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 theyhave 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 tothe novel coronavirus (COVID-19) pandemic. The commissioner of the localsocial 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 theinternet,directly or indirectly, and that is assigned an internet protocoladdress 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 opposition to her clients= wishes. Her questions of the psychologist chosen by the parties to provide therapeutic parental access, were aimed at supporting the plaintiff in his quest for residential custody. The AFC objected to the introduction of witnesses and evidence favorable to the defendant=s case, but she did not make similar objections to the plaintiff=s evidence. Upon successfully arguing to preclude the defendant=s proffered evidence, the AFC proceeded to use the defendant=s lack of evidence to support the plaintiff=s positions. She also failed to object to the Supreme Court’s decision to limit the amount of time for the defendant to present her case. She also failed to take an active role in the proceedings by presenting evidence and witnesses on behalf of her clients. The Appellate Division held that AFC=s failure to support her clients= position was particularly troubling due to the allegations of domestic violence made by both the defendant and the children. Nevertheless, she continued to argue in support of residential custody to the plaintiff, in opposition to the wishes of her clients. The record established that neither of the exceptions to the rules regarding the AFC=s duty were present here. There was no finding that the children lacked the capacity for knowing, voluntary, and considered judgment (see 22 NYCRR 7.2[d][3]). Hence, the children failed to receive meaningful assistance of counsel. Under these circumstances, it was improper for the AFC to substitute judgment and take a position that was contrary to the wishes of the children.
Supreme Court
Service of summons authorized under Hague Convention on Service Abroad by FedEx International Economy mail to last known address in Mexico.
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: AProvided 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 C under both CPLR 308 (5) and article 10 (a) of the Hague Convention.
Family Court
Family Offense Proceeding Dismissed on grounds of Diplomatic Immunity where Respondent and Petitioner were immune from the civil process
In Matter of F.G.O.v. B.G.,.‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4379526, 2020 N.Y. Slip Op. 20184 (Fam Ct, 2020) Petitioner, who was the spouse of the Respondent sought a final order of protection. Family Court granted Respondents motion to dismiss on the basis of Respondent=s immunity pursuant to the Vienna Convention on Diplomatic Relations (1961). Respondent stated that he was a diplomatic agent of the Permanent Mission of the Republic of Congo to the United Nations. He submitted to the Court copy of a document issued by the Permanent Mission of the Republic of Congo to the United Nations, dated October 9, 2019, which identified Respondent as a diplomatic agent; a document from the United States Mission to the United Nations which stated that the official records of the United States Mission indicated that Respondent was Anotified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity; and a United Nations Diplomatic Identification Card with his name, personal information and photograph, issued by the U.S. Department of State, which expired on June 30, 2022. The back of the card explicitly stated that the bearer of the card Aenjoys immunity from criminal jurisdiction.@ The Court held that the documentary evidence submitted, particularly the Diplomatic Identification Card, unlike an affidavit or deposition testimony, is Aessentially undeniable@ and may conclusively establish a defense to the proceeding as a matter of law. Turning to the substance of the defense, the Court observed that the Vienna Convention states that a Adiplomatic agent shall enjoy immunity from the civil and administrative jurisdiction [of the receiving State]@ (Vienna Convention at art. 31.1). Although there are exceptions to this immunity involving, inter alia, property in the receiving state and professional or commercial activity outside the scope of diplomatic functions, none of the exceptions are applicable here. In other words, apart from inapplicable exceptions, a diplomatic agent has absolute immunity from civil jurisdiction. The court noted that in Matter of Terrence K. (Lydia K.), 135 A.D.2d 857, 522 N.Y.S.2d 949 [2d Dept. 1987], where the Second Department found that Family Court had properly dismissed the child abuse proceeding because the respondent parents were entitled to diplomatic immunity pursuant to the Vienna Convention. The father was an attaché of the Mission of the Republic of Zimbabwe to the United Nations. The Court noted the record included a certificate stating the father was accepted by the United States Government for inclusion on the list of Members of Permanent Missions Entitled to Diplomatic Privileges and Immunities, and that the mother and child were registered as members of the household and thus share in the privileges and immunities of the father. The Court ultimately found that this evidence Aconclusively establishes that the father and his family, including the child, are immune from the civil process of the courts of this State.@ Family Court held that once diplomatic status is sufficiently established, as here, and no exceptions apply, the Court was is bound to follow the Vienna Convention and controlling precedent (see Reinoso v. Bragg, 28 Misc. 3d 1235(A), 2010 WL 3607482 [Sup. Ct., New York County 2010]). The proceeding was dismissed as the Respondent and Petitioner were immune from the civil process of the courts of this State.
August 1, 2020
An article titled “Is there a Domestic Relations Exception to Diversity Jurisdiction", by Judge George B. Daniels of the United States District Court (SDNY), and Joel R. Brandes, appears in the “Outside Counsel” column of the August 5, 2020 issue of the New York Law Journal, at page 4. Click here to read the article.
Latest Executive Order
Executive Order 202.55, signed on August 5, 2020 extends the provisions tolling the Statute of Limitations until September 4, 2020.
Appellate Division, Second Department
Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap
In Matter of Glick v Ruland, 2020 WL 4197090 (2d Dept.,2020) the Appellate Division held that where combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the ceiling, the court has the discretion to apply the factors set forth in Family Court Act ' 413(1)(f), or to apply the statutory percentages, or to apply both. The Family Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. This articulation 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 Family Court Act ' 413(1)(f).
Respondents failed to demonstrate the existence of an operative parent‑child relationship between the child and Joseph T. only evidence was that the child called Joseph T. Adaddy@ during weekly supervised visits, and that they were affectionate with each other
In Matter of Luis V v Laisha PT, 184 A.D.3d 648, 125 N.Y.S.3d 133 (2d Dept.,2020) in 2017 the petitioner, filed a petition for a declaration that he was the father of the child, who was born in 2016, and an order for genetic testing. The attorney for the child and the respondent mother did not dispute that the petitioner was the biological father, but opposed the petition on equitable estoppel grounds. Family Court denied the petition, finding that he was equitably estopped from asserting paternity because it would not be in the child=s best interests, as the child had an established parent‑child relationship with the mother=s husband, the respondent Joseph T. The Appellate Division reversed. It held that the doctrine of equitable estoppel may Apreclude a man who claims to be a child=s biological father from asserting his paternity when he acquiesced in the establishment of a strong parent‑child bond between the child and another man. The doctrine protects the status interests of a child in an already recognized and operative parent‑child relationship (Matter of Juanita A. v. Kenneth Mark N., 15 N.Y.3d 1, 5, 904 N.Y.S.2d 293, 930 N.E.2d 214) and has been applied in situations where an individual has assumed the role of a father and where the petitioner putative father has neglected to assume such a role. It found that the respondents failed to demonstrate the existence of an operative parent‑child relationship between the child and Joseph T. The only evidence of such a relationship came from the child=s foster mother, with whom he had lived since he was one year old. The foster mother testified that the child called Joseph T. Adaddy@ during weekly supervised visits, and that they were affectionate with each other at the visits, Joseph T. never appeared in court on the petition and did not testify at the hearing. Joseph T. and the child were not in a recognized and operative parent‑child relationship. It held that the court should have dismissed the equitable estoppel defense.
Family Court
The purpose of a forensic evaluation is not to evaluate the child=s mental health
In R.M. v. C.C., 2020 WL 4187263 (Table), 2020 N.Y. Slip Op. 50825(U)(Fam Ct.,2020) the Court observed that the purpose of a forensic evaluation in court for purposes of therapeutic interventions C that is the parents= responsibility. The purposes of a forensic evaluation is solely to aid the court in making a best interests determination. See Salamone‑Finchum v. McDevitt, 28 AD3d 670, 671 (2d Dept. 2006) (AThe decision whether to direct a psychological or social evaluation in a child custody dispute [to assist the court in addressing this issue] is within the sound discretion of the [Family Court]@ (quoting Matter of Paul C. v. Tracy C., 209 AD2d 955, 955 (4th Dept. 1994))); Pacheco v. Morales, 5 AD3d 387 (2d Dept. 2004)(APursuant to Family Court Act '' 251 and 252, one of the tools that a court may use in determining what is in the best interests of a child is a forensic evaluation of any person within its jurisdiction or the parent of any child within its jurisdiction.@).
July 16, 2020
Covid19 Update
On July 6th, the Governor signed Executive Order 202.48 to continue the modification and suspension of laws relating to the disaster emergency. The Executive Order extends the provisions tolling the Statute of Limitations until August 5, 2020 and ends the suspension of several laws related to criminal matters.
Appellate Division, First Department
Former boyfriend who voluntarily provided Sperm without any restriction or agreement not permitted to raise defense to paternity of equitable estopped
In Matter of Claudia B v Darrin M, --- N.Y.S.3d ----, 2020 WL 3848213, 2020 N.Y. Slip Op. 03861(1st Dept.,2020) after the parties relationship ended, petitioner asked respondent to donate sperm so that she could conceive a child. In October 2009, petitioner sent respondent a draft written agreement which stated that respondent would have no parental rights or responsibilities as to the child and would not be named as the father on the birth certificate, and that petitioner would not seek child support from respondent. While they were still negotiating terms, respondent donated 17 vials of semen to a fertility center. Respondent contended that he stopped participating in the endeavor, but took no further actions because he was purportedly told by the fertility center that petitioner could not use his semen samples. In March 2013, petitioner gave birth to a child. In April 2017, petitioner filed a paternity petition seeking to have respondent declared the father of her child. Respondent argued that petitioner was equitably estopped from bringing the paternity claim because the parties intended that he be a sperm donor only, without any legal rights or obligations to the child. The motion court found that respondent’s estoppel claim was inconsistent with New York law, and directed that he submit to DNA testing. After testing revealed respondent to be the father of the child, the court entered an order of filiation. On appeal, respondent argued that petitioner should be equitably estopped from seeking to have him declared the father of the child. The Appellate Division held that it need not decide whether, under New York law, estoppel is available to foreclose a mother from asserting paternity as to a known sperm donor, because even if it were, respondent’s claim would fail. To prevail on estoppel grounds, the moving party bears the burden of proving, by clear and convincing evidence, a right to the relief sought. Even assuming the truth of respondent’s factual assertions, he failed to meet his burden. Contrary to respondent’s contention, there was no binding enforceable oral or written agreement between the parties, either before or after respondent donated his sperm. It rejected Respondent’s reliance on Matter of Joseph O. v. Danielle B., 158 A.D.3d 767, 71 N.Y.S.3d 549 [2d Dept. 2018] and Matter of Christopher YY. v. Jessica ZZ., 159 A.D.3d 18, 69 N.Y.S.3d 887 [3d Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2924972 [2018]. These cases involved preconception agreements with reciprocal waivers of paternity and child support claims between a same-sex married female couple, on the one hand, and a known sperm donor on the other. The courts in those cases applied equitable estoppel to thwart the donor’s paternity claims because they threatened to harm the parent/child bonds that had developed, a fact pattern not presented here. Neither case supported respondent’s claim that an unsigned, non-final preconception agreement can be used to equitably estop a mother from asserting paternity as to a known sperm donor.
First Department holds it is proper to impute income based on access to parents vacation homes
In DeNiro v DeNiro, --- N.Y.S.3d ----, 2020 WL 3848156 (1st Dept.,2020) the Appellate Division held that Supreme Court providently exercised its discretion in imputing income to the parties based on its credibility determinations and evidence adduced at trial. The court could consider defendants access to her father’s vacation homes, payment of travel and entertainment expenses through work, and employment at her father’s businesses in imputing income to her.
Appellate Division, Second Department
Appellate Division awards counsel fees for services rendered in pursuing counsel fee application in light of the defendant’s persistent refusal to tender a meaningful contribution to the plaintiff’s counsel fee obligations and his retaliatory cross motion.
In Marchese v Marchese, --- N.Y.S.3d ----, 2020 WL 3551814, 2020 N.Y. Slip Op. 03655 (2d Dept.,2020) a settlement was reached on the morning of the first day of trial. The overall value of plaintiff’s agreed-upon equitable distribution was over $4.6 million, inclusive of the value of the former marital residence, valued at $500,000, The defendant’s equitable distribution was approximately $10 million. The defendant agreed to pay taxable maintenance to the plaintiff of $10,000 per month through February 2020, $15,000 per month thereafter through February 2024, and $20,000 per month thereafter through February 28, 2027, at which time all maintenance would terminate. As of the time of the execution of the agreement, the plaintiff had incurred counsel fees of approximately $516,000, of which the defendant had paid $65,000 by court order. In contrast, the defendant incurred counsel fees of more than $900,000, nearly doubling the fees incurred by the plaintiff. The defendant had also paid more than $100,000 to a court-appointed expert valuation firm. The plaintiff had retained her own expert valuation firm and the defendant had paid that firm $25,000. Supreme Court granted the plaintiff’s motion to the extent of awarding her counsel fees in the sum of only $100,000 and failed to award her any expert fees.
The Appellate Division held that denial of the plaintiff’s motion to compel the defendant to pay for the entirety of her valuation expert (FRA) fees was not a sound exercise of discretion. The defendant’s business interests were complicated and it was the plaintiff’s burden, as the non-titled spouse, to establish the extent to which these business interests constituted marital property and their value. While the Supreme Court appointed a qualified expert firm to value the defendant’s business interests, the record reflected that the plaintiff had valid reasons to question aspects of the court-appointed expert’s report as well as to obtain a lifestyle analysis. Given the complexity of the issues, the burden of proof which was upon the plaintiff, and the relative financial positions of the parties, and the quality and result of the work undertaken by FRA, the plaintiff’s submissions warranted an award to her in the sum of $71,473.60 to pay for the balance of the fees attributable to FRA’s services. In reaching this determination, it was undisputed that FRA’s work at the eve of trial led to significant increases in the valuation of the marital estate and facilitated the settlement of the matter.
In awarding the plaintiff only a portion of the fees requested, the Supreme Court considered that the defendant was the monied spouse. The defendant did not rebut the presumption in favor of an award of counsel fees to the plaintiff. The Appellate Division held that the counsel fee award was inadequate. It found that Supreme Court gave undue weight to the financial resources available to the plaintiff. 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. The plaintiff was approximately 63 years old at the time of the proceedings below, had a debilitating medical condition, and was unable to work. In contrast, the defendant was 48 years old, in good health, and had a proven track record of average annual earnings in excess of $2 million. Of the plaintiff’s equitable distribution, only approximately ½ was in the form of liquid assets, and her overall share of the distributed assets was significantly less than that of the defendant. The plaintiff’s taxable maintenance was modest in comparison with the defendant’s earnings. Given the significant disparity between the parties’ assets and incomes, as well as the significant disparity in their ages and health conditions, the defendant was in the superior position to bear the expenses of this litigation. The Court concluded that the defendant should be responsible for the balance of the plaintiff’s counsel fees and expenses, net of his prior payments, in connection with the underlying litigation, which amounted to $451,188.15.
In addition, the Appellate Division awarded $30,000 counsel fees for services rendered in pursuing the counsel fee application. In the context of this case, an award was appropriate in light of the defendant’s persistent refusal to tender a meaningful contribution to the plaintiff’s counsel fee obligations. It also considered the defendant’s making of a cross motion that sought to impose on the plaintiff responsibility for 50% of the fees of the court-appointed valuation firm and 100% of her own fees. The cross motion could only be viewed as retaliatory.
Court should not consider change in custody in the absence of an application for that relief with notice to the parent
In Matter of Ross v Ross, --- N.Y.S.3d ----, 2020 WL 3551747, 2020 N.Y. Slip Op. 03668 (2d Dept.,2020) mother filed a petition for custody of the child, and the father cross-petitioned for custody. The hearing on the petitions concluded on June 12, 2018, and the Family Court reserved decision. On that same day, the Family Court issued a temporary order of parental access. The father filed a violation petition alleging that the mother had violated the June 12, 2018, temporary order of parental access in that when the father attempted to exercise parental access he discovered that the mother and the child were gone. He suspected that the mother had moved with the child to Sweden. The Appellate Division held the subsequent conditional directive of the Court that sole legal and physical custody of the child shall be transferred to the father if the mother did not return the child to New York City within 30 days was meant to punish the mother and was not based on the court’s determination of the best interests of the child. The court should not have considered a change in custody in the absence of an application for that relief with notice to the mother. The court’s conditional award of custody to the father was improper in light of the court’s determination otherwise that it was in the child’s best interests to remain in the custody of the mother.
Appellate Divison, Third Department
Costs involved in providing vacation home for child to use occasionally does not justify a finding that Child Support Amount Calculated by the CSSA formula is unjust or inappropriate.
In Donna E v Michael F, --- N.Y.S.3d ----, 2020 WL 3847492 (3d Dept.,2020) in determining child support Supreme Court chose to deviate from the CSSA formula, finding that the calculation of $1,024 as the husband’s basic child support obligation was unjust and inappropriate. As an explanation for doing so, the court stated its concern that mandating the full amount of support from the husband would likely have the effect of forcing the sale of the husband’s recreational cabin. This, the court reasoned, would result in the loss of an important part of his relationship with the child, thus effecting the physical and emotional needs of the child to spend quality outdoor time with the husband. Moreover, according to Supreme Court, the sale of the property would constitute a diminution of the standard of living that the child would have enjoyed had the marriage not dissolved. The wife asserted on appeal that Supreme Court erred, as there was no reasonable basis in law or fact to deviate. The Appellate Division agreed with her. The parties each testified that they struggled financially, living “paycheck to paycheck.” However, the husband did not testify that he would be forced to sell his cabin. Furthermore, this Court had “consistently held that the 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” of child support. The costs involved in providing a vacation home for a child to use occasionally do not justify a deviation. Lastly, in its discretion, the court did not conduct a Lincoln hearing and, as such, the child’s wishes or desires with regard to spending time at the cabin are unknown. Nor was there any expert testimony that the child’s physical or emotional needs would suffer if she did not spend time at the cabin. Thus, that deviation was not warranted
Court cannot impose jail sentence once contempt purged by payment before imposition of the sentence
In Essex County Child Support Enforcement Unit, on Behalf of Quackenbush, v Crammond, -- N.Y.S.3d ----, 2020 WL 3847470 (3d Dept.,2020) the Appellate Division held that Family Court exceeded its authority by imposing a 120–day jail sentence for violation of the prior support order and vacated the sentence where the contempt was purged before imposition of the sentence. Upon a finding of a willful violation, Family Court is authorized to impose a sentence of commitment up to six months (see 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’”.
2010 amendment to Domestic Relations Law § 236[B][9] applies where pre-2010 child support agreement modified after effective date of amendment
In Matter of Henry v Bell, --- N.Y.S.3d ----, 2020 WL 3847620, 2020 N.Y. Slip Op. 03829 (3d Dept.,2020) the Appellate Division held that the 2010 amendment to Domestic Relations Law § 236, under which a “court may modify an order of child support where ... three years have passed since the order was entered, last modified or adjusted” applies where a support order entered before the amendment is modified by an order made after the amendment. Accordingly, the mother’s petition for an upward modification of the father’s child support obligation was properly analyzed in the context of the 2010 amendment.
Where Court permitted mother to testify telephonically without being sworn, it was error for to rule that it would not credit the mother’s testimony given that it was not sworn
In Matter of Burnett v Andrews-Dyke, --- N.Y.S.3d ----, 2020 WL 3847447, 2020 N.Y. Slip Op. 03838 (3d Dept.,2020) a default order was entered finding the mother in willful violation of a prior support order, a three-month period of incarceration was recommended, and the matter was referred to Family Court for confirmation. Family Court granted the mother’s application to appear telephonically at the confirmation hearing based upon her representation that she was unemployed, homeless and physically and financially unable to travel to personally appear in New York. Following the May 2019 confirmation hearing, Family Court ruled that the mother’s testimony was not competent because it was not sworn. The court issued an order confirming the finding of a willful violation and ordered that the mother be committed to jail for three months, subject to payment of a set purge amount. The Appellate Division reversed. It recognized that Family Ct. Act § 433 gives Family Court the discretion to permit a party in a child support proceeding to testify by telephone where it determines that “it would be an undue hardship for such party ... to testify ... at the [F]amily [C]ourt where the case is pending” (22 NYCRR 205.44[b]). Unsworn testimony, except in certain instances not applicable here, is generally inadmissible. Family Court’s order granting the mother’s application to appear telephonically did not condition her appearance upon testifying from a location where a notary would be available to swear her in. At the hearing, when the mother’s counsel called her to testify, Family Court noted that the mother was not in a location where a notary was present to administer an oath, but then permitted her to be questioned, without providing any indication that her answers would later be considered incompetent based upon the lack of an oath. Having permitted the mother to give unsworn testimony telephonically, it was error for Family Court to thereafter sua sponte rule, nearly 1½ months after the hearing, that it would not credit the mother’s testimony given that it was not sworn.
July 1, 2020
The “Outside Counsel” column which appears on page 5 of the July 2, 2020 edition of the New York Law Journal contains an article titled "Limiting the Scope of Representation in Family Court Proceedings, , by Joel R. Brandes and Chris McDonough, Esq. Click here to read the article.
Court of Appeals amends Rules of Practice effective May 27, 2020
The Court of Appeals has amended its Rules of Practice to require, for motions and responses to Rule 500.10 jurisdictional inquiries, submissions in digital format as companions to the printed papers filed and served in accordance with the Court’s Rules of Practice. The Court has also amended its Rules of Practice to reduce the number of printed copies that must be filed for civil motions for leave to appeal, reargument motions, and papers in opposition to those motions. The amended Rules were effective May 27, 2020. Any responses to Rule 500.10 jurisdictional inquiries requested on or after May 27, 2020 and any motions returnable on or after June 1, 2020 must comply with the amended Rules. A full copy of the notice to the bar, and relevant portions of the proposed amended Rules, can be accessed at http://www.nycourts.gov/ctapps/news/nottobar/nottobar05112020.pdf.
Pursuant to Rule 500.2(b), the Court of Appeals requires the submission of motion and opposition papers and Rule 500.10 Jurisdictional Responses in digital format. Parties who have received a motion instruction letter or Jurisdictional Inquiry letter from the Clerk’s Office should use this Companion Filing Upload Portal to submit motion and opposing papers and Rule 500.10 Jurisdictional Responses. The portal can be accessed at https://www.nycourts.gov/ctapps/courtpass/MotionUpload.aspx
Uploading digital submissions to this Portal does not satisfy the service or filing due dates by operation of the CPLR or the Court’s Rules of Practice. The filer is responsible for meeting any applicable CPLR time limit by serving and filing as provided by the CPLR. The filer is responsible for meeting the Court’s applicable due dates by filing the required number of paper documents with the Clerk’s Office.
