 471, 474, 834 N.Y.S.2d 247). “[I]n order to determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution. The parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrated that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991. Consequently, the court improvidently exercised its discretion in directing that the parties retain sole ownership of certain assets in their own names. Moreover, there was no written agreement to keep the parties’ finances separate. Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing. Here, the alleged oral agreement between the parties did not constitute such an agreement. Thus, the distribution of marital property must be based upon the equitable consideration and application of enumerated factors and the court is required to set forth the factors it considered and the reasons for its decision (Domestic Relations Law § 236[B][5][g]). Here, the Supreme Court failed to set forth the factors it considered in making its decision as to equitable distribution, since the court only indicated that it relied upon the parties’ alleged oral agreement. It remitted the matter to the Supreme Court for a new determination of the issue of equitable distribution based upon findings of fact in compliance with Domestic Relations Law § 236(B).
Furthermore, the Supreme Court erred in denying that branch of the defendant’s motion which was for an award of counsel fees. Since the defendant was the less monied spouse, the rebuttable presumption was applicable, and the plaintiff did not rebut that presumption. It remitted remit the matter to the Supreme Court for a hearing and determination as to the appropriate amount of counsel fees incurred by the defendant.
Parental access determinations should generally be made only after a full and plenary hearing and inquiry
In Matter of Vazquez v Bahr, --- N.Y.S.3d ----, 2021 WL 1556199 (Mem), 2021 N.Y. Slip Op. 02397 (2d Dept.,2021) the Appellate Division held that parental access determinations should generally be made only after a full and plenary hearing and inquiry (S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411.) While the general right to a hearing in parental access cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required. Here, the record showed that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on parental access was required.
The Legislative Memorandum in support of the legislation states that the use of the word "incorrigible" in the context of family or children's courts dates back to the first juvenile court in Chicago in the late 1800s. It was adopted in New York when the first children's courts were established in the early 20th century and has carried over in each iteration of our juvenile or family court system since that time. Primarily applied to girls, and disproportionately to girls of color, this term - in practice - tends to single out girls of color for behaviors that do not match stereotypical feminine behavior. "Incorrigible" is defined as a person who is "incapable of being corrected, not reformable" (Merriam-Webster) and, thus this term is completely out of line with the current understanding of the goals of our Family Court system. The use of "incorrigibility" as a basis for Family Court intervention disparately impacts and harms girls and young women of color. Eliminating this term from the Family Court Act is intended to send a positive message and assist in the efforts to achieve full equality and empowerment for girls, young women, and people of color.
United States Court of Appeals, Fifth Circuit
The Fifth Circuit held that that that ICWA and the Final Rule implementing the ICWA are constitutional
In Brackeen v Bernhardt, __F3d__ , 2019 WL 3759491 (Fifth Circuit, 2021) , the case presented facial constitutional challenges to the Indian Child Welfare Act of 1978 (ICWA) and statutory and constitutional challenges to the 2016 administrative rule (the Final Rule) that was promulgated by the Department of the Interior to clarify provisions of ICWA. Plaintiffs were the states of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt Indian children. Defendants were the United States of America, several federal agencies and officials in their official capacities, and five intervening Indian tribes.
The Fifth Circuit observed that Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 et seq., to address rising concerns over “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). Recognizing that a “special relationship” exists between the United States and Indian tribes, Congress made the following findings: Congress has plenary power over Indian affairs. 25 U.S.C. § 1901(1) (citing U.S. CONST. art. I, section 8, cl. 3 (“The Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes.”)). “[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . ..” Id. at § 1901(3). “[A]n alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” Id. at § 1901(4). “States exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” Id. at § 1901(5).
In light of these findings, Congress declared that it was the policy of the United States “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs .” Id. at § 1902.
ICWA applies in state court child custody proceedings involving an “Indian child,” defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Id. at § 1903(4). In proceedings for the foster care placement or termination of parental rights, ICWA provides “the Indian custodian of the child and the Indian child’s tribe a right to intervene at any point in the proceeding.” Id. at § 1911(c). Where such proceedings are involuntary, ICWA requires that the parent, the Indian custodian, the child’s tribe, or the Secretary of the United States Department of the Interior (Secretary or Secretary of the Interior) be notified of pending proceedings and of their right to intervene. Id. at § 1912. In voluntary proceedings for the termination of parental rights or adoptive placement of an Indian child, the parent can withdraw consent for any reason prior to entry of a final decree of adoption or termination, and the child must be returned to the parent. Id. at § 1913(c). If consent was obtained through fraud or duress, a parent may petition to withdraw consent within two years after the final decree of adoption and, upon a showing of fraud or duress, the court must vacate the decree and return the child to the parent. Id. at § 1913(d). An Indian child, a parent or Indian custodian from whose custody the child was removed, or the child’s tribe may file a petition in any court of competent jurisdiction to invalidate an action in state court for foster care placement or termination of parental rights if the action violated any provision of ICWA §§ 1911–13. Id. at § 1914.
ICWA further sets forth placement preferences for foster care, preadoptive, and adoptive proceedings involving Indian children. Section 1915 requires that “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with: (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Id. at § 1915(a). Similar requirements are set for foster care or preadoptive placements. Id. at § 1915(b). If a tribe establishes by resolution a different order of preferences, the state court or agency effecting the placement “shall follow [the tribe’s] order so long as the placement is the least restrictive setting appropriate to the particular needs of the child.” Id. at § 1915(c).
The state in which an Indian child’s placement was made must maintain records of the placement, which shall be made available at any time upon request by the Secretary or the child’s tribe. Id. at § 1915(e). A state court entering a final decree in an adoptive placement “shall provide the Secretary with a copy of the decree or order” and information as necessary regarding “(1) the name and tribal affiliation of the child; (2) the names and addresses of the biological parents; (3) the names and addresses of the adoptive parents; and (4) the identity of any agency having files or information relating to such adoptive placement.” Id. at § 1951(a). ICWA’s severability clause provides that “[i]f any provision of this chapter or the applicability thereof is held invalid, the remaining provisions of this chapter shall not be affected thereby.” Id. at § 1963.
ICWA provides that “the Secretary [of the Interior] shall promulgate such rules and regulations as may be necessary to carry out [its] provisions.” 25 U.S.C. § 1952. In 1979, the Bureau of Indian Affairs (BIA) promulgated guidelines (the “1979 Guidelines”) intended to assist state courts in implementing ICWA but without “binding legislative effect.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979). The 1979 Guidelines left the “primary responsibility” of interpreting certain language in ICWA “with the [state] courts that decide Indian child custody cases.” Id. However, in June 2016, the BIA promulgated the Final Rule to “clarify the minimum Federal standards governing implementation of [ICWA]” and to ensure that it “is applied in all States consistent with the Act’s express language, Congress’s intent in enacting the statute, and to promote
Defendants moved to dismiss the complaint for lack of subject matter jurisdiction, but the district court denied the motion, concluding, as relevant to the appeal, that Plaintiffs had Article III standing. The district court then granted summary judgment in favor of Plaintiffs, ruling that provisions of ICWA and the Final Rule violated equal protection, the Tenth Amendment, the nondelegation doctrine, and the Administrative Procedure Act. Defendants appealed.
The Fifth Circuit held that that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule implementing the ICWA are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. It also held that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable. It affirmed the district court’s ruling that Plaintiffs had standing, reversed the district court’s grant of summary judgment to Plaintiffs and rendered judgment in favor of Defendants.
Appellate Division, First Department
When person designated in conditional judicial surrender declines to adopt the child, the surrender must be revoked upon the birth parent’s application
In Matter of L.S., --- N.Y.S.3d ----, 2021 WL 1218409, 2021 N.Y. Slip Op. 02085 (1st Dept.,2021) the Appellate Division held that when the person designated in a conditional judicial surrender pursuant to Social Services Law §383–c as the adopting parent declines to adopt the child, the surrender must be revoked upon the birth parent’s application. The Family Court was unwilling to vacate the surrender given the undisputed toll on the child’s well-being as a result of spending virtually her entire life in foster care. Instead, the court held a best interests hearing and determined that the mother’s parental rights remain terminated, and converted her conditional judicial surrender to an unconditional one, which permitted the child to remain free for adoption. The Appellate Division reversed because the designated person to adopt is a fundamental condition precedent to a surrender such that the person’s declination mandates its revocation upon the birth parent’s prompt application.
The Appellate Division observed that the legislature enacted section 383–c of the Social Services Law in 1990 to provide for new procedures for the surrender of a foster child to an authorized agency so as to free the child for adoption. The law lacked the dispositional alternatives for the conditional judicial surrender in the event of a substantial failure of a material condition prior to finalization of the adoption. That oversight was corrected by Matter of Christopher F., 260 A.D.2d 97, 701 N.Y.S.2d 171 (3d Dept. 1999) where the Appellate Division, Third Department held that the child’s adoption by the couple was a condition precedent of the surrender instrument, upon which its failure permitted the petitioner, upon her prompt application, to revoke it. The Christopher F. court found that the Family Court misconstrued Social Services Law § 383–c, reasoning that to assume that the legislature did not intend for the biological parent to have any recourse against the substantial failure of a material condition of the conditional surrender was not logical in view of the fact that the statute allowed the biological parents to surrender their child on the condition that the child be adopted by a particular person and gave the biological parents the right to notice when that condition failed. In Matter of Bentley XX (Eric XX.), 121 A.D.3d 209, 989 N.Y.S.2d 544 (3rd Dept. 2014), the Appellate Division, Third Department, held that the Family Court should have granted the father’s motion to revoke his surrender because there had been a substantial failure of a material condition, namely, that the couple, together, adopt the child. The Third Department noted that revocation continued to be a permissible disposition in a situation where the designated adoptive individual declines to adopt the child because the legislature did not disapprove of it, particularly in view of the fact that the legislature had the benefit of the holding in Matter of Christopher F. when it amended section 383–c[6][c]. The order of the Family Court was reversed, on the law, the petition denied and dismissed, and the mother’s application granted and the matter remanded for an expeditious continued hearing on the agency’s petition to terminate the mother’s parental rights.
Appellate Division, Second Department
Failure to make best interest determination and failure to articulate factors considered in awarding custody to plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children warrants reversal.
In Indictor v Indictor, --- N.Y.S.3d ----, 2021 WL 1202797, 2021 N.Y. Slip Op. 01968 (2d Dept.,2021) in 2012, the parties commenced actions for a divorce. In a temporary order of custody and visitation dated April 17, 2015, the Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the children. In an order dated February 7, 2018, the Supreme Court appointed an attorney for the children, to be paid for equally by the parties. At a proceeding on March 26, 2018, the court indicated that it had received notification from the appointed attorney for the children that he had not been paid by either party, and was asking to be relieved. The court warned the defendant that if he did not pay the attorney for the children, the temporary order of custody and visitation would be “made final.” The court added that it could not conduct an in camera interview of the children without an attorney for the children. At a proceeding on April 27, 2018, the Supreme Court noted that the defendant still had not paid his share of the fees for the attorney for the children, and directed the plaintiff to provide the court with a proposed final order of custody. In an order dated June 1, 2018, the court, sua sponte, awarded sole legal and physical custody of the children to the plaintiff. The Appellate Division reversed and remitted for a hearing. It held that a court opting to forgo 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. Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children and failed to articulate what factors it considered in awarding custody to the plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children. The plaintiff also failed to pay her share of the fees for the attorney for the children. It found the court erred in awarding the plaintiff sole legal and physical custody of the two minor children without conducting a hearing.
Where record is sufficient omission of recital that contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice rights or remedies may be corrected on appeal
In Matter of Martucci v Nerone, --- N.Y.S.3d ----, 2021 WL 1202639, 2021 N.Y. Slip Op. 01977(2d Dept.,2021) Family Court adjudicated the father in willful contempt of the support order. The Appellate Division agreed with the father that the order adjudging him to be in contempt of court [was] required to recite that the contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice the [mother’s] rights or remedies. However, because the finding of contempt was supported by the record, the omission of this recital was a mere irregularity which may be corrected on appeal and it modified the order of disposition to include the requisite recital.
Determination to calculate income by applying reasonable rate of return to entire tort settlement award not an improvident exercise of discretion
In Matter of Gerghty v Muniz, --- N.Y.S.3d ----, 2021 WL 1287197 (Mem), 2021 N.Y. Slip Op. 02155(2d Dept.,2021) the parties had two children, both of whom resided with the father. The parties stipulated to an order of support requiring the mother to pay child support of $5 per month, due to the mother’s inability to work after a motor vehicle accident. After the mother received a personal injury settlement award from her accident, the father filed a petition seeking an upward modification of the mother’s child support obligation. The Support Magistrate directed the mother to pay child support of $464 per month. The Appellate Division observed that a lump-sum payment received by a parent in a tort action is not excluded from consideration in determining child support. The Support Magistrate’s determination to calculate her income by applying a reasonable rate of return to the entire settlement award was not an improvident exercise of discretion. The mother did not present any evidence to demonstrate what, if any, portion of the award was for future medical expenses. Further, while she spent a portion of the award, parents have a duty to use available financial resources to support their children and cannot insulate such resources from consideration for child support by transforming them into non-income producing assets. Nevertheless, as the child support obligation directed by the Family Court reduced the mother’s income below the self-support reserve then applicable the court was required to reduce the obligation to the greater of $50 or the difference between the mother’s income and the self-support reserve (see Family Ct Act § 413[1][d]), which was $5,419, or $452 per month.
Not a Denial of due process to interview child in camera at dispositional stage abuse proceeding
In Matter of Bryce EW, --- N.Y.S.3d ----, 2021 WL 1287131 (Mem), 2021 N.Y. Slip Op. 02167 (2d Dept.,2021) the Administration for Children’s Service) commenced a proceeding against the mother and the father alleging that they had abused the child by inflicting excessive corporal punishment on him. The child was temporarily placed in the custody of a paternal great aunt. The mother, as well as ACS and the child’s attorney, subsequently consented to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a). After a dispositional hearing, the Family Court determined, inter alia, that it was in the best interests of the child to continue his placement with the paternal great aunt until the completion of the next permanency hearing. The Appellate Division held that the Family Court did not deprive the mother of her right to due process at the dispositional stage of the proceeding by interviewing the child in camera outside of the presence of either the mother or her counsel. At the dispositional hearing, where the court’s sole focus is the best interests of the child, the court has ample inherent discretionary power to conduct the proceedings so as to avoid placing an unjustifiable emotional burden on the child while allowing the child to speak freely and candidly (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Here, the court providently exercised its discretion in conducting an in camera interview with the child outside of the presence of either the mother or her counsel, after allowing the mother’s counsel to submit to the court proposed questions for the interview.
DRL ' 243 motion for Sequestration denied where plaintiff failed to make showing of necessity, such as consistent pattern of arrears or willful violation of a court order.
In Goldin v Levy, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2021 WL 921683, 2021 N.Y. Slip Op. 01481 (1st Dept.,2021) the Appellate Division held, inter alia, that the order that directed a hearing to determine arrears, civil contempt, and attorneys= fees was not appealable, because it did not affect a substantial right (see CPLR 5701[a][2][v]; Zaharatos v. Zaharatos, 134 A.D.3d 926, 22 N.Y.S.3d 480 [2d Dept. 2015]; Kornblum v. Kornblum, 34 A.D.3d 749, 751, 828 N.Y.S.2d 402 [2d Dept. 2006]). Any party aggrieved by an order entered subsequent to the hearing may appeal from that order.
The Appellate Division held that the motion court properly denied the plaintiff=s motion seeking sequestration of defendant=s share of retirement accounts pursuant to Domestic Relations Law ' 243. Although plaintiff established some arrears, she failed to make a showing of necessity, such as a consistent pattern of arrears or a willful violation of a court order directing payment of arrears.
Appellate Division, Second Department
Sanction of drawing an adverse inference against the plaintiff, regarding all custody issues for failure to appear for updated forensic evaluation, an improvident exercise of discretion
In Treanor v Treanor, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2021 WL 1010572 (Mem), 2021 N.Y. Slip Op. 08276 (2d Dept.,2021) several months after the commencement of this action for a divorce, the Supreme Court appointed a neutral forensic evaluator, who completed a forensic evaluation of the parties and their three children. In an order dated June 7, 2019, the court reappointed the forensic evaluator in order to conduct an update to the original forensic evaluation. Plaintiff violated the directives to participate in the updated forensic evaluation Upon the defendant=s motion for an order of preclusion, the Supreme Court found that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation, and imposed the sanction of drawing an adverse inference against the plaintiff with respect to custody issues at the time of trial. The Appellate Division found that Supreme Court properly determined that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation but under the circumstances of this case, the court improvidently exercised its discretion in imposing the sanction of drawing an adverse inference against the plaintiff regarding all custody issues at the time of trial on the ground that she failed to participate in the updated forensic evaluation rather than limiting the adverse inference to the circumstances of the forensic evaluation.
Improper to award parental access with the child only as often as both the child and the parent agree.
In Matter of Clezidor v Lexune, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2021 WL 900925, 2021 N.Y. Slip Op. 01409 (2d Dept.,2021) the Appellate Division reversed an order of the Family Court which, inter alia, awarded the mother parental access with the child only Aas often as both [the child] and [the mother] agree.@ It held that a court may not delegate its authority to determine parental access to either a parent or a child. Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditioned the mother=s parental access on the child=s wishes and leaves the determination as to whether there should be any parental access at all to the child.
Whatever business valuation method used must take into consideration inhibitions on the transfer of the corporate interest resulting from a limited market or contractual provisions
In Davenport v Davenport, 2021 WL 1112911 (2d Dept.,2021) the parties were married on July 3, 2010, and had no children. The plaintiff was a surgeon with a minority interest in Long Island Plastic Surgical Group (LIPSG). The defendant was a pediatric nurse practitioner who worked intermittently throughout the marriage. In April 2016, the plaintiff commenced this action for a divorce. The matter went to trial on the issue of equitable distribution. Prior to trial, the parties stipulated to the values of certain marital assets, including business entities, investment accounts, bank accounts, and the marital residence. In a decision dated December 3, 2018, the Supreme Court, among other things, determined that the marital portion of the plaintiff’s interest in LIPSG was $500,000 and awarded the defendant 10% of this amount, awarded the defendant 10% of the stipulated value of business entities known as Portman, LLC, Big Bang Beverage, LLC, and TK Styles Properties, LLC, awarded the defendant 10% of the stipulated value of certain investment accounts with Pershing Advisors Solutions, LLC, and RM Stock Investment, awarded the defendant 25% of the stipulated value of certain bank accounts, and awarded the defendant 25% of the stipulated value of the marital residence after deducting the plaintiff’s separate property credit. The court also declined to award the defendant any portion of a receivable owed to the parties by the plaintiff’s brother, based upon an oral stipulation at trial. A judgment of divorce was issued based upon the Supreme Court’s decision.
With regard to the appreciation in value of LIPSG the Appellate Division held that whatever valuation method is used must take into consideration inhibitions on the transfer of the corporate interest resulting from a limited market or contractual provisions (Amodio v. Amodio, 70 N.Y.2d 5, 7, 516 N.Y.S.2d 923). Here, the Supreme Court providently determined that, based upon the expert testimony, that a discount should be applied to the average appreciation value of the plaintiff’s interest in LIPSG, due to his lack of control as a minority owner to transfer his interest, which results in a lack of marketability. However, in valuing the marital appreciation of the plaintiff’s interest in LIPSG at only $500,000, the court improvidently applied a discount to the experts average appreciation value which far exceeded the 15–20% discount that both experts agreed was appropriate for this lack of marketability. It determined that a 20% discount should be applied, and valued the marital appreciation of the plaintiff’s interest in LIPSG at $1,344,686 (explaining its methodology). It held that it was not an improvident exercise of the Supreme Court’s discretion to award the defendant only 10% of the marital appreciation in the plaintiff’s interest in LIPSG, in light of the brief duration of the marriage and the defendant’s minimal contribution to the practice.
The Appellate division held that Supreme Court also providently exercised its discretion in awarding the defendant only 25% of the stipulated value of the plaintiff’s bank accounts, considering the parties’ relative financial contributions and the short duration of the marriage.
The evidence presented at trial did not indicate that the plaintiff’s involvement in certain business entities known as Portman, LLC, Big Bank Beverage, LLC, or TK Style Properties, LLC, involved anything more than investing marital monies into the companies. Further, although certain investment accounts with Pershing Advisors Solutions, LLC, and RM Stock Investment were actively managed, the plaintiff admitted that he only spoke to the manager every couple months. As such, the Appellate Division held that it was improper to distribute these marital assets in the same manner as the plaintiff’s interest in LIPSG, instead of the same manner as the plaintiff’s bank accounts. Accordingly, the Appellate Division awarded the defendant 25% of the stipulated value of each of those entities.
The Appellate Division also awarded defendant 40% of the stipulated value of the marital residence, taking into consideration her significant direct contributions to the construction, design and decoration of the home, and that the plaintiff was to receive a significant separate property credit for any premarital money that he invested in the home.