This Portal is for uploading companion digital submissions of motions and Rule 500.10 Jurisdictional Responses only. Those wishing to upload companion digital submissions of briefs and record materials on pending appeals on the normal course or sua sponte merits (SSM) track (Rule 500.11) must do so through the Court-PASS system at https://www.nycourts.gov/ctapps/courtpass/
New York court may modify an out‑of‑state custody order that is valid under other state’s law but not in conformance with New York law
In Matter of Paul JJ., v. Heather JJ., Respondent, 2020 WL 3271765 (3rd Dept.,2020) the Appellate Division held that a New York court may, as a matter of law, modify an out‑of‑state custody order that is valid under the other state’s law but is not in conformance with New York law, and that the party seeking a modification of such an order must adhere to the typical standard and demonstrate a change in circumstances before the court can modify the prior order. Under the UCCJEA, (Domestic Relations Law ' 77Bb [1]; and subject to exceptions not relevant here, a New York court must recognize and enforce a registered child custody order issued in another state, but may only modify such an order in accordance with title II of the UCCJEA, which includes Domestic Relations Law ' 76Bb (see Domestic Relations Law ' 77Be [2]; 28 USC ' 1738A). Thus, New York is required to recognize and enforce the 2007 judgment even though its visitation provision would have been improper if issued by a New York court. The U.S. Constitution=s Full Faith and Credit Clause requires all courts to give full faith and credit to the judicial proceedings in every other state (see U.S. Const, art IV, ' 1).4 When courts of this state uphold the validity of a foreign divorce decree, they must recognize all provisions of the decree, with exceptions for, among other things, the rare instance where a provision of the original decree violates the public policy of this state; in this context, public policy is not determined by reference to laws and court decisions alone, and Aforeign judgments generally should be upheld unless enforcement would result in the recognition of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense@ (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434 N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction for New York courts to modify an out‑of‑state order, it does not prescribe the standard to be used in a modification proceeding. Instead, we must look to the substantive law of New York and adhere to the ordinary standard for modification of a custody and visitation order. Thus, to modify the 2007 judgment, the father was first required to demonstrate a change in circumstances since the entry of that judgment that would warrant undertaking a best interests analysis.
Appellate Divison, Fourth Department
Supreme Court cannot properly find party in criminal contempt for perjury based on testimony in Family Court
In Ritchie v Ritchie, 2020 WL 3160969 (4th Dept.,2020) the Appellate Division agreed with the mother that the court erred in sua sponte directing her to Apay a $2,500 fine to the [f]ather for her perjury in this matter ... and if the fine is not permitted by law, [directing that] ... the fine [be converted] into an award of damages.@ The court did not state whether it was sanctioning the mother for frivolous conduct or for civil or criminal contempt. The court summarily punished the mother by sanctioning her after it determined that she committed perjury during her testimony before a Judicial Hearing Officer in Family Court with respect to the temporary order of protection and during her testimony at the hearing on the petition before Supreme Court. Assuming, arguendo, that perjury would support a finding of contempt, the court could not properly find the mother in criminal contempt based on her testimony in Family Court, nor could the court summarily punish the mother for civil or criminal contempt based on that testimony, inasmuch as it occurred out of the court’s Aimmediate view and presence@. Insofar as the order may be deemed to sanction the mother for civil or criminal contempt that occurred in the presence of Supreme Court, because Adue process requires that ... the contemnor be afforded >an opportunity to be heard at a meaningful time and in a meaningful manner=@, and the court failed to provide notice that it was considering finding the mother in contempt or an opportunity to be heard thereon, the court erred in imposing such sanction. The court had no authority to sanction the mother on the ground that she engaged in frivolous conduct. Assuming, arguendo, that sanctions for frivolous conduct may be based on a party=s perjury, it held that the regulation permitting the imposition of such sanctions specifically provides that it Ashall not apply to ... proceedings in the Family Court commenced under article ... 8 of the Family Court Act@ (22 NYCRR 130‑1.1 [a]. This matter was commenced in Family Court under article 8 of the Family Court Act, and thus no such sanction was authorized.
June 16, 2020
Covid19 Executive Order Executive order 202.38 extended for another 30 days the executive order that temporarily tolls all statutes of limitations during the coronavirus public health crisis The latest order extends through July 6. It tolls “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 other statute, local law, ordinance, order, rule, or regulation, or part thereof.” It also extended his previous order pertaining to remote witnessing, which clarifies the requirements needed to allow the remote signings of such documents as deeds, wills, power of attorney forms and healthcare proxies. It also extended an earlier executive order pertaining to the criminal procedure law. Appellate Divison, Third Department
New York court may modify an out‑of‑state custody order that is valid under another state’s law but not in conformance with New York law
In Matter of Paul JJ., v. Heather JJ., Respondent, 2020 WL 3271765 (3rd Dept.,2020) the Appellate Division held that a New York court may, as a matter of law, modify an out‑of‑state custody order that is valid under the other state’s law but is not in conformance with New York law, and that the party seeking a modification of such an order must adhere to the typical standard and demonstrate a change in circumstances before the court can modify the prior order. Under the UCCJEA, (Domestic Relations Law ' 77Bb [1]; and subject to exceptions not relevant here, a New York court must recognize and enforce a registered child custody order issued in another state, but may only modify such an order in accordance with title II of the UCCJEA, which includes Domestic Relations Law ' 76Bb (see Domestic Relations Law ' 77Be [2]; 28 USC ' 1738A). Thus, New York is required to recognize and enforce the 2007 judgment even though its visitation provision would have been improper if issued by a New York court. The U.S. Constitution=s Full Faith and Credit Clause requires all courts to give full faith and credit to the judicial proceedings in every other state (see U.S. Const, art IV, ' 1).4 When courts of this state uphold the validity of a foreign divorce decree, they must recognize all provisions of the decree, with exceptions for, among other things, the rare instance where a provision of the original decree violates the public policy of this state; in this context, public policy is not determined by reference to laws and court decisions alone, and Aforeign judgments generally should be upheld unless enforcement would result in the recognition of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense@ (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434 N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction for New York courts to modify an out‑of‑state order, it does not prescribe the standard to be used in a modification proceeding. Instead, we must look to the substantive law of New York and adhere to the ordinary standard for modification of a custody and visitation order. Thus, to modify the 2007 judgment, the father was first required to demonstrate a change in circumstances since the entry of that judgment that would warrant undertaking a best interests analysis.
If parent demonstrates that the default in neglect proceeding resulted from a deprivation of Afundamental due process rights,@ the default is a nullity and no showing of a meritorious defense is required
In Matter of Arra L..183 A.D.3d 1027, 123 N.Y.S.3d 294, 2020 N.Y. Slip Op. 02829 (3d Dept.,2020) petitioner commenced a neglect proceeding alleging that respondent had neglected her children. Respondent attended several court conferences without the benefit of counsel until, in April 2018, she was absent without explanation for a conference. Upon petitioner=s application, Family Court declared respondent in default and issued an order adjudicating her to have neglected the children. Respondent=s motion to vacate the default order was denied and the Appellate Division reversed. It held that a parent has a right Ato be present at every stage of@ a Family Ct Act article 10 proceeding as a matter of due process, but that right Ais not absolute@. Family Ct Act ' 1042 provides that Aa court may proceed with a hearing ... in a parent=s absence, so long as the subject child is represented by counsel, and the absent parent may thereafter move to vacate the resulting order and schedule a rehearing@ Vacatur of that order would ordinarily be warranted if, upon motion, the parent demonstrated Aa meritorious defense to the petition, unless ... [he or she] willfully refused to appear at the hearing@. If the parent demonstrates that the default itself resulted from a deprivation of his or her Afundamental due process rights,@ however, the default is a nullity and no showing of a meritorious defense is required. In respondent=s motion to vacate the default order of fact‑finding, she explained her absence from the conference, but failed to set forth a meritorious defense. Although respondent was arguably on notice of the April 2018 conference, she did not receive notice that a potential fact‑finding hearing might be conducted at it so as to satisfy due process. Despite the references in the order of fact‑finding to an inquest, there was no dispute that Family Court departed from Athe proper course@ of conducting a hearing in respondent=s absence by accepting the allegations in the petition as proven by virtue of respondent=s default. It would offend due process to hold that respondent Adefault[ed] in attending a hearing that she did not know was going to happen and did not, in fact, happen. @Notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent=s motion.
Supreme Court
Supreme Court Sanctions Litigant for vexatious/abusive litigation, also known as Apaper@ or Aseparation@ abuse, by denying credit for 6 years of pendente lite payments
In Jessica T v Kieth T, 2020 WL 3163793 (Sup Court, 2020) the Supreme Court observed that sanctions may be awarded if conduct is frivolous or if it "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130‑1.1 [c] [2] ) or if such conduct "asserts material factual statements that are false". In light of the fact that the defendant abused the Plaintiff throughout the litigation with his manipulation of the court process by his blatant disregard of the truth, pressing frivolous claims, wasting court time with witnesses that had at best merely uninformed opinions, causing drawn out conferences and examinations of witnesses that were not probative, making specious arguments and accusations including parent alienation, refusing to pay timely support payments until threatened with incarceration, refusing to help save the marital home from foreclosure, harassing and annoying the Plaintiff and J., refusing to pay his share of the court‑ordered business evaluation which precluded the Plaintiff from demonstrating any potential increase in business' value during the marriage, and by prolonging this case by creating unnecessary litigation, the court sanctioned the defendant by awarding financial compensation to the Plaintiff. In order to do justice in compensate the Plaintiff for some of the injuries that the Plaintiff suffered as a result of the Defendant's malicious, vexatious/abusive litigation, and as a sanction for the Defendant's completely frivolous conduct throughout the case and during the trial, the Court awarded the Plaintiff ten years of maintenance payments. Furthermore, it held that while normally the years and amounts paid during the pendente lite period are accounted for in formulating post‑divorce maintenance, because of the Defendant's own actions and vexatious litigation which purposefully attenuated the proceeding, and the need to compensate the Plaintiff, the Defendant would receive no credit for the approximately last 6 years of pendente lite payments. In a footnote the Court described vexatious/abusive litigation, also known as Apaper@ or Aseparation@ abuse, as involving the perpetrator=s filing of frivolous motions and lawsuits to maintain a hold over his or her victim=s life after the separation and the commencement of the divorce proceeding. Litigation is the only tool left for the abuser to use to keep the victim face to face with him or her. This tool further traumatizes the victims of intimate/partner domestic violence even after the victim has managed to leave the relationship.
Appellate Divison, Fourth Department
Supreme Court cannot find litigant in criminal contempt based on testimony in Family Court, nor can court summarily punish litigant for civil or criminal contempt based on that testimony.
In Ritchie v Ritchie, 2020 WL 3160969 (4th Dept.,2020) the Appellate Division agreed with the mother that the court erred in sua sponte directing her to Apay a $2,500 fine to the [f]ather for her perjury in this matter ... and if the fine is not permitted by law, [directing that] ... the fine [be converted] into an award of damages.@ The court did not state whether it was sanctioning the mother for frivolous conduct or for civil or criminal contempt. The court summarily punished the mother by sanctioning her after it determined that she committed perjury during her testimony before a Judicial Hearing Officer in Family Court with respect to the temporary order of protection and during her testimony at the hearing on the petition before Supreme Court. Assuming, arguendo, that perjury would support a finding of contempt, the court could not properly find the mother in criminal contempt based on her testimony in Family Court, nor could the court summarily punish the mother for civil or criminal contempt based on that testimony, inasmuch as it occurred out of the court’s Aimmediate view and presence@. Insofar as the order may be deemed to sanction the mother for civil or criminal contempt that occurred in the presence of Supreme Court, because Adue process requires that ... the contemnor be afforded >an opportunity to be heard at a meaningful time and in a meaningful manner=@, and the court failed to provide notice that it was considering finding the mother in contempt or an opportunity to be heard thereon, the court erred in imposing such sanction. The court had no authority to sanction the mother on the ground that she engaged in frivolous conduct. Assuming, arguendo, that sanctions for frivolous conduct may be based on a party=s perjury, it held that the regulation permitting the imposition of such sanctions specifically provides that it Ashall not apply to ... proceedings in the Family Court commenced under article ... 8 of the Family Court Act@ (22 NYCRR 130‑1.1 [a]. This matter was commenced in Family Court under article 8 of the Family Court Act, and thus no such sanction was authorized.
June 1, 2020
Appellate Division, Second Department
It is an improvident exercise of discretion to deny a request for an adjournment where the evidence is material, the application is properly made and is not made for purposes of delay, and the need for an adjournment does not result from the failure to exercise due diligence.
In Markowitz v Markowitz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462400 (Mem), 2020 N.Y. Slip Op. 02772 (2d Dept., 2020) prior to the trial, the Supreme Court directed a forensic evaluation, but the defendant did not consent to it being admitted into evidence at trial. The plaintiff sought to have the forensic evaluator testify at trial, and the court directed the parties to pay their respective pro rata share of the cost of the evaluator=s trial fees. The plaintiff paid her share, but the evaluator did not receive the defendant=s share and did not appear to testify at trial in the absence of full compensation. The plaintiff requested a two‑week adjournment in order to secure the evaluator=s fee and produce him as a witness, but the court denied the application. After the trial, the court awarded the defendant sole legal and physical custody of the child, with specified parental access to the plaintiff. The Appellate Divison reversed and remitted for a new trial. It held that the court should not have denied the plaintiff=s request for an adjournment in order to secure the testimony of the evaluator. Although an application for an adjournment is addressed to the sound discretion of the trial court, it is an improvident exercise of discretion to deny such a request where the evidence is material, the application is properly made and is not made for purposes of delay, and the need for an adjournment does not result from the failure to exercise due diligence. The plaintiff was not at fault for the delay since the forensic evaluator was an expert who could not be compelled to testify without appropriate compensation, and the plaintiff=s inability to produce the witness was a result of the defendant=s failure to pay.
An order denying an application to sign an order to show cause is not appealable
In Curcio v Curcio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462338 (Mem), 2020 N.Y. Slip Op. 02780 (2d Dept.,2020) the mother moved, by order to show cause, inter alia, in effect, to modify an order of protection. By order dated March 8, 2019, the court, declined to sign the order to show cause. The mother noticed and perfected an appeal. The Appellate Division held that an order denying an application to sign an order to show cause is not appealable (see CPLR 5704[a]). However, it deemed it appropriate to treat the notice of appeal as an application for review pursuant to CPLR 5704(a).
A child support obligation is owed to the child, not to the payee spouse
In Matter of Sultan v Khan, --- N.Y.S.3d ----, 2020 WL 2545265 (Mem), 2020 N.Y. Slip Op. 02929 (2d Dept.,2020) the Appellate Division affirmed an order which directed the father to pay child support to the maternal grandfather, who was awarded custody of the child after the mothers death, retroactive to the date of the mother’s death. It held that since a child support obligation is owed to the child, not to the payee spouse, he death of the payee spouse does not terminate the obligation. The death of the mother did not terminate the father’s continuing obligation under the order of support dated December 4, 2014, to support the children. It would be contrary to the statutory scheme of the Family Court Act and the important public policies it embodies for the father to no longer be liable for unpaid child support payments accrued after the mother’s death where, as here, “he neither had custody of the child[ren] nor sought to otherwise modify his child support obligation during the relevant period”.
Supreme Court
Appearance by Video Conference permitted pursuant to CPLR 3117
In Mannino v Caroso, --- N.Y.S.3d ----, 2020 WL 2545265 (Mem), 2020 N.Y. Slip Op. 02929, Unreported Disposition, Sup Ct, 2020) Supreme Court granted the plaintiff’s motion an order granting plaintiff permission to appear in this matter by video conferencing. On January 2, 1977, the parties were married in Italy. Thereafter, the parties resided together in their marital residence located at 8635 14th Avenue in Brooklyn, New York. Three children were born of the marriage, all of whom were emancipated prior to the commencement of this action. In 1984, plaintiff was convicted of various crimes in the United States and sentenced to 44 months in prison. On April 30, 1992, plaintiff, who is an Italian citizen, was deported to Italy and has remained there to the present day. According to plaintiff, given his prior criminal conviction and deportation, he is precluded from returning to the United States. The motion was granted to the extent that, pursuant to CPLR 3103 (a), plaintiff’s deposition is to be conducted via video. Further, pursuant to CPLR 3117 (a) (3), plaintiff was granted leave to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial. Testimony at the trial in chief may also be via video as long as the Plaintiff makes arrangements for the video link, via skype for business or any other approved platform by the Court System in accordance with protocols in effect at that time including but not limited to a prohibition on recordings or coaching of a witness from a remote location. The motion was granted on condition he submit proof that he as actually attempted to obtain permission to enter the United States.
Children are not parties to the litigation
In Clarence M v Martina M, 2020 WL 2499625 (Sup Ct 2020) Plaintiff moved for an order determining that the children were not parties to the litigation with fundamental rights to automatically review copies of the pleadings, motion papers, forensic reports, other mental reports or status reports, affidavits, affirmations, statements of net worth and/or other litigation documents without leave of court. Supreme Court agreed and held that it was not appropriate for a 14‑year‑old child to see a report prepared by a forensic evaluator related to therapeutic visitation. It held that when Rule 7.2 was enacted it was not the intent to abrogate the role of the Court.
May 16, 2020
The May 18, 2020 edition of the New York Law Journal contains Mr. Brandes “Law and the Family” column which is a regular feature in the New York Law Journal. The May 18, 2020 edition of his column contains an article he wrote titled “The Resurrection of Marital Fault”. It appears on page 3 and in the online edition. Click here for our copy of the article.
Summary of Relevant Executive and Administrative Orders Related to Covid19
Executive Order 202.8, March 20, 2020
In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, 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 other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020
Essential Proceedings Administrative Order AO/78/20 March 22, 2020
A. Criminal matters 1. arraignments 2. bail applications, reviews and writs 3. temporary orders of protection 4. resentencing of retained and incarcerated defendants 5. essential sex offender registration act (SORA) matters
B. Family Court 1. child protection intake cases involving removal applications 2. newly filed juvenile delinquency intake cases involving remand placement applications, or modification thereof 3. emergency family offense petitions/temporary orders of protection 4. orders to show cause 5. stipulations on submission
C. Supreme Court 1. Mental Hygiene Law (MHL) applications and hearings addressing patient retention or release 2. MHL hearings addressing the involuntary administration of medication and other medical care 3. newly filed MHL applications for an assisted outpatient treatment (AOT) plan 4. emergency applications in guardianship matters 5. temporary orders of protection (including but not limited to matters involving domestic violence) 6. emergency applications related to the coronavirus 7. emergency Election Law applications 8. extreme risk protection orders (ERPO)
D. Civil/Housing matters 1. applications addressing landlord lockouts (including reductions in essential services) 2. applications addressing serious code violations 3. applications addressing serious repair orders 4. applications for post-eviction relief
E. All Courts 1. any other matter that the court deems essential This list of essential proceedings is subject to ongoing review and amendment as necessary.
March 22, 2020 Chief Administrative Judge - Press Release
Virtual Court Operations to Commence in NYC Mid-week New York State Courts Remain Open for Business, Maintaining All Essential and Emergency Proceedings
NEW YORK−Extraordinary times like these call for extraordinary measures. In response to the COVID-19 pandemic, the New York State court system is instituting various temporary measures to reduce courtroom density and stem the spread of the Coronavirus. Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks today announced that beginning on Wednesday, March 25, 2020 and Thursday, March 26, 2020, virtual court operations will commence, respectively, in New York City Criminal Court and New York City Family Court
NYC Family Court: Effective Thursday, March 26, 2020−in order to mitigate and contain the ongoing spread of coronavirus while at the same time continuing to provide critical emergency relief to the children and families the court serves−the New York City Family Court will hear by remote video appearances and/or by telephone the following matters: • Child-protective intake cases involving removal applications • Newly-filed juvenile delinquency intake cases involving remand applications • Emergency family offense petitions • Writ applications where there is a court order if custody or parenting time. Additionally, due to the suspension of civil statutes of limitation by the Governor’s executive order 202.8, effective immediately, all new Court filings, either e-filed or hard copy, that are not essential matters, will NOT be accepted.
Executive Order 202.14 April 7, 2020 WHEREAS, on March 7, 2020, I issued Executive Order Number 202, declaring a State disaster emergency for the entire State of New York; and WHEREAS, both travel-related cases and community contact transmission of COVID-19 have been documented in New York State and are expected to continue; NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law, do hereby continue the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order to 202, for thirty days until May 7, 2020, except as limited below. April 8, 2020 Chief Administrative Judge – Administrative Order (AO/85/20)
Pursuant to the authority vested in me, and at the direction of the Chief Judge, I hereby promulgate, effective April 13, 2020, the following additional procedures and protocols to mitigate the effects of the COVID-19 outbreak upon the users, visitors, staff, and judicial officers of the Unified Court System.
1. In addition to essential court functions as set forth in AO/78/20, trial courts will address the following matters through remote or virtual court operations and offices: Conferencing Pending Cases: Courts will review their docket of pending cases, assess matters that can be advanced or resolved through remote court conferencing, and schedule and hold conferences in such matters upon its own initiative, and where appropriate at the request of parties. Deciding Fully Submitted Motions: Courts will decide fully submitted motions in pending cases. Discovery and Other Ad Hoc Conferences: Courts will maintain availability during normal court hours to resolve ad hoc discovery disputes and similar matters not requiring the filing of papers.
Video Technology: Video teleconferences conducted by the court, or with court participation, will be administered exclusively through Skype for Business.
No New Filings in Nonessential Matters: No new nonessential matters may be filed until further notice; nor may additional papers be filed by parties in pending nonessential matters. The court shall file such orders in essential and nonessential matters as it deems appropriate.
Provisions of prior administrative orders inconsistent with this order shall be superseded by this order. \Unified Court System Memo Dated April 30, 2020: Next Steps to Expand Court Services In a memo to all trial court judges and justices, Chief Administrative Judge Lawrence K. Marks advised that: (1) New motions, responsive papers to previously filed motions, and other applications (including post-judgment applications) may be filed electronically in pending cases, either through the NYSCEF e-filing system in jurisdictions that have it, or through a new electronic document delivery system that has been created for courts and jurisdictions where e-filing is unavailable; (2) Problem-solving courts may conduct virtual court conferences with counsel, court staff, and service providers, via Skype for Business; (3) Judges may resume referral of matters for alternative dispute resolution, including to neutrals on court-established panels, community dispute resolution centers, and ADR-dedicated court staff; and (4) Notices of appeal may be filed electronically, either through NYSCEF or through the new document delivery system. Executive Order 202.14 dated April 17, 2020 Extended Executive Order 202.8 to May 7, 2020 The Governor issued Executive Order No. 202.8 on March 20, 2020, which states in pertinent part: “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as described 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 other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” This order has been extended by Executive Order 202.14 to May 7, 2020. Notice dated May 4, 2020: UCS Program for Electronic Delivery of Documents In response to the COVID-19 public health emergency and the expansion of “virtual” court operations, the Unified Court System has initiated a new program to transmit digitized documents (in pdf format) to UCS courts, County Clerks, and other court-related offices around the State.
The Electronic Document Delivery System (“EDDS”) allows users, in a single transaction, to (1) enter basic information about a matter on a UCS webpage portal page; (2) upload one or more pdf documents; and (3) send those documents electronically to a court or clerk selected by the user. Upon receipt of the document(s) by the court, the sender will receive an email notification, together with a unique code that identifies the delivery. More detailed instructions for sending or filing documents through EDDS may be found on the EDDS FAQ page. Users/Senders should keep several important points in mind when using this system:
1. EDDS May be Used to File Papers with Certain Courts: At the direction of the Chief Administrative Judge, during the COVID-19 public health crisis EDDS can be used to deliver documents for filing with certain courts— including some Family Courts, Criminal Courts, Supreme Court, the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts. (EDDS is not available in the New York City Criminal Court.) To use the system for filing, the sender must simply check a box on the sender information screen, complete the sending of the document(s) to the appropriate court through the EDDS system, and pay any required filing fee by credit card. The clerk’s office will review the document(s) for sufficiency and, if the clerk determines that filing prerequisites have been met, accept them for filing purposes. In the event that a clerk’s office has accepted and filed a document received through EDDS, the sender will be notified of that fact by email or publication on a public database. If no email or published notification is issued indicating that the document has been accepted for filing, the sender should not assume that the filing has occurred. The sender may contact the clerk’s office to inquire about the status of a proposed filing.