A pendente lite order may be enforced through the entry of a money judgment after the entry of a judgment of divorce
In Curran v Curran, --- N.Y.S.3d ----, 2021 WL 1112915, 2021 N.Y. Slip Op. 01753 (2d Dept.,2021) a post judgment enforcement proceeding, the Appellate Division held, inter alia, that the Supreme Court erred by, in effect, denying plaintiff’s cross motion to direct the defendant to pay her 50% share of carrying costs on the marital residence and unreimbursed medical expenses for the children incurred from January 2016 to March 2017, which had been ordered pendente lite. Even after the entry of a judgment of divorce, a pendente lite order may be enforced through the entry of a money judgment. Thus, neither the occurrence of the trial nor the issuance of a posttrial order precluded the enforcement of the order dated January 26, 2015, which, inter alia, directed the parties to evenly split the carrying costs for the marital residence and unreimbursed medical expenses for the children.
Appellate Division, Third Department
Critical error to hold that the discharged counsel could not be allowed to remain as standby counsel
In Matter of Saber v Saccone, --- N.Y.S.3d ----, 2021 WL 1132571, 2021 N.Y. Slip Op. 01811(3d Dept.,2021) Family Court confirmed a willful violation finding, imposed a 100–day jail commitment without suspension and set a purge amount of $24,700. The father contended on appeal that Family Court violated his right to counsel at the confirmation hearing. (see Family Ct Act § 262[a][vi]) The Appellate Division observed that a party to a Family Court proceeding who has the right to be represented by counsel may only proceed without counsel if that party has validly waived his or her right to representation. Waiver of that right must be explicit and intentional, and the court must assure that it is made knowingly, intelligently and voluntarily. This requires that the trial court perform a searching inquiry to determine whether a party is aware of the dangers and disadvantages of proceeding without counsel, which might include inquiry into the party’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” . Although the court warned the father that he would have to proceed even if he failed to retain counsel, it did not conduct the requisite searching inquiry to be reasonably certain that he “understood the dangers and disadvantages of giving up the fundamental right of counsel. The record failed to establish a waiver. Moreover, when the father requested that his last assigned counsel be relieved, counsel stated that he was willing to continue his representation or operate as standby counsel. The court refused this offer, declaring that such an arrangement cannot exist in Family Court and Counsel was relieved. The Appellate Division held there was a critical error in holding that the discharged counsel could not be allowed to remain as standby counsel. As the court could not find that the waiver of his right to counsel at the confirmation hearing was voluntary, knowing and intelligent, based upon the court’s failure to make an appropriate warning of the dangers of so proceeding, coupled with the refusal to allow counsel to remain on standby, the order was modified by vacating the finding of willfulness and as modified, affirmed.
The mere installation of security cameras that are incapable of surveilling or recording cannot constitute harassment in the second degree
In Matter of McKenzie v Berkovitch, --- N.Y.S.3d ----, 2021 WL 1132526, 2021 N.Y. Slip Op. 01814 (3d Dept.,2021) petitioner and respondent owned a farm as tenants in common, and no longer lived together. They formerly had an intimate relationship. The family offense petition alleged that petitioner found four sensor recording devices that were unknown to her in the “master bedroom, master bathroom, living room [and] basement” and that she was being recorded within her home without her knowledge. The Appellate Division reversed the order finding a family offense had been committed. It observed that as pertinent here, “[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person ... [h]e or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose” (Penal Law § 240.26[3]; see Family Ct Act § 812). The term “course of conduct” may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. It found that petitioner failed to establish that respondent recorded or surveilled petitioner, or had specific knowledge of the subject cameras. Therefore, a finding that respondent engaged in the requisite course of conduct to support a finding against him of harassment in the second degree could not be sustained. At the fact-finding hearing, a security expert hired by petitioner testified that, in October 2018 — a few days before the hearing — he went to the farmhouse at petitioner’s request to conduct a sweep of the premises for surreptitious equipment. He found the cameras were neither connected to the DVRs or the Internet. Therefore, it would be impossible for respondent to surveil or record images of petitioner, and there was no proof otherwise. Further, the mere installation of security cameras that are incapable of surveilling or recording cannot legally or logically constitute harassment in the second degree as there is no “course of conduct” that could reasonably “alarm or seriously annoy such other person” (Penal Law § 240.26).
Appellate Division, Fourth Department
A Contempt application which does not strictly comply with Judiciary Law ' 756 is jurisdictionally defective.
In Rennert v Rennert, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2021 WL 1049727, 2021 N.Y. Slip Op. 01630 (4th Dept.,2021) the plaintiff=s contempt applications omitted the language warning defendant that his Afailure to appear in court may result in [his] immediate ... imprisonment for contempt of court.@ Because plaintiff=s contempt applications failed to include the required warning language, they did not strictly comply with Judiciary Law ' 756, and were jurisdictionally defective.
Supreme Court
While the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration.
In JJ, v. TW, 2021 WL 1047105 (Table), 2021 N.Y. Slip Op. 50219(U) Sup Ct (2021) an action for a divorce Plaintiff moved to terminate spousal support payments awarded by family court on the ground that, as of the date of his application, he had Atendered 13 consecutive monthly payments, more than double the amount of the calculated durational period@ set forth by the post‑divorce maintenance advisory durational guidelines. The support order Plaintiff challenged was issued in Family Court pursuant to Family Court Act ' 412. The Court observed that while the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration. DRL ' 236[B][5‑a] [f] expressly states Athe court shall determine the duration of temporary maintenance by considering the length of the marriage.@ DRL ' 236[B][5‑a] [g] further provides that Atemporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first.@ The Family Court Act, on the other hand, does not relate the duration of spousal support to the length of the marriage. Rather, the Family Court Act provides that unless modified upon a showing of a substantial change in circumstances, any order of spousal support issued pursuant to Family Court Act ' 412. shall continue until the earliest of one of the following: a written or oral stipulation or agreement between the parties; the issuance of a judgment of divorce or other order in a matrimonial proceeding; or the death of either party (see FCA ' 412[10]). Here, Plaintiff failed to show a substantial change in circumstances warranting termination or modification of the spousal support order.
Construing the emancipation clause in the parties agreement Supreme Court finds that child was emancipated by his enrollment in the United States Naval Academy
In Denatale v. Denatale, 2021 WL 1096899 (Table), 2021 N.Y. Slip Op. 50247(U) (Sup Ct.,2021) the parties Stipulation of Settlement dated December 29, 2017 which was incorporated but did not merge into their Judgment of Divorce provided that the child support obligation would continue through the age of 22 even if the Children had completed college. The Stipulation provided, in part as follows at Article E: “The Husband=s obligation to pay child support shall continue until the child attains the age of twenty‑two (22) regardless of whether a child is still in college or has completed college. Thus, by way of example, should Campbell graduate college at the age of 21, child support for her shall continue through age 22.” … Emancipation shall also include: Marriage (even though such a marriage may be void or voidable and despite any annulment of it); Permanent residence away from the residence of the Mother and the Father. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the mother and, hence, such a residence at boarding school, camp, or college is not an Emancipation Event; Death of the child (God forbid); Entry into the armed forces of the United States (provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces, and, thereafter, the period shall be the applicable period as if such an Emancipation Event by reason of the entry had not occurred); Engaging in full‑time employment upon and after the attaining by a child of 18 years of age....””Supreme Court held that the child was emancipated by his enrollment in the United States Naval Academy. The court cited as authority Beekman‑Ellner v. Ellner, 296 AD2d 404 (2d Dept. 2002), where the Appellate Division affirmed an order of the Family Court which terminated child support A[s]ince the parties= child enrolled in full‑time training duty at the U.S. Naval Academy at Annapolis and his life at Annapolis was largely controlled by the government, which also provided for the bulk of his material needs, he was clearly engaged in >active military service= to render him emancipated@ (citing 10 USC Sec 101[d][1]). Similarly, in Zuckerman v. Zuckerman, 154 AD2d 666 (2d Dept. 1989), the Appellate Division held that the parties= son Abecame emancipated when he entered West Point.@ There, the Appellate Division found that pursuant to 10 USC Sec 3075[b][2]1, upon entering West Point, the minor child is considered a member of the regular army and subject to extensive governmental control, which is inconsistent with a parent=s control and support of a child. The child attends West Point tuition free and is provided with room, board, health care, and monthly pay of $504.30, plus other allowances. Thus, he is self‑supporting and financially independent of his parents. Although the Stipulation here was clear that attendance at a college was not an emancipation event, it was also clear that enlistment in the military was one. The motion to terminate child support was granted as the parties= son, was deemed emancipated.
March 16, 2021
Child Support Standards Chart Released
The Child Support Standards Chart (PDF) was released on March 1, 2021. It may be downloaded at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf The 2021 poverty income guidelines amount for a single person as reported by the United States Department of Health and Human Services is $12,880 and the 2021 self-support reserve is $17,388. The combined parental income amount remains at $154,000.
Appellate Division, First Department
Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition
In Matter of Nannan L v Stephen L, --- N.Y.S.3d ----, 2021 WL 559146 (1st Dept.,2021) the Appellate Division affirmed an order which denied the father’s petition for a downward modification of his child support obligations. It held that the Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition (Family Ct Act § 413[1][b][5][iv][D] ), including payment for various in-patient drug treatment programs, medical and dental care, and other expenses. The father’s family also has been paying for him to live rent-free in a two-bedroom apartment on the Upper West Side of Manhattan and gave him a substantial monthly stipend for his personal use.
The Appellate Division held that Family Court did not err in failing to conduct a separate hearing on the modification petition. At the hearing on the violation petition, the court heard evidence of his financial circumstances from the entry of the order of support through the filing of the modification petition, and up until the date the hearing concluded. The father was aware that in the event the court found that he willfully violated the order of support, it likely would dismiss the downward modification petition and a hearing would be unnecessary. The father’s counsel confirmed that all relevant evidence relating to the modification petition had been presented to the court in the context of the violation hearing
Appellate Division, Third Department
Failure to satisfy statutory mandate of UCCJEA Requires Reversal. Family Offense Jurisdiction is not determined by UCCJEA
In Matter of Vashon H v Bret I, --- N.Y.S.3d ----, 2021 WL 624233, 2021 N.Y. Slip Op. 01103 (3d Dept.,2021) the Appellate Division held that Family Court failed to satisfy the procedural mechanisms required by the UCCJEA when a custody petition is pending in another state. After becoming aware of the Ohio proceeding, Family Court properly communicated with the Ohio court. The extent of these communications was unclear; however, they apparently resulted in the transmittance of an Ohio order to Family Court. Although the contents of the Ohio order strongly implied that the Ohio court intended to retain jurisdiction, as evidenced by its scheduling of the matter for trial, this did not absolve Family Court of its obligation to create a record of its communications and to provide that record to the parties. Family Court’s brief summary of its determination following the communication, which was not placed on the record in the presence of the parties, did not satisfy this statutory mandate. Moreover, although it was a permissible exercise of discretion for Family Court not to permit the parties to participate in its communication with the Ohio court , the court was then required to allow the parties an opportunity to present facts and legal arguments before it rendered a decision, which it failed to do. (See DRL§ 75-i(2)). It remitted for a new hearing
The Appellate Division also held that jurisdiction in the context of a family offense petition is not determined by the UCCJEA, which serves the limited purpose of enforcing orders of custody and visitation across state lines (see Domestic Relations Law § 75[2]). Family Court and criminal courts “have concurrent jurisdiction over any proceeding concerning acts which would constitute” those delineated as both crimes and family offenses (Family Ct Act § 812[1]). Additionally, although the majority of the acts alleged in the family offense petition occurred in Ohio, Family Court’s jurisdiction is not subject to the same geographic limitations as placed on that of the criminal courts, as nothing “requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction” (Matter of Richardson v. Richardson, 80 A.D.3d 32, 42, 910 N.Y.S.2d 149 [2010]). Thus, Family Court’s jurisdiction extended to cover the subject matter of the family offense petition, regardless of the fact that the vast majority of the alleged acts were committed in Ohio. Family Court should have entertained the family offense petition and, accordingly, it reversed and remitted the matter for the proceedings.
Change of Circumstances requirement for custody modification circumvented when prior custody order provides satisfaction of certain conditions constitute necessary change in circumstances.
In Matter of Austin ZZ v Aimee A, --- N.Y.S.3d ----, 2021 WL 624156, 2021 N.Y. Slip Op. 01109 (3d Dept.,2021) the Appellate Division held that while ordinarily, the party seeking to modify a prior order of custody must first demonstrate that there has been a change in circumstances since entry of the prior order that warrants an inquiry into the best interests of the child and, if so, that modification of that prior order is necessary to ensure the best interests of the child this requirement may, however, be circumvented when the prior custody order provides that the satisfaction of certain conditions will constitute the necessary change in circumstances.
Family Court was statutorily precluded from rendering abuse findings where Respondent was not biological father of the children
In Matter of Lazeria F, --- N.Y.S.3d ----, 2021 WL 624353, 2021 N.Y. Slip Op. 01096(3d Dept.,2021) Respondent Paris H. (mother) was the mother of the five subject children – two daughters, a now-deceased daughter, and two sons. Respondent Kaysaun I. (father) was the biological father of the younger son and the younger daughter and resided with the mother and the five children in the family home. The Appellate Division was reluctantly constrained to reverse Family Court’s determination that the father severely abused the deceased child and derivatively severely abused the older daughter and the older son. As the Court has previously made clear, and as petitioner and the attorney for the child conceded, unlike findings of abuse and neglect, which may be made against “any parent or other person legally responsible for a child’s care” (Family Ct Act § 1012[a]), the current statutory language contained in Social Services Law § 384–b (8)(a)(I) only permits a finding of severe abuse to be made against a child’s “parent.” Because he was not the biological father of these children, Family Court was statutorily precluded from rendering such findings and it was therefore, constrained to reverse same. In a footnote the court urged the Legislature to expeditiously amend Social Services Law § 384–b (8) to address the concerns it raised.
Court’s failure to consult with the child or directly ascertain his wishes as required by Family Ct. Act § 1089[d] did not warrant reversal of change of permanency goal where it heard extensive testimony regarding the child’s emotional state and best interests,
In Matter of Isayah R., 189 A.D.3d 1942 (3d Dept.,2021) respondent was the mother of a child (born in 2010) who had special needs. In May 2016, petitioner commenced a neglect proceeding against respondent, alleging that she was unable to provide appropriate supervision for the child due to ongoing substance abuse issues. The child was removed from respondent’s care in June 2016 and resided in a therapeutic foster home since that time. In May 2019 – at respondent’s request – psychologist Claude Schleuderer conducted a psychological evaluation of respondent, the child and the foster parents, after which he issued a report opining that “the best long-term solution [for the child was] ... an [o]pen [a]doption.” In connection with Schleuderer’s findings, petitioner filed a permanency report seeking to change the child’s permanency goal from reunification with respondent to placement for adoption. Following a permanency hearing, Family Court granted petitioner’s request, finding that “[a] permanency plan of placement for adoption” was in the child’s best interests. The Appellate Division agreed with respondent that Family Court failed to conduct an age-appropriate consultation with the child prior to changing the permanency goal (see Family Ct. Act § 1089[d]), but concluded that reversal was unnecessary in these circumstances. Pursuant to Family Ct. Act § 1089(d), Family Court must undertake an “age appropriate consultation with the child.” Although the statute does not require a personal consultation with the child, it does obligate the court to find “some age-appropriate means of ascertaining [the child’s] wishes.” Although Family Court did not speak with the child or directly ascertain his wishes, it heard extensive testimony from Schleuderer regarding the child’s emotional state and best interests, as well as his opinion about respondent’s ability to handle the child’s special needs. Schleuderer’s evaluation report, which was admitted into evidence during the hearing, noted the child’s feelings about his foster care placement and connection to the foster parents and emphasized that transferring the child to respondent’s care would be detrimental to the child’s long-term functioning. During the permanency hearing, the attorney for the child conveyed the child’s feelings about the “uncertainty of his future,” and one of the foster parents recounted certain questions the child had asked her in which he indicated his feelings about being adopted. Under these circumstances, the court’s failure to consult with the child or directly ascertain his wishes did not warrant reversal.
March 1, 2021
Child Support Standards Chart Released
The Child Support Standards Chart (PDF) was released on March 1, 2021. It may be downloaded at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf The 2021 poverty income guidelines amount for a single person as reported by the United States Department of Health and Human Services is $12,880 and the 2021 self-support reserve is $17,388. The combined parental income amount remains at $154,000.
Appellate Division, First Department
Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition
In Matter of Nannan L v Stephen L, --- N.Y.S.3d ----, 2021 WL 559146 (1st Dept.,2021) the Appellate Division affirmed an order which denied the father’s petition for a downward modification of his child support obligations. It held that the Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition (Family Ct Act § 413[1][b][5][iv][D] ), including payment for various in-patient drug treatment programs, medical and dental care, and other expenses. The father’s family also has been paying for him to live rent-free in a two-bedroom apartment on the Upper West Side of Manhattan and gave him a substantial monthly stipend for his personal use.
The Appellate Division held that Family Court did not err in failing to conduct a separate hearing on the modification petition. At the hearing on the violation petition, the court heard evidence of his financial circumstances from the entry of the order of support through the filing of the modification petition, and up until the date the hearing concluded. The father was aware that in the event the court found that he willfully violated the order of support, it likely would dismiss the downward modification petition and a hearing would be unnecessary. The father’s counsel confirmed that all relevant evidence relating to the modification petition had been presented to the court in the context of the violation hearing
Appellate Division, Third Department
Failure to satisfy statutory mandate of UCCJEA Requires Reversal. Family Offense Jurisdiction is not determined by UCCJEA
In Matter of Vashon H v Bret I, --- N.Y.S.3d ----, 2021 WL 624233, 2021 N.Y. Slip Op. 01103 (3d Dept.,2021) the Appellate Division held that Family Court failed to satisfy the procedural mechanisms required by the UCCJEA when a custody petition is pending in another state. After becoming aware of the Ohio proceeding, Family Court properly communicated with the Ohio court. The extent of these communications was unclear; however, they apparently resulted in the transmittance of an Ohio order to Family Court. Although the contents of the Ohio order strongly implied that the Ohio court intended to retain jurisdiction, as evidenced by its scheduling of the matter for trial, this did not absolve Family Court of its obligation to create a record of its communications and to provide that record to the parties. Family Court’s brief summary of its determination following the communication, which was not placed on the record in the presence of the parties, did not satisfy this statutory mandate. Moreover, although it was a permissible exercise of discretion for Family Court not to permit the parties to participate in its communication with the Ohio court , the court was then required to allow the parties an opportunity to present facts and legal arguments before it rendered a decision, which it failed to do. (See DRL§ 75-i(2)). It remitted for a new hearing
The Appellate Division also held that jurisdiction in the context of a family offense petition is not determined by the UCCJEA, which serves the limited purpose of enforcing orders of custody and visitation across state lines (see Domestic Relations Law § 75[2]). Family Court and criminal courts “have concurrent jurisdiction over any proceeding concerning acts which would constitute” those delineated as both crimes and family offenses (Family Ct Act § 812[1]). Additionally, although the majority of the acts alleged in the family offense petition occurred in Ohio, Family Court’s jurisdiction is not subject to the same geographic limitations as placed on that of the criminal courts, as nothing “requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction” (Matter of Richardson v. Richardson, 80 A.D.3d 32, 42, 910 N.Y.S.2d 149 [2010]). Thus, Family Court’s jurisdiction extended to cover the subject matter of the family offense petition, regardless of the fact that the vast majority of the alleged acts were committed in Ohio. Family Court should have entertained the family offense petition and, accordingly, it reversed and remitted the matter for the proceedings.
Change of Circumstances requirement for custody modification circumvented when prior custody order provides satisfaction of certain conditions constitute necessary change in circumstances.
In Matter of Austin ZZ v Aimee A, --- N.Y.S.3d ----, 2021 WL 624156, 2021 N.Y. Slip Op. 01109 (3d Dept.,2021) the Appellate Division held that while ordinarily, the party seeking to modify a prior order of custody must first demonstrate that there has been a change in circumstances since entry of the prior order that warrants an inquiry into the best interests of the child and, if so, that modification of that prior order is necessary to ensure the best interests of the child this requirement may, however, be circumvented when the prior custody order provides that the satisfaction of certain conditions will constitute the necessary change in circumstances.
Family Court was statutorily precluded from rendering abuse findings where Respondent was not biological father of the children
In Matter of Lazeria F, --- N.Y.S.3d ----, 2021 WL 624353, 2021 N.Y. Slip Op. 01096(3d Dept.,2021) Respondent Paris H. (mother) was the mother of the five subject children – two daughters, a now-deceased daughter, and two sons. Respondent Kaysaun I. (father) was the biological father of the younger son and the younger daughter and resided with the mother and the five children in the family home. The Appellate Division was reluctantly constrained to reverse Family Court’s determination that the father severely abused the deceased child and derivatively severely abused the older daughter and the older son. As the Court has previously made clear, and as petitioner and the attorney for the child conceded, unlike findings of abuse and neglect, which may be made against “any parent or other person legally responsible for a child’s care” (Family Ct Act § 1012[a]), the current statutory language contained in Social Services Law § 384–b (8)(a)(I) only permits a finding of severe abuse to be made against a child’s “parent.” Because he was not the biological father of these children, Family Court was statutorily precluded from rendering such findings and it was therefore, constrained to reverse same. In a footnote the court urged the Legislature to expeditiously amend Social Services Law § 384–b (8) to address the concerns it raised.
Court’s failure to consult with the child or directly ascertain his wishes as required by Family Ct. Act § 1089[d] did not warrant reversal of change of permanency goal where it heard extensive testimony regarding the child’s emotional state and best interests,
In Matter of Isayah R., 189 A.D.3d 1942 (3d Dept.,2021) respondent was the mother of a child (born in 2010) who had special needs. In May 2016, petitioner commenced a neglect proceeding against respondent, alleging that she was unable to provide appropriate supervision for the child due to ongoing substance abuse issues. The child was removed from respondent’s care in June 2016 and resided in a therapeutic foster home since that time. In May 2019 – at respondent’s request – psychologist Claude Schleuderer conducted a psychological evaluation of respondent, the child and the foster parents, after which he issued a report opining that “the best long-term solution [for the child was] ... an [o]pen [a]doption.” In connection with Schleuderer’s findings, petitioner filed a permanency report seeking to change the child’s permanency goal from reunification with respondent to placement for adoption. Following a permanency hearing, Family Court granted petitioner’s request, finding that “[a] permanency plan of placement for adoption” was in the child’s best interests. The Appellate Division agreed with respondent that Family Court failed to conduct an age-appropriate consultation with the child prior to changing the permanency goal (see Family Ct. Act § 1089[d]), but concluded that reversal was unnecessary in these circumstances. Pursuant to Family Ct. Act § 1089(d), Family Court must undertake an “age appropriate consultation with the child.” Although the statute does not require a personal consultation with the child, it does obligate the court to find “some age-appropriate means of ascertaining [the child’s] wishes.” Although Family Court did not speak with the child or directly ascertain his wishes, it heard extensive testimony from Schleuderer regarding the child’s emotional state and best interests, as well as his opinion about respondent’s ability to handle the child’s special needs. Schleuderer’s evaluation report, which was admitted into evidence during the hearing, noted the child’s feelings about his foster care placement and connection to the foster parents and emphasized that transferring the child to respondent’s care would be detrimental to the child’s long-term functioning. During the permanency hearing, the attorney for the child conveyed the child’s feelings about the “uncertainty of his future,” and one of the foster parents recounted certain questions the child had asked her in which he indicated his feelings about being adopted. Under these circumstances, the court’s failure to consult with the child or directly ascertain his wishes did not warrant reversal.
February 16, 2021
Appellate Division, Second Department
Since the court declined to sign the defendant’s prior order to show cause, the defendant’s prior motion was neither made nor determined. A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information
In Lombardi v Lombardi, --- N.Y.S.3d ----, 2021 WL 262287, 2021 N.Y. Slip Op. 00426) the defendant filed an order to show cause seeking, inter alia, that the Supreme Court direct service of his motion, and pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection. The court declined to sign the order to show cause. The defendant then moved, inter alia, for leave to reargue his prior motion, and, as additional relief, an order of preclusion pursuant to CPLR 3126 precluding plaintiff from offering certain evidence at trial. Supreme Court denied defendant’s motion for leave to reargue on the grounds that it was untimely and that the court did not misapprehend any facts. The court denied the remaining branches of the defendant’s motion. The Appellate Division held that the court should have considered, on the merits, the defendant’s motion for a protective order. Since the court declined to sign the defendant’s prior order to show cause, the defendant’s prior motion was neither made (see CPLR 2211) nor determined (see CPLR 2221[d][2]). Thus, there was no need for the defendant to seek leave to reargue the prior motion, and the court erred by, in effect, denying those branches of the defendant’s motion which were for a protective order and to impose sanctions on the ground that the defendant’s motion did not comply with CPLR 2221(d)(2) and (3).
The Appellate Division observed that CPLR 3101(a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, “[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure.” The Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper (see CPLR 3101[a]. A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information. Where the discovery demand is overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it. It found that the plaintiff’s notice for discovery and inspection was palpably improper in that it was overbroad and burdensome, sought irrelevant or confidential information, and failed to specify with reasonable particularity many of the documents demanded. Defendant’s motion which was pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection should have been granted.
The Appellate Division held that Supreme Court providently exercised its discretion in denying defendant’s motion pursuant to CPLR 3126 to preclude the plaintiff from offering certain evidence at trial. The defendant failed to make a clear showing that any failure to comply with court-ordered discovery was willful and contumacious.
Plenary action required to seek to set aside the stipulation of settlement, incorporated but not merged into the judgment of divorce unless reformation is sought to conform the agreement with the intent of the parties, or where the matrimonial action is still pending and not terminated with entry of a judgment, or in certain circumstances where enforcement of child support is sought.
In Jagassar v Deonarine, --- N.Y.S.3d ----, 2021 WL 359472, 2021 N.Y. Slip Op. 00549 (2d Dept.,2021) a judgment of divorce, which incorporated but did not merge the parties stipulation of settlement, was entered on May 19, 2015. In March 2018, the defendant moved, inter alia, to enforce certain provisions of the parties’ stipulation of settlement. The plaintiff opposed the motion, arguing that the stipulation of settlement was unconscionable, and cross-moved to vacate the stipulation of settlement. The Supreme Court vacated the provisions of the stipulation of settlement concerning equitable distribution and maintenance without a hearing on the ground that those provisions “shock[ed] the conscience.” The court also denied the defendant’s enforcement motion. The Appellate Division reversed and remitted for a new determination. It held that under the circumstances presented here, a plenary action was required to seek to set aside the stipulation of settlement, which was incorporated but not merged into the judgment of divorce. There are exceptions to this general rule, such as where reformation of a separation agreement is sought to conform the agreement with the intent of the parties, or where the matrimonial action is still pending and was not terminated with entry of a judgment, or in certain circumstances where enforcement of child support is sought (see Barany v. Barany, 71 A.D.3d 613). None of these exceptions were applicable here.
As Family Ct Act § 580–706[e] does not specify how the tribunal shall notify the nonregistering party of the registration of a foreign support order CPLR 2103, governing the service of papers, is applicable.
In Matter of Laczko v Szoca, 2021 WL 359336 (2d Dept.,2021) the petitioner, filed a petition in the Family Court, in 2019, to vacate the registration of an order of support from a Hungarian court which had been registered by the respondent in the Family Court in 2015 pursuant to the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (the Convention). The Support Magistrate, dismissed the petition as untimely. The Appellate Division affirmed. It observed that a party contesting a registered Convention support order shall file a contest not later than thirty days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than sixty days after notice of the registration” (Family Ct Act § 580–707[b]). “If the nonregistering party fails to contest the registered Convention support order by the time specified ... the order is enforceable” (Family Ct Act § 580–707[c]). Pursuant to Family Court Act article 5–B, “a foreign support order may be registered in this state by sending” certain enumerated “records to the appropriate tribunal in this state” (Family Ct Act § 580–602[a]; see Family Ct Act § 580–706[a]).” The tribunal shall promptly notify the parties of the registration” (Family Ct Act § 580–706[e]). It held that as the Family Court Act does not specify how the tribunal shall notify the nonregistering party of the registration of the foreign support order the provisions of CPLR 2103, governing the service of papers, are applicable. Pursuant to CPLR 2103(b)(2), “service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period”. The petition to vacate the registration of the Hungarian support order was filed almost four years after the petitioner had been served with the notice of registration. The petitioner did not dispute that the notice of registration had been sent in 2015 to the address at which he received mail in New York at that time, and as such, there was a rebuttable presumption that he received the notice in 2015. The petitioner’s mere denial of receipt was insufficient to rebut the presumption of receipt. Thus, the Family Court properly denied the petitioner’s objection to the order, which dismissed his petition to vacate the registration of the Hungarian order as untimely (see Family Ct Act § 580–707[b]).
Appellate Division, Fourth Department
Dismissal of enforcement proceeding reversed where Court did not consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum (DRL § 76-f [2]).
In Henshaw v Hildebrand, --- N.Y.S.3d ----, 2021 WL 404851, 2021 N.Y. Slip Op. 00653 (4th Dept., 2021) the Appellate Division agreed with the father that the court erred in granting the motion to dismiss the enforcement petition on the ground that the State of Texas was the appropriate forum. The issue of inconvenient forum dismissal is addressed to Family Court’s discretion after consideration of the statutory factors (Domestic Relations Law § 76-f [2]). The court is required to consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum”. Here, the court failed to permit the father to submit information concerning the statutory factors, and the record did not indicate whether the court considered them; thus, the court erred insofar as it granted the motion on that basis. In any event, it concluded that the court erred in granting the motion inasmuch as the mother submitted no evidence in support of the motion and failed to specify any statutory or other legal basis for the requested relief.
Where matter “involves an uncomplicated disposition or simple judgment for a sum of money which speaks for itself,” the judgment may be entered by the clerk
In Jolley v Lando, --- N.Y.S.3d ----, 2021 WL 405216, 2021 N.Y. Slip Op. 00679 (4th Dept.,2021) the Appellate Division observed that CPLR 5016 (c) provides that a “[j]udgment upon the decision of a court or a referee to determine shall be entered by the clerk as directed therein. When relief other than for money or costs only is granted, the court or referee shall, on motion, determine the form of the judgment.” Where a matter “involves an uncomplicated disposition or simple judgment for a sum of money which speaks for itself,” the judgment may be entered by the clerk without prior submission to the court (Funk v Barry, 89 NY2d 364, 367 [1996]). As the prior order did not direct any party to settle or submit a judgment to the court, a judgment could be entered by the clerk without prior submission to the court. In addition, the second ordering paragraph of the prior order provided that defendant “shall pay to [p]laintiff the sum of $238,670 for equitable distribution pertaining to the Lindley, New York property; said money to be paid within 30 days.” That was simple directive for payment of a sum of money which speaks for itself, and thus a judgment on that amount could be entered by the clerk.
Under certain circumstances, the court may order an upward modification of child support retroactive to a date prior to the filing of the modification petition but they did not apply
In Matter of Oneida County DSS on behalf of Christman v Bleau, --- N.Y.S.3d ----, 2021 WL 405796 (Mem), 2021 N.Y. Slip Op. 00763 (4th Dept., 2021) although the Appellate Division agreed with petitioner that, under certain circumstances, the court may order an upward modification of child support retroactive to a date prior to the filing of the modification petition (citing Matter of Oneida County Dept. of Social Servs. v Abu-Zamaq, 177 AD3d 1412, 1413 [4th Dept 2019]; Matter of Department of Social Servs. v Douglas D., 226 AD2d 633, 634 [2d Dept 1996]; Matter of Monroe County Dept. of Social Servs. v Campbell, 161 AD2d 1176, 1177 [4th Dept 1990]; see also Family Ct Act § 451), petitioner failed to present sufficient evidence supporting an upward modification retroactive to a date earlier than that ordered by the Support Magistrate. Moreover, contrary to petitioner’s contention, Family Court Act § 449 (2) did not permit the court to direct that the child support modification be retroactive to the date the father was released from incarceration under the circumstances of this case.
Family Court
Family Court Act §1091 motion by youth to return to foster care denied where child failed to show a compelling reason to order his return to foster care.
In Matter of K.U., 135 N.Y.S.3d 803 (Family Court, 2021) the Family Court denied the motion of the youth to return to foster care. It observed that Family Court Act §1091, states that “a motion to return a former foster care youth under the age of twenty-one, who was discharged from foster care due to a failure to consent to continuation of placement if there is a compelling reason for such former foster care youth to return to foster care”. It applies to any youth under 21 who has been in foster care, who left foster care because they did not consent to remain there, and now wants to return to foster care. Matter of Jefry H., 102 A.D.3d 132, 138, 955 N.Y.S.2d 90 (2nd Dept. 2012) concerned a youth who had been adjudicated a Person in Need of Supervision under FCA Article 7. The Court overturned the trial court’s denial of the youth’s motion to re-enter foster care after finding that the youth was a “former foster care youth” within the meaning of FCA § 1091. The Court noted that the legislature’s intent in creating article 10-B of the Family Court Act did not restrict the reentry of youths to only child protective proceedings. A motion made pursuant to this section must show by affidavit or other evidence that: (1) the former foster care youth has no reasonable alternative to foster care; (2) the former foster care youth consents to enrollment in and attendance at an appropriate educational or vocational program ;(3) re-entry into foster care is in the best interests of the former foster care youth; and (4) the former foster care youth consents to the re-entry into foster care.” The Court found that K.U. failed to show a compelling reason to order his return to foster care. He was incarcerated at Rikers Island, facing several felony charges as an adult. K.U.’s criminal defense attorney acknowledged that the jurist in the criminal case was not granting K.U. youthful offender status. The Court did not have any have information that K.U. could even be released from jail if it ordered his return to foster care. Nor did the Court have information before it that a residential treatment program is the actual plan for K.U. Thus, there was no “compelling reason” to return to foster care placement within the meaning of Family Court Act § 1091. It distinguished Jefry H. in that there the youth presented facts that led the Court to conclude that there was a compelling reason for him to return to foster care: the youth had no place to live and no means of support.
February 1, 2021
Uniform Rules for Trial Courts
Amendments to 22 NYCRR 202.16 (k) and 202.16-b Effective January 19, 2021 (AO/31/21) (new matter in italics)
Section 202.16 Matrimonial actions; calendar control of financial disclosure in actions and proceedings involving alimony, maintenance, child support and equitable distribution; motions for alimony, counsel fees pendente lite, and child support; special rules.
(k) Motions for alimony, maintenance, counsel fees pendente lite and child support (other than under section 237[c] or 238 of the Domestic Relations Law). *** (3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses (including costs for processing of NYSCEF documents because of the inability of a self-represented party that desires to e-file to have computer access or afford internet accessibility) to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court.
Section 202.16-b Submission of Written Applications in Contested Matrimonial Actions. *** (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 in all applications (including postjudgment 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:
Appellate Division, First Department
Appellate Divison affirms Charging Lien based upon account stated where no objection to invoices during year long representation
In Trafelet v Cipolla & Co., LLC, --- N.Y.S.3d ----, 2021 WL 189200, 2021 N.Y. Slip Op. 00274 (1st Dept.,2021) the Appellate Division affirmed an order which granted Buchanan Ingersoll & Rooney PC’s motion to fix the amount of its charging lien against plaintiff based upon an account stated, Nonparty respondent Buchanan Ingersoll & Rooney PC (BIR) submitted proof that it entered into a retainer agreement with plaintiff and sent her regular invoices to which she did not object during the course of the firm’s year-long engagement. Her subsequent counsel’s vague and noncommittal statement in court questioning the propriety of BIR’s bills was insufficient to constitute timely objection to BIR’s account stated claim.
Appellate Division, Second Department
Spouse seeking to set aside postnuptial agreement bears the burden to establish a fact-based, particularized inequality. Motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face.
In Hershkowitz v Levy, --- N.Y.S.3d ----, 2021 WL 191304, 2021 N.Y. Slip Op. 00299 (2d Dept.,2021) an action for a divorce the Appellate Division affirmed Supreme Court’s determination to deny defendant’s motion to set aside the postnuptial agreement on the grounds of unconscionability, overreaching, breach of fiduciary duty, fraud, and lack of consideration.
The Appellate Division held that a spouse seeking to set aside a postnuptial agreement initially bears the burden to establish a fact-based, particularized inequality. Where this initial burden is satisfied, a proponent of a postnuptial agreement suffers the shift in burden to disprove fraud or overreaching.
The Appellate Division noted that postnuptial agreements are contracts which require consideration. Contrary to the defendant’s contention, the parties’ postnuptial agreement did not lack consideration. Both parties gave up rights to the other’s compensation in exchange for keeping their own. Both parties waived their right to maintenance from the other party. As such, the defendant’s contention that the postnuptial agreement should be set aside for lack of consideration also failed.
The Appellate Division held that a motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face. Here, as the postnuptial agreement was fair on its face and free from any fraud or overreaching, no hearing was necessary prior to ruling on the defendant’s motion.
Emancipation is automatic when child enters military service
In Beck v Beck, --- N.Y.S.3d ----, 2021 WL 125068, 2021 N.Y. Slip Op. 00222 (3 Dept, 2021) the Appellate Division held that a child is deemed emancipated if he or she enters the military service. Emancipation is automatic when the child enters the military service.
To prevail claim of ineffective assistance of counsel, appellant must demonstrate absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings.
In Matter of Cook v Sierra, --- N.Y.S.3d ----, 2021 WL 115878 (Mem), 2021 N.Y. Slip Op. 00170(2d Dept.,2021) the Appellate Division held that the father was not deprived of the effective assistance of counsel. The statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings. An attorney representing a client is entitled to make ‘strategic and tactical decisions concerning the conduct of trials. What constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case. (Matter of Adam M.M. [Sophia M.], 179 A.D.3d at 802, quoting People v. Rivera, 71 N.Y.2d 705, 708,). To prevail on a claim of ineffective assistance of counsel, it is incumbent on the appellant to demonstrate the absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings. Here, the father failed to establish the absence of strategic or other legitimate explanations for his counsel’s alleged shortcomings.
Sound and substantial basis is standard of review FCA § 1028(a) application for the return of a child
In Matter of Iven J.E., 2021 WL 191255 (2d Dept.,2021) the Appellate Division held that an application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child’s life or health. In making its determination, the court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. Ultimately, the Family Court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests. On appeal, the Court must assess whether the record provides a sound and substantial basis to support the Family Court’s determination.
Factors to be considered in computing Counsel Fee award under FCA §438
In Abizadeh v Abizadeh, --- N.Y.S.3d ----, 2021 WL 191276 (Mem), 2021 N.Y. Slip Op. 00308 (2d Dept.,2012) the Appellate Division affirmed an order which denied the fathers application for counsel fees in this family court child support proceeding. It held :”The factors to be considered in computing an appropriate award include the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.
Appellate Division, Third Department
Jurisdiction of Neglect Proceedings including ICPC proceedings is governed by the UCCJEA
In Matter of Diana XX v Nicole YY, --- N.Y.S.3d ----, 2021 WL 202709, 2021 N.Y. Slip Op. 00352(3d Dept.,2021) the Appellate Division held that jurisdiction over a neglect proceeding does not depend upon the situs of the neglect. Jurisdiction is governed by the UCCJEA. The UCCJEA vests Family Court with jurisdiction over neglect proceedings when, inter alia,, New York “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]). Under the UCCJEA, the “home state” is defined as “the state in which [the] child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement” of the proceeding (Domestic Relations Law § 75–a [7] ). Here, despite the absence of a hearing or evidence on the matter, there was no dispute that the children and their respective parents/custodian had lived in New York for at least six consecutive months prior to the April 2019 commencement of the neglect proceeding in Tennessee, thereby making New York the children’s home state (see Domestic Relations Law §§ 75–a [7]; 76[1][a] ).Thus, pursuant to the UCCJEA, Family Court had jurisdiction over the neglect proceeding commenced in Tennessee (see Domestic Relations Law § 76[1][a] ). Family Court, however, had the discretion to decline jurisdiction if it determined – upon consideration of eight statutorily-enumerated factors – that it was “an inconvenient forum under the circumstances and that a court of another state [was] a more appropriate forum” (Domestic Relations Law § 76–f [1], [2] ).(Domestic Relations Law § 76–f [2][a]-[h] ).
The Appellate Division found that Family Court did not engage in the requisite consideration of the statutory factors before declining to accept jurisdiction from the Tennessee court. It reviewed the record and found that Family Court improperly declined to accept jurisdiction from Tennessee. It further found that Family Court erred in vacating a December 2019 amended order of custody and dismissing both of petitioner’s Family Ct Act article 6 petitions. Family Court did so without conducting a hearing or taking evidence on the issues and erroneously relied upon hearsay statements made by DSS regarding a purported ICPC report. Inasmuch as Family Court did not afford petitioner adequate notice and opportunity to be heard on the matters, Family Court’s vacatur of the December 2019 amended order and dismissal of the petitions raised serious due process concerns and, therefore, had to be reversed.
January 16, 2021
Appellate Division, First Department
Extreme Hardship established by disbarred attorney despite proof of his former lavish lifestyle where expenditures were funded by disability payments which came to an undisputed end
In Palmer v Spadone-Palmer --- N.Y.S.3d ----, 2021 WL 96220 (1st Dept.,2020) the Appellate Division observed that an order or judgment incorporating an agreement providing for maintenance will not be modified without a showing of extreme hardship (see Domestic Relations Law § 236[B][9][b][1]). Here, the court properly found that the husband would suffer extreme hardship if held to the maintenance obligations under the settlement agreement. The wife’s primary argument was that the husband’s claims of extreme hardship were undermined by the proof of his lavish lifestyle, including significant discretionary expenditures for himself and his then-girlfriend. The wife made a compelling presentation that the husband liberally indulged in this regard, but did not show reason to question that, as the trial court observed, the expenditures were funded by disability payments he received from April 2015 through March 2017, a source of funding that came to an undisputed end. As the court recognized, the husband’s reckless spending of these amounts was unjustifiable, and should have been used towards the support of his wife and children. However, most relevant to the hardship analysis, because these payments came to an end, they were not illustrative of the husband’s overall financial situation, which considerably worsened from where it had been at the time of the settlement agreement. The wife argued the husband did not make good faith efforts to seek new employment after termination from Matlin Patterson, but ignored by virtue of his guilty plea, he was disbarred and precluded from possessing any financial series licenses for 10 years, and his options were accordingly limited.