2. EDDS is Not a Substitute for E-filing or NYSCEF: Please note that, although EDDS may be used for filing in various courts, it does not replace and may not substitute for filing under the New York State Courts Electronic Filing System (NYSCEF). Therefore, it should not be used in matters where NYSCEF is available on either a mandatory or consensual basis. (Counties and case types where NYSCEF is available are listed on NYSCEF’s Authorized for E-Filing page.)
3. EDDS Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of a document through EDDS does not constitute service of the document on any other party. If service is required, the sender must serve by some other means. In sum, EDDS is a document delivery portal that complements the UCS electronic filing system and which, upon completion and together with NYSCEF, will allow remote and immediate delivery of digitized documents throughout the Unified Court System.
Executive Order 202.29 dated May 7, 2020 Continues Suspension until June 7, 2020 On May 7, 2020 Governor Cuomo signed an executive order continuing the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202.15, 202.16, 202.17, 202.18, 202.19, 202.20, and 202.21, for thirty days until June 7, 2020; and temporarily modified, beginning on the date of this Executive Order, Section 214-g of the Civil Practice Law and Rules, to the extent it allows an action to be commenced not later than one year and six months after the effective date of such section, is hereby modified to allow an action commenced pursuant to such section to be commenced not later than one year and eleven months after the effective date of such section. Appellate Divison, Second Department, Administrative Order 2020-506 dated May 7, 2020 ORDERS that filing and other deadlines set forth in any order of this Court, the Practice Rules of the Appellate Division (22 NYCRR part 1250), the Rules of Practice of this Court (22 NYCRR part 670), or Electronic Filing Rules of the Appellate Division (22 NYCRR part 1245), or a prior directive of the Clerk of the Court, in relation to non-actively-managed civil matters not heretofore addressed continue to be suspended until further directive of this Court. (This is a portion of the order) See https://www.nycourts.gov/courts/ad2/pdf/ADM_2020-0506.pdf The Court continues to encourage counsel to make digital filings in all matters whenever possible, either via NYSCEF if the appeal is subject to mandatory e-filing, or through the digital portal on the Court’s website https://www.nycourts.gov/courts/AD2/Digital_Submission.shtml. The Court also encourages counsel to make digital submissions through its portal in matters currently pending in which only hard copy submissions were previously made. Submissions of digital copies will assist the Court in processing those matters expeditiously during this time where the Court must operate only while virtually. (ad2-motions@nycourts.gov 718-722-6319 (phone)
Appellate Division, First Department Court terminated defendant’s non-taxable maintenance as of December 31, 2018, after considering employment prospects, modest marital lifestyle, and equitable distribution of assets where defendant received pendente lite support since the commencement of the action in 2011, a duration longer than the parties’ six-year marriage. In Gallen v Gallen, --- N.Y.S.3d ----, 2020 WL 2201010, 2020 N.Y. Slip Op. 02732 (1st Dept.,2020) the Appellate Division affirmed the judgment which, inter alia, awarded defendant 25% of the “marital” portion of plaintiff’s premarital Vanguard account ending in—4264, awarded defendant 50% of the value of plaintiff’s Chase account ending at –8909 at commencement without crediting plaintiff for $20,000 in post-commencement transfers, terminated defendant’s maintenance as of December 31, 2018, and awarded defendant $70,000 in counsel fees. It held that the court providently exercised its discretion in terminating defendant’s non-taxable maintenance as of December 31, 2018, after considering her employment prospects, the parties’ modest marital lifestyle, and the equitable distribution of assets. Notably, defendant had received pendente lite support since the commencement of the action in 2011, a duration longer than the parties’ six-year marriage. Under the circumstances, she was not entitled to a longer duration of maintenance.
Where respondent assumed the role of a parent and led the child to believe he was his father, the best interests of the child required that respondent be estopped from denying paternity. In Matter of Lorraine D.S. v Steven W, 180 A.D.3d 595, 120 N.Y.S.3d 297, 2020 N.Y. Slip Op. 01298 (1st Dept.,2020) the Appellate Division affirmed an order which found that Respondent was equitably estopped from denying paternity of child, and entered order of filiation declaring him to be child’s father. Clear and convincing evidence demonstrated that respondent held himself out as the father of the child and that the child, who was 15 years old at the time of the hearing, considered respondent to be his father). The child lived with respondent and his mother for approximately five years and believed that respondent was his father, and respondent never attempted to dissuade the child from believing otherwise. Even after respondent and the mother stopped living together, respondent regularly sent text messages and visited with the child, and indicated to the mother that the child would have his own space for weekend visits in respondent’s new home. Respondent attended the child’s basketball games and graduations and had the child as his best man at his wedding to his current wife. He introduced the child as his son to the guests at the wedding and referred to him as his child on social media. Under these circumstances, where respondent assumed the role of a parent and led the child to believe he was his father, the court properly concluded that the best interests of the child required that respondent be estopped from denying paternity.
Supervised visitation is only appropriate where there is a showing that the child’s physical safety or emotional well-being is at risk
In Jeanine H v Mamadou O, --- N.Y.S.3d ----, 2020 WL 2201027, 2020 N.Y. Slip Op. 02730 (1st Dept.,2020) the Appellate Division held that because “supervision can interfere with the parent-child relationship,” it is only appropriate where there is a showing that the child’s physical safety or emotional well-being is at risk without supervision (Frank M. v. Donna W., 44 A.D.3d 495, 496, 844 N.Y.S.2d 22 [1st Dept. 2007]).
Appellate Division, Second Department
Where ICPC applies Court cannot grant petition for custody absent approval from the relevant authority in the Sister State where the child is living.
In Matter of Laland v. Bookhart, --- N.Y.S.3d ----, 2020 WL 2170952 (Mem), 2020 N.Y. Slip Op. 02611 (2d Dept.,2020) the child was removed from the mother’s care due to neglect, and placed in the care and custody of the Suffolk County Department of Social Services. The father, who resided in North Carolina, commenced proceedings against the mother and DSS to obtain custody of the child. Family Court dismissed the petitions finding that following an investigation conducted in accordance with the Interstate Compact for the Placement of Children (ICPC), the relevant North Carolina authority found that the father’s home was not suitable for the child and would not consent to placing the child with the father. The Appellate Division affirmed. Where a child is in the custody of a child protective agency (see Family Ct Act § 1012[i]), and a parent living outside of New York petitions for custody of the child, the provisions of the ICPC apply. Since the child was in the custody of DSS and the father resided in North Carolina, Family Court’s properly determined that the ICPC applied and it could not grant the father’s petitions for custody absent approval from the relevant North Carolina authority, and that approval was denied.
Where a respondent in support enforcement case indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel.
In Matter of Goodine v Evans, --- N.Y.S.3d ----, 2020 WL 2170984, 2020 N.Y. Slip Op. 02668 (2d Dept.,2020) when the father first appeared before the Support Magistrate, the Support Magistrate informed the father that if he was employed, he was ineligible for assigned counsel, and that he could either represent himself or the proceeding would be adjourned for him to hire private counsel. Although the father informed the Support Magistrate that he could not afford private counsel and requested the appointment of assigned counsel, the Support Magistrate repeated that he was not entitled to appointed counsel if he was working. The matter was adjourned for a hearing, and no further advisement or inquiry was made by the court. The Appellate Division held that the Support Magistrate should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses because the father expressed a desire to have an attorney appointed. Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel. Here, despite the father’s statements at the pretrial appearance that he could not afford to hire private counsel and would like to have an attorney appointed, the Support Magistrate adjourned the matter for a hearing. Under these circumstances, the father was deprived of his right to counsel and reversal is required.
Appellate Division, Fourth Department
Where prior order on consent awarded non-parent custody for a period of time, she must establish that extraordinary circumstances exist and that a change in circumstances had occurred since entry of the prior order
In Matter of Driscoll v Mack, --- N.Y.S.3d ----, 2020 WL 2090072 (Mem), 2020 N.Y. Slip Op. 02559 (4th Dept., 2020) the Appellate Division affirmed an order which awarded physical custody of the s children to the maternal grandmother. It held that the grandmother met the burden of establishing that extraordinary circumstances existed even though the prior order, which awarded her primary physical custody of the children for a period of time, was made upon consent of the parties. Once the grandmother established that extraordinary circumstances existed, she had the burden, of establishing that a change in circumstances had occurred since entry of the prior order. The Court held that to the extent that its prior cases suggested that a change in circumstances analysis is not required here, those cases should no longer be followed (see e.g. Matter of Tamika C.P. v. Denise M., 39 AD3d 1213, 1214 [4th Dept 2007]; Katherine D., 32 AD3d at 1351; Matter of Ruggieri v. Bryan, 23 AD3d 991, 992 [4th Dept 2005]).
May 1, 2020
Notice dated May 4, 2020: UCS Program for Electronic Delivery of Documents
In response to the COVID-19 public health emergency and the expansion of “virtual” court operations, the Unified Court System has initiated a new program to transmit digitized documents (in pdf format) to UCS courts, County Clerks, and other court-related offices around the State.
The Electronic Document Delivery System (“EDDS”) allows users, in a single transaction, to (1) enter basic information about a matter on a UCS webpage portal page; (2) upload one or more pdf documents; and (3) send those documents electronically to a court or clerk selected by the user. Upon receipt of the document(s) by the court, the sender will receive an email notification, together with a unique code that identifies the delivery. More detailed instructions for sending or filing documents through EDDS may be found on the EDDS FAQ page. Users/Senders should keep several important points in mind when using this system:
1. EDDS May be Used to File Papers with Certain Courts: At the direction of the Chief Administrative Judge, during the COVID-19 public health crisis EDDS can be used to deliver documents for filing with certain courts— including some Family Courts, Criminal Courts, Supreme Court, the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts. (EDDS is not available in the New York City Criminal Court.) To use the system for filing, the sender must simply check a box on the sender information screen, complete the sending of the document(s) to the appropriate court through the EDDS system, and pay any required filing fee by credit card. The clerk’s office will review the document(s) for sufficiency and, if the clerk determines that filing prerequisites have been met, accept them for filing purposes. In the event that a clerk’s office has accepted and filed a document received through EDDS, the sender will be notified of that fact by email or publication on a public database. If no email or published notification is issued indicating that the document has been accepted for filing, the sender should not assume that the filing has occurred. The sender may contact the clerk’s office to inquire about the status of a proposed filing.
2. EDDS is Not a Substitute for E-filing or NYSCEF: Please note that, although EDDS may be used for filing in various courts, it does not replace and may not substitute for filing under the New York State Courts Electronic Filing System (NYSCEF). Therefore, it should not be used in matters where NYSCEF is available on either a mandatory or consensual basis. (Counties and case types where NYSCEF is available are listed on NYSCEF’s Authorized for E-Filing page.)
3. EDDS Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of a document through EDDS does not constitute service of the document on any other party. If service is required, the sender must serve by some other means. In sum, EDDS is a document delivery portal that complements the UCS electronic filing system and which, upon completion and together with NYSCEF, will allow remote and immediate delivery of digitized documents throughout the Unified Court System. \Unified Court System Memo Dated April 30, 2020: Next Steps to Expand Court Services In a memo to all trial court judges and justices, Chief Administrative Judge Lawrence K. Marks advised that: (1) New motions, responsive papers to previously filed motions, and other applications (including post-judgment applications) may be filed electronically in pending cases, either through the NYSCEF e-filing system in jurisdictions that have it, or through a new electronic document delivery system that has been created for courts and jurisdictions where e-filing is unavailable; (2) Problem-solving courts may conduct virtual court conferences with counsel, court staff, and service providers, via Skype for Business; (3) Judges may resume referral of matters for alternative dispute resolution, including to neutrals on court-established panels, community dispute resolution centers, and ADR-dedicated court staff; and (4) Notices of appeal may be filed electronically, either through NYSCEF or through the new document delivery system.
Executive Order Extended to May 7, 2020
The Governor issued Executive Order No. 202.8 on March 20, 2020, which states in pertinent part: “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as described 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 other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” This order has been extended by Executive Order 202.14 to May 7, 2020. Administrative Order issued on March 22, 2020
The Chief Administrative Judge of the New York State Court issued an Administrative Order on March 22, 2020, which states that, “effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters.” The Administrative Order includes a list of “essential matters,” which applies to both paper and electronic filing cases. As relevant to family law practitioners “essential matters” includes the following: B. Family Court: 1. child protection intake cases involving removal applications; 2. newly filed juvenile delinquency intake cases involving remand placement applications, or modification thereof; 3. emergency family offense petitions/temporary orders of protection; 4. orders to show cause; 5. stipulations on submission; C. Supreme Court: 5. temporary orders of protection (including but not limited to matters involving domestic violence)
Table of Law Amended by Laws of 2020 Chapters 55 and 56 (Budget Bills)
Laws of 2020, Chapter 55
SUBPART K (Effective November 1, 2020)
§ 9. Paragraphs (a) and (b) of subdivision 2 of section 842-a of the family court act, was amended and a new paragraph (c) was added.
§ 10. Paragraphs (a) and (b) of subdivision 3 of section 842-a of the family court act was amended and a new paragraph (c) was added.
§ 11. Subdivisions 6 and 7 of section 842-a of the family court act were amended.
§ 12. This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
SUBPART L
Section 1. Subdivision 5 of section 1017 of the family court act, was amended.
§ 2. Subdivision (j) of section 1055 of the family court act was amended.
§ 3. Clause (H) of subparagraph (vii) of paragraph 2 of subdivision (d) of section 1089 of the family court act, was amended.
§ 4. Paragraph (g) of subdivision 3 of section 358-a of the social services law was amended.
§ 5. This act shall take effect on the same date and in the same manner as a chapter of the laws of 2019 amending the family court act and the social services law relating to notice of indicated reports of child maltreatment and changes of placement in child protective and voluntary foster care placement and review proceedings, as proposed in legislative bills numbers S. 6215 and A. 7974, takes effect.
Laws of 2020, Chapter 56
PART L (Effective) February 15, 2021
Section 1. The family court act was amended by adding a new article 5-C: JUDGMENTS OF PARENTAGE OF CHILDREN CONCEIVED THROUGH ASSISTED REPRODUCTION OR PURSUANT TO SURROGACY AGREEMENTS
§ 2. Section 73 of the domestic relations law was REPEALED.
§ 3. Section 121 of the domestic relations law was amended.
§ 4. Section 122 of the domestic relations law was amended.
§ 5. Section 123 of the domestic relations law was amended.
§ 6. Section 124 of the domestic relations law was amended.
§ 7. Section 4135 of the public health law, subdivision 1, subdivision 2 and subdivision 3 were amended.
§ 8. Section 4135-b of the public health law, subdivisions 1 and 2 and subdivision 3 were amended.
§ 9. Paragraph (e) of subdivision 1 of section 4138 of the public health law, was amended.
§ 10. The article heading of article 8 of the domestic relations law, was amended to read as follows: GENETIC SURROGATE PARENTING CONTRACTS
§ 11. The general business law was amended by adding a new article 44
§ 12. The public health law was amended by adding a new article 25-B.
§ 13. Subdivisions 4, 5, 6, 7 and 8 of section 4365 of the public health law were renumbered subdivisions 5, 6, 7, 8 and 9 and a new subdivision 4 was added.
§ 14. Paragraph (a) of subdivision 1 of section 440 of the family court act, was amended.
§ 15. Section 516-a of the family court act, subdivisions (b) and (c) and subdivision (d) were amended.
§ 16. Paragraph (b) of subdivision 1 of section 1017 of the family court act was amended.
§ 17. Section 4-1.2 of the estates, powers and trusts law, the section heading, the opening paragraph of subparagraph 1 of paragraph (a), the opening paragraph of subparagraph 2 of paragraph (a) and the opening paragraph of subparagraph 3 of paragraph (a), subparagraph 2 of paragraph (a), clause (A) of subparagraph 2 of paragraph (a, and clause (C) of subparagraph 2 of paragraph (a) and paragraph (b) were amended.
§ 18. Subdivision 1, paragraph g of subdivision 2, subdivision 3, and subdivision 4 of section 111-c of the social services law, subdivision 1, paragraph g of subdivision 2, subdivision 3, and subdivision 4 were amended.
§ 19. Section 111-k of the social services law, paragraphs (a) and (b) of subdivision 1 was amended.
§ 20. Subdivisions 1 and 2 of section 372-c of the social services Law were amended.
§ 21. Subdivision (a) of section 439 of the family court act, was amended.
§ 22. Subparagraph (D) of paragraph 17 of subsection (a) of section 1113 of the insurance law was amended.
§ 23. Paragraph 32 of subsection (a) of section 1113 of the insurance law, was renumbered paragraph 33 and a new paragraph 32 was added.
§ 24. Subsection (a) of section 2105 of the insurance law, was amended.
§ 25. Subsection (b) of section 4101 of the insurance law, was amended.
§ 26. Group A of table one as contained in paragraph 1 of subsection (a) of section 4103 of the insurance law, was amended.
§ 27. Group C of table three as contained in subsection (b) of section 4107 of the insurance law, was amended.
§ 28. Section 4-1.3 of the estates, powers and trust law was amended.
§ 29. This act shall take effect February 15, 2021, provided, however, that the amendments to subdivision (a) of section 439 of the family court act made by section twenty-one of this act shall not affect the expiration of such subdivision and shall be deemed to expire therewith. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effect- tive date are authorized to be made and completed on or before such effective date.
Part R (Effective January 1, 2022)
§ 10. Section 651-a of the family court act, as amended by chapter 12 of the laws of 1996, was amended.
§ 11. This act shall take effect immediately; provided, however that sections one, three, four, five, six, seven, eight, nine and ten of this act shall take effect January 1, 2022. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed by the office of children and family services on or before such effective date.
Appellate Divison, First Department
Parent entitled to prompt hearing on determination to remove child after failed trial discharge.
In re F. W. v. Administration for Children’s Services --- N.Y.S.3d ----, 2020 WL 1942053 (1st Dept.,2020) the Appellate Division observed that a trial discharge means that the child is physically returned to the parent while the child remains in the care and custody of the local social services district. (Family Court Act §§ 1055[b][i][E]; 1089[d][2][viii][C])]. There is no time limit on how long a child may reside with a parent on trial discharge status. It held that in a post-dispositional matter, a parent is entitled to a prompt hearing on the agency’s determination to remove the children from his or her physical custody through a failed trial discharge. A post-deprivation hearing “should be measured in hours and days, not weeks and months,” based on the facts and circumstances of the matter (Egervary v. Rooney, 80 F Supp 2d 491, 503 [ED Pa 2000], revd on other grounds sub nom. Egervary v Young, 366 F3d 238 [3d Cir 2004] [collecting and citing cases and concluding that a seven-month delay in judicial review of a child removal violated due process] ). It reversed on the law the order which denied respondent father’s motion for an “expedited hearing” to determine whether the children who were removed through a failed trial discharge should be returned to him.
Appellate Division, Second Department
Second Department explains constitutional limitations on compelling non-custodial parent to adhere to a particular religion when children visit
In Cohen v Cohen, --- N.Y.S.3d ----, 2020 WL 1802849, 2020 N.Y. Slip Op. 02263 (2d Dept.,2020) the judgment of divorce directed the father to provide the children with exclusively kosher food and to make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” On a prior appeal, the Appellate Division upheld this provision distinguishing Weisberger v. Weisberger (154 AD3d 41), in which the Supreme Court enforced a religious upbringing clause in the parties’ separation agreement by directing that, during any period of parental access or during any appearance at the children’s schools, the mother “must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy,” or be relegated to supervised therapeutic visitation. This Court explained that in Weisberger, “the Supreme Court had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide the children with a religious upbringing”. In Cohen “by contrast, the father was directed to make reasonable efforts to ensure the children’s compliance with their religious requirements”. This Court in Cohen “emphasize[d], as did the Supreme Court, that the [father] is not required, at any time, to himself comply with any religious practices.” In this proceeding, following a hearing, the court, purported to enforce the religious upbringing provision of the judgment of divorce by directing that, during his periods of parental access, the father “should conduct himself in accordance with the cultural norms” of Hasidic Judaism established by the parents during the marriage. The court directed that the father’s behavior and conduct when in the presence of the children “must and should be consistent with the cultural norm ... established by the parents.” The Appellate Division reversed. It held that by directing him to comply with the “cultural norms” of Hasidic Judaism during his periods of parental access, the Supreme Court ran afoul of constitutional limitations by compelling the father to himself practice a religion, rather than merely directing him to provide the children with a religious upbringing. The court’s directive was an unconstitutional modification of the religious upbringing provision in the judgment of divorce, which was reversed.
In Matter of Lopez v Noreiga, --- N.Y.S.3d ----, 2020 WL 1802868, 2020 N.Y. Slip Op. 02267 (2d Dept.,2020) the Appellate Division observed that “Courts will not disrupt sibling relationships unless there is an overwhelming need to do so” (Matter of Shannon J. v. Aaron P., 111 AD3d 829, 831, citing Eschbach v. Eschbach, 56 N.Y.2d at 173).
Plaintiff has ultimate burden of proving by preponderating evidence that jurisdiction over the defendant was obtained
In the Matter of Kathleen T.K. v. Eric C.S., --- N.Y.S.3d ----, 2020 WL 1785526 (Mem), 2020 N.Y. Slip Op. 02266 (2d Dept.,2020) a support proceeding, the father moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the order of support for lack of personal jurisdiction, alleging that he was not served with the petition. After a hearing to determine the validity of service, the Family Court denied the father’s motion. The Appellate Division reversed finding that the Support Magistrate did not apply the correct standard in weighing the evidence adduced at the hearing. “It is well established that it is the plaintiff [or the petitioner] who bears the ultimate burden of proving by preponderating evidence that jurisdiction over the defendant [or the respondent] was obtained” (Powell v. Powell, 114 A.D.2d 443, 444). The plaintiff or the petitioner may sustain that burden, inter alia, by introducing the affidavit of service and the testimony of the process server, or evidence demonstrating that the process server is unavailable or that diligent efforts were made to locate the process server to no avail. The mother bore the burden of proving that jurisdiction was obtained over the father. However, the Support Magistrate denied of the father’s motion finding that he failed to meet his burden of proving that he was not served with the petition. Since the Support Magistrate did not apply the correct standard in weighing the evidence, a new hearing was required.
Appellate Division, Third Department
Mother loses custody because of interference with the father’s relationship with the children, coupled with her ongoing harassment of the father
In the Matter of Anthony JJ v Joanna KK --- N.Y.S.3d ----, 2020 WL 1704793, 2020 N.Y. Slip Op. 02220 (3d Dept.,2020) the father sustained his burden of demonstrating a change in circumstances based upon the mother’s interference with the father’s relationship with the children, coupled with her ongoing harassment of the father. During the past 2 years at least 19 reports were made either directly by the mother, or at the mother’s behest from allegations provided by her to the children’s doctors, their therapist, school social workers and other mandated reporters, including the police, Mobile Mental Health, the mother’s therapist and her counselor; all reports were unfounded. The children and the father were subjected to intrusive investigations, especially the children who, as a result of these reports, were constantly taken out of class to be interviewed by caseworkers. The evidence adduced at the fact-finding hearings revealed that the mother was only willing to communicate with the father through limited text messages, she cannot co-parent with the father and, on numerous occasions, she took the children to her place of employment for up to six hours. Of most concern was the mother’s stated intention to continue to explore other ways to report allegations against the father. There was ample evidence reflecting the mother’s overall pattern of placing her own interests above the children. The mother’s intentional interference with the father’s relationship with the children is “so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent.” The award of sole custody to the father was affirmed.
April 16, 2020
Recent Legislation
Domestic Relations Law §236 [B]5] [d], factor 14 added effective May 3, 2020.