Award of interim counsel fees vacated where award was not intended for defendant to “carry on or defend the action or proceeding,” but as a form of sanction against the husband
In Kass v Machles, --- N.Y.S.3d ----, 2021 WL 54901 (Mem), 2021 N.Y. Slip Op. 00089 (1st Dept.,2021) Supreme Court, inter alia, confirmed the report of the Special Referee to the extent of adjudging plaintiff in civil contempt for his failure to comply with the subpoena at issue, and awarded defendant counsel fee. The Appellate Division vacated the adjudication of contempt and the interim counsel fee award. Defendant’s motion seeking to hold plaintiff in contempt was not referred to the Referee, and, accordingly, the Referee’s finding on that issue was not a proper basis for the court’s adjudication of contempt against plaintiff. The court’s subsequent nunc pro tunc order referring the contempt motion to the Referee to hear and report was insufficient to cure the jurisdictional defect. To find otherwise would impermissibly obviate the statutory requirements of the CPLR.
The Appellate Division vacated the award of interim counsel fees under Domestic Relations Law § 237(a) since the award was not intended for defendant to “carry on or defend the action or proceeding,” but as a form of sanction against the husband, without any consideration by the court of the parties’ respective financial circumstances.
Appellate Division, Second Department
In considering whether grandparent visitation is in the children’s best interests, a number of factors are considered, including the attorney for the children’s assessment and the children’s wishes
In Matter of Sandra R v Matthew R., 2020 WL 7775398 (3d Dept.,2020) the Appellate Division, Third Department reiterated the rule that in determining a grandparent visitation application Family Court is required to undertake a two-part inquiry. First, the court must find that the grandmother has standing to seek visitation. Once standing is established, then the court must determine if visitation with the grandmother is in the best interests of the children. In considering whether visitation is in the children’s best interests, a number of factors are considered, including the nature and extent of the existing relationship between the grandparent and children, the basis and reasonableness of the parent’s objections, the grandparent’s nurturing skills and attitude toward the parents, the attorney for the children’s assessment and the children’s wishes (Matter of Susan II. v. Laura JJ., 176 AD3d 1325, 1327 [2019].
Causes of action to set aside agreement on grounds of fraud, and on grounds of duress, coercion, or overreaching sustained
In Heinemann v Heinemann, 2020 WL 7760324 (2d Dept.,2020) an action to set aside a separation agreement the Appellate Division affirmed an order which denied defendants cross motion to dismiss the complaint on the ground of fraud. The defendant failed to conclusively demonstrate that the plaintiff had no cognizable cause of action alleging fraud. The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages. The complaint alleged that the plaintiff was represented in the divorce action by an attorney selected and paid for by the defendant, and that the plaintiff was advised by his attorney that he could request a change to only one provision in the stipulation. The complaint further alleged that after the plaintiff signed the stipulation, the defendant made material changes to various provisions governing, inter alia, maintenance, child support, custody, and parental access, and that the stipulation filed with the court was not the same stipulation that he had signed. The complaint also alleged that the plaintiff did not receive “any final divorce documents” from his attorney, and that he did not learn of the changes made to the stipulation by the defendant until after the defendant commenced an enforcement proceeding in the Family Court. The plaintiff attached to the complaint a copy of the stipulation he claimed to have signed. Under these circumstances, it agreed with the court’s determination to deny the motion to dismiss the first cause of action, seeking to set aside the stipulation on the ground of fraud.
The Appellate Division also agreed with the Supreme Court’s determination to deny the defendant’s cross motion to dismiss the third cause of action, seeking to set aside the stipulation on the grounds of duress, coercion, or overreaching. A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his or her free will. To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness. No actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching in its execution. Courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching. However, generally, if the execution of the agreement is fair, no further inquiry will be made. The allegations in the complaint that the defendant threatened the plaintiff that he would never see the children again if he did not agree to her proposed terms, that the defendant had the plaintiff arrested and threatened to pay his bail only if he agreed to her proposed terms, and that the defendant exercised her position of financial superiority to the plaintiff’s disadvantage were sufficient to allege a cognizable cause of action alleging duress, coercion, or overreaching.
In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201.
In Matter of Joyce M.M v Robert J.G, 187 A.D.3d 1610, 134 N.Y.S.3d 121, 2020 N.Y. Slip Op. 05616 (4th Dept.,2020) Petitioner, the maternal grandmother and custodian of the child, filed a petition for paternity seeking a determination that respondent was the biological father of the child and alleging, inter alia, that respondent had sexual intercourse with the mother at the time of the child’s conception. The Court granted the motion of Respondent, a resident of North Carolina, to dismiss the petition the grounds that Family Court lacked personal jurisdiction over him. The Appellate Division held that the court erred in granting respondent’s motion based upon Family Court Act § 519, which was enacted to provide exceptions to the common-law rule that paternity proceedings customarily abate upon the unavailability of the putative father. It does not prevent personal jurisdiction from being established over an available party. In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201. Petitioner, however, admittedly failed to allege in her petition that respondent engaged in sexual intercourse with the mother in New York State at the time of conception, or that he had any other relevant ties to New York State, and no other grounds for jurisdiction apply (see Family Ct. Act § 580-201 [6], [8]). Under the circumstances of this case, the court should have granted the motion on the alternative ground that petitioner failed to state a cause of action predicated upon respondent’s sexual intercourse with the mother in New York State. Inasmuch as such a dismissal is not on the merits, however, it held that the petition should be dismissed without prejudice and modified the order accordingly.
Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to require reason for recusal
Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new section 9. It provides that any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding must state the reason for the recusal in writing or on the record. However, a judge is not required to provide a reason for recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.
Laws of 2020 , Ch 346 amended Family Court Act §1055 (e) and Family Court Act §1091
Under existing law, young adults can return to foster care when they have no alternative and agree to participate in a vocational or educational program, upon the approval of the Family Court.
Family Court Act §1055 (e) was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a subdivision (ii) to allow a former foster care youth to re-enter the foster care system without having to file a motion with the family court during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic. The commissioner of the local social services department is required to consider the same factors that the court is required to consider when determining the appropriateness of the former foster care youth reentering the foster care system. Any requirement to enroll in vocational or education program when a former foster care youth reenters the system is waived during the time of the state of emergency. This section clarifies that to the extent a former foster care youth is denied the request to return to the custody of the local commissioner of social services, or other board or department authorized to receive children as public charges, that the youth would still have the opportunity to file a motion as authorized pursuant to family court act 1092. (See 2020 NY Legis Memo 346)
Family Court Act §1091
The opening paragraph of Family Court Act §1091 was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a provision which requires that during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic that former foster care youth can re-enter the foster care system without making a motion to the court, and that any requirement to enroll and attend an educational or vocational program will be waived for the dura- tion of the state of emergency. This section also clarifies, subsequent to former foster youth's return to placement without making a motion, as authorized under this section during the COVID-19 state of emergency, that nothing in this section would prohibit a local social service district from filing a motion for requisite findings needed to claim reimbursement under Title IV-E of the Federal Social Security Act to support the youth's care, and the family court shall hear and determine such motions. (See 2020 NY Legis Memo 346)
Appellate Division, First Department
Joint legal custody not appropriate where one parent has been responsible for major decisions about the child with little input or interest from the other
In Markis L v Jacquelyn C, --- N.Y.S.3d ----, 2020 WL 7391510 (Mem), 2020 N.Y. Slip Op. 07672 (1st Dept.,2020) the Appellate Division affirmed on order which modified the 2007 custody award to the mother to award the father sole legal custody. It held that joint legal custody is not appropriate where the parties are unable to coparent, or where one parent has been responsible for major decisions about the child with little input or interest from the other (Matter of Johanna Del C.T. v. Gregorio A.L., 178 A.D.3d 430, 431, 111 N.Y.S.3d 175 [1st Dept. 2019]). The father credibly testified that the mother never sought to discuss the child’s education or medical care with him, she was increasingly incapable of meeting even the child’s basic needs without his assistance or assistance by the maternal grandmother, and that she sometimes lashed out at him, including physically. The father also credibly testified that he continued to encourage the child to spend time with the mother. The mother admitted that the father had been responsible for the child’s medical care for the past year, could not recall the address of the child’s school or the names of her teachers, and denied the impact of her mental illness on the child. Under these circumstances, the award of sole legal custody to the father had a sound and substantial basis in the record.
Appellate Division, Second Department
Circumstances of contemporary daily interactions between men and women, warrants that the “opportunity” element of proof of adultery must be interpreted to mean more that mere “proximity,” but must instead necessarily mean “proximity plus.”
In Agulnick v Agulnick, --- N.Y.S.3d ----, 2020 WL 7234017, 2020 N.Y. Slip Op. 07335) the parties were married in 2004. The husband commenced an action for divorce on October 3, 2018, alleging an irretrievable breakdown of the marriage. The verified amended answer contained a counterclaim for divorce on the ground of adultery under Domestic Relations Law § 170(4). The counterclaim alleged that from approximately March of 2014 and thereafter the husband openly engaged in an adulterous relationship with R.L., who slept in the marital home, vacationed with the husband in Florida, resided with him in another marital home in Florida, and accompanied him at social settings. The counterclaim alleged that the husband’s activities included sexual intercourse and was without the wife’s consent, connivance, privity, or procurement. The husband denied all allegations of adulterous behavior in a reply dated February 1, 2019.The husband moved, inter alia, for summary judgment dismissing that counterclaim under CPLR 3212. In support, the husband proffered an affidavit in which he stated that he “never engaged in a sexual relationship of any kind or nature with” R.L., who he identified by full name in the papers as the family babysitter. The husband further averred that the presence of R.L. in the parties’ homes was “at all times ... in a professional working capacity, approved and initiated by [the wife], wherein [R.L.] supervises our children.” The motion was also supported by an affidavit of R.L., where she identified herself as the babysitter and caretaker of the parties’ children, and stated that she “never engaged in a sexual relationship of any kind or nature with” the husband, and that “[a]ny and all times I have been in the [husband]’s presence have been in a professional working capacity wherein I supervises [sic] the parties’ children.” In opposition, the wife asserted in an affidavit that the husband has “shown an inclination and desire to commit adultery” by virtue of events that had admittedly occurred over a decade earlier. She also stated that the husband had the opportunity to commit adultery, as R.L. had vacationed with him during the marriage, spent a night at the marital residence and at a vacation home while the husband was present, and accompanied the husband at social functions. In reply, the husband and R.L. each provided affidavits in further support of summary judgment dismissing the adultery counterclaim. Both averred that R.L.’s overnight stays at the marital homes and on vacation were always in a babysitter capacity with the children present, that R.L. slept in a room at the marital home assigned to her by the wife, and that R.L. always attended any social events in a babysitter capacity with the wife and children present. Supreme Court denied the husband’s motion for summary judgment dismissing the adultery counterclaim. The court determined that the husband’s various submissions denying a sexual relationship with R.L. were “conclusory and self-serving,” and, failed to meet his prima facie burden on summary judgment.
The Appellate Division reversed. Justice Dillon noted that allegations of adultery present unique issues of proof. The conduct is oftentimes clandestine and out of public view, and proving it in such instances must depend upon circumstantial evidence. Recognizing this, decisional authority has held that adultery may be circumstantially proven by means of a three-part test consisting of (1) a lascivious desire, and (2) the opportunity to gratify the desire, and (3) acting upon the desire. Other authorities similarly summarize the three-part test as involving inclination, opportunity, and intent. The act itself must also meet the requirements of Domestic Relations Law § 170(4), which defines adultery “as the commission of an act of sexual intercourse, [or other] sexual conduct, voluntarily performed by [a spouse], with a person other than the [other spouse] after the [spouses’] marriage.” The case law that exists regarding adultery is restricted to trial judgments and appeals for much of the past century and more.
The Court observed that the circumstantial evidence elements for adultery, consisting of lascivious desire, opportunity, and intent, date back to a time when women were not as routinely present in workplaces as they are now. Currently, men and women work side-by-side at the great majority of workplaces. They work in the same locations, attend meetings, share lunch rooms, participate in professional events, interact in social, political, religious, and charitable activities, exercise at gyms, and fly on airplanes together to faraway seminars and business trips. In addition, certain employees may reside at their employers’ homes including au pairs, household help, and home aides. The Court held that under the circumstances of contemporary daily interactions between men and women, the “opportunity” for infidelity cannot be interpreted to mean mere “proximity,” but must instead necessarily mean “proximity plus.” The “plus” need not be objective or irrefutable evidence. Instead, it may be facts or evidence from which reasonable inferences may be drawn, beyond the mere proximity of two people themselves. Proximity may be evidence sufficient to defeat summary judgment if accompanied by something more, such as, a hotel receipt for two, plane tickets for two to a particular destination deviating from the norm, potentially incriminating or suspicious e-mails or other writings, frequent get-togethers in non-professional settings, flirtatious behavior, or a suspicious conversation overheard by a witness. Such facts or evidence, beyond the mere temporal proximity of two persons, may permit an inference that a party’s “acts are more consistent with guilt than with innocence” (Trumpet v. Trumpet, 215 N.Y.S.2d 921, 924 [Sup. Ct., Kings County] ), and warrant the denial of summary judgment sought by the party accused of adulterous behavior.
The Court found that the husband met his prima facie burden of establishing his entitlement to summary judgment dismissing the wife’s counterclaim alleging adultery (see Westervelt v. Westervelt, 26 N.Y.2d 865, 309 N.Y.S.2d 604, 258 N.E.2d 98 [two persons living together in one-family household and their social appearances together is insufficient circumstantial evidence to establish adultery]. In his affidavit, the husband stated that he “never engaged in a sexual relationship of any kind or nature with” R.L, and that R.L.’s presence in his various homes was “at all times ... in a professional working capacity.” Although the husband’s affidavit failed to address conduct alleged with R.L. while on vacation and at social events, R.L.’s affidavit, proffered by the husband in support of his motion, did address such conduct. R.L. identified herself in her affidavit as the babysitter for the parties’ children, denied “a sexual relationship of any kind or nature” with the husband, and states that she was in a professional working capacity at “[a]ny and all times ... in the [husband]’s presence.” R.L.’s affidavit is more expansive and all-encompassing than the husband’s affidavit to the extent that her denial of sexual conduct at “any and all times” necessarily extends beyond the husband’s homes to other settings, such as any vacation trip taken by members of the family and social occasions that R.L. attended. As to all of those occasions, R.L. explained that she was present to supervise the parties’ children and that she performed that job during those occasions. The court disagreed with the Supreme Court that the husband’s evidence in support of summary judgment dismissing the adultery counterclaim was conclusory and self-serving. The husband’s affidavit and R.L.’s separate affidavit contained specific averments which, read together, corroborate each other and satisfy his prima facie burden
The Court rejected the husbands argument that the wife’s affidavit should not be considered in opposition to summary judgment dismissing the adultery counterclaim. Because CPLR 4502(a) statutorily disqualifies a spouse from testifying against the other spouse in an action grounded upon adultery, except to prove the marriage, disprove the adultery, or disprove the defense after evidence has been introduced tending to prove such defense (see CPLR 4502[a]). The Court held that contrary to the husband’s contentions, the wife’s affidavit in opposition to summary judgment may be properly considered, and had been considered, as it was submitted to oppose the husband’s own evidence that the adultery with R.L. had never occurred (cf. Tallent v. Tallent, 22 A.D.2d 988, 989, 254 N.Y.S.2d 722).
In absence of custody decision setting forth findings of fact and reasoning, appropriate scope of appellate review is de novo where record sufficient to permit review
In Matter of Hreat v Hreat,--- N.Y.S.3d ----, 2020 WL 7379701 (Mem), 2020 N.Y. Slip Op. 07572 (2d Dept.,2020) a custody matter, the Appellate Division held that findings of the hearing court which have a sound and substantial basis in the record are generally entitled to great deference on appeal. However, inherent in the proposition that a reviewing court will give deference to the findings made by the hearing court is that the hearing court issued either a written or oral decision setting forth its findings of fact and conclusions of law. (CPLR 4213[b]). In the absence of a decision, orally or in writing, setting forth the findings of fact and reasoning for the Supreme Court’s determination, the appropriate scope of appellate review is de novo where the record is sufficiently complete to permit such review (see Matter of Newton v. McFarlane, 174 A.D.3d at 79, 103 N.Y.S.3d 445).
Due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received
In Matter of Ferrera v Serrano, --- N.Y.S.3d ----, 2020 WL 7379716, 2020 N.Y. Slip Op. 07567 (2d Dept.,2020) the father filed a petition for custody of the subject child for the purpose of obtaining an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status ( SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the father moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Along with the petition, the father submitted affidavits of service attesting that, after three unsuccessful attempts to serve the mother at a residence in Honduras, the “affix and mail” method of service was utilized (see CPLR 308[4]). However, since the process server had not attested to any efforts he had made to verify that the address at which service was attempted was, in fact, the mother’s residence, the Family Court twice adjourned the matter to allow the father time to verify the mother’s address. As of the final adjourned date, the father had not submitted any further information or an updated affidavit of service. The court dismissed the petition without prejudice and denied the father’s motion for the issuance of an order, inter alia, making the requested specific findings so as to enable the child to petition for SIJS.
The Appellate Division affirmed. It noted that if service cannot be effected, with due diligence, pursuant to CPLR 308(1) or (2), a party may serve process by affixing the summons and petition to the door of the recipient’s “actual place of business, dwelling place or usual place of abode,” and by mailing them either to the last known residence or actual place of business (CPLR 308[4]; see also Domestic Relations Law § 75–g; CPLR 313). The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. It held that here, , where the father listed the mother’s address as “unknown” on the petition and testified at a hearing that he had no information about the mother’s whereabouts since the parties had separated 13 or 14 years earlier, the process server’s three attempts to serve process at an address in Honduras, without attesting to any efforts to verify that this was the mother’s address, did not constitute due diligence.
Court not required to inquire into his expenses on indigents application for assigned counsel
In Alphonse v Alphonse, --- N.Y.S.3d ----, 2020 WL 7233597, 2020 N.Y. Slip Op. 07374 (2d Dept.,2020) the Appellate Division held that where a party has the right to the assistance of counsel (see Family Ct. Act § 262[a][v]) and requests counsel on the grounds of indigence the court must make an inquiry to determine whether the party is eligible for court-appointed counsel. Here, the court properly inquired as to the father’s eligibility for court-appointed counsel and instructed the father to submit certain documentation, including a form detailing his financial circumstances. While the father listed his weekly income on this form as $1,820, he failed to indicate on the form whether he provided financial support to any other individuals, or any of his expenses, aside from his monthly mortgage payments. As a result, the father failed to fully and timely make the disclosure necessary to support his claim of indigence. Contrary to the father’s contention, the court was not required to inquire any further into his expenses, and it agreed with its determination that he was not financially eligible for court-appointed counsel.
In Matter of Rondeau v Jerome --- N.Y.S.3d ----, 2020 WL 7647902 (Mem), 2020 N.Y. Slip Op. 07960 (3d Dept.,2020) the Appellate Division held that Family Court abused its discretion by imposing a 90–day jail sentence for the father’s willful violation of a support order where the father presented payment at the hearing for the full amount of arrears owed. Where a willful violation has been found, Family Court may “commit the respondent to jail for a term not to exceed six months. (Family Ct Act § 454[3][a] ). Such a sentence is in the nature of a civil contempt, which may only continue until such time as the offender, if it is within his or her power, complies with the support order. As the father presented payment at the hearing for the full amount of arrears owed Family Court abused its discretion when it issued the order of commitment
December 16, 2020
Laws of 2020
Laws of 2020, Ch 261, effective November 11, 2020 amended domestic relations law § 240 (3)(a)(8) and (9), domestic relations law § 252 (1) (h) and (i), family court act § 352.3 (1), family court act § 446 (i) and (j), family court act § 551 (j) and (k), family court act § 656 (j) and (k), family court act § 759 (g), (h) and (i); family court act § 842 (j) and (k). family court act § 1056 (1) (h) and (i), criminal procedure law § 530.12 (1)(a) (7), criminal procedure law § 530.12, (5) (c) and (e), and a new paragraph (f) was added, criminal procedure law § 530.13 (1)(c) and criminal procedure law § 530.13 (4)(c) and a new paragraph (d) was added, to provide that an order of protection can be issued that requires that the respondent refrain from controlling any connected devices affecting the home, vehicle or property of the person protected by the order. "Connected device", means any device, or other physical object that is capable of connecting to the internet, directly or indirectly, and that is assigned an internet protocol address or bluetooth address.
Laws of 2020, Chapter 299 amended Family Court Act §§ 305.2 and 344.2 effective November 1, 2021, to require video recording of the entirety of interrogations in all juvenile cases, including the provision of Miranda warnings and the waiver, if any, of rights by the juveniles. It requires that recording procedures be consistent with regulations to be promulgated by the Division of Criminal Justice Services. It applies to interrogations that take place in law enforcement facilities, which, pursuant to Family Court Act § 305.2(4) and section 205.20 of the Uniform Rules of the Family Court, must be in rooms that have been inspected and approved by the Chief Administrator of the Courts for the questioning of youth. All persons in the recording must be identifiable and the speech must be intelligible. As is applicable to other statements by juveniles, the recording would be subject to discovery pursuant to Family Court Act § 331.2. Further, like other factors in juvenile delinquency Huntley hearings, including the presence or absence of parents, location of questioning and the validity of any waiver of rights, the fact and quality of the recording would be among factors comprising the totality of circumstances affecting admissibility of accused juveniles' statements. Failure to record would not, by itself, be a ground for granting a suppression motion. (See NY Legis Memo 299)
Appellate Divison, Second Department
Estranged grandmother committed Family Offense by repeatedly approaching petitioner’s children to introduce herself and surreptitiously delivering gifts and leaving notes despite petitioner’s instruction to not contact her or her children.
In Matter of Schade v Kupferman, --- N.Y.S.3d ----, 2020 WL 6930678 (Mem), 2020 N.Y. Slip Op. 07069 (2d Dept.,2020) petitioner commenced a family offense proceeding against her estranged mother. She alleged that she had clearly and unequivocally prohibited her from having any contact with her or her children. The petitioner alleged that the appellant had been committing acts constituting, inter alia, the crime of harassment in the second degree by repeatedly contacting and attempting to contact the petitioner and the petitioner’s children. The Appellate Division affirmed an order of the Family Court which found that the appellant had engaged in conduct constituting a family offense and issued an order of protection. It held that as relevant here, a person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she “engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose” (Penal Law § 240.26[3]). The appellant committed the family offense of harassment in the second degree (Penal Law § 240.26[3]) by, among other things, repeatedly approaching the petitioner’s young children to introduce herself as their grandmother, and surreptitiously delivering gifts and leaving notes for the children despite the petitioner’s clear instruction to not contact her or her children.
Where presumption of neglect triggered under Family Court Act § 1046(a)(iii), ACS not required to establish children suffered actual harm or were at imminent risk of harm
In Matter of Jesse W, --- N.Y.S.3d ----, 2020 WL 7050359, 2020 N.Y. Slip Op. 07203 (2d Dept.,2020) the Appellate Division observed that pursuant to Family Court Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of ... such person is a neglected child except that such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program”. In cases where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm. It concluded that the evidence supported the Family Court’s determination that ACS met its burden of proving that the father neglected the subject children as a result of his misuse of drugs. The evidence demonstrated that the father regularly misused PCP and marijuana, that his misuse of drugs produced in him “a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality,” and that he was not participating in a drug rehabilitation program. Contrary to the father’s argument, because this presumption of neglect was triggered under Family Court Act § 1046(a)(iii), ACS was not required to establish that the children suffered actual harm or were at imminent risk of harm.
Grandparent visitation terminated where mother sought to relocate with Child to Germany
In Matter of Lisa AS v Ray AT, --- N.Y.S.3d ----, 2020 WL 7050365 (Mem), 2020 N.Y. Slip Op. 07202(2d Dept.,2020) the Appellate Division affirmed an order which terminated the supervised visitation with the child that had been awarded to the maternal grandmother. The petition alleged that, since the entry of the prior order of visitation, there had been a “change of circumstances” in that the mother had been offered a promotion that necessitated that she relocates with the child to Germany. The Appellate Division found that the mother demonstrated that the move would result in the child gaining beneficial opportunities, including not only those resulting from the mother’s increased salary, but also those attendant to living in a foreign country, including learning the language of that country. The child also expressed interest in the opportunities afforded by the relocation with the mother to the foreign country. In addition, the mother testified that her relationship with the maternal grandmother had become “increasingly toxic” and that the maternal grandmother’s recurring unfounded allegations against the mother to child protective services had a negative impact on both the mother and the child.
Appellate Division, Third Department
Where parties fail to satisfy unambiguous agreement mediation condition precedent before filing new custody petition failure to satisfy condition precedent will result in dismissal of petition
In Matter of Jessica EE v Joshua EE, 2020 WL 6929323 (3d Dept.,2020) the parties agreed to an order of custody that provided joint legal and physical custody of the children, and further provided, as pertinent here, “that[,] should a conflict arise between the parties regarding decision making and/or compliance enforcement, modification or violation of any of the terms of this [o]rder[,] the parties shall make a good faith effort to engage in mediation prior to returning to court or filing any petitions.” In December 2018, the mother filed a modification petition seeking primary residential and sole legal custody of the children. The father moved to dismiss the petition, arguing, inter alia, that the mother failed to satisfy the condition precedent to mediate in good faith prior to filing the petition. Family Court granted the motion. The Appellate Division held among other things that where parties to an agreement are required to satisfy a condition precedent before filing a new petition, and the agreement is unambiguous, failure to satisfy that condition precedent will result in dismissal of the petition. Here, the agreement was unambiguous. It rejected the mothers argument that she made a good faith effort to engage in mediation with the father prior to filing the petition.
Once father brought support payments current order of commitment should not have been issued
In Matter of Dupis v Costello, --- N.Y.S.3d ----, 2020 WL 6929264 (Mem), 2020 N.Y. Slip Op. 06992 (3d Dept.,2020) the Support Magistrate determined that the father had willfully violated the support order, granted the mother a money judgment for arrears, and recommended that the father be sentenced to a jail term of 120 days, the sentence to be suspended so long as he complied with the support order. By the time the father appeared before Family Court for a confirmation hearing (see Family Ct Act § 439[e] ), he had paid all arrears and had established a balance in his favor. Family Court issued an order of commitment imposing a 120–day jail sentence and ordered that the sentence be suspended so long as the father met his support obligations for a period of three years. The Appellate Division reversed. It held that a jail sentence imposed for a party’s civil contempt in failing to comply with an order, such as the father’s willful failure to pay support as ordered, is not punitive and only serves the remedial purpose of compelling compliance” with the order. There was no remedial purpose to be served by continued confinement or the threat thereof once the father had brought his support payments current and the order of commitment should not have been issued because the father had already complied completely with the underlying support order. Family Court erred in suspending the sentence and was obliged to discharge it without condition.
Family Court lacked subject jurisdiction to issue the order directing a forensic evaluation where no petition pending in court between these parties
In Matter of James R. v Jennifer S, --- N.Y.S.3d ----, 2020 WL 6929190, 2020 N.Y. Slip Op. 06997(3d Dept.,2020) the parties settled custody and violation petitions then pending in Family Court by stipulating to engage in family counseling and to a protocol for the selection of a therapist. The transcript of the stipulation of settlement was incorporated by reference into a consent order entered in March 2019. Thereafter, the parties failed to agree on the selection of a therapist, prompting the father to request that the court appoint as a therapist a licensed psychiatrist versed in parental alienation. After converting the father’s request to an application for a court-ordered forensic evaluation, the court ordered a forensic evaluation over the mother’s objection. The Appellate Division reversed. It held that Family Court lacked subject jurisdiction to issue the order directing a forensic evaluation because the March 2019 order on consent resolved all underlying petitions and, therefore, at the time that Family Court issued the order, no petition was pending in court between these parties. The filing of a petition to commence a proceeding is mandatory and a precondition to the court obtaining jurisdiction (Family Ct. Act § 154–a). Family Court is authorized to order a forensic evaluation of any persons within its jurisdiction “[a]fter the filing of a petition under this act over which [it] appears to have jurisdiction ... when such an examination will serve the purposes of this act” (Family Ct. Act § 251[a]). Thus, the Family Ct Act contemplates that, before Family Court can order a forensic evaluation, a petition must have first been filed.
Court of Appeals holds that Domestic Relations Law ' 111(1)(a), which generally requires the consent of an Aadoptive child@ who is over 14 years old but gives the court discretion to dispense with that consent permits a court to approve an adoption even absent the consent of an adult adoptee.
In Matter of Marian T., ‑‑‑ N.E.3d ‑‑‑‑, 2020 WL 6877600, 2020 N.Y. Slip Op. 06932 (2020) the issue in this adoption proceeding was whether the adoption was categorically precluded because the adoptee, an adult woman with a significant developmental disability, did not have the capacity to give her consent. Marian T., a 66ByearBold woman, resided with petitioners. for approximately 15 years. Marian had a profound intellectual disability that resulted in significant developmental delays and limited verbal ability. Petitioners operated a licensed Family Care home under the supervision of the New York State Office for People with Developmental Disabilities, which oversees the placement of individuals with severe intellectual disabilities in private family homes where they may be properly cared for. Seeking to provide permanency for Marian, who had no living relatives and had been in the State=s custody since she was a child, petitioners commenced adoption proceeding in August 2015. Mental Hygiene Legal Services (MHLS),appointed to represent Marian in the proceedings, objected to the adoption on the ground that Marian=s consent was required under DRL ' 111(1)(a), arguing that Marian lacked the capacity to consent and that the statute permits a court to dispense with adoptee consent only where the adoptee is a child between the ages of 14 and 17. Petitioners countered that, because the phrase Aadoptive child@ in the statute includes adult adoptees and Marian was over the age of 14, the court had the discretion to dispense with the consent requirement. That questioned turned on the proper interpretation of Domestic Relations Law (DRL) ' 111(1)(a), which generally requires the consent of an Aadoptive child@ who is over 14 years old but gives the court discretion to dispense with that consent. The Court of Appeals held that, in appropriate circumstances, the statute permits a court to approve an adoption even absent the consent of an adult adoptee. Because that discretion was not abused here and there was record support for the affirmed best interests finding, it affirmed the order which approved the adoption.
Appellate Divison, First Department
Contingency fee agreement held to be enforceable in matrimonial action where underlying dispute related only to plaintiff=s alleged breach of the confidentiality provision of a prior child support agreement
In Costa v Arandia & Arandia, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6877305 (Mem), 2020 N.Y. Slip Op. 06945(1st Dept.,2020) the Appellate Division held that the motion court properly found the contingency fee agreement to be enforceable. Duly agreed contingent fee arrangements are generally valid. Although there is an exception to this rule where the fee is Acontingent upon the securing of a divorce ... or is in any way determined by reference to the amount of maintenance, support, equitable distribution, or property settlement@ (Rules of Professional Conduct [22 NYCRR] ' 1200.0 rule 1.5[d][5][I]), this exception did not apply here, as the underlying dispute related only to plaintiff=s alleged breach of the confidentiality provision of a prior child support agreement.
Appellate Divison, Second Department
The definition of unconscionable contract reveals two major elements. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se.
In Eicholz v Eicholz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6602904, 2020 N.Y. Slip Op. 06500 (2d Dept.,2020) the plaintiff commenced an action to vacate the parties= separation agreement and moved, among other things, for summary judgment on the ground of unconscionability. The plaintiff argued that he did not understand the terms of the separation agreement when he executed the agreement because he was under the influence of psychotropic medication and the effects of electro‑convulsive therapy, and that he signed the agreement without legal representation and because the defendant had threatened to force him out of the marital residence. Supreme Court granted plaintiff=s motion. The Appellate Division reversed. It observed that in general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforceable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. This definition reveals two major elements which have been labeled by commentators, procedural and substantive unconscionability. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se. A reviewing court examining a challenge to a separation agreement will view the agreement in its entirety and under the totality of the circumstances. The Appellate Division found that while the complaint adequately pleaded a cause of action, plaintiff failed on the motion to demonstrate as a matter of law through medical records or testimony from a doctor that his ability to understand the terms of the separation agreement when he executed the agreement was impaired by medication or prior treatment that he received. In addition, he failed to demonstrate, prima facie, that the manner in which the defendant presented the separation agreement to the plaintiff, along with the plaintiff=s lack of legal representation and the lack of financial disclosure between the parties, served to deprive the plaintiff of a meaningful choice in entering into the separation agreement. Further, although the defendant was awarded a majority of the marital assets under the agreement, the record did not contain sufficient evidence demonstrating the value of most of these assets. Although the plaintiff, who did not have an income when the agreement was executed, waived his right in the separation agreement to maintenance from the defendant, who made a significant salary, this waiver, by itself, was insufficient to demonstrate that the agreement as a whole was unconscionable. A hearing was warranted to determine the totality of the circumstances, including the extent of the parties= assets and the circumstances surrounding the execution of the separation agreement, and as such, summary judgment should have been denied.
Criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct.
In Matter of Brittani A, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601901, 2020 N.Y. Slip Op. 06523 (2d Dept.,2020) an abuse proceeding, the Appellate Division held that a criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct. The mother=s convictions of attempted murder in the second degree, attempted assault in the first degree, attempted assault in the second degree, and endangering the welfare of a child were based on the same acts alleged by DSS to constitute abuse in these proceedings. Therefore, DSS established, prima facie, that the child was an abused child pursuant to Family Court Act ' 1012(e)(ii).
While recoupment of overpayments of child support is generally not permitted overpayments may be used to offset add‑on expenses, such as educational expenses and unreimbursed medical expenses.
In Matter of Collette v Collette, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750542, 2020 N.Y. Slip Op. 06778 (2d Dept.,2020) in 2011 a money judgment, of $14,935.33 was entered against the father for child support arrears. In December 2018, the father filed a petition seeking a determination that the money judgment had been satisfied. In an order dated July 9, 2019, made after a hearing, a Support Magistrate, inter alia, vacated the arrears set forth in the money judgment as having already been satisfied, and directed the Support Collection Unit to stop enforcing the money judgment, determined that the father was entitled to a credit in the sum of $12,270.65 based on overpayments of child support, to be applied to the father=s future child support payments or, in the alternative, to his obligation to pay his pro rata share of unreimbursed medical expenses and/or educational expenses. The Appellate Division affirmed in part. It agreed with the Family Court=s determination but held that recoupment of child support payments is only appropriate under limited circumstances not applicable here (see Matter of McGovern v. McGovern, 148 A.D.3d at 902, 50 N.Y.S.3d 408; Rader v. Rader, 54 A.D.3d at 920, 865 N.Y.S.2d 235; People ex rel. Breitstein v. Aaronson, 3 A.D.3d 588, 589, 771 N.Y.S.2d 159). It held that the father was not entitled to a credit against his future child support obligation based on prior overpayments of child support. However, inasmuch as public policy does not forbid offsetting add‑on expenses against an overpayment of child support, it agreed with the Support Magistrate=s determination that the father may use the overpayments to offset his share of add‑on expenses, such as educational expenses and unreimbursed medical expenses.
Post Adoption contact agreement provision that it would become void on violation of provision upheld
In Matter of Scott v Rhodes, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750450 (Mem), 2020 N.Y. Slip Op. 06797(2d Dept.,2020) the post‑adoption contact provisions of the judicial surrender of the child provided that the biological mother Amay not use any photographs or correspondence or information regarding the child or the adoptive parents in any way on any form of social media (e.g. Facebook, Twitter, etc.).@ It further provided that if the biological mother failed to keep any of the conditions in the agreement, Athen they all shall be null and void, effective at the time of the first failure.@ The Appellate Division held that the mothers violation of this provision rendered the post‑adoption contact agreement null and void (see Matter of Sapphire W. [Mary W.CDebbie R.], 120 A.D.3d 1584, 1585, 992 N.Y.S.2d 599; Matter of Mya V.P. [Amber R.CLaura P.], 79 A.D.3d 1794, 1795, 913 N.Y.S.2d 477).
Where parties have joint custody and there is a change of residence, child support not modified where judgment not modified.
In Listokin v Listokin, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601948, 2020 N.Y. Slip Op. 06516 (2d Dept.,2020) the judgment dated August 4, 2016, incorporated the terms of a stipulation of settlement between them dated May 17, 2016. Pursuant to the judgment, the parties were to have joint legal custody of their two children, whose primary residence would be with the defendant, with the plaintiff to have parental access to the children in accordance with the terms of the stipulation of settlement. The plaintiff was obligated to pay substantial basic child support to the defendant and the parties agreed that issues regarding child support would be subject to the standard of review applicable to judgments rather than contracts. On November 21, 2016, the plaintiff moved to suspend his basic child support obligation and to direct the defendant to pay basic child support to him, claiming that the children had taken up residence with him. Supreme Court determined that because the children were residing with the plaintiff, he had met his burden of establishing an unanticipated and unreasonable change in circumstances to warrant a reduction or suspension of his basic child support obligation. In an order dated May 31, 2018, the court, inter alia, granted plaintiff=s motion which was to suspend his basic child support obligation only to the extent of reducing that obligation to $5,586 per month, and denied his motion to direct the defendant to make basic child support payments to him. The Appellate Division affirmed. It held that he did not establish a right to the suspension of his entire basic child support obligation based upon his assertion that he was the Ade facto@ custodial parent of the parties= children. Rather, the record supported the conclusion that while the children chose to reside with the plaintiff for a period of time, he did not petition the court to be the primary physical custodian of the children, defendant never acquiesced in the children=s relocation to the plaintiff=s residence, and the judgment of divorce remained unchanged in designating the defendant as the custodial parent for child support purposes. However, given the plaintiff=s evidence that the children were spending much more time in his household than originally contemplated in the stipulation of settlement, it agreed with the Supreme Court that a reduction in the plaintiff=s basic child support obligation by crediting him with the additional amounts he was expending for the children at his home constituted a provident exercise of discretion and took into account the practical realities and fluid nature of the parties= situation.
Where Child Support retroactively modified to date of petition pursuant to Family Ct Act ' 439[e] father entitled to credit for payments in excess of reduced obligation between date of filing of petition and order.
In Merritt v Merritt, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601867, 2020 N.Y. Slip Op. 06529 (2d Dept.,2020) on December 10, 2015, after having become unemployed in April 2015, the father filed a petition for a downward modification of his support obligation. By order entered September 23, 2016, after a hearing, the Support Magistrate, inter alia, denied the father=s petition. By order dated December 13, 2016, the Family Court denied the objections. On the father=s ensuing appeal the court reversed the December 13, 2016 order, determining that the father had met his burden of showing that there has been a substantial change in circumstances since the entry of the December 23, 2014 order. Upon remittitur, in an amended order dated April 15, 2019, the Support Magistrate, after a hearing, recalculated the father=s support obligation at a monthly sum of $1,784. The Support Magistrate determined that the father was entitled to a credit for his payments in excess of $1,784 for a period of 10 months, between the filing of the underlying petition on December 10, 2015, and the October 5, 2016, effective date of an order dated February 27, 2017, which granted the father=s later petition for a downward modification of his child support obligations. The father filed objections. Family Court denied the father=s objections. The Appellate Division affirmed. While the father was entitled to a credit for payments in excess of his reduced obligation as determined by the Family Court=s order (see Family Ct Act ' 439[e] ), construing the statute according to its plain meaning, the credit could only be awarded for excess payments made pursuant to the order which erroneously denied the father=s petition for a downward modification of his support obligation. Here, the father filed a new petition for a downward modification on October 5, 2016, and that relief was granted by the Family Court in an order dated February 27, 2017, retroactive to the date of filing. As such, as of October 5, 2016, the father=s child support obligation was no longer determined by the order entered September 23, 2016, and, upon reversal of that order, there was no basis to award him a credit for any further payments after October 5, 2016.
Appellate Divison, Fourth Department
Motion to dismiss appeal for failure to settle transcript may not be considered where first raised in the Brief of a Party
In Matter of Trataglia v Tartaglia, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816607, 2020 N.Y. Slip Op. 06912(4th Dept.,2020) the Appellate Division, inter alia, declined to address the father=s request, set forth in his respondent=s brief, to dismiss the mother=s appeal. His request was based on the father=s allegations in his brief that the mother failed to settle the trial transcript pursuant to CPLR 5525 (c). It held that it may not Aconsider a statement of fact appearing only in the brief of a party, even if such statement [is] not disputed@ (Ditmars‑31= St. Dev. Corp. v. Punia, 17 AD2d 357, 360 [2d Dept 1962]; see also People v. Alizadeh, 87 AD2d 418, 426 [1st Dept 1982]).
Failure to comply with the statutory requirement of Family Ct Act ' 1017 [1] to contact aunt and inform her of right to seek to become a foster parent or obtain custody did not require reversal where aunt not prejudiced.
In Matter of Sandy L.S. v Onondaga County Department of Children and Family Services, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816598, 2020 N.Y. Slip Op. 06910 (4th Dept.,2020) the child=s great aunt (aunt)Cappealed from an order in a proceeding pursuant to Social Services Law ' 384‑b that, inter alia, terminated respondent mother=s parental rights, authorized Onondaga County Department of Children and Family Services (DCFS) to consent to the child=s adoption and ordered that the preadoptive foster parents could petition to adopt the child. In appeal No. 2, the aunt appealed from an order in a proceeding pursuant to Family Court Act articles 6 and 10 that dismissed her petition seeking custody of the child. The Appellate Division affirmed. It, inter alia, rejected the Aunts argument in appeal No. 2, that DCFS did not comply with the statutory requirement to contact her and inform her of her right to seek to become a foster parent or otherwise obtain custody of the child (see Family Ct Act ' 1017 [1]), and that she should therefore not be Apenalized@ for failing to seek such relief within 12 months of foster care placement (see Family Ct Act ' 1028‑a; Social Services Law ' 383 [3]). At all relevant times, the aunt knew that the child had been placed in foster care, and yet did not express any interest in seeking foster care placement or custody of the child until two years after the child was born. Shortly after the child was born, the aunt had declined to be considered a resource for the child because she was already overwhelmed with caring for the child=s siblings. Thus, even assuming, arguendo, that DCFS violated its statutory duty to inform the aunt of her right to seek to become a foster parent or obtain custody of the child, reversal was not required because the aunt was not prejudiced by the error.