Laws of 2020, Ch 55, §1, enacted April 3, 2020added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts. The amendment takes effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date. Notably, Social Services Law &s;§459-a does not specifically define an “act or acts of domestic violence. “Instead, subdivision 1 defines victim of domestic violence” as “a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; which act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person's child. A spouse who fits within this definition would probably be held to have committed the cruel and inhuman treatment ground for divorce in Domestic Relations Law § 170(1).
Appellate Division, Second Department
Court did not violate Sixth Amendment right of confrontation by permitting Child to testify via Skype in abuse proceeding.
In Matter of Ariana M, 179 A.D.3d 923, 118 N.Y.S.3d 215, 2020 N.Y. Slip Op. 00415 (2d Dept.,2020) the Appellate Division rejected the father’s argument challenging the Family Court’s findings that he abused Ariana M. based on the fact that Ariana M. was permitted to testify via Skype and based on certain evidentiary determinations by the court. It held that contrary to the father=s contention, the court did not violate his Sixth Amendment right of confrontation by permitting Ariana M. to testify via Skype. The court properly balanced the fathers due process right as against the trauma to Ariana M. in permitting her to testify via Skype (see Matter of Hannah T.R. [Soya R.], 149 A.D.3d 958, 959, 53 N.Y.S.3d 645; Matter of Michael U. [Marcus U.], 110 A.D.3d 821, 973 N.Y.S.2d 676; Matter of Q.‑L.H., 27 A.D.3d 738, 815 N.Y.S.2d 601). The father was present in the courtroom during the testimony, and the father=s attorney cross‑examined Ariana M. on the father=s behalf (see Matter of Hannah T.R. [Soya R.], 149 A.D.3d at 959, 53 N.Y.S.3d 645; cf. Matter of Michael U. [Marcus U.], 110 A.D.3d 821, 973 N.Y.S.2d 676; Matter of Q.‑L.H., 27 A.D.3d 738, 815 N.Y.S.2d 601).
Custody Order Reversed where Family Court was biased against the mother, depriving her of a fair and impartial hearing
In Matter of Siegell v. Iqbal, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 1435214 (Second Dept.,2020) the Appellate Division reversed an order of the Family Court which awarded custody of the child to the father. It held that the Family Court was biased against the mother, depriving her of a fair and impartial hearing. The record demonstrated that the court predetermined the outcome of the case during the hearing and took an adversarial stance against the mother by, among other things, interjecting itself into the proceedings by cross‑examining the mother on matters irrelevant to a determination of custody, including referring to the mother as Aemotionally excessive@ and inquiring as to how many online dating web sites the mother utilized at the time she met the father and as to when the mother and the father became intimate. The court also asked the mother, Aso you were looking to start a relationship with someone?@ and then commented, AAnd so you were married at the time?@ Although the father was also married to someone when he began his relationship with the mother, no such questions or comments were directed to him by the court. The courts inquiry of the mother exceeded 30 pages of transcript over the course of the two‑day hearing. Although the court also questioned the father, the first inquiry related to setting up a parental access schedule for the father while the hearing was pending and the second set of inquiries appeared designed to elicit testimony from the father that was unfavorable to the mother, including one instance where the court intimated that the mother was practicing Aextortion@ against the father in order to gain an advantage in the proceedings.
Father deprived of effective assistance of counsel at violation hearing by counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported father=s contention
In Matter of Miller v DiPalma, 179 A.D.3d 696, 117 N.Y.S.3d 698, 2020 N.Y. Slip Op. 00140 (2d Dept.,2020) the Appellate Division held that the father was deprived of the effective assistance of counsel at a hearing on the mother=s petition for violation of an order of child support. In support proceedingsAthe appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard@. The father=s defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father=s medical records or provide the court with any relevant financial documentation. The father=s counsel also failed to call any witnesses to testify as to the effects of the father=s back injury, subpoena his treating physician, or obtain a medical affidavit. Counsel=s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father=s contention constituted a failure to meaningfully represent the father, and he was entitled to a new hearing on the violation petition.
Appellate Division, Third Department
Appeal held in abeyance pending appointment of new AFC where AFC Afailed to fulfill his essential obligation,@ and children did not receive effective assistance of appellate counsel.
In Matter of Jennifer VV., v Lawrence WW., 2020 WL 1558080 (3d Dept.,2020 the Appellate Division held the custody appeal in abeyance pending the appointment of a new attorney for the children finding that the AFC Afailed to fulfill his essential obligation,@ and the children did not receive the effective assistance of appellate counsel. The AFC initially submitted a letter to this Court stating that he did not intend to file a brief because the children B then approximately 10 and 6 years old B were Atoo young to formulate an independent opinion and provide a foundation for their respective opinions@ and expressing his views on the children=s best interests. The Court directed the AFC to submit a brief in compliance with this Courts practice rules. The AFC filed a brief in which he reiterated his position. Without stating the children=s preferences, the brief concluded that Family Courts order was in the children=s best interests and should be affirmed. The Appellate Division referred to the Rules of the Chief Judge which require that an AFC in a custody or visitation proceeding Amust zealously advocate the child=s position@ and further provide that, A[i]f the child is capable of knowing, voluntary and considered judgment, the [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@ (22 NYCRR 7.2[d][2]). It held that the AFC wholly failed to fulfill the obligations imposed by these provisions upon this appeal. It was the AFC=s obligation to Aconsult with and advise the child[ren] to the extent of and in a manner consistent with [their] capacities@ (22 NYCRR 7.2[d][1]). At 10, the older child was old enough to be capable of expressing her wishes, and whether the younger child, at 6, had the capacity to do so was not solely dependent upon her calendar age. The AFC did not claim that either child met either of the two exceptions to 22 NYCRR 7.2(d)(3), i.e., a lack of capacity or risk of imminent harm. Even when it is appropriate for an AFC to substitute his or her judgment for the child=s preferences, the AFC must inform Family Court of the child=s wishes if authorized by the child to do so (see 22 NYCRR 7.2[d][3]). The AFC=s brief was devoid of any indication of the children=s wishes, with no reference to 22 NYCRR 7.2 or to the analysis that this rule requires an AFC to undertake before advocating for a position that does not express the child=s wishes. Additionally, it did not appear that he met or spoke with them during the appeal. The children were, Aat the least, entitled to consult with and be counseled by [their] assigned attorney, to have the appellate process explained, to have [their] questions answered, to have the opportunity to articulate a position which B with the passage of time B may have changed, and to explore whether to seek an extension of time within which to bring [their] own appeal of Family Courts order. Likewise, the child [ren were] entitled to be [apprised] of the progress of the proceedings throughout. It appeared that none of these services was provided to the child[ren]@
April 1, 2020
An article by Joel R. Brandes, titled" Stare Decisis, Precedent and Dicta, appears in the March 2020 issue of the New York State Bar Journal, Vol.92, No. 2 at page 36.
Court Rules and Legislation – For those who missed our last issue
On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf) Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760. Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
Credit against child support for payment of room and board at college not mandatory
In Matter of Deborah R. V Dean E. H., --- N.Y.S.3d ----, 2020 WL 1056521, 2020 N.Y. Slip Op. 01564 (1st Dept., 2020) the Appellate Division held that Family Court properly denied respondent’s request for a credit for the child’s college room and board expenses. A credit against child support for room and board expenses “is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”.
Appellate Divison, Third Department
Where husband’s actual income less than reported on his W-2 income tax form Court imputed income based upon evidence of his actual income. Duration of maintenance award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered.
In Bell-Vesely v Vesely, --- N.Y.S.3d ----, 2020 WL 930505, 2020 N.Y. Slip Op. 01415 (3d Dept.,2020) Plaintiff (wife) and defendant (husband) were married in 1996 and were the parents of a son (born in 1994) and a daughter (born in 1999). In July 2016, the wife commenced an action for divorce. Supreme Court granted a judgment of divorce, which, among other things, equally divided certain marital property and directed the husband to pay maintenance to the wife of $164.86 per month for seven years and child support for the daughter of $614.66 per month based on his imputed income of $49,000. The court also declined to award the wife additional counsel fees and determined that the sum remaining in the husband’s Wells Fargo brokerage account was separate property not subject to equitable distribution.
The Appellate Division held that “because imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay, it may be attributed to a party as long as the court articulates the basis for imputation and the record evidence supports the calculations”. In determining a party’s child support or spousal maintenance obligation, a court may exercise its discretion by imputing income where there is clear and undisputed evidence of a party’s actual income during the pendency of the proceeding. The record supported Supreme Court’s determination that the husband’s actual income in 2016 was $49,000, notwithstanding the fact that his 2016 W–2 form reported income of approximately $91,000. The discrepancy pertained to a lump-sum loan/bonus payment of $350,000 that the husband received up front in January 2012. The husband was required to sign a promissory note requiring repayment of the loan/bonus in the event that his employment ended within a defined time. The loan/bonus proportionately transformed into debt when the husband left his employment prior to December 2021.
The Appellate Division rejected the wife’s contention that Supreme Court erred in determining the duration of maintenance to be seven, instead of eight, years. The husband’s seven-year term was presumably based on the formula for postdivorce maintenance set forth in Domestic Relations Law § 236(B)(6)(f). Under that formula, where, as here, the parties are married for 20 years, the duration can be set at between 30–40% of the term – which would allow a maximum duration of eight years. It observed that the duration of a maintenance award pursuant to this formula is discretionary, “and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered”.
The Appellate Division held that Supreme Court erred in not ordering the husband to maintain the daughter’s health insurance or to pay his share of the daughter’s uninsured medical expenses. “Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained” (Domestic Relations Law § 240[c][1]). Generally, “[i]f 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]). Further, “the court shall pro rate each parent’s share of reasonable health care expenses not reimbursed or paid by insurance ... in the same proportion as each parent’s income is to the combined parental income” (Domestic Relations Law § 240[1–b] [c][5][v]). The husband testified that he carried and intended to maintain health insurance for the daughter. Thus, the court erred when it did not order the husband to maintain health insurance for her. In addition, the wife’s pro rata share of the cost of such health insurance, which was 41%, had to be deducted from the basic child support obligation (see Domestic Relations Law § 240[1–b] [c][5][ii]). As for the daughter’s uninsured medical expenses, the husband and the wife were directed to pay their pro rata share thereof, 59% and 41%, respectively.
By his silence the father gave implied consent to the college chosen. Mother did not waive right to challenge father’s claims regarding his annual income simply because she previously signed joint tax returns that reported a lower income.
In Matter of Susko v Susko, --- N.Y.S.3d ----, 2020 WL 1056323, 2020 N.Y. Slip Op. 01536 (3d Dept.,2020) the mother testified that she kept the father informed of the colleges that the child was considering, told him promptly that the child had been accepted at the chosen college and then provided him with full information about that school’s cost and the child’s financial aid award. She repeatedly asked the father whether he consented to this college and how much he would contribute, but he gave only evasive responses. She testified that the father never voiced any express objection to the chosen college; on the contrary, he participated in completing financial aid documentation for that school, responded, “[T]hat is great” when he was informed by email of the child’s acceptance and paid $450 as half of the initial deposit without objection. Thereafter, however, he paid nothing more. The father testified that he did not consent to the chosen college because he could not afford it, but he acknowledged that he had never expressly stated that he did not consent to that school. The Appellate Division held that this fully supported the finding that the father gave implied consent to the chosen college and, therefore, that he violated the party’s agreement by failing to make a contribution to its cost commensurate with his ability to pay.
The Appellate Division held that where, as here, “the parties expressly undertook an obligation to contribute toward the cost of the child’s college education, but did not precisely define the extent of their obligations, Family Court should proceed to consider the parties’ financial means and ability to contribute and determine their respective obligations by assessing their pro rata shares of their combined parental income, as the Support Magistrate did here.
The Appellate Division also held that the mother did not waive her right to challenge the father’s claims regarding his annual income simply because she had previously signed joint tax returns that reported a lower income (Harrington v. Harrington, 93 A.D.3d 1092, 1093–1094, 941 N.Y.S.2d 320 [2012]).
Family Court erred in finding that the Support Magistrate properly credited one third of the father’s total child support obligation over 40 weeks against his annual share of the child’s college costs. The agreement provided that the father’s child support payments should be “take[n] into consideration” in determining the parties’ obligations to share college costs. “In the absence of specific contractual language, the availability and amount of such a credit depend upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”. Since the purpose of a child support credit against college costs is to avoid duplication, it covers only those expenses associated with the child’s room and board, rather than college tuition.
Editor’s note: In Mahoney-Buntzman v Buntzman, 881 N.Y.S.2d 369 (2009) the Court of Appeals held that a party to litigation may not take a position contrary to a position taken in an income tax return
March 16, 2020
Recent Articles of Interest
An article by Joel R. Brandes, titled" Stare Decisis, Precedent and Dicta, appears in the March 2020 issue of the New York State Bar Journal, Vol.92, No. 2 at page 36.
Court Rules and Legislation – For those who missed our last issue
On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf) Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760. Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
Credit against child support for payment of room and board at college not mandatory
In Matter of Deborah R. V Dean E. H., --- N.Y.S.3d ----, 2020 WL 1056521, 2020 N.Y. Slip Op. 01564 (1st Dept., 2020) the Appellate Division held that Family Court properly denied respondent’s request for a credit for the child’s college room and board expenses. A credit against child support for room and board expenses “is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”.
Appellate Divison, Third Department
Where husband’s actual income less than reported on his W-2 income tax form Court imputed income based upon evidence of his actual income. Duration of maintenance award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered.
In Bell-Vesely v Vesely, --- N.Y.S.3d ----, 2020 WL 930505, 2020 N.Y. Slip Op. 01415 (3d Dept.,2020) Plaintiff (wife) and defendant (husband) were married in 1996 and were the parents of a son (born in 1994) and a daughter (born in 1999). In July 2016, the wife commenced an action for divorce. Supreme Court granted a judgment of divorce, which, among other things, equally divided certain marital property and directed the husband to pay maintenance to the wife of $164.86 per month for seven years and child support for the daughter of $614.66 per month based on his imputed income of $49,000. The court also declined to award the wife additional counsel fees and determined that the sum remaining in the husband’s Wells Fargo brokerage account was separate property not subject to equitable distribution.
The Appellate Division held that “because imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay, it may be attributed to a party as long as the court articulates the basis for imputation and the record evidence supports the calculations”. In determining a party’s child support or spousal maintenance obligation, a court may exercise its discretion by imputing income where there is clear and undisputed evidence of a party’s actual income during the pendency of the proceeding. The record supported Supreme Court’s determination that the husband’s actual income in 2016 was $49,000, notwithstanding the fact that his 2016 W–2 form reported income of approximately $91,000. The discrepancy pertained to a lump-sum loan/bonus payment of $350,000 that the husband received up front in January 2012. The husband was required to sign a promissory note requiring repayment of the loan/bonus in the event that his employment ended within a defined time. The loan/bonus proportionately transformed into debt when the husband left his employment prior to December 2021.
The Appellate Division rejected the wife’s contention that Supreme Court erred in determining the duration of maintenance to be seven, instead of eight, years. The husband’s seven-year term was presumably based on the formula for postdivorce maintenance set forth in Domestic Relations Law § 236(B)(6)(f). Under that formula, where, as here, the parties are married for 20 years, the duration can be set at between 30–40% of the term – which would allow a maximum duration of eight years. It observed that the duration of a maintenance award pursuant to this formula is discretionary, “and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered”.
The Appellate Division held that Supreme Court erred in not ordering the husband to maintain the daughter’s health insurance or to pay his share of the daughter’s uninsured medical expenses. “Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained” (Domestic Relations Law § 240[c][1]). Generally, “[i]f 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]). Further, “the court shall pro rate each parent’s share of reasonable health care expenses not reimbursed or paid by insurance ... in the same proportion as each parent’s income is to the combined parental income” (Domestic Relations Law § 240[1–b] [c][5][v]). The husband testified that he carried and intended to maintain health insurance for the daughter. Thus, the court erred when it did not order the husband to maintain health insurance for her. In addition, the wife’s pro rata share of the cost of such health insurance, which was 41%, had to be deducted from the basic child support obligation (see Domestic Relations Law § 240[1–b] [c][5][ii]). As for the daughter’s uninsured medical expenses, the husband and the wife were directed to pay their pro rata share thereof, 59% and 41%, respectively.
By his silence the father gave implied consent to the college chosen. Mother did not waive right to challenge father’s claims regarding his annual income simply because she previously signed joint tax returns that reported a lower income.
In Matter of Susko v Susko, --- N.Y.S.3d ----, 2020 WL 1056323, 2020 N.Y. Slip Op. 01536 (3d Dept.,2020) the mother testified that she kept the father informed of the colleges that the child was considering, told him promptly that the child had been accepted at the chosen college and then provided him with full information about that school’s cost and the child’s financial aid award. She repeatedly asked the father whether he consented to this college and how much he would contribute, but he gave only evasive responses. She testified that the father never voiced any express objection to the chosen college; on the contrary, he participated in completing financial aid documentation for that school, responded, “[T]hat is great” when he was informed by email of the child’s acceptance and paid $450 as half of the initial deposit without objection. Thereafter, however, he paid nothing more. The father testified that he did not consent to the chosen college because he could not afford it, but he acknowledged that he had never expressly stated that he did not consent to that school. The Appellate Division held that this fully supported the finding that the father gave implied consent to the chosen college and, therefore, that he violated the party’s agreement by failing to make a contribution to its cost commensurate with his ability to pay.
The Appellate Division held that where, as here, “the parties expressly undertook an obligation to contribute toward the cost of the child’s college education, but did not precisely define the extent of their obligations, Family Court should proceed to consider the parties’ financial means and ability to contribute and determine their respective obligations by assessing their pro rata shares of their combined parental income, as the Support Magistrate did here.
The Appellate Division also held that the mother did not waive her right to challenge the father’s claims regarding his annual income simply because she had previously signed joint tax returns that reported a lower income (Harrington v. Harrington, 93 A.D.3d 1092, 1093–1094, 941 N.Y.S.2d 320 [2012]).
Family Court erred in finding that the Support Magistrate properly credited one third of the father’s total child support obligation over 40 weeks against his annual share of the child’s college costs. The agreement provided that the father’s child support payments should be “take[n] into consideration” in determining the parties’ obligations to share college costs. “In the absence of specific contractual language, the availability and amount of such a credit depend upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”. Since the purpose of a child support credit against college costs is to avoid duplication, it covers only those expenses associated with the child’s room and board, rather than college tuition.
Editor’s note: In Mahoney-Buntzman v Buntzman, 881 N.Y.S.2d 369 (2009) the Court of Appeals held that a party to litigation may not take a position contrary to a position taken in an income tax return
March 1, 2020
Court Rules and Legislation
On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf) Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760. Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
In absence of persuasive proof that mother’s “ability to earn sufficient means to pay child support was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her
In Matter of O’Brien v Rutland, -- N.Y.S.3d ----, 2020 WL 825698, 2020 N.Y. Slip Op. 01222 (3d Dept.,2020) the daughter began living exclusively with the mother in 2015, prompting the mother to file, as is relevant here, a 2016 support petition with regard to her. On appeal from the order of support the Appellate Division noted that the father’s obligation to support the daughter ceased when she reached 21 years of age during the pendency of the appeal (see Family Ct Act § 413[1][a]). In the absence of a continuing support obligation, the mother argued that this appeal is moot. The Appellate Division pointed out that “where a final order of support ‘retroactively sets a higher rate than that paid during the pendency of the [proceeding, thereby] creating an immediate arrearage,’ credit should be given regarding such arrearage” (Matter of Tompkins County Support Collection Unit v. Chamberlain, 305 A.D.2d 813, 814, 758 N.Y.S.2d 542 [2003]. Inasmuch as those arrears exist here and were still being paid by the father, the appeal was not moot. The Appellate Division held that in the absence of persuasive proof that the mother’s “ability to earn sufficient means to pay child support” was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her. It also held that Family Court should have sustained the father’s objection to the Support Magistrate omitting rent, admittedly paid to the mother by her fiancé́, from her income (see Family Ct Act § 413[1][f][1]; Matter of Carr v. Carr, 309 A.D.2d 1001, 1004, 765 N.Y.S.2d 688 [2003]).-
Not necessary for Family Court to dismiss visitation petitions because they were unsworn. Verification of a visitation petition is not required by CPLR 3020 or Family Ct Act article 6
In Matter of Shawn MM v Jasmine LL, 2020 WL 825695 (3d Dept., 2020) the Appellate Division held that although Family Court is not required to hold a hearing in every case, where modification of a custody order is sought, a hearing should generally 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 determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, it construes the pleadings liberally and afford the petitioner the benefit of every favorable inference. In its August 2018 order awarding sole custody to the mother upon the father’s default, Family Court “ordered that the rights are reserved for [the father] to file for custody and/or visitation.” Because the order did not otherwise address visitation, it appeared that Family Court did not intend to require the father to demonstrate a change in circumstances in order to petition for visitation The Appellate Division held that it was not necessary for Family Court to dismiss the petitions because they were unsworn, given that verification of a visitation petition is not required by either CPLR 3020 or Family Ct Act article 6 (see generally Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3020:3, C3020:5).
Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order.
In Matter of Adam V v Ashli W, --- N.Y.S.3d ----, 2020 WL 825604, 2020 N.Y. Slip Op. 01231(3d Dept.,2020) the Appellate Division pointed out that no appeal lies from an order entered upon the consent of the appealing party, since a party who consents to an order is not aggrieved thereby, except to the extent that it differs from or exceeds the consent (Hatsis v. Hatsis, 122 A.D.2d 111, 111, 504 N.Y.S.2d 508 [1986]). Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order. The record revealed that, during the placement of the agreement upon the record, the mother objected to the exchange times stating that she would be “hard pressed to make 9:00 a.m. on Sundays.” The mother also sought clarification as to the documentation required to prove a change of residency. Upon receipt of the proposed order, Family Court was notified of the mother’s objections by written correspondence, specifically, that the mother objected to the father’s exchange times and, further, to providing multiple documents to prove her residency. The mother clearly did not consent to the terms contained in the amended order, and, thus the order was appealable. Consequently, because the amended order failed to set forth the terms to which the parties agreed in open court, it was modified accordingly.
Supreme Court
Supreme Court holds that Claim for spousal support that was necessary prior to spouse’s death does not abate upon death of spouse.
In Dean v Dean, --- N.Y.S.3d ----, 2020 WL 769994, 2020 N.Y. Slip Op. 20042 2020 WL 769994 (Sup. Ct., 2020) the Supreme Court held that a claim for spousal support under Article 4 of the Family Court Act abates upon the death of a party. However, it does not abate the claim for support that was necessary prior to the spouse’s death. If the decedent was entitled to support under New York law and experienced hard times during the pendency of this action, that claim survives her death and can be maintained by her representative, the executor.
February 16, 2020
Appellate Division, First Department
Best Interest of the Child test applies to relocation petition where no prior custody order.
In Michaels v Michaels, --- N.Y.S.3d ----, 2020 WL 536320, 2020 N.Y. Slip Op. 00815 (1st Dept., 2020) the Appellate Division held that where there is no prior custody order in place at the time of the relocation petition, the test that should be applied is that of the best interests of the children, and relocation is but one factor in determining the children’s best interests (see Matter of Michael B. [Lillian B.], 145 AD3d 425, 430 [1st Dept 2016]; see also Arthur v. Galletti, 176 AD3d 412 [1st Dept 2019]; Matter of Saperston v. Holdaway, 93 AD3d 1271 [4th Dept 2012], appeal dismissed 19 NY3d 887 [2012]).