Family Court
Support Magistrates findings cannot be confirmed without compliance by the Court with 22 NYCRR 205.43
In N. L., v. S.L., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6600121, 2020 N.Y. Slip Op. 06453 (1st Dept.,2020) on or about March 20, 2012, the Family Court entered a child support order which required that the father pay $7,600 per month in child support. On December 5, 2012, the mother filed a violation petition, asserting that the father had willfully violated the child support order, because he made no support payments and no payments toward the arrears. A willfulness hearing commenced on or about December 23, 2013. The mother=s petition was not decided until nearly seven years later, on or about November 15, 2019. At the conclusion of the violation proceeding, the Support Magistrate recommended that the father be incarcerated for six months, and directed that the father could purge his contempt and avoid incarceration by paying $84,000 by December 16, 2019. On December 16, 2019, the Support Magistrate referred the matter to a Family Court judge to confirm the recommendation of incarceration. Later the same day, however, the Family Court judge found that the father presented a certified check for the recommended purge amount to the Support Collection Unit and since the recommended purge amount had been paid, the matter was no longer properly before him. The parties filed objections to the Support Magistrate=s determinations. The mother objected, inter alia, to the recommended purge amount as insufficient, and objected to the Support Magistrate=s failure to set a payment schedule. Family Court denied both parties= objections. Family Court found that the judge who had determined that the father had paid the recommended purge amount had implicitly Aconfirmed@ the Support Magistrate=s recommendation of incarceration and the purge amount of $84,000. The Appellate Division reversed. It found that the record failed to support the Family Court=s conclusion that the purge amount recommended by the Support Magistrate had been confirmed by the Family Court judge on December 16, 2019. The Rules of the Family Court provide that:A[i]n a case heard by a support magistrate, a Family Court judge may confirm the findings of the support magistrate by adopting his or her findings and recommendations in whole or in part. Alternatively, the Family Court judge may modify or refuse to confirm the findings and recommendations and may refer the matter back to the support magistrate for further proceedings. The court may, if necessary, conduct an evidentiary hearing@ (22 NYCRR 205.43[i] ). The record contained no written order confirming or rejecting the Support Magistrate=s recommendation. Moreover, the transcript of the proceedings made clear that the court did not adopt or modify the Support Magistrate=s findings and recommendations, in whole or in part, or make new findings. It held that Family Court erred, on February 3, 2020, when it denied the mother=s objections on the basis that the court had confirmed the Support Magistrate=s recommendation of incarceration and a purge amount. The Family Court Rules further provide that, where a support magistrate makes a finding of willfulness, the findings of fact Ashall@ include Aa recommendation, as appropriate, regarding a specific dollar amount to be paid or a specific plan to repay the arrears@ (22 NYCRR 205.43[g][4] ). The mother=s request for a payment plan for the support arrears was properly before the court, as neither the Support Magistrate nor the Family Court judge who previously presided over the matter considered her request on the merits. The matter was remanded to a Family Court judge for proceedings consistent with this decision.
November 16, 2020
Appellate Divison, First Department
Appellate Divison points out in dicta that courts should not use any information from child , which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing
In Edwin E.R. v Monique A.-O, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6494185, 2020 N.Y. Slip Op. 06347 (1st Dept.,2020) the Appellate Division reversed an order , which, inter alia, modified a prior order of custody to grant sole physical and legal custody of the child to petitioner father. It pointed out in dicta that even if the Family Court had properly found that there was a change of circumstances the record did not support the finding that the child lived primarily with the grandmother. The court based its finding solely on an in camera interview with the child, then eight years old, and the hearsay testimony of the father. It noted that the Court of Appeals has admonished that courts should Anot use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing,@ because Athere are grave risks involved in these private interviews.(Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273[1969]). This admonition was well taken in this case, where the record provided a substantial basis for concluding that either or both parents spoke to the child about the proceeding before his interview with the court. Moreover, the father=s testimony could not serve either as an adequate check on the accuracy of any of the child=s statements or an adequate independent basis for the court’s finding, since it was pure hearsay. The father did not claim to have any independent knowledge of where the child spent his time, but testified that the grandmother had told him the child spent most nights at her home. Moreover, the mother directly contradicted the father=s testimony.
Appellate Divison, Second Department
Supreme Courts’ subject matter jurisdiction over a matrimonial matter does not end upon the death of one party where agreement incorporated into judgment granted the court exclusive jurisdiction over the enforcement of its provisions, which are governed by New York law.
In Perry v McMahan, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478507, 2020 N.Y. Slip Op. 06303(2d Dept.,2020) the parties 2009 stipulation which was incorporated but not merged into their judgment of divorce obligated the husband to pay the wife $30,000 per month in spousal maintenance, and stated that, in the event of the husband=s death prior to the termination of the wife=s maintenance, the husband=s estate would continue to make the maintenance payments. The agreement also stated that it was to be governed by the laws of the State of New York, and it was to be so‑ordered by the Supreme Court, which Ashall retain exclusive jurisdiction to enforce the provisions of this Agreement.@ The husband died on March 29, 2017, in Florida, and the plaintiff, who was the personal representative of the husband=s estate, filed probate administration pleadings in Florida. The maintenance payments to the wife ceased after the husband=s death, and the wife moved in Supreme Court, inter alia, to enforce the maintenance provisions of the agreement. In opposition, the plaintiff, among other things, argued that the Florida courts had subject matter jurisdiction and that the courts of New York no longer had subject matter jurisdiction. The Appellate Division rejected plaintiff=s contentions that the court lacked subject matter jurisdiction over the wife=s claims against the husband=s estate for spousal maintenance and that the judgment was void for lack of subject matter jurisdiction. It held that the wife was entitled to judgment for arrears of spousal maintenance due as of September 1, 2017. The court’s subject matter jurisdiction over a matrimonial matter does not end upon the death of one party. Here, the agreement was binding on the husband=s estate to continue maintenance payments to the wife after the husband=s death, and granted the issuing court exclusive jurisdiction over the enforcement of its provisions, which are governed by New York law. The Florida statute relating to the enforcement of claims against an estate did not divest the Supreme Court of subject matter jurisdiction to resolve this dispute over a contract governed by New York law.
The fact that the parties employed a nanny for a period of time to assist with housekeeping and childcare responsibilities did not require a reduction in the defendant=s distributive share of husbands enhanced earning capacity
In Spinner v Spinner, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478477, 2020 N.Y. Slip Op. 06307 (2d Dept.,2020) the parties were married in 1998, and had two children. During the course of the marriage, the plaintiff attended and graduated from medical school, completed a five‑year residency in internal medicine and neurology, and completed a clinical fellowship in neurophysiology. The plaintiff commenced this action in April 2012. In 2017 Supreme Court, inter alia, awarded the defendant a distributive share of the plaintiff=s enhanced earning capacity and directed the plaintiff to pay (1) child support of $1,769.23 per week, (2) 92% of the cost of the children=s extracurricular activities up to $15,000 per year, and (3) 92% of the children=s college expenses.
The Appellate Division held, inter alia, that although the plaintiff commenced the action in April 2012, there was no evidence that his income changed at any time between the commencement of the action and the end of 2012. Therefore, Supreme Court providently exercised its discretion in determining the value of the plaintiff=s enhanced earning capacity based on his 2012 earnings. It agreed with the Supreme Court’s determination that the defendant was entitled to a 25% share of the plaintiff=s enhanced earning capacity from his medical education and training. The plaintiff=s student loans were paid with marital funds, and the defendant made substantial contributions by, inter alia, supporting his educational endeavors, working from the time of the marriage in June 1998 until she started law school in September 2001 and again from September 2008 until May 2011, contributing her earnings to the family, being the primary caregiver of the parties= two children, cooking family meals, and participating in housekeeping responsibilities. The fact that the parties employed a nanny for a period of time to assist with housekeeping and childcare responsibilities did not require a reduction in the defendant=s distributive share of his enhanced earning capacity (see e.g. NingBYen Yao v. KaoBYao, 147 A.D.3d 624, 630B631, 48 N.Y.S.3d 337). According to the plaintiff=s statement of net worth, sworn to on May 15, 2017, he incurred $231,510 in student loan debt pursuing his medical degree. As the plaintiff=s enhanced earning capacity was marital property, the Supreme Court should have required the defendant Ato bear a concomitant portion of the student loan debt incurred@ by the plaintiff in pursuing his degree. It held that the defendant=s 25% share of that debt should have been set off against her distributive award of the plaintiff=s enhanced earning capacity.
The Appellate Division held that in consideration of the nonliquid nature of the plaintiff=s assets and the substantial amount of the award, the court should have permitted the plaintiff to pay the award in installments over a period of 10 years, rather than 5 years, together with interest at the statutory rate of 9% per annum from the date of the order appealed from.
The Appellate Division held that the Supreme Court improvidently exercised its discretion in capping the combined parental income in excess of $143,000 at $400,000 when calculating the plaintiff=s child support obligation. Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law ' 240(1Bb)(f), or to apply the statutory percentages, or to apply both. AThe court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Although the Supreme Court set forth the factors it considered in determining the child support percentage of 25% of the parties= combined income in excess of $143,000, the court did not offer any reasons as to why it was appropriate to award child support based on combined parental income up to $400,000. Although the plaintiff was a high‑wage earner, the record demonstrated that the children lived a middle‑class lifestyle. While the parties employed a live‑in nanny for several years to assist with childcare, there was no indication that the children lived a lavish lifestyle. It held that the court should have limited the combined parental income in excess of the statutory cap to $250,000.
The Supreme Court erroneously directed the plaintiff to contribute to the college expenses of the parties= younger child. At the time of trial, the parties= younger child was 14 years old, and no evidence was presented concerning her academic ability, interest in attending college, choice of college, or the expenses attendant with college. It held that it was premature for the court to direct the plaintiff to contribute to the college expenses of the parties= younger child. However, Supreme Court providently exercised its decision in directing the plaintiff to pay 92% of the college expenses of the parties= older child. However, the child support award should have included a provision either directing that, when that child is living away from home while attending college, the plaintiff=s monthly child support obligation shall be reduced, or awarding the plaintiff a credit against his child support obligation for any amounts that he contributes toward college room and board expenses for that child during those months. It held that the court should determine the plaintiff=s child support obligation, considering any time periods that the child is living away from home at college. The Supreme Court did not impose a SUNY cap on the plaintiff=s obligation to contribute to the parties= older child=s college expenses. It held that whether to impose a SUNY cap is determined on a case‑by‑case basis, considering the parties= means and the child=s educational needs.
Court providently exercised its discretion in according relatively little weight to the preferences of teen age children who sought to escape structure imposed by mother
In Pryne v Pryne, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478951 (Mem), 2020 N.Y. Slip Op. 06269 2020 WL 6478951 (2d Dept.,2020) the parties had three children Neal P., born in 2003, Abigail P., born in 2004, and Jake P., born in 2008. The Appellate Division held, inter alia, that a child=s preference is not determinative and, in weighing this factor, the court must consider the age and maturity of the child. Under the circumstances of this case, where, inter alia, the teenaged children Neal and Abigail apparently sought a change of physical custody to the father in order to escape from the more structured constraints imposed by the mother to the more indulgent parenting style of the father, the court providently exercised its discretion in according relatively little weight to the preferences of Neal and Abigail, in relation to the other relevant factors.
Court may not reduce or vacate arrears which accrued prior to the date of petition to vacate acknowledgment of paternity even where DNA shows petitioner not the father
In Westchester County Department of Social Services v Clarke, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478596 (Mem), 2020 N.Y. Slip Op. 06277 (2d Dept.,2020) Clarke commenced a proceeding pursuant to Family Court Act ' 516Ba to vacate his acknowledgment of paternity. After genetic marker testing established that Clarke was not the child=s biological father, the Family Court granted the petition. In this proceeding, the court issued an order terminating Clarke=s support obligation effective April 4, 2018. Clarke appealed challenging the effective date of the termination of his support obligation. The Appellate Division agreed with Family Court’s determination to terminate Clarke=s support obligation effective as of the date of his petition to vacate the acknowledgment of paternity. It held that the court was prohibited from vacating arrears that accrued prior to the date of Clarke=s petition seeking vacatur of the acknowledgment of paternity (Family Ct. Act ' 451[1]) Child support arrears must be awarded in full regardless of whether requiring the party to pay the arrears will result in grievous injustice. The court may not reduce or vacate arrears which accrued prior to the date of Clarke=s petition, even if it was inappropriate to impose any child support obligation on him in the first place and even though it has been established that he is not the child=s biological father.
Appellate Divison, Third Department
Where husband=s answer dated March 9, 2017 was not filed until August 8, 2017 Appellate Division holds he was entitled to child support retroactive to August 8, 2017, the date on which he first made an application for such relief.
In Pace v Pace, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6324729, 2020 N.Y. Slip Op. 06181 (3rd Dept, 2020) Plaintiff (wife) and defendant ( husband) married in 1995 and had four children. The matter proceeded to trial on the issues of equitable distribution and child support. The parties waived maintenance. Supreme Court equitably distributed the parties= marital property and directed the wife to pay the husband $800 per week in child support and $14,300 as retroactive temporary child support dating back to August 8, 2017.
The Appellate Division discerned no abuse of discretion in Supreme Court’s determination that the appreciation in value of the five subject real properties which he owned before marriage was marital property and that the wife was entitled to 35% of the total appreciation value .
The Appellate Division held that with respect to the mixed‑use properties, Supreme Court did not abuse its discretion in adopting the valuations offered by the wife=s expert, notwithstanding the expert=s inability to use the preferred income capitalization approach to calculate the date of marriage values. Data regarding the properties= income at the time of the marriage was unavailable and the wife=s expert used the income capitalization approach, together with some consideration of the comparable sales approach, to calculate the 2018 values of the properties. Under the circumstances, including that the husband=s expert also utilized the income capitalization approach to assign 2018 valuations to the properties, it found that the methodologies employed by the wife=s expert were reasonable (see generally Ciaffone v. Ciaffone, 228 A.D.2d 949, 951, 645 N.Y.S.2d 549 [1996] ).
The husband asserted that Supreme Court’s retroactive child support award should have dated back to March 9, 2017, inasmuch as he first requested child support in his answer and his answer bore such date. However, as confirmed by the County Clerk=s office, the husband=s answer was not filed until August 8, 2017. Thus, Supreme Court properly concluded that the husband was entitled to child support retroactive to August 8, 2017, the date on which he first made an application for such relief (see Domestic Relations Law '' 236[B][7][a]; 240[1][j] ).
The Appellate Division affirmed Supreme Courts award to the husband of 50% of the value of the wife=s audiology practice , which was stipulated to be $1.1 million as of the date of commencement.
Family Court
Family Court held that pursuant to Executive Law ' 995‑c (9)(b)(iii) it has discretion to expunge a delinquency respondent=s DNA profile
In Matter of John R., 69 Misc.3d 493 (Family Court, 2020) the Family Court held that pursuant to Executive Law ' 995‑c (9)(b)(iii), as interpreted by Matter of Samy F. v. Fabrizio, 176 A.D.3d 44, 110 N.Y.S.3d 26 [1st Dept. 2019]), it has discretion to expunge a delinquency respondent=s DNA profile, which had been uploaded into the database of the Office of the Chief Medical Examiner. The court ordered expungement based upon the facts that the police gave respondent a can of soda at the precinct and respondent=s genetic material was surreptitiously taken from the soda can; and respondent successfully completed a supervised adjournment in contemplation of dismissal (AACD@), resulting in the dismissal and sealing of his delinquency matter. Respondent cited to Matter of Jahsim R., 66 Misc. 3d 426, 114 N.Y.S.3d 871 [Fam. Ct., Bronx County 2019] ) where a Family Court judge found, based on Samy F., that the family court does have jurisdiction to expunge a respondent=s DNA profile from the OCME database. The Jahsim R. court found that Samy F. was applicable since a juvenile delinquency adjudication, like a youthful offender adjudication, is not a conviction for a crime. The court agreed with the Jahsim R. court that regarding the discretionary expungement of DNA profiles from the OCME database, a juvenile delinquent is not and should not be afforded fewer adjudication protections than a YO or an adult in equivalent circumstances.
November 1, 2020
Appellate Division, First Department
Where no evidence that husband could assign his minority interest in various limited partnerships and wife waived valuation of these interests, the court did not have a basis to make an in-kind distribution
In Gorman v Gorman, --- N.Y.S.3d ----, 2020 WL 6277295, 2020 N.Y. Slip Op. 06053(1st Dept.,2020) the Appellate Division held that the court providently exercised its discretion in awarding the husband 55% of the net sale proceeds of the parties’ marital residence in light of the substantial contribution he made to the purchase of the apartment from his separate property, even if a separate property credit was not warranted. Similarly, there was no reason to disturb the court’s determination that the Morgan Stanley accounts ending in –4708 and –9877 should be distributed 70% to the husband and 30% to the wife based on the evidence indicating that these accounts were largely funded by the husband’s separate property. There was no evidence that the husband could assign his minority interest in various limited partnerships acquired during the marriage to the wife, and given that the wife waived valuation of these interests, the court did not have a basis to make an in-kind distribution (see Nacos v. Nacos, 168 AD3d 413, 413–414 [1st Dept 2019] ). The Appellate Division affirmed the award of $2,000 per month in durational maintenance and found that the court properly imputed income of $151,500 to the wife based on rental income from her separate property and investment income from her equitable distribution award, after assuming she used part of that award to purchase an apartment. In awarding the wife a total counsel fee award of $300,000, the court properly took into account “the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions. Notably, the record supports the court’s finding that the wife had many different attorneys since this action was commenced in 2010, which unnecessarily prolonged the litigation, and she also engaged in meritless motion practice that drove up the parties’ counsel fees.
Appellate Division, Second Department
Error to deviate from guideline amount of temporary maintenance without making a finding that the amount was unjust or inappropriate
In Capozzoli v Capozzoli, 2020 WL 6051566 (2d Dept,2020) the Appellate Division 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. Here, the Supreme Court’s directive that the defendant pay pendente lite maintenance in the sum of $6,940 per month plus real estate taxes, homeowner’s insurance, and homeowner’s association fees on the marital residence resulted in a double shelter allowance, since the formula used to calculate the presumptive temporary maintenance award is intended to cover all of the plaintiff’s basic living expenses, including housing costs. It was error to deviate in this manner from the guideline amount of temporary maintenance without making a finding that the amount was unjust or inappropriate based upon the factors enumerated in Domestic Relations Law § 236(B)(5–a)(h). It remitted the matter to the Supreme Court, for a new determination of that branch of the plaintiff’s motion which was for an award of pendente lite maintenance.
Persistent interruptions by Respondent during his telephonic participation hearing warranted termination of the call and constituted a default.
In Matter of Bartosz B, --- N.Y.S.3d ----, 2020 WL 6051501, 2020 N.Y. Slip Op. 05743 (2d Dept.,2020) a proceeding pursuant to Family Court Act article 10 and a related custody proceeding, during a combined dispositional hearing and hearing to address the mother’s custody petition the father participated by telephone. During the hearing, the father requested an adjournment. After the Family Court denied his request, the father repeatedly interrupted the proceedings, prompting the court to caution the father that if he persisted in his interruptions, the court would terminate the telephone call. The father refused to heed the court’s warnings and, after he again interrupted the proceedings, the court terminated the call. The court thereafter issued an order of disposition upon the father’s default. The Appellate Division held, inter alia, that the father’s persistent interruptions during his telephonic participation at the hearing warranted termination of the call and constituted a default.
Hearsay Exception in Family Court Act 1046(a)(vi) is inapplicable in a family offense proceeding
In Matter of Godfrey v Bahadeur, --- N.Y.S.3d ----, 2020 WL 6051467 (Mem), 2020 N.Y. Slip Op. 05750 (2d Dept,2020) the Appellate Division held that although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Court Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are inextricably interwoven, section 1046(a)(vi) is inapplicable in a family offense proceeding pursuant to Family Court Act article 8.
Appellate Division, Third Department
Where husband made a deliberate effort to conceal the unrevised nature of the prenuptial agreement it effectively negated any intent of the parties to mutually agree on it terms
In Carter v Fairchild- Carter, --- N.Y.S.3d ----, 2020 WL 6181098, 2020 N.Y. Slip Op. 05990 (3d Dept.,2020) the Plaintiff ( husband) and defendant ( wife) were married on August 30, 2008. On the day before the wedding, the parties executed a prenuptial agreement in which the wife, among other things, waived her right to maintenance and limited her right to equitable distribution of the marital assets. Following a trial, Supreme Court set aside the agreement, determining that the husband “purposefully, knowingly[ ] and fraudulently” induced the wife into signing the agreement through false promises and overreached by intentionally misrepresenting the fair market value of the marital residence so as to preclude the wife from receiving any financial benefit upon divorce. The Appellate Division affirmed. It found that after the wife raised proposed modifications the wife’s attorney and the husband’s attorney spoke on the telephone, in the wife’s presence, regarding the proposed modifications. The following day, the law firm of the wife’s attorney received a facsimile from the husband’s attorney indicating that the agreement had been modified, as the wife had requested. The following afternoon, less than 24 hours before the parties’ wedding, the husband and the wife met at the Clinton County courthouse to execute the agreement, where the husband handed her an agreement and represented that the requested revisions had been made. The wife signed the agreement, which was not revised, without reading it or consulting with her attorney. The husband testified that he believed that the document that he had presented to the wife at the courthouse constituted the parties’ mutually agreed upon revised agreement. The Appellate Division held that given the disparity of the parties’ wealth and the fact that the agreement was unilaterally drafted by the husband’s counsel and executed less than 24 hours prior to the parties’ wedding, Supreme Court’s determination that the husband made a deliberate effort to conceal the unrevised nature of the agreement, effectively negating any intent of the parties to mutually agree on the terms thereof, was sufficiently supported by the record. The record also failed to demonstrate that there was ever a meeting of the minds between the parties with respect to the fair market value of the residence.
Where a conflict existed between the separation agreement and the subsequently entered judgment of divorce the judgment of divorce controlled
In Sherman v Sherman, --- N.Y.S.3d ----, 2020 WL 6167401, 2020 N.Y. Slip Op. 05993(3d Dept.,2020) the parties separation agreement, stated, as relevant here, that the husband would be responsible for $301.30 per week in child support based upon his 41% pro rata share of the parties’ combined income, and would be responsible for 41% of “the cost of mutually agreeable extracurricular activities of the children.” Days after the parties executed the separation agreement, the wife commenced a support proceeding against the husband in Family Court which resulted in a November 2017 corrective order of support entered on consent in which the parties “voluntarily stipulated to child support for the children payable by [the husband] ... in the amount of $268.00 weekly.” The corrective order of support did not state anything about payment by the husband for the children’s costs for extracurricular activities. The parties judgment of divorce entered in May 2018 incorporated, but did not merge, the separation agreement and the corrective order of support. In this enforcement proceeding the Appellate Division agreed with the husband that although the parties entered into a separation agreement directing what the husband was to pay for child support, the subsequent judgment of divorce specifically provided that “the child support obligations of the parties hereto shall be as directed by the [c]orrective [o]rder of [s]upport ... entered on November 16, 2017.” As a conflict existed between the separation agreement and the subsequently entered judgment of divorce the judgment of divorce controlled. Thus, the husband’s payment obligations to the wife had to be based upon the terms of the corrective order of support and in the absence of provisions within the corrective order of support related to costs for the children’s extracurricular activities, the husband was not required to make such contributions.
Court is not required to state explicitly that it is engaging in a best interest[s] analysis
In Matter of Matthew DD v Amanda EE, --- N.Y.S.3d ----, 2020 WL 6174235, 2020 N.Y. Slip Op. 05997 (3d Dept.,2020) the Appellate Division held that a court is not required to state explicitly that it is engaging in a best interest[s] analysis where the custody determination is properly based on consideration of the relevant factors and on the needs and best interests of the child.
Family Court lacks subject matter jurisdiction to hear paternity petition where child is not born out of wedlock
In Matter of Alison RR, --- N.Y.S.3d ----, 2020 WL 6168369, 2020 N.Y. Slip Op. 06002(3d Dept.,2020) Petitioners were a same-sex couple who married in 2014. With the assistance of a sperm donor who gave up his parental rights, petitioner Alison RR. gave birth to their child in 2016. Notwithstanding their marriage and their being named as the child’s parents on her birth certificate, petitioners commenced a Family Court proceeding seeking a declaration that they were her legal parents. A Support Magistrate found that Family Court lacked subject matter jurisdiction to hear the petition and dismissed it. The Appellate Division affirmed. It noted that the Family Court is a court of limited jurisdiction and may only exert the powers granted to it by the State Constitution or by statute. It held that Petitioners attempt to invoke the “ancillary jurisdiction” of Family Court to identify the parents of a child so that it may exercise its core jurisdiction over issues of custody and child support was unavailing in the absence of a petition for custody, child support or some other relief within the core authority of Family Court to grant. It joined the Second Department in holding that Family Ct. Act §§ 115 and 511 vest Family Court with subject matter jurisdiction to hear petitions seeking a declaration that a person, whether male or female, is the “parent of a child born out of wedlock [and] chargeable with the support of such child” (Family Ct. Act § 513; see T.V. v. New York State Dept. of Health, 88 A.D.3d 290, 301, 929 N.Y.S.2d 139 [2011]). The Appellate Division observed that the Legislature has only empowered Family Court to hear “proceedings to determine [parentage] and for the support of children born out-of-wedlock” and defined a child in Family Ct Act article 5 as one “born out of wedlock” Petitioners were married at all relevant times, and their child was not born out of wedlock. In the absence of any allegation that a person outside of their marriage is the child’s parent, Family Ct Act article 5 does not afford Family Court subject matter jurisdiction to give confirmation of their parental status beyond the presumptions afforded by their marriage and their identification as the child’s parents on her birth certificate. Family Court correctly dismissed the petition on jurisdictional grounds.
In determining the appropriateness of visitation between child and an incarcerated parent, the court must consider the totality of the circumstances
In Matter of Angelina H v Derrick I, --- N.Y.S.3d ----, 2020 WL 6183389, 2020 N.Y. Slip Op. 05989 (3d Dept..,2020) the Appellate Division held that in determining the appropriateness of visitation between the child and an incarcerated parent, the court must consider the totality of the circumstances, including such factors as the age of the child, the lack or existence of a meaningful relationship between the parent and the child, the distance and travel time entailed, and the length of the parent’s prison sentence.
Family Court
“Affinity” defined for purposes of Family Offense Proceeding
In the Matter of KR, v. FB, --- N.Y.S.3d ----, 2020 WL 6141945, 2020 N.Y. Slip Op. 20270 (Fam Ct, 2020, a family offense proceeding, the court observed that for purposes article 8, “members of the same family or household” means, among other things, persons related by consanguinity or affinity. The Court explained that a relationship of affinity is ‘the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage’ (Black’s Law Dictionary 70 [10th ed. 2014] ) (Matter of Arnold v. Arnold, 119 AD3d 938, 939, 989 NYS2d 879, 880 [2d Dept 2014]). A relationship meeting Family Court Act § 812’s requirements exists when the petitioner and respondent are linked by a combination of consanguinity and affinity, such as a child who is the blood relative of the child’s parent (consanguinity) and therefore has a relationship by affinity with the parent’s spouse (frequently called a step-parent) (Id. [“(W)hile spouses remain married, a stepchild is related by affinity to a stepparent”] ), The two steps are consanguinity between child and parent (step one) and affinity between the parent and the stepparent (step two). Here, Petitioner’s mother was married to someone other than Petitioner’s biological father. Petitioner’s mother’s husband (“Stepfather”) has a sister ( “Stepaunt”) who is married to Respondent (“Stepuncle”). Thus, unquestionably, Petitioner has an affinity relationship with Stepfather by authority of Arnold which covers the first two steps in the relational chain. However, the third step of the relationship chain between Stepfather and Stepaunt is the subject of an anomaly among the Departments. The Court observed that in Matter of Bibeau v. Ackey, (56 Ad3d 971, 869 NYS2d 244 [3d Dept 2008]), the Third Department held that a child has a relationship of affinity with the spouse of the sibling of the child’s parent. In Bibeau, the child’s mother’s (parent, step one) sister’s (aunt, step two) husband (non-blood uncle, step three) was the respondent in a petition brought on behalf of the child. However, in Matter of Rizzo v. Pravato, (170 AD3d 860, 96 NYS3d 121 [2d Dept 2019]), the Second Department held that no relationship of affinity exists between a child and the sibling of that child’s stepparent which as described above is step three. Applying Rizzo to this case, no relationship of affinity exists between Petitioner and the Stepaunt (step three), thereby breaking the chain of consanguinity and affinity connections necessary to establish a relationship of affinity between Petitioner and Respondent. The only difference between Bibeau and Rizzo is that the relationship is through a parent (Bibeau) versus through a stepparent (Rizzo). In other words, in this case, had Petitioner’s mother’s (as opposed to Petitioner’s stepfather’s) sibling’s spouse been the respondent, then a relationship of affinity would exist. The Court adopted the reasoning of Rizzo because when the Departments conflict, and a Second Department case is on point, trial courts in this Department must follow the Second Department precedent (Mountain View Coach Lines v. Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept 1984]). Note: “Affinity” is defined to be, “The relation contracted by marriage between a husband and his wife's kindred, and between a wife and her husband's kindred, in contradistinction from consanguinity, or relation by blood.” Carman v Newell, 1845 WL 4323 (Sup Ct, 1845)
In Matter of M.R., 130 N.Y.S.3d 252 (Family Court, 2020) a juvenile delinquency petition was filed charging M.R. with criminal possession of a weapon in the second degree and related offenses. M.R., (Respondent) filed a motion to dismiss the juvenile delinquency petition, asserting that the Family Court did not have jurisdiction over him since he had already turned 18 years of age when the juvenile delinquency petition was filed, and as a result, the court must dismiss the petition as being untimely. The Family Court, held that the Executive Order 202.8, which, in relevant part, tolled any specific time limit for the commencement of any legal action as prescribed by the procedural laws of the state, including the family court act, tolled the statutory requirement that felony juvenile delinquency proceeding be filed before a juvenile’s 18th birthday, and denied the motion. It rejected the Respondent’s contention that Executive Order 202.8 did not grant a tolling period to age because that would be legally and biologically impossible and found that all time frames contained in the Family Court Act , including all statutes of limitations, had been tolled by the Executive Order of the Governor, and application of the toll made this petition timely filed for commencing a juvenile delinquency proceeding under Article 3 of the Family Court Act.
October 16, 2020
Executive Order 202.67 continues the modification and suspension of laws relating to the disaster emergency. In addition to several other provisions addressing the COVID-19 outbreak, the Executive Order extends the provisions tolling any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof until November 3, 2020, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled.
Appellate Division, Second Department
Second Department, in a 38 page decision, based upon an incomplete record (1) reminds the matrimonial courts of their fundamental obligations to conduct a trial on the contested financial issues, to develop a clear trial record, to render a comprehensive decision which covers all of the issues in dispute, and to issue a comprehensive judgment which clearly and definitively sets forth the parties’ rights and obligations. While it is within the discretion of the courts to bifurcate the financial issues to be tried, the courts should refrain from issuing piecemeal decisions. (2) reiterates rule that distributive award is not a substitute for maintenance; (3) specifies that trial court must make appropriate findings as to the parties’ respective combined incomes and current needs and expenses of the children, and indicate the specific reasons for its child support award and (4) holds that counsel fees may be awarded to monied spouse (contrary to First Department rule).
In Kaufman v Kaufman, --- N.Y.S.3d ----, 2020 WL 6051523, 2020 N.Y. Slip Op. 05732 (2d Dept.,2020) as a consequence of the bifurcation of the case the Appellate Division was not provided with either a clear, comprehensible, and accessible record or a unified, comprehensive analysis by each party as to what determinations were made by the Supreme Court and which of those decisions each party accepted or challenged. With respect to equitable distribution of the parties' assets, the judgment of divorce entered merely incorporated by reference the Court prior decisions, without specifying what it actually ordered, adjudged, and decreed, except that it set forth certain deviations from those prior decisions. Since the decisions conflicted with each other in important respects, it was unclear what the court actually directed as to the equitable distribution of major and valuable assets. Most significantly, while the Supreme Court initially divided the trial into phases, it ultimately conducted only the first phase of the trial and rendered one posttrial decision; the other phase of the trial was short-circuited, with decisions being rendered on the basis of the record in the first trial, supplemented by what the court gleaned from conferences and from motion practice. The court's failure to conduct a trial on all contested issues, in contravention of the court's own established ground rules for this case, was a fundamental error that would ordinarily, by itself, require reversal of those aspects of the court's determinations which are contested by the parties and were made without affording them the opportunity to submit their evidence. However, because the parties sought review of those issues but did not request a further hearing, the Appellate Division evaluated their positions on the basis of the record as it stood. Moreover, the court’s sua sponte attempt to revise its prior rulings was procedurally improper, as a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate [its own] order or judgment..
With respect to the income and property of each party at the time of the marriage, the defendant entered the marriage as an Ivy League-educated attorney and a certified public accountant with seven years of experience as an investment professional in the field of private equity, with at least $638,000 in assets, and investments in various funds that would distribute millions of dollars during the parties’ marriage and which were used, along with marital earnings, during the marriage to acquire millions of dollars in marital assets. The plaintiff entered the marriage with a Master’s Degree in Fine Arts, an insubstantial income working for an internet-based start-up business that calendared art shows and events, and insubstantial assets after the defendant had paid off some of her student loans. The plaintiff was interested in pursuing a career utilizing her artistic creativity, but was unable to do so without adequate funding. The parties married on May 27, 2000, and purchased a marital residence in Rye in August 2002 using a $702,000 distribution that the defendant received from a premarital asset, and by the defendant’s liquidation of another premarital asset for $90,914. The defendant put title to the marital residence in joint names, but assumed the mortgage in his sole name.
Equitable Distribution
During the parties’ marriage, the defendant was highly successful in the field of private equity, with acquisitions of equity interests in various funds yielding pre-tax distributions of $11,758,599. However, by the time of the trial in this action, the defendant had been effectively unemployed for four years, with his efforts to start his own private equity firm being largely unsuccessful. During the parties’ marriage, the defendant invested nearly $500,000 in the plaintiff’s part-time business venture, KKD, which involved the sale of luxury jewelry items. By contrast, the plaintiff made no notable contributions to the defendant’s career during the parties’ marriage, and her contention that the defendant benefited by the plaintiff’s socializing in Greenwich and Rye is not supported by the record. Moreover, the plaintiff was unemployed or only working part-time during the marriage. The parties employed the assistance of outside help, including a weekday nanny, a weekend nanny, a house cleaner, and a “house assistant.” They employed a multi-person staff responsible for cooking, cleaning, shopping, transporting the children, and maintaining the home. While the defendant worked for most of the marriage, and provided the support for the family throughout the marriage, the plaintiff’s contributions to the marriage, after the first three years of the marriage, were de minimis. Based on the record the Appellate Division could not conclude that the plaintiff made substantial direct or indirect contributions to the marriage. After the first three years of the marriage, she embarked upon her own career in the design and sale of expensive jewelry, an endeavor which the defendant supported. However, after inducing the defendant to invest further sums into the business, the plaintiff abruptly closed it contemporaneously with her commencement of this litigation. The Court pointed out that the presence of household help has been recognized as a significant factor in the equitable distribution in marital property, and the presence of a “live-in babysitter” should be considered with respect to the parties’ respective contributions to the marriage. It held that in issuing a determination regarding equitable distribution, its hould take into account the extent to which the parties each contributed either directly to the economic betterment of the family or indirectly through the performance of “the usual and customary household duties throughout the parties’ relationship. The Appellate Divison concluded that based upon the foregoing, and given the duration of the parties’ 11–year marriage, and the amount of separate property contributed by the defendant to the marriage, a fair and equitable distribution of the parties’ assets is better obtained by a determination that the defendant was entitled to 75% of the parties’ bank accounts, brokerage/investment accounts, mutual funds, hedge funds, and equity funds, and the plaintiff was entitled to 25% of such assets. It held that where, as here, the plaintiff made only minor and insignificant economic and noneconomic contributions to the marriage, and a substantial portion of the marital estate derives from the contribution by the defendant of his premarital investments, such a 75% to 25% distribution is equitable. It did not disturb so much of the Supreme Court’s determination as provides for an equal distribution of the parties’ retirement assets.
Prejudgment Interest
The Supreme Court awarded prejudgment interest with respect to bank accounts, brokerage/investment accounts, and mutual funds (not including retirement accounts), which were valued as of October 31, 2010. The Appellate Division agreed that the plaintiff should be entitled to the income generated by her percentage share of these assets up to the time of distribution. It did not agree that the appropriate means for doing was to utilize an arbitrary 5% or 6% rate when it would seem that the amount of income generated by these assets was readily determinable. As there was no indication in the record that the parties were afforded the opportunity to offer evidence with regard to this issue the matter was remitted for further proceedings on this issue. Maintenance The Appellate Division pointed out that Supreme Court declined to award permanent maintenance to the plaintiff reasoning that the plaintiff was going to receive at least the sum of $5,159,039, based on her one-half share of bank accounts and brokerage and investment accounts, with the plaintiff to receive additional monies from distributions of other assets. The court determined that the defendant’s obligation to pay interim maintenance would terminate once the plaintiff received $5 million in hand in non-retirement assets. Until then, the defendant was to pay the plaintiff $10,000 per month. The payments were to be considered an advance on equitable distribution, as long as in the final determination of the case (including after appellate review), the plaintiff receives at least $5 million. The plaintiff argued on appeal that the Supreme Court’s maintenance determination eroded her distributive award. The Appellate Division noted that the issue of maintenance was to be taken up at the second phase of the trial, which never occurred. Despite this, neither party argued on appeal that a further trial was needed in order to finally determine the issue of maintenance. As a consequence thereof it held that it was required to decide this case solely with reference to the arguments actually made by the parties on the record as it stood. In the context of this case, and under the constraints imposed by the limitations on the arguments presented by both sides, it found it improper for the Supreme Court to have directed that the $10,000 monthly payments be treated as a credit against her equitable distribution award. A distributive award is intended to reflect the equitable distribution of the marital assets between the parties, while maintenance is a support payment awarded to assist the less affluent spouse in meeting his or her reasonable needs in light of the predivorce standard of living. Where a substantial equitable distribution award obviates, or reduces, the need for maintenance, it would not be improvident to provide for, or increase the amount of, maintenance on account of a delay in the payment of the equitable distribution award. However, it is improper to give the more affluent spouse a credit against equitable distribution on account of the maintenance paid. Doing so essentially means that the less affluent spouse would end up paying his or her own maintenance, though the court determined that the more affluent spouse should be paying maintenance. The Appellate Division eliminated that direction by the court.
Child Support
The Supreme Court calculated child support on the basis of a combined parental income of $350,000, which the court apportioned equally between the plaintiff and the defendant. Basic child support was fixed at $87,500 per year, of which the defendant was responsible for one-half, $43,750, which amounted to $3,646 per month. However, in the event the plaintiff did not receive her equitable distribution within 30 days of service of the judgment of divorce, the defendant was to continue to pay $7,295 per month ($87,540 per year). The parties were to equally share the “add-on” expenses, as well as other expenses not included in either basic child support or in the statutory add-ons. Each party was allowed to claim one child as a dependent for tax purposes. The defendant was required to maintain health insurance for the children, with the parties to equally share any extra cost therefor. The children’s UTMA accounts were to be maintained for their benefit by the defendant. Likewise, the children’s 529 accounts were to be maintained and used for their higher education. The Appellate Divison agreed with plaintiff that the Supreme Court failed to properly determine the issue of child support in accordance with the Child Support Standards Act. Where, as here, the combined parental income exceeds the statutory baseline, the court may apply the statutory percentage to all or part of the income over the baseline or it may consider the statutory factors to determine what, if any, additional child support should be awarded. But whatever the court does, there must be “some record articulation of the reasons for the court’s choice ... to facilitate ... review.” The court’s decision ‘should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage’ ” ‘In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors’ . In this case, the Supreme Court failed to make appropriate findings as to the parties’ respective combined incomes and the current needs and expenses of the children. In view of its bifurcation of the issues, and the deferral of child support to a later phase of trial that never occurred, the parties did not have a full and fair opportunity to submit their evidence as to their current incomes and as to the current needs and expenses of the children. While the court applied the statutory percentage to $350,000 in combined parental income, it did not provide any explanation as to why it chose that amount, as opposed to some greater or lesser amount, or why the resulting amount of child support was the appropriate level of support. For these reasons, the child support determinations made by the Supreme Court was set aside, including the allocation of responsibility for statutory add-ons, and the matter remitted to the Supreme Court for further proceedings.
Life Insurance
The Appellate Division agreed with the plaintiff that the Supreme Court should have directed the defendant to maintain a life insurance policy for the benefit of the parties’ children until the emancipation of the parties’ youngest child. Thus, the court should not have limited the defendant’s life insurance obligations to providing a $2 million life insurance policy naming the plaintiff as beneficiary for as long as his obligation to pay a distributive award was outstanding. Instead, the court should have directed the defendant to maintain additional life insurance for the benefit of the parties’ children until the emancipation of the parties’ youngest child, with the requisite amount of such additional insurance to be determined after holding an evidentiary hearing and determination regarding the defendant’s child support obligation.
Counsel Fees The Appellate Division agreed with the defendant’s contention that the Supreme Court erred in awarding the plaintiff $1.5 million in counsel fees without holding an evidentiary hearing, as such award was in the nature of a final award of counsel fees. Despite the court’s framing of the $1.5 million in counsel fees as an “interim” award, it was tantamount to a final award, as it was set forth in an order after trial in which the court directed the plaintiff to settle a judgment of divorce on notice in connection therewith. Where, as here, the parties did not stipulate to waive a hearing, a final award of counsel fees can only be granted after an evidentiary hearing is conducted to permit the opposing party “a meaningful way of testing the [attorney’s] claims relative to time and value” The Supreme Court erred in endeavoring to avoid its obligation to hold an appropriate hearing by simply relying upon the history of interim awards. The requirement of a hearing on counsel fees at the end of a matrimonial case cannot be skirted by asserting that the issue has been resolved through successive interim fee motions and orders. The Appellate Division pointed out that in exercising judicial discretion to determine counsel fee applications, the courts must take into account not only the financial circumstances of the parties but the circumstances of the case as a whole, including the relative merits of the parties’ positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation. A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award in order to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party (see Prichep v. Prichep, 52 A.D.3d 61, 66, 858 N.Y.S.2d 667). On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions. Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party or not make, or make a lesser award, in favor of the offending party. The Court observed that an “ assessment of litigiousness cannot be made simply by looking at which party made the most motions since the need for motion practice may have been prompted by unreasonableness on the part of the non-moving party. Determining whether conduct is reasonable or obstructive on the basis of conflicting affirmations of counsel may often prove to be difficult. An evidentiary hearing may well be of inestimable value in assessing the relative merit of the parties’ conduct. The court held that the issue of counsel fees case had to be addressed at an evidentiary hearing.