Counsel Fee Award to Wife Precluded by failure to comply with 22 NYCRR 1400.3
In Adjmi v Tawil, --- N.Y.S.3d ----, 2020 WL 573175, 2020 N.Y. Slip Op. 00911 (1st Dept.,2020) the Appellate Division affirmed a judgment which, inter alia, directed plaintiff husband to pay $7,000 monthly in child support and the parties’ child’s tuition at a Jewish day school from preschool through 12th grade. The trial record demonstrated that the child support award amply provided for the child’s actual needs. As the parties separated while defendant was still pregnant, it could not be said that a standard of living was established for the child. Contrary to defendant’s contention, plaintiff’s wealth alone was insufficient to warrant doubling the child support award. The trial court providently exercised its discretion in directing plaintiff to pay 100% of the child’s tuition at a Jewish day school from preschool through 12th grade (see Domestic Relations Law § 240[1–b] [c][7]). The evidence established that two of defendant’s children and three of plaintiff’s children attended Jewish day schools and that plaintiff actively supported religious education and could afford the tuition.
The Appellate Division reversed the award of counsel fees to defendant because it was is precluded by her attorney’s failure to comply with the rules pertaining to domestic relations matters (22 NYCRR part 1400). Defendant was represented in these matrimonial proceedings by her father, a patent lawyer, for more than a year. She did not execute a retainer agreement until shortly before the trial, and she testified that her father had never sent her an itemized bill (see 22 NYCRR 1400.3).
Appellate Division, Fourth Department
Appellate Division treats decision appealed from as an appealable order
In Nicol v Nicol, --- N.Y.S.3d ----, 2020 WL 501424, 2020 N.Y. Slip Op. 00740 (4th Dept., 2020) the Appellate Division held that the court erred in summarily denying the plaintiffs motion insofar as it sought a downward modification of his child support obligation with respect to the health insurance premiums, on the ground that plaintiff had, in effect, implicitly waived his right to seek a downward modification by failing to take remedial action after defendant informed him of the cost increase for the children’s health insurance premiums. It is well settled that a waiver “‘should not be lightly presumed’ and must be based on ‘a clear manifestation of intent’ to relinquish” a known right. Plaintiff’s inaction here did not constitute a waiver inasmuch as inaction or silence cannot constitute a waiver.
The dissent disagreed with the majority’s decision to treat the decision appealed from as an order, and field a dissent. It observed that in 1987, this Court held that “[n]o appeal lies from a mere decision” (Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 (4th Dept. 1987)). In reaching that conclusion, it relied on, inter alia, CPLR 5512(a), titled “appealable paper,” which provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” Until today, it had routinely followed that settled principle as do all of the other Departments of the Appellate Division, as well as the Court of Appeals. Here, the record included a decision that was denominated only as a decision and has no ordering paragraphs and, in his notice of appeal, plaintiff explicitly appealed “from the Decision”. The majority believed that the decision was an appealable paper because it meets “the essential requirements of an order.” To support that proposition, the majority relied on Matter of Louka v. Shehatou, 67 A.D.3d 1476, 888 N.Y.S.2d 841(4th Dept. 2009) ), where this Court determined that a letter would be treated as an order inasmuch as “the Referee filed the letter with the Family Court Clerk and ... the letter resolved the motion and advised the father that he had a right to appeal”. Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. Thus, under the majority’s determination, an appeal may lie from a mere decision if it was filed and if it resolved the issues presented by the parties, the appealable paper no longer needs to be labeled as an order and it no longer needs any ordering paragraphs, and the appellant can still appeal even if he or she refers to the paper on appeal as a “decision” in the notice of appeal.
February 1, 2020
Appellate Division, First Department
Non-voluntary union dues may be deducted from income for calculating child support
In Matter of Julien v Ware, --- N.Y.S.3d ----, 2020 WL 356132, 2020 N.Y. Slip Op. 00414 (2020) a child support proceeding the Appellate Division held that although no deduction from income for union dues is specifically mandated by the Family Court Act, there is an allowable deduction for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Family Ct Act § 413[1][b][5][vii][A] ). Nonvoluntary union dues may be deducted under this category (see 33A Am Jur 2d, Federal Taxation ¶ 16502). However, such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts.
Non-custodial Parent May Commence Support Proceeding
In Matter of Anthony S v Monique T.B., --- N.Y.S.3d ----, 2020 WL 283492, 2020 N.Y. Slip Op. 00382 (1st Dept., 2020) the Appellate Division held that the Family Court Act (FCA) does not prohibit a non-custodial parent from commencing a support proceeding (see FCA § 422[a] [“A parent or guardian, of a child, or other person in loco parentis, . . . may file a petition in behalf of a dependent relative”]). While a shared custodial arrangement, the custodial parent cannot be required to pay child support as a matter of law (Rubin v. Della Salla, 107 AD3d 60, 67 [1st Dept. 2013]), the unusual facts of this case did not demonstrate a shared custodial arrangement. Respondent was admittedly the non-custodial parent and had not contributed toward the children’s support since the filing of the petitions; no other party has stepped forward to file a support petition, including the paternal grandmother who respondent claimed was acting as the children’s primary caretaker; and no evidence was submitted that either child was emancipated for the purposes of child support at the time the petitions were filed. Under the circumstances, there was no reason to disturb the Support Magistrate’s determination that petitioner was credibly seeking support on behalf of the subject children and their paternal grandmother (see, e.g. Matter of Nasir J., 35 AD3d 299 [1st Dept. 2006]).
Appellate Division, Second Department.
Second Department holds it is Not error to allow interpreter for non-English speaking litigant to appear by Skype
In Matter of Omnamm L v Kumar L, 177 A.D.3d 973, 113 N.Y.S.3d 186, 2019 N.Y. Slip Op. 08563 (2d Dept.,2019) an abuse proceeding, the Appellate Division held that the Family Court did not err in proceeding with the fact-finding hearing on the first day, when the interpreter appeared remotely over Skype. Non–English speaking litigants are entitled to an interpreter at proceedings to enable them to participate meaningfully in their trial and assist in their own defense. The procedures utilized by the court allowed the father to meaningfully participate in the hearing (see 22 NYCRR 217.1[a]).
Hair follicle testing records are admissible if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business
In Matter of Sincere S.,176 A.D.3d 1072, 113 N.Y.S.3d 91, 2019 N.Y. Slip Op. 07588 (2d Dept.,2019) the Appellate Division agreed with the Family Court’s determination that the hair follicle testing records were admissible. While the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records. (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 209), such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 209, 97 N.Y.S.3d 286). The DSS presented testimony from a case manager of the Family Court Treatment Alternatives for Safer Communities program that the hair follicle test results provided by an outside laboratory were incorporated into her office’s reports and routinely relied upon to issue hair follicle test reports. Thus, the DSS established the admissibility of the hair follicle test results admitted as Petitioner’s Exhibits 5 and 6 (see State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1296, 956 N.Y.S.2d 196). The DSS also established the admissibility of the hair follicle test reports admitted as Petitioner’s Exhibits 3 and 4 by establishing that each participant in the chain that produced the reports acted within the course of regular business conduct (see Family Ct Act § 1046[a][iv]; Matter of Grace J. [Louise J.], 140 A.D.3d 1166, 1167, 33 N.Y.S.3d 758).
Appellate Division, Third Department
No credit against child support and maintenance for interim support where husband already obligated by contract for those payments
In Allen v Allen, --- N.Y.S.3d ----, 2020 WL 239080, 2020 N.Y. Slip Op. 00331 (3d Dept., 2020) Plaintiff (wife) and the defendant (husband) were married in 1999 and had four children. The wife commenced the action for divorce in January 2013. The Appellate Division, among other things, rejected the husbands argument that Supreme Court erred in failing to provide him a credit against his child support and maintenance obligations because he paid for the wife’s shelter costs, including property taxes, homeowner’s insurance and electricity bills while she and the children resided in the marital residence. Because the husband was already contractually obligated to pay these expenses on his separate property, and a party in a dispute over child support or maintenance cannot get credit for performing their own pre-existing legal obligations to third parties, this contention had no merit.
The Appellate Division held that Supreme Court did not abuse its discretion in holding the wife’s child support payments to the husband in abeyance until the husband paid, in full, any amounts due to the wife pursuant to the judgment of divorce. The husband expressed hostility regarding his court-ordered obligation to pay the wife maintenance, stating that he would rather go to jail than pay maintenance. Due to this refusal, a large sum of arrears had accrued that resulted in a judgment to the wife for nearly $45,000. Therefore, given the rationale for holding the wife’s child support obligation in abeyance, it did not find that Supreme Court abused its discretion.
January 16, 2020
Court Rules
NY Order 20-0001 amended the Local Rules of the Appellate Division, Second Department dealing with the mediation program.
22 NYCRR 670.3 (d) (2) (ii) was amended to require that Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions is required to attend the mediation. (d) (ii) (v) was amended to provide that failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions.
The amendments read as follows:
22 NYCRR § 670.3. Initial Filings; Active Management of Causes; Settlement or Mediation Program * * * (d) Mandatory Civil Appeals Mediation Program * * * (2) Mandatory Mediation; Notice of Reference * * * (ii) Upon such designation, the Clerk of the Court, shall cause to be issued a Notice of Reference, which shall direct the parties to the appeal and their counsel, as well as any other individual whose attendance the court may require, to attend an initial, ninety-minute session, without charge, before a designated Special Master identified in that Notice. The Notice of Reference shall set forth the date, time, and place of the initial mediation session. Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions and parties who are natural persons are required to attend the mediation in person, In the event that a party is not a natural’ person but a legal entity, such as a corporation or limited liability company, such entity is required to have present at the mediation a representative of the entity who has the authority to make binding decisions on behalf of the entity. * * * (v) Mediation sessions shall be deemed appearances before this court. Failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions pursuant to Part 130 of the Rules of the Chief Administer of the Courts (22 NYCRR Part 130). The initial mediation session shall constitute an actual engagement before this court for the purposes of Part 125 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 125).
By Administrative order 284-2019 a Short Form Application for Child Support Services in Supreme Court was adopted effective December 1, 2019, for use in uncontested divorce actions.
Appellate Division, Second Department
Father deprived of the effective assistance of counsel in enforcement proceeding. Appropriate standard to apply in evaluating a claim of ineffective assistance is “meaningful representation standard”
In Matter of Miller v. DiPalma, --- N.Y.S.3d ----, 2020 WL 88886, 2020 N.Y. Slip Op. 00140 (2d Dept.,2020) the Appellate Division held that the father was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of an order of child support. In support proceedings such as this one, “the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard” (Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 944, 53 N.Y.S.3d 130). Here, the father’s defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Notably, despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father’s medical records or provide the court with any relevant financial documentation. The father’s counsel also failed to call any witnesses to testify as to the effects of the father’s back injury, subpoena his treating physician, or obtain a medical affidavit. The Family Court made specific reference to the lack of any credible medical testimony, financial disclosure affidavit, tax returns, or proof of a job search in its determination that the father failed to refute the mother’s prima facie showing of willfulness. The Appellate Division held that Counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father’s contention constituted a failure to meaningfully represent the father, and he is entitled to a new hearing on the violation petition.
Appellate Division, Third Department
In absence of parties’ actual separation at time of execution of separation agreement or immediately thereafter, separation agreement is void ab initio. Provision that agreement not invalidated without a subsequent writing void where agreement itself, rather than any of its components, is brought to an end. Use of marital funds to pay trial counsel is not a waste of assets.
In Martin v Martin, --- N.Y.S.3d ----, 2019 WL 7173295, 2019 N.Y. Slip Op. 09345 (3d Dept., 2019) the parties were married in 1991, and executed a separation agreement in 2005 that provided for the distribution of their assets, but continued to live together until 2015. The wife commenced the action in October 2015, with the husband counterclaiming for a declaration that the separation agreement was void. After trial, the Supreme Court determined that the parties’ separation agreement was void, distributed the marital assets and debts, and awarded the husband $25,000 in counsel fees.
The Appellate Division held, inter alia, that Supreme Court properly found that the separation agreement was void. It is fundamental that, in the absence of the parties’ actual separation at the time of execution of a separation agreement or immediately thereafter, a separation agreement is void ab initio. The parties lived together for a decade after entering into the separation agreement and, although more than mere cohabitation was required to render the agreement void (Rosenhaus v. Rosenhaus, 121 A.D.2d 707, 708, 503 N.Y.S.2d 892 [1986], they also filed joint tax returns, maintained a joint checking account and had joint credit cards. Supreme Court further credited the testimony of the husband that the parties lived as a married couple and that the wife handled their financial affairs throughout that period, as well as that they only executed the separation agreement so that the wife could take out more college loans for her daughters from a previous marriage. To the extent that the wife raised the issue, the provision in the separation agreement providing that the agreement shall not be invalidated without a subsequent writing was itself void where, as here, the agreement itself, rather than any of its components, is brought to an end.
The Appellate Division held, inter alia, that Supreme Court abused its discretion finding that the wife wastefully dissipated or improperly transferred marital funds that she deposited in a separate account around the time this action was commenced, insofar as $15,000 of the funds were legitimately paid to her trial counsel.
Finally, Supreme Court was within its right to direct that the distributive award to the husband be reduced to a money judgment and authorize a qualified domestic relations order so that those monies could be deducted from the wife’s pension.
Non-biological, non-adoptive partner had standing, as a parent, to seek visitation and custody under Domestic Relations Law § 70. Family Court did not err in applying the conception test to determine petitioner’s standing without regard to her subsequent relationship with the child.
In Matter of Heather NN v Vinette OO, 2019 WL 7173471 (3d Dept.,2019) Petitioner commenced a proceeding in 2016 seeking joint legal custody and parenting time, following the issuance of Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016)). Family Court found that petitioner had standing to seek legal custody and parenting time. The court granted sole legal custody and physical placement of the child to the respondent and awarded parenting time to petitioner in a graduated schedule of parenting time, to begin with one-hour weekly in therapeutic counseling sessions for eight weeks.
Respondent was the biological mother of a child (born in 2008) who was conceived via artificial insemination during a same-sex relationship between respondent and petitioner. The parties separated in 2009, approximately one year after the child’s birth, and the child remained with the respondent. Respondent permitted petitioner to have parenting time for approximately two years, but then terminated all visitation. Thereafter, respondent occasionally sent pictures of the child to petitioner and permitted petitioner to speak with the child on the telephone, but directed petitioner not to use her real name or tell the child who she was. The petitioner had not been allowed any parenting time since 2010. Petitioner and respondent met in 2004 at a counseling facility in Brooklyn where petitioner was required to undergo substance abuse counseling. The parties entered into an intimate relationship and, after petitioner completed her counseling in 2005, respondent moved from Brooklyn to the City of Binghamton, to live with petitioner in a home that petitioner owned there. Several months after respondent began residing with petitioner, petitioner’s home was searched pursuant to a warrant and petitioner was arrested for the sale of narcotics. She was incarcerated for approximately 14 months in 2006 and 2007. The parties continued their relationship during this period. Respondent continued to reside in petitioner’s home, visited petitioner regularly, and used a power of attorney to manage petitioner’s business affairs, including several rental properties. Respondent wrote letters to petitioner – subsequently admitted into evidence – in which respondent stated her desire to marry petitioner and have children with her. Following petitioner’s release, the parties agreed to conceive a child using artificial insemination. Both parties attended appointments with a fertility doctor. There were two inseminations; petitioner was present and injected the sperm on at least one of these occasions. Petitioner’s credit card was used to pay the related expenses. Petitioner attended at least one baby shower where friends and family members of both parties were present. Petitioner attended respondent’s prenatal appointments, was present when the child was born, and cut the child’s umbilical cord. The child was given two last names, reflecting the parties’ two surnames. Petitioner testified that the child was named, in part, after petitioner’s mother. Petitioner assisted in buying items for the child and shared day-care costs with respondent. The two parties were listed as the child’s two mothers in some of her medical and immunization records. Respondent testified that she told petitioner that the child would be part of petitioner’s life if they continued to reside together and also if they separated, so long as petitioner did not engage in illegal activities, but that if petitioner did so engage, she would not have a role in the child’s life.
The Appellate Division observed that in 2016 the Court of Appeals expanded the statutory definition of a parent, holding that when a biological parent’s former partner “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70” (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14, 39 N.Y.S.3d 89, 61 N.E.3d 488. The Court declined to find that any single test would cover all potential circumstances and held open the possibility that parenthood could also be established by other means. Upon this record, the Appellate Division held that Family Court correctly determined that petitioner fell within the statutory definition of a parent and, thus, had standing in this proceeding. Contrary to respondent’s argument, Family Court did not err in applying the conception test to determine petitioner’s standing rather than a “functional” test that would have examined the relationship between petitioner and the child after the child’s birth (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 27, 39 N.Y.S.3d 89, 61 N.E.3d 488). The evidence fully established that the parties planned jointly for the child’s conception, participated jointly in the process of conceiving the child, planned jointly for her birth, and planned to raise her together. Petitioner satisfied her burden to prove by clear and convincing evidence that she and respondent entered into an agreement to conceive the child and raise her as co-parents. Thus, she established her standing to seek custody and parenting time under the conception test without regard to her subsequent relationship with the child.
Commentary
According to some commentators,[1] in the last twenty-five years the de facto parent doctrine has made inroads on parental authority. A growing number of states have given rights to de facto parents to seek custody or visitation, using that term or similar terms such as “in loco parentis,” “psychological parent,” “equitable parent,” and establishment of a “child-parent relationship.” At least twenty-eight states have granted such rights by statute or case law. [2]
January 1, 2020
Recent Legislation Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a, to require an agency with which a child has been placed, either voluntarily or as a result of an abuse or neglect finding, or to whom guardianship and custody has been transferred as a result of the child being freed for adoption, to report to the attorney for the child not later than ten days in advance of any change in the child's placement status and not later than the next business day in any case in which an emergency placement change has been made. According to the memorandum in support of the legislation, first, it requires a report within five days of the date that any report of abuse or maltreatment is found to be indicated. Indicated reports include those naming the child and, where the subjects of the reports involve the person or persons caring for the child, reports naming other children in the home. It contains an important proviso that such reports notify the recipients that the information shall be kept confidential, shall be used only in connection with the child protective, foster care or related proceedings under the Family Court Act and may not be re-disclosed except as necessary for such proceeding or proceedings and as authorized by law. Second, recognizing that fairness also dictates that such notifications be made to the attorneys for all parties, not simply the attorneys for the children, the measure requires that, except in cases involving children freed for adoption, both notices of changes in placement and indicated child maltreatment reports be conveyed to attorneys for the birth parents. Family Court Act §1017 was amended by adding a new subdivision 5. Family Court Act, §1055 (b)(E) was repealed. Family Court Act § 1055 was amended by adding a new subdivision (j). Family Court Act 1089 (d) 2 (vii) was amended by adding a new clause (H) and Social Services Law §358-a, subd. 3 was amended by adding a new paragraph (g).
Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended Domestic Relations Law and the Civil Rights Law. Domestic Relations Law section 15 was amended to amend the 'Notice to Applicant', which appears on every application for a marriage license, to include language that informs those seeking a license that either or both spouses may elect to change their middle name to his or her current last name, any former last name he or she has had, or the last name of the other spouse. Domestic Relations Law section 14-a was amended to include the option of changing a middle name on the marriage license. Civil Rights Law section 65 was amended to provide that any person may elect to resume the use of a former middle name upon divorce or annulment and that the state shall not impose a fee to change the middle name on a state identifying document due to a change in marital status. The purpose of the amendments is to allow one or both parties to a marriage to elect to change their middle name on their marriage license. According to the memorandum in support of the legislation, many women and men are opting to change their last name upon marriage but want to keep their former last name in some capacity. One popular way to accomplish this is to keep the former last name as a new or second middle name. Many states allow for such a change to occur with ease on the marriage license, but New York did not.
Laws of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate additional staff members as he or she deems necessary to officiate marriages.
Laws of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure Law § 530.11.
Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The amendment also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese.
Laws of 2019, Ch 627, enacted December 12, 2019, and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.
CPLR 3215 (b), as amended provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination.
Appellate Division, First Department
In proceeding to establish standing to assert parental rights in seeking visitation under Domestic Relations Law § 70, the court has the discretion to direct “more monied” party to pay the other party’s counsel fee
In Kelly G v Circe H, --- N.Y.S.3d ----, 2019 WL 6869009 (1st Dept.,2019), the Appellate Division held, as a matter of first impression for the Court, that, in a proceeding to establish standing to assert parental rights in seeking visitation and custody under Domestic Relations Law § 70, the court has the discretion to direct the “more monied” party to pay the other party’s counsel and expert fees under Domestic Relations Law § 237 before that party has been adjudicated a parent. It affirmed the order granting respondent’s cross-motion for interim counsel fees to the extent of awarding her $200,000. The Appellate Division observed that Domestic Relations Law § 237(b), provides, in relevant part, that “upon any application ... concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires....” This statute, like Domestic Relations Law § 70, does not define the term “parent.” In holding that Domestic Relations Law § 70 “permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation” (Brooke S.B., 28 NY3d at 27), the Court of Appeals stressed that it “has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term ‘parent’ ” (Brooke S.B. at 24). Consonant with that approach, it found that highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child’s primary parent without allowing that parent to seek counsel fees. Without determining that she is a parent for purposes beyond the application of Domestic Relations Law § 237(b), it found that Domestic Relations Law § 237(b) must be read to permit the court to direct the petitioner to pay respondent’s counsel fees as necessary “to enable [her] to ... defend the application ... as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.”
Appellate Division, Second Department
Supreme Court has the discretion to consider the application for counsel fees, made in opposition papers without a cross-motion
In Ospina–Cherner, v. Daniel Cherner, --- N.Y.S.3d ----, 2019 WL 7160518 (2d Dept.,2019) the Appellate Division held that Supreme Court had the discretion to consider the defendant’s application for an award of attorney’s fees, made in his opposition papers to the subject motion, even though he did not make a cross-motion under CPLR 2215 (see Fried v. Jacob Holding, Inc., 110 AD3d 56, 65).
Appellate Division, Fourth Department
22 NYCRR part 202 provisions do not apply to proceedings in the Family Court
In Lopez v Lopez, --- N.Y.S.3d ----, 2019 WL 7044566 (4th Dept., 2019) the Appellate Division rejected the father’s challenges to the order of reference in this visitation proceeding. The father’s “ ‘argument that the court erred when it referred this matter to a referee( to hear and report ) in the absence of exceptional circumstances (see CPLR 4212) was waived, since the record established that [he] participated in the proceeding before the [R]eferee without objection. Contrary to the father’s further contention, the alleged failure of the order of reference to comply with 22 NYCRR 202.43(d) and 22 NYCRR 202.44(a) did not affect its validity because, with one exception not applicable here (see 22 NYCRR 202.16), “the provisions of 22 NYCRR part 202 apply only to ‘civil actions and proceedings in the Supreme Court and the County Court,’ not to proceedings in the Family Court” (McDuffie, 154 AD3d at 1309, quoting 22 NYCRR 202.1[a]; see Matter of McDermott v. Berolzheimer, 210 A.D.2d 559, 559–560 [3d Dept 1994] ). It also rejected the father’s contention that the order on appeal must be reversed because the court confirmed the Referee’s report before the expiration of the 15–day period set forth in CPLR 4403.
Although PAS is not routinely accepted as a scientific theory by New York courts the Court recognizes the effects of alienating behaviors by a parent
In Matter of Krier v Krier, --- N.Y.S.3d ----, 2019 WL 7043498, 2019 N.Y. Slip Op. 09129 (4th Dept.,2019) the Appellate Division affirmed an order which granted the father sole legal and physical custody of the child. It concluded that the father established a sufficient “change in circumstances to warrant an inquiry into the best interests of the child” based on both the expert testimony that the child was demonstrating elements of parental alienation and “‘the continued deterioration of the parties’ relationship’. It concluded that there was a sound and substantial basis for the determination that an award of sole custody to the father was in the child’s best interests. The court properly weighed the relevant factors and found that all weighed in favor of placement with the father except the child’s wishes. Although the child was 15 years old at the time of the hearing, the court properly determined that his wishes were not entitled to great weight since the child was so profoundly influenced by his mother “that he cannot perceive a difference between” the father’s abandonment of the marriage and the father’s abandonment of him and that it was in the child’s best interests to reside with the father despite his wishes to the contrary. Contrary to the contention of the mother and the AFC, the court did not improperly rely on the presence of “parental alienation syndrome” (PAS) in making its custody determination. The father’s expert did not conclude that PAS, as a diagnosis, existed in this case and rather testified that the type of conduct in which the mother engaged resulted in the child becoming alienated from the father. Although PAS is not routinely accepted as a scientific theory by New York courts (see Matter of Montoya v. Davis, 156 AD3d 132, 135 n 5 [3d Dept 2017]), the Court has repeatedly recognized the effects of alienating behaviors by a parent on children in custody and visitation determinations.
The Appellate Division agreed with the mother and the AFC that the court exceeded its jurisdiction in suspending maintenance payments to the mother since the parties’ separation agreement setting forth that obligation is an independent contract. Family Court is a court of limited jurisdiction and cannot exercise powers beyond those granted to it by statute, and “[i]t generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement” (Johna M.S., 10 NY3d at 366).
Fourth Department allows attorneys fees by affidavit holding “attorney’s fees should not be awarded without a hearing or requiring proof by affidavit substantiating the attorney’s fees requested”.
In Brinson v Brinson, --- N.Y.S.3d ----, 2019 WL 7043519 (4th Dept., 2019) the Appellate Division held that the court should have conducted an evidentiary hearing before granting respondent’s application for an award of his attorney’s fees since respondent failed to furnish sufficient documentation of the value of the services performed by the attorney. This issue was preserved since petitioner contested previous requests for attorney’s fees, at the final appearance respondent first requested the $3,000 in attorney’s fees but submitted no supporting documentation, and the petitioner was not afforded an adequate opportunity to dispute the same. It held that attorney’s fees should not be awarded without conducting a hearing or requiring proof by affidavit substantiating the attorney’s fees requested. (Moses v. Moses, 231 A.D.2d 850, 850 [4th Dept 1996]; see Matthews v. Matthews, 238 A.D.2d 926, 927 [4th Dept 1997]). An award for attorney’s fees is improper absent documentation of the submitted value of the services performed (see Johnston v. Johnston, 63 AD3d 1555, 1556 [4th Dept 2009]; Marshall v. Marshall, 1 AD3d 323, 324 [2d Dept 2003]; cf. Ackerman v. Midura, 145 AD3d 647, 648 [2d Dept 2016] ). Thus, it concluded that “it was an abuse of discretion to award the amount of counsel fees requested, without affording [petitioner] the opportunity to elicit further information on the reasonable value of those services” (Matter of Kobel v. Martelli, 112 A.D.2d 756, 757 [4th Dept 1985]). It modified the order and judgment by vacating the award of attorney’s fees and remitted the matter to Supreme Court for a determination regarding attorney’s fees based upon proper proof (see Matthews, 238 A.D.2d at 926; Moses, 231 A.D.2d at 850).
December 16, 2019
Announcement I am pleased to announce that commencing with the January 2, 2020 issue of the New York Law Journal I will resume writing my "Law and the Family" column, which I wrote for the Law Journal for many years. The column will be a regular feature in the the Law Journal, appearing every other month.
Position Wanted
We are looking to establish an “of counsel” relationship with a Manhattan law firm.
Recent Legislation Laws of 2019, Ch 623, enacted December 12, 2019 amended the Family Court Act § 657(c) to include non-parents with lawful orders of custody as persons who may make medical decisions for minors in their care.
Laws of 2019, Ch 623, amended the Family Court Act § 657(c) to add persons possessing a lawful order of custody as persons who have the right and responsibility, alongside the current provision of those possessing a lawful order of guardianship, to make medical decisions and necessary consents regarding the child in their care. It also amended Public Health Law Section 2504(4) to include non-parents with lawful orders of custody along with parents and guardians as persons whose consent is not needed for the provision of medical, dental, health and hospital services when in the
Family Court Act § 657 (c) provides:
(c) Notwithstanding any other provision of law to the contrary, persons possessing a lawful order of guardianship or custody of a child shall have the right and responsibility to make decisions, including issuing any necessary consents, regarding the child's protection, educa- tion, care and control, health and medical needs, and the physical custody of the person of the child. Provided, however, that nothing in this subdivision shall be construed to limit the ability of a child to consent to his or her own medical care as may be otherwise provided by law.
Laws of 2019, Ch 62, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.
A defendant who defaults in appearing concedes only liability. Therefore, the defaulting defendant may still contest damages at an inquest. In Rokina Opt. Co. v Camera King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'."
As amended, CPLR 3215 (b) provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination.
CRPL 3215(b) was amended to read as follows:
(b) Procedure before court. The court, with or without a jury, may make an assessment or take an account or proof, or may direct a refer- ence. The party entitled to judgment may be permitted to submit, in addition to the proof required by subdivision (f) of this section, prop- erly executed affidavits or affirmations as proof of damages, provided that if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any such proof by oral testimony of the witnesses in open court or, after giving reason- able notice that it will do so, by written sworn statements of the witnesses, but shall make all such witnesses available for cross-exami- nation. When a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application. Except in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default. The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305 of this chapter.
Appellate Division, Second Department
Motion to modify parties’ apportionment of responsibility for AFC’s fees should not have been decided without evidentiary hearing
In Lee v Rogers, 2019 WL 6334018 (2d Dept.,2019) after the Court of Appeals reversed the Appellate Divisions order, rejecting the adequate relevant information standard, and determined that an evidentiary hearing was required (see S.L. v. J.R., 27 N.Y.3d 558, 36 N.Y.S.3d 411, 56 N.E.3d 193) the AFC moved, in effect, for an award of attorney’s fees. The plaintiff opposed the motion and moved to modify the parties’ apportionment of responsibility for the fees for the AFC. Supreme Court denied the plaintiff’s motion for modification, and directed an evidentiary hearing on the reasonableness of the AFC’s fees. Following the hearing, the court found that the fees were reasonable, and entered an order awarding the AFC compensation of $34,624.65, payable in equal shares by the parties.
The Appellate Division held that contrary to the plaintiff’s contention, the difference in opinion between it (see Matter of Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360) and the Appellate Division, Third Judicial Department (see Redder v. Redder, 17 A.D.3d 10, 792 N.Y.S.2d 201), as to whether attorneys for children may be compensated directly by the children’s parents, rather than by the State, did not give rise to a constitutional claim under the equal protection clauses of the state and federal constitutions.
The Appellate Division held that contrary to the plaintiff’s contention, it was appropriate for the AFC to make reasonable use of associates and support staff to conduct legal research and other work, under the AFC’s direct supervision, in connection with the appeal of the prior custody determination before the Court and the Court of Appeals (see 22 NYCRR 36.4[c][5] ). It agreed with the Supreme Court’s hearing determination finding that the fees requested by the AFC were reasonable.
It held that plaintiff’s motion to modify the parties’ apportionment of responsibility for the AFC’s fees should not have been decided without an evidentiary hearing. Because the affidavits submitted by the parties provided sharply conflicting reports on the parties’ finances (see Anjam v. Anjam, 191 A.D.2d 531, 532, 594 N.Y.S.2d 822) and there was “no evidence in the record that the financial circumstances of the parties [had] ever been considered, an evidentiary hearing should have been conducted before the motion was decided.
It remitted the matter to the Supreme Court for an evidentiary hearing on the parties’ respective finances, and a new determination thereafter of the plaintiff’s motion.
Not error for the Support Magistrate to impute to father the income of the father’s current spouse
In Matter of Fanelli v Orticelli, 2019 WL 6519694 (2d Dept.,2019) the Appellate Division observed, that a support magistrate may impute income to a party based on resources available to the party, including “money, goods, or services provided by relatives and friends” (Family Ct. Act § 413[1][b][5][iv][D]). In affirming an order which increased the fathers child support obligation it held that it was not error for the Support Magistrate to impute to the father the income of the father’s current spouse in the support calculation (see Matter of Ladd v. Suffolk County Dept. of Social Servs., 199 A.D.2d 393, 394, 605 N.Y.S.2d 318; see also LiGreci v. LiGreci, 87 A.D.3d 722, 726, 929 N.Y.S.2d 253; Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955).
Appellate Division, Third Department
Custody order reversed despite Family Court’s order being supported by the current record, where the lack of an AFC prejudiced the child’s interests
In Matter of Marina C, v Dario D., --- N.Y.S.3d ----, 2019 WL 6331446, 2019 N.Y. Slip Op. 53953 (3d Dept.,2019) despite Family Court’s order being supported by the current record, the Appellate Division reversed and remitted for further proceedings conducted with the involvement of an AFC. The Court pointed out that it had previously noted that the “appointment of an [AFC] in a contested custody matter remains the strongly preferred practice,” while acknowledging that “such appointment is discretionary, not mandatory” (Matter of Keen v. Stephens, 114 A.D.3d 1029, 1031, 981 N.Y.S.2d 174 [2014]. It has also “emphasized] the contributions competent [AFCs] routinely make in contested matters; they not only protect the interests of the children they represent; they can be valuable resources to the trial court”. While advocating for the child, an AFC may provide a different perspective than the parents’ attorneys, including through the presentation of evidence on the child’s behalf, and may “recommend alternatives for the court’s consideration.” Even absent a request, a court may appoint an AFC on its own motion (see Family Ct Act § 249[a]). It noted that Family Court had appointed an AFC for this child in connection with a previous proceeding that resulted in a stipulated order made less than two months before the commencement of this modification proceeding yet Family Court inexplicably did not appoint the same or another AFC to protect the child’s interests. The Court found that the lack of an AFC prejudiced the child’s interests. For example, the mother called the child’s therapist as a witness and no objection was raised when the therapist testified regarding information that the child had disclosed in therapy. Had an AFC been appointed, that attorney presumably would have sought to protect the private and confidential nature of the child’s discussions in therapy, rather than let the parents use the child’s statements and therapist as weapons to support their own goals. The father also testified regarding statements made by the child; an AFC could have objected to those hearsay comments. Further, an AFC could have called additional witnesses, asked questions of the witnesses called by the parties or presented other evidence to elicit information that would support the child’s position. It held that under the circumstances Family Court improvidently exercised its discretion by failing to appoint an AFC, and such failure prejudiced the child. It remitted for a new fact-finding hearing on the mother’s modification petition, with the appointment and participation of an AFC.
Modified stay-away order of protection pursuant to Family Ct Act § 1061 must reflect a resolution consistent with best interests of the child and must be supported by a sound and substantial basis in the record.
In Matter of Andreija N, --- N.Y.S.3d ----, 2019 WL 6331396, 2019 N.Y. Slip Op. 53957 (3d Dept.,2019) petitioner, inter alia, commenced an abuse proceeding alleging that respondent sexually abused the child. On July 20, 2018, Family Court) issued a temporary stay-away order of protection against respondent prohibiting any contact with the child (see Family Ct Act § 1029). This order of protection was extended several times. In August 2018, the mother filed a petition seeking sole legal and physical custody of the child. Thereafter, by consent of the parties, a forensic psychologist was ordered to conduct a forensic interview of the child in November 2018, and her report was submitted to the court. The psychologist then completed a second report in May 2019. In both reports, the psychologist concluded that there was no credible evidence that the father sexually abused the child and recommended implementing the custody order. On the first day of a combined fact-finding hearing on both petitions, both of the psychologist’s reports were received into evidence on consent. Without any testimony being taken, respondent, joined by the attorney for the child, then moved to vacate the stay-away order of protection. Both petitioner and the mother objected, and, after taking a brief recess, Family Court issued a ruling from the bench vacating the stay-away order of protection, without explanation. The court then issued a new temporary order of protection in May 2019 allowing respondent to exercise unsupervised visitation pursuant to a parenting schedule comparable to the custody order. The Appellate Division held that Family Court abused its discretion by modifying the stay-away order of protection pursuant to Family Ct Act § 1061. The modified order must reflect a resolution consistent with the best interests of the child after consideration of all relevant facts and circumstances and must be supported by a sound and substantial basis in the record” (Matter of Yosepha K. [Chana D.], 165 A.D.3d 932, 933, 85 N.Y.S.3d 583 [2018] Although Family Court failed to articulate its reasoning for vacating the stay-away order of protection, there were several factors that led it to conclude that the court did not have good cause to do so. The decision to vacate the stay-away order of protection was made on the first day of trial and, the record should have been further developed before a determination was made as to whether it was in the child’s best interests to allow respondent unsupervised, overnight parenting time. This was particularly so given respondent’s ongoing, threatening behavior towards the mother and others via text message and on social media. In a footnote the Court pointed out that during the course of this dispute, respondent threatened multiple judges, posted on social media prior to an appearance that he was “getting ready to f*** up some justice and go to jail tomorrow,” posted a photo of himself pointing a rifle equipped with a scope – in violation of the terms of the stay-away order of protection – and posted, the night before the child’s interview with the psychologist, “I know where and when so I’m packed up and ready to take back what’s mine tomorrow. Thoughts and prayers.” Then, on the day of the interview, respondent posted that he was “waiting at [the psychologist’s location]. Started at 11:00 got about 45 minutes to an hour until the sh** hits the fan. You all deserve what you get.”
In her reports, the psychologist confirmed that she reviewed a series of emails and text messages between the parents and certain Facebook postings of respondent. The psychologist noted that the mother perceived respondent “as dangerous and threatening,” but did not produce any documentary proof of violence. The psychologist characterized respondent’s “behavior and statements [as] unconventional” and noted that “he has never been violent or caused harm to [the child] or [the mother].” The Courts concern with these observations was that domestic violence is not limited to physical violence. In its view, respondent’s behavior and threats were alarming and demonstrated a concerted effort to control and coerce the mother and others who were associated with this custody case. As such, it believed that respondent’s unabashed behavior evinced the hallmarks of domestic violence and should not have been diminished as simply “unconventional” (see e.g. www.opdv.gov/domestic-violence/what-is-domestic-violence.html; www.opdv.gov.publications/stalking-info guide). Given the need to further develop this record, it concluded that Family Court’s determination was premature and that good cause had not been shown to vacate the stay-away order of protection.
In a footnote the Appellate Division stated that it recognized that the record on appeal included petitioner’s order to show cause submission to it seeking a stay pending appeal, which included respondent’s text messages and Facebook postings. Respondent maintained that these documents were not presented to Family Court and should not be considered as outside the proper record on appeal (see CPLR 5526). The record was unclear as to whether these submissions were before Family Court. The Court pointed out that the general rule is that the Court may not consider matters outside the record, i.e., materials not presented to the trial court (see Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298, 361 N.Y.S.2d 140, 319 N.E.2d 408 [1974]). Respondent, however, acknowledged in his brief that “all the submissions ... were reviewed and considered by [the psychologist].” Correspondingly, the psychologist included a list of documents considered, including text messages and Facebook posts, and comments on certain of these items. Given this context, and the paramount issue of the child’s best interests, it held that it would consider this submission (see Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d at 298–299, 361 N.Y.S.2d 140, 319 N.E.2d 408; Callahan v. Cortland Mem. Hosp., 127 A.D.2d 921, 922, 512 N.Y.S.2d 281 [1987]).
Family Court
In dismissing Adult Adoption Petition, Family Court points out apparent inadequacy of the official forms promulgated for adult adoptions
In Matter of the Adoption of Jalyssa L.-J., 2019 WL 6711559 (Family Ct., 2019) a proceeding for the adoption of an adult child by her aunt, the prospective adoptive parent submitted a “Petition for Adult Adoption” (Adoption Form 29a) and a “Consent to Adult Adoption by Adoptee” (Adoption Form 29b). The only other papers submitted in support of the adoption were purported copies of the birth certificates for both the proposed adoptive parent and the adult adoptive child and a proposed Report of Adoption (Form DOH-1928) promulgated by the Department of Health to notify it of a completed adoption for the purpose of making a new birth certificate. See Public Health Law § 4138. Family Court dismissed the petition for failure to seek and obtain pre-certification as a qualified adoptive parent in accordance with Domestic Relations Law § 115-d, see DRL § 115(1)(b), and for failure to make any showing that the proposed adoption would be in the best interests of the child. Id. § 116(2). In dismissing the petition, the Court pointed out the apparent inadequacy of the official forms promulgated for adult adoptions. See Family Ct. Act § 214; Uniform Rules for the Fam Ct (22 NYCRR) § 205.7(a). It explained that while adult adoptions may be dealt with more liberally than child adoptions, they are subject to the same statutory law as other adoptions. Matter of Mazzeo, 95 AD2d 91, 92 (3d Dept 1983). The Court of Appeals has observed, “an adult adoption must still be in the best interests of the adoptive child and the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant must still be investigated. The Court explained that the only simplified statutory procedure for adult adoptions is the elimination of the requirement for the consent of the adoptive child’s legal parents and custodians. Matter of Anonymous, 106 Misc 2d 792, 797 (Fam Ct, Kings County 1981); see DRL § 111(4). However, the adult adoption petition form does more than simply remove the references to parental consent that are found in the standard form petition. The form also removes references to (1) the religious faith and income of the adoptive parent(s); (2) the religious faith of the adoptive child; (3) the heritage, religious faith, education and general physical appearance of the birth parents; (4) the adoptive child’s medical history; (5) the child protective history of the adoptive child and the adoptive parent(s); and (6) the criminal history of the adoptive child and the adoptive parent(s). All of this information is required either directly or indirectly by statute and is necessary to determine the best interests of the adult adoptive child. See DRL § 115, 115-d; 116; see also DRL § 112(3); 115(11).
December 1, 2019
New Website for Lawyers Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net) deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.
Recent Legislation
Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4)
Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve.
The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted.
However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant to Social Services Law § 111-I (2)(b).
The adjustment date of the maintenance income cap was changed so that the adjustments in the maintenance and child support income caps all occur at the same time.
Family Court Act § 412(2)(d) was amended to read as follows: (d) "income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 1, effective November 20, 2019) Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows: (5) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 2, effective November 20, 2019) Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows: (4) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 3, effective November 20, 2019)
Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act § 1028-a (i), effective October 29, 2019.
Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents, all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c) who meet Family Court Act § 1028-a requirements.
Family Court Act § 1028-a provides:
§ 1028-a. Application of a relative to become a foster parent
(a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if: (i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law; (ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care; (iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal; (iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and (v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed. (b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child. (c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent.
(Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.)
Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law
The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking such information.
Public Health Law § 4138-e provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law.
In addition, in the event that the commissioner does not have the original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1)
Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2)
Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3)
Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4)
Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5)
Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6)
Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7)
Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8)
Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the adoptive parents also be provided to the commissioner of health. (Section 9)
The effective date of the amendments is January 15, 2020. (Section 10)
Appellate Division, First Department
Appellate Division, Second Department
Second Department affirms judgment directing father to provide exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with ‘Hasidic’ religious requirements
In Cohen v Cohen, 2019 WL 6139488 (2d Dept.,2019) the parties were married in 2009 and had two children, born in 2011 and 2013. During the early years of the marriage, the parties practiced Satmar Hasidic Judaism. At a certain point, the defendant (father) became non-religious, although he continued to appear religious in his dress and customs. The parties separated in December 2016. In January 2017, the plaintiff (mother) commenced the action for a divorce. Following a nonjury trial, the Supreme Court awarded the mother sole physical and legal custody of the children, with parental access to the father. The father was directed to provide the children with exclusively kosher food and to make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The court emphasized that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access. The Appellate Division affirmed the custody award. It observed that when presented as an issue, religion may be considered as one of the factors in determining the best interests of a child, although it alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other.
The father challenged the Supreme Court’s direction that he provide the children with exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The father contended that this provision was unconstitutional and not in the children’s best interests, relying primarily on the Court’s decision in Weisberger v. Weisberger. 154 A.D.3d 41, 60 N.Y.S.3d 265.
The Appellate Division distinguished Weisberger, where the Supreme Court enforced a religious upbringing clause in the parties’ separation agreement by ordering that, during any period of parental access or during any appearance at the children’s schools, the mother “must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy,” or be relegated to supervised therapeutic visitation. On appeal in Weisberger, the Second Department determined that it was “wholly inappropriate to use supervised [parental access] as a tool to compel the plaintiff to comport herself in a particular religious manner”. This Court held that the Supreme Court had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide the children with a religious upbringing. Here, by contrast, the father was directed to make reasonable efforts to ensure the children’s compliance with their religious requirements. The Supreme Court expressly stated that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.
The Appellate Division pointed out that in the absence of a written agreement, the custodial parent may determine the religious training of the children. Since the mother was the custodial parent entitled to determine the children’s religious training, and since the children had consistently adhered to Hasidic practices throughout their lives, the Supreme Court providently exercised its discretion in directing the father to provide the children with exclusively kosher food and to make all reasonable efforts to ensure the children’s compliance with their religious requirements while they are in his physical custody. It emphasized, as did the Supreme Court, that the defendant was not required, at any time, to himself comply with any religious practices. It further emphasized that the standard was one of reasonable efforts, not perfection.
Husband who waive interest in wife’s degree, directed to contribute to wife’s student loan debt where attainment of degree did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage.
In Santamaria v Santamaria, --- N.Y.S.3d ----, 2019 WL 5945643, 2019 N.Y. Slip Op. 08239 (2d Dept.,2019) the parties were married on December 3, 2000, and had two children. The plaintiff-husband commenced the action for a divorce on August 2, 2013.
The Appellate Division held that Supreme Court providently exercised its discretion in awarding the plaintiff-husband a separate property credit of $332,000 related to the marital residence, and awarding the defendant a 50% share of any equity in the residence that accrued from 2002 until the date of its sale. The evidence at trial demonstrated that in 2002, the plaintiff’s mother transferred ownership of the subject property, where she resided, to the plaintiff and retained a life estate in the property. In 2010, after the death of plaintiff’s mother, the plaintiff transferred ownership of the property to himself and the defendant. At the time, the property was appraised at a value of $332,000. In 2011, after renovations were conducted, the parties and their children moved to the property, and it became the marital residence. The plaintiff’s conveyance of the home in 2010 to himself and the defendant presumptively changed the character of the home from separate property to marital property. It agreed with the court’s determination to award the plaintiff a separate property credit in the amount at which the residence was valued at the time the property was transferred to both parties. Furthermore, in light of the evidence that significant marital funds were used over the years to help preserve the plaintiff’s separate property asset, the court providently exercised its discretion in awarding the defendant 50% of any equity in the marital residence that accrued from 2002 until the date of its sale.
The Appellate Division held that considering the relevant factors, the Supreme Court should have awarded the defendant-wife maintenance of $750 per month, commencing December 15, 2015, for a period of four years or until she remarries. Thus, it modified the judgment of divorce accordingly.
The defendant contended that the Supreme Court improvidently exercised its discretion in awarding the plaintiff child support retroactive to the date of the commencement of the action, rather than the date of the judgment of divorce. She argued that during the litigation, the parties and their children resided together in the marital residence, and the children’s needs were provided for by both parties. Under the particular facts and circumstances of this case, the Appellate Division disagreed with the Supreme Court’s determination to award the plaintiff child support retroactive to the date of the commencement of the action. While the action was commenced on August 2, 2013, the plaintiff was not awarded residential custody of the children until the court issued an order dated November 18, 2015. The plaintiff failed to establish that he had de facto residential custody of the children at any earlier point in time. Thus, under these particular facts and circumstances, it found that the court should have awarded child support retroactive to November 18, 2015, the date of the custody order. In light of the financial circumstances of the parties, it agreed with the court’s determination directing the defendant to pay retroactive child support arrears at a rate of $150 per month, and not awarding the plaintiff statutory interest on the unpaid balance.