There is no basis for an award of counsel fees where the court’s award to the defendant made no reference to the parties’ finances.
In Schwartz v Schwartz, --- N.Y.S.3d ----, 2020 WL 5806649, 2020 N.Y. Slip Op. 05248(2d Dept.,2020) a post-judgment application for permission to relocate with the Children from Scarsdale, New York, to Armonk, New York the Appellate Division, inter alia, agreed with the plaintiff’ wife that the Supreme Court improvidently exercised its discretion in awarding the defendant counsel fees of $450,000. It observed that in determining whether an award of counsel fees is appropriate, the court must consider the equities and circumstances of each particular case, the relative merit of the parties’ contentions and their respective financial positions. Here, notwithstanding that a court must consider the parties’ financial circumstances in making an award of counsel fees, the court’s award to the defendant made no reference to the parties’ finances. Therefore there was no basis in the record for an award of counsel fees to the defendant. For the same reason, there was no merit to the plaintiff’s contention that the Supreme Court improvidently exercised its discretion in denying her application for an award of counsel fees.
Family Court
FCA § 716, which permits the Family Court to substitute a neglect petition for a PINS petition does not specify exactly what substitution entails, or procedurally how the case advanced ,and has not been clarified by the Courts.
In Matter of Pins Proceeding Beekmantown Central School District v John,.--- N.Y.S.3d ----, 2020 WL 5950158, 2020 N.Y. Slip Op. 20252(Family Court, 2020) on July 16, 2020, the Beekmantown Central School District filed an amended verified petition alleging that John was a person in need of supervision. Upon Respondent’s admissions, the Court found that John, while under eighteen years of age, did not attend school in accordance with the provisions of Part One of Article 65 the Education Law; and was incorrigible, ungovernable or habitually disobedient and beyond the lawful control of the Beekmantown Central School District. On September 29, 2020, the Clinton County Probation Department submitted its PINS Pre-Dispositional Investigation Report . Based upon the report it appeared that for an extended period of time, his mother, Mary S. allowed John to be exposed to domestic violence and this exposure negatively impacted John’s school behavior. Indeed, according to Ms. S. herself, John’s PINS behaviors were mainly due to his inability to cope with the domestic violence issues that were present in her home. The Court observed that if the information contained in the pre-dispositional report is accurate, a valid neglect petition regarding John could be filed against Mary S. Given Ms. S.’s own position that John’s behavior was attributable to his home environment the Court found that justice would be served by the pursuit of a neglect petition against Ms. S. rather than a PINS determination against John. See R.L. v. A.J., 50 Misc 3d 1083, 1085 [Fam Ct. Kings County 2015]. The Court found that under the circumstances presented the Family Court Act, would not be served by the pursuit of a PINS proceeding and the potential “stigma” that might attach to John as a result, especially where, as here, John’s behaviors appeared attributable to his home environment. The Court decided to substitute a neglect petition for the pending PINS petition pursuant to FCA § 716. It noted that the statute does not specify exactly what substitution entails, or procedurally how the case advanced ,and has not been clarified by the Courts. See Matter of Tad M., 123 Misc 2d 1071, 1072-1073 [Fam Ct. Richmond County 1984] (discussing what the term “substitution” under FCA § 716 means and the lack of specific guidance on this subject). The Court held it could not change the caption of the petition and name Mary S. as the Respondent. If that action was taken, the petition would not allege a prima facie case for neglect against Ms. S. The Court could not make a neglect finding against her without a valid FCA Article 10 petition being filed against her. Without a valid petition, such a finding would violate her Due Process rights. In order to give meaning to FCA § 716, and to protect Ms. S.’s Due Process rights, the Court concluded that the term “substitute” in the context of FCA § 716, requires the filing of a new valid Article 10 petition. While the Court has the authority to authorize anyone to file an Article 10 petition pursuant to FCA § 1032, the Court found that it would serve both the interest of justice and the administration of justice to require the Clinton County Department of Social Services to file a petition.
October 1, 2020
Executive Order 202.67 continues the modification and suspension of laws relating to the disaster emergency. In addition to several other provisions addressing the COVID-19 outbreak, the Executive Order extends the provisions tolling any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof until November 3, 2020, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled.
Appellate Division, Second Department
Where it is evident that Supreme Court considered all relevant factors and the reasons for its decision are articulated, the court is not required to specifically cite to and analyze each statutory factor.
In Fishman v Fishman, --- N.Y.S.3d ----, 2020 WL 5223579, 2020 N.Y. Slip Op. 04827 the Appellate Division affirmed a judgment which insofar as appealed from awarded the defendant maintenance of $1,750 per month, ending two years from July 1, 2016, directed the plaintiff to pay child support in of $2,503.84 per month, equitably distributed the marital property, and awarded the defendant counsel fees in the sum of $25,000. The parties were married in November 2004, and had two children. After approximately nine years of marriage, the plaintiff commenced this action for a divorce. The Appellate Division affirmed. It held that the overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting. Supreme Court’s maintenance award was a provident exercise of discretion. It found no merit to the plaintiff’s contention that the Supreme Court failed to discuss the statutory factors it relied upon in distributing the marital property. While the Supreme Court is required to discuss the statutory factors it relied upon in distributing marital property, where it is evident that the Supreme Court considered all relevant factors and the reasons for its decision are articulated, the court is not required to specifically cite to and analyze each statutory factor.
Before a court strikes a pleading or precludes evidence based failure to provide court-ordered discovery, there must be a clear showing that the failure was willful and contumacious.
In Ritornato v Ritornato, --- N.Y.S.3d ----, 2020 WL 5540086 (Mem), 2020 N.Y. Slip Op. 04981(2d Dept.,2020) a plenary action seeking, inter alia, to rescind or reform the parties settlement agreement, the Appellate Division held that Supreme Court providently exercised its discretion in granting plaintiff’s cross motion to strike the defendant’s answer. Before a court invokes the drastic remedies of striking a pleading or precluding evidence based on the failure to provide court-ordered discovery, there must be a clear showing that the failure was willful and contumacious. The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time”. In light of the defendant’s repeated failure to comply with multiple court orders, it agreed with the court’s conclusion that he engaged in willful and contumacious conduct.
Sworn denial of receipt of service rebuts the presumption of proper service established by the process server’s affidavit
In Ahluwalia v Seecharan, --- N.Y.S.3d ----, 2020 WL 5540563 (Mem), 2020 N.Y. Slip Op. 04907) the Appellate Division held that ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and gives rise to a presumption of proper service. A defendant’s sworn denial of receipt of service rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing where the defendant swears to specific facts to rebut the statements in the affidavit of service. However, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit of service.
A Prior restraint on spouses speech must be couched in narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order
In Karantinidis v Karantinidis, --- N.Y.S.3d ----, 2020 WL 5648552, 2020 N.Y. Slip Op. 05039 (2d Dept.,2020) the Appellate Division held that the order plaintiff’s motion for an order directing the defendant not to discuss, demean, or disparage the plaintiff to any third parties, including but not limited to the plaintiff’s patients, was an unconstitutional prior restraint on speech. A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression. Any imposition of prior restraint, whatever the form, bears a “heavy presumption against its constitutional validity, and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition”. An injunctive order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order (see Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325). The order must be tailored as precisely as possible to the exact needs of the case. Here, the Supreme Court’s prior restraint on speech was overbroad, and not tailored as precisely as possible to the exact needs of this case. The plaintiff, a psychologist, was concerned about damage to her professional reputation due to the defendant’s allegedly demeaning statements to her patients. It held that the court’s objective could be achieved by modifying the order to provide only that the defendant shall not discuss, demean, or disparage the plaintiff to her patients.
Appellate Division, Third Department
Objections from nonfinal orders made by a Support Magistrate are typically not reviewed
In Swift v Mead, --- N.Y.S.3d ----, 2020 WL 5665278, 2020 N.Y. Slip Op. 05099(3rd Dept.,2020) the Appellate Division held that objections from nonfinal orders made by a Support Magistrate are typically not reviewed unless they could lead to irreparable harm” (Matter of Fisher v. Fritzsch, 35 A.D.3d 1146, 1147, 827 N.Y.S.2d 732 [2006]; see Matter of Tobing v. May, 168 A.D.3d 861, 862, 92 N.Y.S.3d 299 [2019]). The order of the Support Magistrate imposing a weekly child support obligation did not lead to irreparable harm.
September 16, 2020
Appellate Division, Second Department
Defendant=s sustained physical abuse of the plaintiff constituted egregious marital fault to be factored into equitable distribution award
In Socci v Socci, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 5223043 (Mem), 2020 N.Y. Slip Op. 04888 (2d Dept.,2020) the parties were married on February 7, 1987. In March 2008, the defendant was convicted, upon his pleas of guilty, of assault in the second degree (two counts), kidnaping in the second degree, and aggravated criminal contempt related to incidents in which he beat the parties= two daughters with a belt and chained them to a tree overnight, and forced the plaintiff into his vehicle and tried to make her pour gasoline on herself. In October 2009, the plaintiff commenced this action for a divorce. At the trial in the divorce action, the plaintiff testified as to these events, as well as numerous other incidents of physical abuse during the marriage. Supreme Court, among other things, found that the defendant=s egregious conduct in abusing the plaintiff over the course of the marriage warranted consideration in determining equitable distribution. Based, in part, on the defendant=s egregious fault, the court awarded the plaintiff 75% of the net proceeds from the sale of the marital residence and 60% of the parties= investment and bank accounts and of the marital contributions to the defendant=s deferred compensation plan. The Appellate Division affirmed. It held that the general rule in New York is that marital fault should not be considered in determining equitable distribution. However, egregious marital fault may be considered in rare cases involving extreme conduct which shocks the conscience of the court. The marital misconduct must be Aso egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship. It found Supreme Court providently exercised its discretion in finding that the defendant=s sustained physical abuse of the plaintiff over the course of their marriage constituted egregious marital fault to be factored into the equitable distribution award in addition to other considerations, and providently exercised its discretion in fashioning the equitable distribution award (see Havell v. Islam, 301 A.D.2d at 345, 751 N.Y.S.2d 449; Brancoveanu v. Brancoveanu, 145 A.D.2d at 398, 535 N.Y.S.2d 86).
Court imputing income must provide a clear record of the source of imputed income, reasons for the imputation, and the resultant calculations.
In Pilkington v Pilkington, 185 A.D.3d 844, 127 N.Y.S.3d 523, 2020 N.Y. Slip Op. 03931 (2d Dept, 2020) the parties were married in 2003 and had two children, born in 2006 and 2007, respectively. In 2013, the plaintiff commenced the action for a divorce. After the parties stipulated to the terms of custody and parental access, they agreed to have the Supreme Court decide the Afinancial, property and employment matters@ based on their submissions in lieu of a trial. The Appellate Division held that Athe court may impute income based on the parent=s employment history, future earning capacity, educational background, or money received from friends and relatives. However, the court must provide a clear record of the source of the imputed income, the reasons for the imputation, and the resultant calculations, It agreed with the Supreme Court’s determination to impute income of $85,000 to the plaintiff based, in part, on contributions he received from his fiancée, but the amount imputed was not supported by the record .It also agreed with the court’s determination to impute income to the plaintiff based on income he received from performing side jobs. It also held that based upon the defendant=s skills and employment experience, and contributions from her family, the court improvidently exercised its discretion in imputing to her an annual income of only $25,000. Since the documents submitted by the parties were inadequate to determine the contributions from the plaintiff=s fiancée and the average income earned by the plaintiff from performing side jobs, and the parties were not afforded the opportunity to submit further documents, the matter was remitted to the Supreme Court to hold a hearing on the issue of how much income should be imputed to each party, and the calculation of a new child support obligation thereafter. The Appellate Division observed that pursuant to Domestic Relations Law ' 240(1Bb)(c)(7), the court may direct a parent to contribute to a child=s education. In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice. Supreme Court providently exercised its discretion in not requiring the plaintiff to pay a pro rata share of the parties= children=s private school tuition. The defendant failed to submit evidence to establish that the education provided by the public schools in Florida would be inferior to that provided by Hillel Day School of Boca Raton, a private religious school, or that the needs of either child would be better served by their attendance at a private religious school.
September 1, 2020
Executive Order 202.60 continues the modification and suspension of laws relating to the disaster emergency.
The Executive Order extends the provisions tolling the Statute of Limitations until October 4, 2020. It also modifies previous executive orders to provide that the tolling of civil statutes of limitation be lifted as it relates to any action to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. The EO further states that "The suspension of Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction; Criminal Procedure Law 170.70 is no longer suspended, and for any appearance which has been required to be in-person may continue to be conducted virtually with the consent of the parties."
Appellate Division, Second Department Amends Rules of Practice
By Administrative Order issued on July 1, 2020, the Second Department has amended its local rules of practice to omit the requirement that papers in relation to motions and original proceedings be filed in both digital and hard copy format. Rather, all such papers “shall be submitted in digital format, shall comply with the technical requirements for electronically filed documents (22 NYCRR Part 1245, Appendix A), shall be served on all parties in digital format, and shall be filed by uploading through the digital portal located on the home page of the Court’s website with proof of service” (Admin Order 2020-0701). Hard copy submissions are only required when specifically requested by the Court. This amendment, by which subdivision (d) was added to section 670.4 of the Second Department’s Rules of Practice, applies to both NYSCEF matters and matters in which electronic filing via the NYSCEF system is not mandated. Exemptions are provided for exempt attorneys and exempt litigants as those terms are defined in the Electronic Filing Rules of the Appellate Division (22 NYCRR 1245.4), who must be served and must file in hard copy.
Second Department
To find a marital contract unconscionable, two elements must be shown: procedural unconscionability, and substantive unconscionability
In Cilento v Cilento, --- N.Y.S.3d ----, 2020 WL 4661442, 2020 N.Y. Slip Op. 04453 (2d Dept.,2020) the parties were married on January 20, 1996. In April 2018, the plaintiff commenced this action for a divorce seeking, inter alia, to incorporate a stipulation of settlement that the parties had entered into in August 2017 into the judgment of divorce. The defendant moved to vacate the stipulation on the ground that it was unconscionable. The Supreme Court denied the defendant’s motion, and the Appellate Division affirmed. As relevant to the appeal, the attorney who the defendant retained in connection with a Family Court proceeding and who he used in the past , when he needed an accurate Italian translation and understanding of legal documents was the mediator the parties thereafter selected and each paid to assist them in formulating the terms of the stipulation after two sessions with him.
The Appellate Division held that in order to find a marital contract unconscionable, two elements must be shown: procedural unconscionability, which requires “[a] lack of meaningful choice” on the part of one of the parties, and substantive unconscionability, which requires contract terms which are “unreasonably favorable” to the other party (Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 10–12, 537 N.Y.S.2d 787, 534 N.E.2d 824). The defendant failed to establish that the stipulation was procedurally unconscionable. The stipulation was the product of a mediation conducted by an attorney who had represented the defendant on past occasions—specifically, according to the defendant, when he needed an accurate translation and understanding of legal documents. The defendant’s contention that he signed the stipulation without fully understanding its terms was wholly inconsistent with his contention that the reason he had retained the attorney in the past was because he had used the attorney to explain and translate legal documents. It agreed with the Supreme Court’s determination that the stipulation at issue was not procedurally unconscionable.
The defendant also failed to show that the stipulation was substantively unconscionable. Each party relinquished significant rights under the terms of the stipulation.
Third Department
Only penalty Family Court may impose for willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or imprisonment
In Matter of Gerard P. v Paula P. --- N.Y.S.3d ----, 2020 WL 4678335, 2020 N.Y. Slip Op. 04515(3d Dept.,2020) the Appellate Division held that Family Court erred in dismissing the mother’s modification petitions without conducting a hearing. In any modification proceeding, the threshold issue is whether there has been a change in circumstances since entry of the prior custody order that warrants a review of the issue of custody to ensure the continued best interests of the children. An evidentiary hearing is generally necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the Court has sufficient information to undertake a comprehensive independent review of the children’s best interests.
The Appellate Division found that Family Court did not, as required on a motion to dismiss, liberally construe the mother’s pro se petitions, accept her allegations as true, afford her the benefit of every possible inference or resolve credibility issues in her favor when determining the motions to dismiss. Family Court improperly made factual findings and credibility determinations, inappropriately resolving the conflicting versions of events, as set forth in the mother’s petitions and the father’s supporting affidavits, against the mother and in favor of the father. Such factual findings and credibility assessments have no place in an order resolving a motion to dismiss for failure to state a claim.
In reversing the orders it pointed out that generally, the only available penalty that Family Court may impose for a willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or a period of imprisonment (see Judiciary Law § 753[A]; Family Ct. Act § 156). Family Court sanctioned the mother by modifying the joint legal order of custody and granting the father sole legal custody of the children without determining whether there had been a change in circumstances. In addition, Family Court failed to engage in any discernible analysis of whether a modification was in the best interests of the children.
Supreme Court
Permission to serve defendant by an alternative method (see CPLR 308(5)) FedEx International Economy mail granted
In Sweet-Martinez v Martinez, --- N.Y.S.3d ----, 2020 WL 4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico was granted. The parties were married on November 17, 2007. Defendant was deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no-fault divorce on December 28, 2019 (see Domestic Relations Law § 170 [7]). Plaintiff argued that service upon defendant by mail was permissible under article 10 (a) of the Hague Convention on Service Abroad, which provides: “Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.” The Court observed that although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court found that service upon defendant via FedEx International Economy mail to his last known address in Mexico was permissible — under both CPLR 308 (5) and article 10 (a) of the Hague Convention.
August 16, 2020
Appellate Division, Second Department
Children failed to receive meaningful assistance of counsel where AFC substituted judgment and took position contrary to wishes of children.
In Silverman v Silverman,‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4342466, 2020 N.Y. Slip Op. 04338 (2d Dept.,2020) the Appellate Division found that the AFC improperly substituted judgment and took a position that was contrary to the wishes of her clients, the parties= children, to such a degree that the custody order should be reversed and the matter remitted to the Supreme Court, for the appointment of a new AFC, a de novo hearing and new determination The parties entered into a so ordered stipulation of settlement dated October 17, 2016 where they agreed to joint legal custody of the children, with residential custody to the defendant and parental access to the plaintiff. In April 2017, prior to the entry of a judgment of divorce, the plaintiff moved, inter alia, to modify the stipulation so as to award him residential custody of the children. While the plaintiff=s motion was pending, the defendant filed a family offense petition dated November 21, 2017, in the Family Court, alleging that the plaintiff strangled the youngest child. The Family Court issued a temporary order of protection against the plaintiff, which, inter alia, directed him to stay away from the children. The plaintiff successfully moved to transfer the family offense proceeding to the Supreme Court. After an in camera interview with the children, the Supreme Court dismissed the family offense petition, vacated the temporary order of protection, and directed overnight parental access with the plaintiff. After a hearing, the Supreme Court granted the plaintiff=s motion to modify the stipulation to award him residential custody of the children. The Appellate Division observed that an AFC is required to Azealously advocate the child=s position. The Rules of the Chief Jude state that Athe [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child=s best interests= and that the [AFC] should explain fully the options available to the child, and may recommend to the child a course of action that in the [AFC]>s view would best promote the child=s interests=@ (22 NYCRR 7.2[d][2]). An AFC would be justified in substituting judgment and advocating a position that is contrary to the child=s wishes only if the AFC is Aconvinced 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@ (22 NYCRR 7.2[d][3]. AIn those situations the attorney must still inform the court of the child=s articulated wishes if the child wants the attorney to do so=@( 22 NYCRR 7.2[d][3]). The Appellate Division observed that the role of the attorney for the child is to represent the child=s wishes, not to give the opinion as the child=s attorney as to his [or her] best interests. It found that the AFC advised the Supreme Court that the children wanted to spend daytime with the plaintiff but they wanted to spend overnights with the defendant. They wanted residential custody to remain with the defendant. The AFC informed the court of her clients= position at the beginning of the hearing. Nevertheless, the AFC=s representation was in direct contravention of her clients= stated parameters. Throughout the course of the proceedings, she failed to advocate on behalf of her clients, who were 13 and 11 years old at the time of the hearing, and who were both on the high honor roll and involved in extracurricular activities. The AFC actively pursued a course of litigation aimed at opposing their stated positions. She joined the plaintiff in opposing the introduction of evidence and witnesses in support of the defendant=s case. When the defendant sought to introduce evidence in defense of the plaintiff=s allegations that the defendant provided the children with unnecessary medical care, the AFC joined the plaintiff in opposing the introduction of the defendant=s evidence. The AFC also opposed the introduction of evidence that may have supported one child=s claim that the plaintiff attempted to strangle her. The AFC objected to the testimony of school personnel for the purpose of explaining the children=s seemingly excessive school absences. The AFC=s questions of the plaintiff during cross-examination were designed to elicit testimony in support of the plaintiff=s case, in oppo