The Appellate Division agreed with the Supreme Courts direction to the plaintiff to pay $20,000 of defendant’s student loan debt. The plaintiff contended that the court should not have directed him to pay any portion of the defendant’s student loan debt, because he waived any interest in the defendant’s Bachelor’s degree, and the evidence failed to establish what portion of the loans was incurred during the marriage. It observed that a spouse is generally required to bear the obligation of repayment of the balance of a student loan taken out by that spouse during the course of the marriage where “no benefit inured to the marriage” (Heydt–Benjamin v. Heydt–Benjamin, 127 A.D.3d 814, 815, 6 N.Y.S.3d 582). Here, however, there was evidence that the defendant’s attainment of her Bachelor’s degree in business administration did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage. The testimony established that prior to obtaining her Bachelor’s degree, the defendant was only able to work in restaurants and a hotel as a waitress, earning a very limited salary. At the time of the trial, however, the defendant had been employed with Winston Staffing Services as a headhunter, earning a salary of $50,000 annually plus commissions. Although the plaintiff waived any interest in the defendant’s degree, the defendant’s enhanced earning ability did benefit the marriage, and it was not unreasonable for the Supreme Court to direct the plaintiff to pay a portion of the defendant’s student loans, which were incurred during the marriage and were owed since 2005. The evidence at trial demonstrated that the outstanding student loan balance was approximately $52,000, and that the majority of the student loans were incurred during the marriage. Thus, it agreed with the court’s determination to direct the plaintiff to pay $20,000 of the outstanding student loan debt.
Appellate Division, Fourth Department
Family Court erred when it determined that father’s alleged violation of the child support order was willful because it did not afford the father opportunity to be heard and present witnesses
In Matter of Green v Lafler, --- N.Y.S.3d ----, 2019 WL 6042451, 2019 N.Y. Slip Op. 08306 (4th Dept.,2019) the Appellate Division agree with the father that the court erred when it determined that the father’s alleged violation of the child support order was willful because it did not afford the father with the opportunity to be heard and present witnesses. Although “[n]o specific form of a hearing is required, ... at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 A.D.3d at 1105, 873 N.Y.S.2d 786. Moreover, “[i]t is well settled that neither a colloquy between a respondent and [the] [c]ourt nor between a respondent’s counsel and the court is sufficient to constitute the required hearing” (Davis, 104 A.D.3d at 1228, 960 N.Y.S.2d 806). None of the parties’ appearances on the violation petition consisted of an adducement of proof coupled with an opportunity to rebut it. At most, there was merely “a colloquy” between the father and Support Magistrate, which is insufficient to constitute the required hearing. Moreover, there was nothing in the record to establish that petitioner mother provided admissible evidence with respect to the father’s alleged willful failure to pay child support, nor was there any admissible evidence submitted by the Support Collection Unit. Also, the father was never given the opportunity to present evidence rebutting the allegations in the petition. It reversed the order and remitted the matter to Family Court for a hearing on the petition in compliance with Family Court Act § 433.
November 16, 2019
New Website for Lawyers Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net) deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.
Section 1400.2. Statement of client's rights and responsibilities
An attorney shall provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions, at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. The attorney shall obtain a signed acknowledgment of receipt from the client. The statement shall contain the following: STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully. If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case. An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability. You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship, to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney. If you are hiring an attorney you and your attorney are required to sign a written retainer agreement which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. Before you sign the retainer agreement, you are responsible to read it and ask the attorney any questions you have before you sign it. At your request, and before you sign the agreement, you are entitled to have your attorney clarify in writing any of its terms, or include additional provisions. You are entitled to fully understand the proposed rates and retainer fee before you sign a retainer agreement, as in any other contract. The retainer fee you pay to the attorney, as is written in the retainer agreement, may not be enough money to pay for all the time that the attorney works on your case. You may refuse to enter into any fee arrangement that you find unsatisfactory. An attorney may not request a fee that is contingent on the securing of a divorce or on the amount of money or property that may be obtained. An attorney may not request a retainer fee that is nonrefundable. That is, should you discharge the attorney, or should the attorney withdraw from the case with Court permission, before the retainer has been used up, the attorney is entitled to be paid commensurate with the work performed on your case and any expenses. The attorney must return to you any balance of the retainer that has not been used. However, the attorney may enter into a minimum fee arrangement with you that provides for the payment of a specific amount below which the fee will not fall based upon the attorney's handling of the case to its conclusion. You are entitled to know the approximate number of attorneys and other legal staff members who will be working on your case at any given time and what you will be charged for the services of each. You are entitled to know in advance how you will be asked to pay legal fees and expenses, and how the retainer, if any, will be spent. You may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so. The other party may be responsible to contribute to or to pay your attorney's fees, if the Court orders the other party to do so. However, if the other party fails to pay the Court ordered fee, you are still responsible for the fees owed to your attorney and experts in your case. You are required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party. If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees. At your request, and after your attorney has had a reasonable opportunity to investigate your case, you are entitled to be given an estimate of approximate future costs of your case. That estimate shall be made in good faith but may be subject to change due to facts and circumstances that develop during your case. There are no guarantees that the cost of your case will be as originally estimated. You are entitled to receive a written, itemized bill on a regular basis, at least every 60 days. You are expected to review the itemized bills sent to you by your attorney, and to raise any objections or errors in a timely manner in writing. Time spent in discussion or explanation of bills will not be charged to you. You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him. You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary. Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute. You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge. You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled. Your attorney's written retainer agreement must specify under what circumstances he or she might seek to withdraw as your attorney for nonpayment of legal fees. If an action or proceeding is pending, the court may give your attorney a “charging lien,” which entitles your attorney to payment for services already rendered at the end of the case out of the proceeds of the final order or judgment. In some cases your attorney may exercise a “retaining lien” which, subject to Court proceedings, may allow them to keep your file as security. You are under no legal obligation to sign a confession of judgment or promissory note, or to agree to a lien or mortgage on your home to pay for legal fees. Your attorney's written retainer agreement must specify whether, and under what circumstances, such security may be requested. In no event may such security interest be obtained by your attorney without prior court approval and notice to your adversary. An attorney's security interest in the marital residence cannot be foreclosed against you. You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed. If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it. Once your Judgment of Divorce is signed, if you are re-retaining an attorney you must sign a new retainer agreement. If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, that must be specified in the retainer agreement. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed. In the event of a fee dispute, you may have the right to seek arbitration pursuant to Part 137 of the Rules of the Chief Administrative Judge where the dispute involves a sum of more than $1,000.00 or less than $50,000.00 unless you agree otherwise. Your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request. Receipt Acknowledged: ___________________________________ Attorney's signature ___________________________________ Client's signature ___________________________________ Date Form 1400.2-1(2/19)
UNIFIED COURT SYSTEM OF THE STATE OF NEW YORK STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES (To be used only when representation is without fee)
An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully. If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case. An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability. You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney. Even though you are being represented by an attorney without fee, you may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so. Even though you are being represented by an attorney without fee, the other party may be responsible to contribute to or to pay your attorney's or expert fees in your case, if the Court orders the other party to do so. You may be required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party. The attorney will discuss this with you. If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees. You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him. You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary. Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute. You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge. You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled. You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed. If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it. If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, you may have to make arrangements with another attorney to do so, and if the attorney charges you a fee, you must sign a retainer agreement with the other attorney. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed. Receipt Acknowledged: ___________________________________ Attorney's signature ___________________________________ Client's signature ___________________________________ Date Form 1400.2-2(6/19)
Appellate Division, First Department
Appellants argument that he “simply forgot the date,” does not constitute a reasonable excuse for vacating a default.
In Krystal R. V Kriston L, 2019 WL 5876030 (1st Dept.,2019) the Appellate Divison held that, in refusing to vacate Respondents default, that he failed to demonstrate a reasonable excuse for his failure to appear at the hearing on the family offense petition (see CPLR 5015[a][1]). Although respondent contended that he was evicted a month before the hearing and subsequently lost his phone, he also admitted that he “simply forgot the date,” which does not constitute a reasonable excuse (see Matter of Jenny F. v. Felix C., 121 AD3d 413 [1st Dept 2014]). He was present during the scheduling of the hearing, and it was his responsibility to verify the date with his attorney or the Family Court itself (see e.g. Matter of Yadori Marie F. [Osvaldo F.], 111 AD3d 418, 419 [1st Dept 2013]).
Whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness. Support Magistrate not required to address probation as an additional enforcement remedy where raised by Support Magistrate
In Matter of Eve S.P., v. Steven N.S., --- N.Y.S.3d ----, 2019 WL 5876171, 2019 N.Y. Slip Op. 08130 (1st Dept.,2019) an enforcement proceeding, the Appellate Division found that by submitting evidence that respondent was delinquent in his support payments (see Family Court Act § 454[3][a]), petitioner established prima facie that respondent willfully violated his child support obligations. It held that whether respondent eventually satisfied his arrears had no bearing on the court’s finding of willfulness (see Matter of Shkaf v. Shkaf, 162 AD3d 1152, 1155 [3d Dept 2018]), particularly in light of his previous violations of his support obligations.
The Appellate Division rejected Petitioners argument that, in addition to entering a money judgment against respondent for the arrears, the support magistrate was required to address probation as an additional enforcement remedy, and that the support magistrate’s failure to set forth the “facts and circumstances” on which the decision not to place respondent on probation was based violated FCA § 454(4). Section 454(4) provides, “The court shall not deny any request for relief pursuant to this section unless the facts and circumstances constituting the reasons for its determination are set forth in a written memorandum of decision.” The Court held that probation is a matter within the sound discretion of Family Court (Matter of Delaware County Dept. of Social Servs. v. Brooker, 272 A.D.2d 835, 836 [3d Dept 2000], citing FCA § 454[3][a]). The record showed that the possibility of placing respondent on probation was first raised by the support magistrate. Petitioner cited no authority in support of her contention that the support magistrate’s aforementioned omission amounted to a statutory violation requiring remand for further proceedings.
“Very high burden” necessary for challenging prenuptial agreement
In DiPietro v Vatsky, --- N.Y.S.3d ----, 2019 WL 5791626, 2019 N.Y. Slip Op. 07989 (1st Dept.,2019) the Appellate Division held that Defendant husband’s efforts to meet his “very high burden” for challenging the parties’ prenuptial agreement failed (Anonymous v. Anonymous, 123 A.D.3d 581, 582, 999 N.Y.S.2d 386 [1st Dept. 2014]). The parties, both educated and savvy professionals with significant assets of their own, were each represented by independent counsel, and entered into the prenuptial agreement after a period of negotiations several months before the marriage. Plaintiff’s alleged failure to disclose did not provide a ground to set aside the prenuptial agreement particularly, here, where defendant proceeded to execute the prenuptial agreement despite his claim that plaintiff refused to supply him with financial documents. It agreed with the motion court that the prenuptial agreement and its amendments were not the product of overreaching. The prenuptial agreement, which included joint waivers of maintenance, the right to equitable distribution, and the right to election, was not so “manifestly unfair” as to warrant equity’s intervention. Although the transfer of defendant’s house to plaintiff may not have been in his best financial interest, defendant’s attorney made his objection to this provision abundantly clear. Defendant proceeded to execute the prenuptial agreement over his attorney’s objection. Thus, even if, in retrospect, this specific provision was improvident or one-sided, it did not provide a ground to vitiate the prenuptial agreement.
Appellate Division, Second Department
An award of counsel fees under Family Ct Act ' 438 should be based upon the totality of the circumstances, including the equities and circumstances of each particular case
In Roberts v Roberts, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5581904, 2019 N.Y. Slip Op. 07787(2d Dept.,2019) the father filed a petition for a downward modification of his maintenance and child support obligations. Following a hearing, the court dismissed the father=s petition, granted the mother=s attorney counsel fees, and directed the entry of a money judgment in favor of the mother=s attorney and against the father in the sum of $9,221.25. The Appellate Division affirmed. It observed that a court may allow counsel fees at any stage of a proceeding under Family Court Act article 4 (see Family Ct Act ' 438). In determining an appropriate award of counsel fees, the court must consider factors such as 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. Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case. Under the totality of the circumstances of this case, the mother was entitled to an award of counsel fees, and the Support Magistrate did not improvidently exercise her discretion in directing the entry of a money judgment in favor of the mother=s attorney.
Unless it can be shown that the trial court improvidently exercised that discretion, its equitable distribution determination should not be disturbed
In Ambrose v Ambrose, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5582047, 2019 N.Y. Slip Op. 077577 (2d Dept.,2019) the parties were married in January 2012, and were the parents of one child, born in 2013. In October 2015, the plaintiff commenced the action for a divorce. The Appellate Division held, inter alai, that Supreme Court did not improvidently exercise its discretion in denying the defendant a distributive share of the plaintiff=s retirement assets. The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed. Upon consideration of the relevant statutory factors and all of the attendant circumstances, including, inter alia, the short duration of the parties= marriage, the age and health of the parties, and that the defendant was awarded full title to her nonvested retirement assets, which were also subject to equitable distribution, there was no basis upon which to disturb the court=s determination.
Appellate Division, Fourth Department
Written notice of counsel’s motion to withdraw is required. Purported withdrawal without proof that reasonable notice was given is ineffective
In Matter of Gonzalez v Bebee, --- N.Y.S.3d ----, 2019 WL 5850893 (Mem), 2019 N.Y. Slip Op. 08027 (4th Dept.,2019) the Appellate Division reversed an order which inter alia, sentenced respondent to jail for contempt of court and an order , in effect, confirmed the determination of the Support Magistrate, upon the father’s purported default, that he willfully violated a prior child support order and directed that he be incarcerated. It held that the Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client ... [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” (Matter of Williams v. Lewis, 258 A.D.2d 974, 974, 685 N.Y.S.2d 382 [4th Dept. 1999]; see CPLR 321[b][2]; Matter of La’Derrick W., 63 A.D.3d 1538, 1539, 880 N.Y.S.2d 805 [4th Dept. 2009]). The father’s attorney did not make a written motion to withdraw. Counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321(b)(2) rendered the Support Magistrate’s finding of default improper, and Family Court thus erred in confirming those findings. It remitted the matter to Family Court for the assignment of new counsel and a new hearing on the violation petition of petitioner mother.
November 1, 2019
Appellate Division, Second Department
Forensic Report property admitted in custody case pursuant to 22 NYCRR 202.16(g)
Comment: The Court of Appeals has held that forensic reports are not admissible in custody cases unless they are admitted pursuant to stipulation or upon consent of the parties. Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962). However, 22 NYCRR 202.16(g)(2) provides that in the discretion of the court, written expert reports may be used to substitute for direct testimony at the trial. The reports must be submitted by the expert under oath, and the expert must be present and available for cross-examination. To be admissible the forensic report can not rely upon information other than that upon which an expert may properly base an opinion. see Jemmott v. Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840; Wagman v. Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421).Matter of D'Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169 (A.D. 2 Dept.2005)
In Matter of Raymond v Raymond, 174 A.D.3d 625, 107 N.Y.S.3d 433, 2019 N.Y. Slip Op. 05546 (2d Dept., 2019) the mother filed a petition seeking sole custody of the parties’ only child, who resided with her. The father initially was awarded parental access every weekend. He subsequently filed a petition seeking increased parental access. Family Court granted the mother’s petition and denied the father’s petition. The Appellate Division agreed with the Family Court’s determination to admit the forensic report into evidence. The parties received access to the report well in advance of the scheduled hearing, the forensic evaluator testified and was cross-examined by the parties at the hearing, the parties had the opportunity to rebut the forensic evaluator’s findings, and the conclusions in the report were based primarily on the forensic evaluator’s firsthand interviews rather than on hearsay statements made by nontestifying declarants.
Appellate Divison holds that test generally applied for setting combined parental income cap is whether child is receiving enough to meet his or her actual needs and the amount required to live an appropriate lifestyle
In Pandis v Lapas, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057564, 2019 N.Y. Slip Op. 07267(2d Dept.,2019) the parties were married in 1992. There were two children of the marriage, S.P., born in 1999, and N.P., born in 2005. The plaintiff commenced this action for divorce on January 9, 2012. Supreme Court awarded the defendant sole custody of the children, and declined to direct any parental access between the plaintiff and the children. In terms of child support, the court set the combined parental income cap at $250,000. The court directed the plaintiff to pay child support of $3,593.75 per month, which was 69% of the basic child support for the two children. The court also directed the plaintiff to pay 69% of the childrens add‑on expenses, including private school tuition and college tuition. The Appellate Division held, among other things, that Supreme Court did not err in setting the combined parental income cap for child support purposes at $250,000. Where the combined parental income exceeds the [statutory cap], the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in [Domestic Relations Law 240(1b)(f)] and/or the child support percentage (Domestic Relations Law 240[1b][c][3]. The test generally applied is whether the child is receiving enough to meet his or her actual needs and the amount required ... to live an appropriate lifestyle
Party must demonstrate exigent or compelling circumstances supporting request for an adjournment to obtain counsel at late stage in the hearing
In Matter of Eckstein v Young, 2019 WL 5057835 (2d Dept., 2019) the Appellate Division affirmed an order which granted the mother custody and permission to relocate to Connecticut. The Appellate Division, inter alia, rejected the fathers argument that he was denied the right to counsel. The right to be represented by counsel of ones own choosing is qualified in the sense that a party may not employ such right as a means to delay judicial proceedings. Absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a partys request to substitute counsel made on the eve of or during trial if the party has been accorded a reasonable opportunity to retain counsel of his [or her] own choosing before that time. Family Court providently exercised its discretion in denying the fathers request for an adjournment to obtain new counsel When the father requested this adjournment, the hearing had been ongoing for three years; the father had finished presenting his case, including testifying on his own behalf and calling two witnesses, and the mother had completed most of her case, including testifying on her own behalf on six dates and calling two witnesses. The father failed to demonstrate that there were exigent or compelling circumstances supporting his request for an adjournment at this late stage in the hearing, and given that the father was represented for the first several years of the proceedings, there is no indication that he lacked a reasonable opportunity to retain counsel before the date on which he requested the adjournment.
Mothers willful interference with fathers right to parental access] so inconsistent with the best interests of the child as to, warrant custody award to father, despite forensic evaluator recommending custody to mother
In Matter of Nieves v Nieves, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057657, 2019 N.Y. Slip Op. 07261 (2d Dept.,2019) Family Court, denied the mothers petition for sole legal and physical custody of the parties child and granted the fathers petition for sole legal and physical custody of the child. The Appellate Division affirmed. In September 2016, a court‑appointed forensic evaluator prepared a forensic evaluation, noting extensive evidence that the mother and the stepfather had engaged in behavior intended to alienate the child from the father. Despite this evidence, as well as other concerns regarding the mothers parenting, the forensic evaluator recommended against awarding custody to the father on the ground that it would be devastat[ing] to the child. Family Court concluded that despite the forensic evaluators recommendation, subsequent events warranted awarding sole custody to the father on the ground, among others, that he was better able to foster the childs relationship with the noncustodial parent. The Appellate Division observed that [w]illful interference with a noncustodial parents right to [parental access] is 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 a custodial parent. The record was replete with evidence of the efforts of the mother and the stepfather to thwart the fathers parental access and alienate the child from the father. The mother and the stepfather appeared to be punish[ing the child] for having a relationship with [him] by, inter alia, forcing the child to take telephone and video calls with the father outdoors, even in inclement weather, taking a tablet that had been provided by the father to facilitate the video calls and that the stepfather claimed was garbage, and confiscating gifts from the father. The mother and the stepfather also repeatedly refused to cooperate with travel plans, and the father, among other things, had to seek a writ of habeas corpus to bring the child to the airport for a planned visit. Moreover, the mother and the stepfather disparaged the father and his family to the child and caused the child to worry that the mother would not permit him to continue a relationship with the father. This conduct was so inconsistent with the childs best interests as to warrant awarding sole legal and physical custody to the father, notwithstanding the fact that the mother had been the primary custodian. Further, as the court observed, at the time the forensic evaluator made his recommendation that a change of custody would be detrimental to the child, the relationship between the father and the child was extremely tenuous, whereas, due to the extended visits, they subsequently developed a solid relationship.
October 16, 2016
Appellate Division, Second Department
In 9-year, marriage 42-year-old wife, incapable of maintaining employment because of symptoms experienced as result of multiple sclerosis, awarded maintenance until age 67
In Murphy v Murphy, --- N.Y.S.3d ----, 2019 WL 4656304, 2019 N.Y. Slip Op. 06780 (2d Dept.,2019) the parties were married on September 18, 2004, and had no children together. Prior to the marriage, the plaintiff was diagnosed with multiple sclerosis. On March 19, 2013, the plaintiff commenced the action for a divorce. The parties entered into a stipulation in which they resolved, inter alia, the issue of equitable distribution. At the time of trial, the plaintiff was 42 years old and the defendant was 47 years old. After the trial, the court determined, inter alia, that the plaintiff was incapable of maintaining employment because of the symptoms she experienced as a result of multiple sclerosis, and awarded the plaintiff maintenance of $10,760 per month commencing June 1, 2016, and terminating the first of the month after the plaintiff turns 67 years old. The Appellate Division affirmed. It was undisputed that the plaintiff was diagnosed with multiple sclerosis, which is a chronic and incurable autoimmune disease, as well as another autoimmune disorder, Hassimoto’s thyroiditis. At trial, the plaintiff’s evidence demonstrated that she experienced numerous symptoms as a result of multiple sclerosis and the treatment that she received for this disease, and that these symptoms interfered with her ability to work. The fact that the plaintiff wrote and self-published a book during the marriage, which took her 10 years to complete and for which she earned no income, did not warrant a different result. However, the Supreme Court should have directed that, in the event that either party dies or the plaintiff remarries during the period when the defendant is obligated to pay maintenance, that obligation terminates (see Domestic Relations Law § 236[B][1][a]).
Custody order reversed where attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child
In Matter of David v LoPresti, --- N.Y.S.3d ----, 2019 WL 4849301, 2019 N.Y. Slip Op. 07066 (2d Dept.,2019) the mother and the father were divorced in 2015 and had one child, born in 2008. Pursuant to a stipulation the parties agreed to joint legal custody of the child with the mother having primary physical custody. In 2018, the mother moved to modify the stipulation so as to allow her to temporarily relocate with the child from Queens, New York, to New Orleans, Louisiana, for a period of two years, while she completed a fellowship program at Tulane University School of Medicine. Since the mother’s fellowship commenced prior to the hearing on the petition, she was constrained to move to Louisiana without the child, and the child stayed with the father in New York. Following the hearing, the Family Court, in effect, denied the mother’s petition and awarded physical custody of the child to the father and parental access to the mother. The Appellate Division reversed and remitted for a new hearing. It found that the record was insufficient to allow it to make a fully informed determination as to whether relocation was in the child’s best interests. Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child “zealously advocate the child’s position. The Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court” (Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093, 882 N.Y.S.2d 773; see Family Ct Act § 241). Moreover, despite the fact that it was not made aware of the child’s position through the attorney for the child, the court did not meet in camera with the child to aid it in determining her best interests. Under the circumstances of this case, including that the mother was the child’s primary caregiver since birth and that the relocation was temporary, the denial of the petition absent any indication of the child’s preferences was not supported by a sound and substantial basis in the record, and the record was insufficient to enable the Court to make its own determination of the petition. Additionally, the mother was improperly prevented by the Court Attorney Referee from presenting evidence on her petition relevant to, inter alia, the mother’s reasons for seeking the move and the impact the move would have on the child economically and educationally.
The Appellate Division also found that the mother’s petition was for permission to relocate temporarily, and the father withdrew his cross petition for physical custody. Thus, there was no request pending before the court for a permanent change of custody, nor was there a showing that such a permanent change of custody would be in the child’s best interests.
Appellate Divison rejects mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.”
In Matter of Liriano v Hotaki, --- N.Y.S.3d ----, 2019 WL 4849282, 2019 N.Y. Slip Op. 07071 (2d Dept.,2019) the Family Court denied in part the mothers petition to modify the custody order so as to require that the father’s parental access with the child be supervised and by conditioning the father’s right to parental access on his participation in therapy. The court also directed that the mother was “not to cancel the visit except for substantial medical reason involving the child.” The Appellate Division affirmed. It, among other things, rejected the mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.” The Appellate Division observed that this is a fairly standard limitation (see Parenting Plan, ¶ 2.12, available at www.nycourts.gov/forms/matrimonial/ParentingPlanForm.pdf [last accessed September 12, 2019]). It held that the court’s determination that it was in the child’s best interests to limit the mother’s ability to cancel scheduled visits to instances of “substantial medical reason involving the child” was supported by a sound and substantial basis in the record (cf. Matter of Michael R. v. Aliesha H., 155 A.D.3d 1042, 1044, 66 N.Y.S.3d 39).
Appellate Divison holds it is an improvident exercise of discretion to direct that school, religious, or extracurricular activities of the children are always to take precedence over father’s parental access
In Matter of Cuccia-Terranova v. Terranova, 174 A.D.3d 528, 107 N.Y.S.3d 28, 2019 N.Y. Slip Op. 05401 (2d Dept., 2019) the Appellate Division held that under the circumstances of this case, it was an improvident exercise of discretion to direct that the school, religious, or extracurricular activities of the children are always to take precedence over the father’s parental access, particularly since the mother was permitted to unilaterally determine the children’s non-school activities without prior consultation with the father, and she had asserted that the children were so busy that establishing a fixed schedule would be difficult. In this context, the provision giving primacy to other activities could result in an undue curtailment of the father’s parental access. Similarly, it was an improvident exercise of discretion to preclude make-up parental access in the event that the father, or the children, were unable to participate in scheduled parental access for good cause.
October 1, 2016
Appellate Division, Second Department
In 9-year, marriage 42-year-old wife, incapable of maintaining employment because of symptoms experienced as result of multiple sclerosis, awarded maintenance until age 67
In Murphy v Murphy, --- N.Y.S.3d ----, 2019 WL 4656304, 2019 N.Y. Slip Op. 06780 (2d Dept.,2019) the parties were married on September 18, 2004, and had no children together. Prior to the marriage, the plaintiff was diagnosed with multiple sclerosis. On March 19, 2013, the plaintiff commenced the action for a divorce. The parties entered into a stipulation in which they resolved, inter alia, the issue of equitable distribution. At the time of trial, the plaintiff was 42 years old and the defendant was 47 years old. After the trial, the court determined, inter alia, that the plaintiff was incapable of maintaining employment because of the symptoms she experienced as a result of multiple sclerosis, and awarded the plaintiff maintenance of $10,760 per month commencing June 1, 2016, and terminating the first of the month after the plaintiff turns 67 years old. The Appellate Division affirmed. It was undisputed that the plaintiff was diagnosed with multiple sclerosis, which is a chronic and incurable autoimmune disease, as well as another autoimmune disorder, Hassimoto’s thyroiditis. At trial, the plaintiff’s evidence demonstrated that she experienced numerous symptoms as a result of multiple sclerosis and the treatment that she received for this disease, and that these symptoms interfered with her ability to work. The fact that the plaintiff wrote and self-published a book during the marriage, which took her 10 years to complete and for which she earned no income, did not warrant a different result. However, the Supreme Court should have directed that, in the event that either party dies or the plaintiff remarries during the period when the defendant is obligated to pay maintenance, that obligation terminates (see Domestic Relations Law § 236[B][1][a]).
Custody order reversed where attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child
In Matter of David v LoPresti, --- N.Y.S.3d ----, 2019 WL 4849301, 2019 N.Y. Slip Op. 07066 (2d Dept.,2019) the mother and the father were divorced in 2015 and had one child, born in 2008. Pursuant to a stipulation the parties agreed to joint legal custody of the child with the mother having primary physical custody. In 2018, the mother moved to modify the stipulation so as to allow her to temporarily relocate with the child from Queens, New York, to New Orleans, Louisiana, for a period of two years, while she completed a fellowship program at Tulane University School of Medicine. Since the mother’s fellowship commenced prior to the hearing on the petition, she was constrained to move to Louisiana without the child, and the child stayed with the father in New York. Following the hearing, the Family Court, in effect, denied the mother’s petition and awarded physical custody of the child to the father and parental access to the mother. The Appellate Division reversed and remitted for a new hearing. It found that the record was insufficient to allow it to make a fully informed determination as to whether relocation was in the child’s best interests. Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child “zealously advocate the child’s position. The Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court” (Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093, 882 N.Y.S.2d 773; see Family Ct Act § 241). Moreover, despite the fact that it was not made aware of the child’s position through the attorney for the child, the court did not meet in camera with the child to aid it in determining her best interests. Under the circumstances of this case, including that the mother was the child’s primary caregiver since birth and that the relocation was temporary, the denial of the petition absent any indication of the child’s preferences was not supported by a sound and substantial basis in the record, and the record was insufficient to enable the Court to make its own determination of the petition. Additionally, the mother was improperly prevented by the Court Attorney Referee from presenting evidence on her petition relevant to, inter alia, the mother’s reasons for seeking the move and the impact the move would have on the child economically and educationally.
The Appellate Division also found that the mother’s petition was for permission to relocate temporarily, and the father withdrew his cross petition for physical custody. Thus, there was no request pending before the court for a permanent change of custody, nor was there a showing that such a permanent change of custody would be in the child’s best interests.
Appellate Divison rejects mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.”
In Matter of Liriano v Hotaki, --- N.Y.S.3d ----, 2019 WL 4849282, 2019 N.Y. Slip Op. 07071 (2d Dept.,2019) the Family Court denied in part the mothers petition to modify the custody order so as to require that the father’s parental access with the child be supervised and by conditioning the father’s right to parental access on his participation in therapy. The court also directed that the mother was “not to cancel the visit except for substantial medical reason involving the child.” The Appellate Division affirmed. It, among other things, rejected the mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.” The Appellate Division observed that this is a fairly standard limitation (see Parenting Plan, ¶ 2.12, available at www.nycourts.gov/forms/matrimonial/ParentingPlanForm.pdf [last accessed September 12, 2019]). It held that the court’s determination that it was in the child’s best interests to limit the mother’s ability to cancel scheduled visits to instances of “substantial medical reason involving the child” was supported by a sound and substantial basis in the record (cf. Matter of Michael R. v. Aliesha H., 155 A.D.3d 1042, 1044, 66 N.Y.S.3d 39).
Appellate Divison holds it is an improvident exercise of discretion to direct that school, religious, or extracurricular activities of the children are always to take precedence over father’s parental access
In Matter of Cuccia-Terranova v. Terranova, 174 A.D.3d 528, 107 N.Y.S.3d 28, 2019 N.Y. Slip Op. 05401 (2d Dept., 2019) the Appellate Division held that under the circumstances of this case, it was an improvident exercise of discretion to direct that the school, religious, or extracurricular activities of the children are always to take precedence over the father’s parental access, particularly since the mother was permitted to unilaterally determine the children’s non-school activities without prior consultation with the father, and she had asserted that the children were so busy that establishing a fixed schedule would be difficult. In this context, the provision giving primacy to other activities could result in an undue curtailment of the father’s parental access. Similarly, it was an improvident exercise of discretion to preclude make-up parental access in the event that the father, or the children, were unable to participate in scheduled parental access for good cause.
September 16, 2019
Recent Legislation
Laws of 2019, Ch 258, effective September 16, 2019
Laws of 2019, Ch 258, enacted September 16, 2019 amended Domestic Relations Law §110 by adding a new closing paragraph which provides: A petition to adopt, where the petitioner's parentage is legally-recognized under New York State law, shall not be denied solely on the basis that the petitioner's parentage is already legally-recognized.
According to the Assembly Memorandum in support of the Legislation, under existing New York law, judges already have the ability to grant an adoption of a child by a petitioner whose parentage is already legally-recognized. These adoptions are routinely granted and can be very important for many same-sex couples and their children. While the spouse of a woman who gives birth to a child is presumed to be the child's parent, same-sex couples find themselves in a legally precarious position when traveling in places that do not fully respect the rights of non-biological parents even when they are married. A New York adoption would be honored in another jurisdiction, and afforded full faith and credit. This gives children the security that both their parents will be legally recognized wherever family members may be.
Laws of 2019, Ch 313 effective September 13, 2019
Laws of 2019, Ch 313 enacted September 13, 2019 amended the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that the incarceration of the child support obligor is not to be treated as voluntary unemployment in either the establishment or modification of a support order unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. The amendments provide that incarceration shall not be a bar to establish a substantial change in circumstances, barring these exceptions. (amendments are underlined below)
Domestic Relations Law § 240 (1-b) (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. The amendment reads as follows:
(v) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; provided that incarceration shall not be considered voluntary unemployment, unless such incarceration is the result of non- payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment;
Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.
Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows:
(i) 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. Incarceration shall not be considered voluntary unemployment and shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.
Family Court Act § 413 subd. 1 (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations.
Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows:
(v) an amount imputed as income based upon the parent’s former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent’s obligation for child support; provided that incarceration shall not be considered voluntary unemployment, unless such incarceration is the result of non- payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment;
Family Court Act § 451 subd. 3 (a) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.
Family Court Act § 451 subd. 3 (a) was amended to read as follows:
(a) 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. Incarceration shall not be considered voluntary unemployment and shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.
Social Services Law§ 111-g, subd. 3 (a) was amended to comply with the mandatory provision of the federal Bipartisan Budget Act of 2018 to increase from $25 to $35 the annual service fee for providing child support services in the case of an individual who has never received Title IV-A assistance. In addition, the Social Services Lawwas amended to comply with the federal requirement to increase from $500 to $550 the amount of support that the State must collect and disburse to the family prior to imposing the fee for each federal fiscal year.
Social Services Law § 111-g, subd. 3 (a) was amended to read as follows:
(a) A person who is receiving child support services pursuant to this section who has never received assistance pursuant to title IV-A of the federal social security act shall be subject to an annual service fee of thirty-five dollars for each child support case if at least five hundred fifty dollars of support has been collected in the federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent shall be a separate child support case for the purpose of imposing an annual service fee. The fee shall be deducted from child support payments received on behalf of the individual receiving services.
According to the Assembly Memorandum in support of the Legislation, the bill implements federal requirements and provides that incarceration shall not be a bar to establish a substantial change in circumstance, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Because incarceration cannot be treated as voluntary unemployment (except in the enumerated circumstances), support awards for incarcerated individuals will not be imputed from pre-incarceration earnings. Instead, modification would be based on the incarcerated individual's current financial circumstances. If there is a basis for a modification, the child support guidelines would be applied to the incarcerated individual's current income and assets to determine his or her new support obligation. While incarceration itself would not be grounds for a modification, any significant reduction in the noncustodial parent's ability to pay support could be the basis of a downward modification (except in the enumerated circumstances).
Appellate Division, First Department
Support Magistrate's failure to make a recommendation as to incarceration upon finding of willfulness constitutes recommendation against incarceration. Summary of alleged arrears, admitted into evidence without testimony or supporting documentation is hearsay, and not competent evidence.
In Matter of Michael R v Amanda R, ___AD3d___, 2019 WL 4264401 (1st Dept., 2019) the first and only day of trial on the father’s enforcement petition took place on February 2, 2016 before the Support Magistrate. On that date, the father offered into evidence, without objection, his typewritten summary of the amount that he claimed the mother then owed for basic child support and for her share of the children’s add-on expenses. The father’s summary alleged that the mother owed total arrears of $63,003.53, from October 15, 2012 through November 1, 2015. However, he did not testify or present any documentation or other evidence to support the numbers in his chart. The mother testified as to her income, employment, and payment of child support and add-on expenses, and put into evidence, without objection, the parties’ child support stipulation her tax returns for 2012 through 2014, a letter of employment, documentation of unemployment benefits she had received, and her financial disclosure affidavit. At the end of the day, the court adjourned the proceeding during the mother’s testimony. The court never took further testimony. Subsequently, the court granted the father’s motion pursuant to CPLR 3126 for an order of preclusion against” the mother for failure to provide post trial disclosure.
On or about December 7, 2017, the Support Magistrate issued findings of fact, an order of disposition, and an “Order Entry Money Judgment.” The findings of fact stated that the mother’s testimony and evidence at trial are stricken, based on the preclusion order. They state that neither party “submitted proof of income, expenses, or support of others.” They also state that the mother owed the father arrears totaling $123,720.98, apparently based solely on the father’s “alleged statement of arrears” submitted to the Support Magistrate on a date when no testimony was taken, and no exhibits received in evidence. The order of disposition and the “Order Entry Money Judgment” directed entry of a money judgment against the mother in the amount of $123,720.98. In addition, the “Order Entry Money Judgment” directed the mother to pay the father’s attorney $4,680 as counsel fees. The findings and the two orders each contained a determination that the mother had willfully violated an order of support dated April 25, 2014, although that order was not in evidence. On February 8, 2018, the father and counsel for each party appeared before the Family Court Judge, who issued a warrant directing that the mother be brought before the court, and stated, “And at that time when [the mother] is returned before this Court on that warrant, this Court will then determine ... how this Court should proceed.”
After Family Court denied the mother’s objections to the Support Magistrate’s findings of fact and orders entered on December 7, 2017 the Mother appealed and the Appellate Division reversed. It held that a party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for post-trial discovery. Nor did the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. It held that in view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.
The Court noted that the Family Court Rules require that a support magistrate's fact findings that include a finding of willfulness “shall include ... a recommendation regarding the sanctions that should be imposed, including a recommendation whether the sanction of incarceration is recommended” (22 NYCRR 205.43[g]). A support magistrate's written findings of facts must be issued within five days of the conclusion of a willfulness hearing (22 NYCRR 205.43[f]). It had previously held that a “Support Magistrate's failure to make a recommendation as to incarceration upon [a] finding of willfulness essentially constituted a recommendation against incarceration” (Matter of Carmen R. v. Luis I., 160 A.D.3d 460, 462, 74 N.Y.S.3d 37 [1st Dept. 2018]). Here, neither the Support Magistrate's findings of facts issued on or about December 7, 2017 nor any other document in the record contained a recommendation as to incarceration or a cure amount. It was not clear why the Family Court Judge before whom the parties appeared on February 8, 2018 stated on the record that she “believe[d]” that he had made such a recommendation. In addition, the attorneys for both parties each confirmed on the record that they were unaware that the Support Magistrate had made such a recommendation. Therefore, it was clear that no recommendation had been “transmitted to the parties” with the findings of facts. Moreover, there was no order in the record in which a Family Court Judge confirmed any recommendation by the Support Magistrate as to incarceration. Accordingly, Family Court erred in making a finding in its March 20, 2018 order that the Support Magistrate had made such a recommendation.
The Appellate Division held that Family Court erred in denying the mothers objections on the basis that the mother’s counsel failed to file a proper affidavit of service. Any error in the affidavit of service was inadvertent and did not prejudice the father. Family Court Act § 439(e) provides that a party filing objections must serve those objections upon the opposing party, and that proof of service must be filed with the court at the time that the party’s objections are filed. Here, the father did not argue either that the mother failed to serve the objections on him or that he suffered any prejudice. Accordingly, despite the mother’s attorney’s sloppy drafting, the Family Court should have addressed the merits of the mother’s objections (Matter of Worner v. Gavin, 112 AD3d 956, 957 [2d Dept 2013]; Matter of Nash v. Yablon–Nash, 106 AD3d 740, 741 [2d Dept 2013]; Matter of Perez v. Villamil, 19 AD3d 501 [2d Dept 2005] ).
The Appellate Division further held that because the Support Magistrate had struck all of the mother’s testimony and evidence, including a copy of the parties’ child support agreement, the only evidence supporting the father’s claims was his summary of alleged arrears, admitted into evidence without testimony or supporting documentation on the single day of trial. The summary itself was hearsay, and was not competent evidence of the mother’s obligation to pay child support or that she failed to pay any sums she was obligated to pay. Nor was it clear and convincing evidence of respondent’s willful failure to pay such sums. Moreover, the summary apparently relied on by the Support Magistrate, which the father provided to the court on a later date when no testimony was taken or evidence entered, was not evidence at all.
The Appellate Division reversed on the law and vacated the order which granted a preclusion order against respondent mother; reversed the order which, upon the finding that the mother willfully violated a child support order, directed entry of a money judgment and directed the mother to pay petitioner father's counsel fees; reversed the order which denied the mother's objections, on the law, without costs, and remanded the matter remanded for further proceedings consistent with its order. Finally, the Appellate Division held that no appeal lies from a warrant of arrest which is a non appealable paper. (see Holubar v. Holubar, 2011 N.Y. Slip Op 66140[U] [2d Dept 2011]; CPLR 5701) and dismissed the appeal from that order.
September 1, 2019
Recent Legislation
Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that There is a rebuttable presumption that it is not in the best interests of the child to be placed in the custody of or have unsupervised visits with a person who has been convicted of a felony sex offense, as defined in section 70.80 of the penal law, or convicted of an offense in another jurisdiction which, if committed in this state, would constitute such a felony sex offense, where the victim of such offense was the child who is the subject of the proceeding.►Laws of 2019, Ch 182, &s;§1, effective September 22, 2019. Family Court Act §651 (a) was amended by Laws of 2019, Ch 182, &s;read as follows:
When referred from the supreme court or county court to the family court, the family court has jurisdiction to determine, in accordance with subdivisions one and one-c of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors.Laws of 2019, Ch 182, &s;§2, effective September 22, 2019.
Appellate Division, Fourth Department
Mother’s Refusal to Believe Child’s Disclosure of Sexual Abuse and Her Continued Commitment to Alleged Abuser Rendered Her Unfit to Have Custody of Child
In Matter of Edmonds v Lewis, --- N.Y.S.3d ----, 2019 WL 3955058, 2019 N.Y. Slip Op. 06316 (4th Dept., 2019) the Appellate Division affirmed an order which granted the fathers motion to modify a prior joint custody order so as to grant him sole custody of child and granted the mother supervised visitation with child. The parties were the parents of a child born in 2012. In October 2015, they stipulated to a joint custody order that granted primary physical residence of the child to the father and visitation to the mother. The mother’s visitation was suspended in May 2016, following the child’s disclosure of sexual abuse by the mother’s boyfriend. After the mother agreed to keep her boyfriend away from the child, Family Court granted the mother supervised visitation. In December 2016, however, the court temporarily suspended that visitation and, as of March 2017, the mother’s visitation had not resumed. The Appellate Division found a sound and substantial basis in the record to support the court’s determination. The mother’s refusal to believe the child’s disclosure of sexual abuse and her continued commitment to the alleged abuser rendered her unfit to have custody of the child. The quality of the home environment of the father was superior to that of the mother inasmuch as the mother resided in a one-bedroom apartment with the alleged abuser. The record established that the father, who was attentive to the child’s disclosures of abuse, was better able to provide for the child’s emotional and intellectual development and that the court’s determination aligned with the child’s desires. It rejected the mother’s contention that the court erred in directing that her visitation be supervised. “Supervised visitation is a matter left to the sound discretion of the court and will not be disturbed where ... there is a sound and substantial basis in the record to support such visitation”. Here, the record established that the mother repeatedly put the child at risk by violating court orders and by permitting the alleged abuser to have access to the child.
Fourth Department, Holds Request by Party to Waive Right to Counsel Places in Issue Whether Court Fulfilled its Obligation to Ensure A Valid Waiver, Which, As Subject of Contest Before the Court, Could Be Reviewed.
In Matter of DiNunzio v Zylinski, --- N.Y.S.3d ----, 2019 WL 3955273, 2019 N.Y. Slip Op. 06337 (4th Dept., 2019) after the mother failed to return to courtroom following recess and did not appear for the remainder of hearing, the Family Court, found the mother in default and entered an order granting father sole custody of child. On appeal the Appellate Division held that the validity of the mother's waiver of the right to counsel was the subject of contest before trial court, and thus the mother was permitted to raise on appeal her contention that trial court erred in failing to ensure that her waiver was knowing, voluntary, and intelligent.
The Appellate Division observed that New York State law recognizes that “[p]ersons involved in certain family court proceedings have a constitutional right to counsel in such proceedings” (Family Ct Act § 261). Parties entitled to counsel include, as pertinent here, any person seeking custody of his or her child or “contesting the substantial infringement of his or her right to custody of such child” (§ 262[a][v]). When determining whether a party may properly waive the right to counsel in favor of proceeding pro se, the trial court, “[i]f a timely and unequivocal request has been asserted, ... is obligated to conduct a ‘searching inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and voluntary” (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 [2011] ). Such a request for relief triggers the obligation of the court, which is permitted to grant the relief only upon “a showing on the record of a knowing, voluntary and intelligent waiver of the [right to counsel]” (Matter of Storelli v. Storelli, 101 A.D.3d 1787, 1788, 958 N.Y.S.2d 249 [4th Dept 2012]. For that reason, it held that a request by a party to waive the right to counsel and proceed pro se, as the mother made here, placed in issue whether the court fulfilled its obligation to ensure a valid waiver. The record supported the conclusion that whether the mother validly waived her right to counsel was a contested issue before the court. As the issue of the mother’s waiver of the right to counsel was the subject of contest before the court and, it could be reviewed by the Appellate Division.
The mother, contended that the court erred in failing to ensure, in response to her request, that her waiver of the right to counsel was knowing, voluntary, and intelligent. The Appellate Division held that a showing on the record of a knowing, voluntary and intelligent waiver of the right to counsel is a prerequisite to the court’s grant of that relief. The first dissent’s assertion that the mother was not aggrieved because she was permitted to represent herself as she requested assumed that the mother made “a knowing, voluntary and intelligent choice” in obtaining that relief. That issue was the subject of contest before the court and was therefore reviewable on appeal from the orders in appeal Nos. 1–5 (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741. The majority rejected the argument of the first dissent that the statutory aggrievement requirement in CPLR 5511, which required the mother to move to vacate her default in order to appeal from that order, precluded consideration of an order or judgment “entered upon the default of an aggrieved party”. The dissent pointed out that in circumventing the default, the majority relied on a purported exception that permits the Court to review issues that were the subject of contest before the appealing party’s default (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741). The first dissent did not agree that James created, via a mere footnote, such a broad exception to the aggrievement requirement, and saw nothing in that case to suggest otherwise. It noted that the relevant footnote in James did nothing more than appropriately apply the aggrievement requirement to the facts of that case.
August 16, 2019
Recent Articles of Interest
“Clarifying the Concepts of Transmutation and Commingling” by Joel R. Brandes appeared in the August 22, 2019 edition of the New York Law Journal on page 4, Col. 1. Click here to read the article
Appellate Division, Second Department
An application during trial for judgment for arrears must be made “upon such notice to the spouse or other person as the court may direct.” Defendant in contempt for violation of Automatic orders.
In Mage v Mage, --- N.Y.S.3d ----, 2019 WL 3436840, 2019 N.Y. Slip Op. 05973 (2d Dept., 2019) the parties, who were married in 1991, had three children. The plaintiff commenced this action for a divorce in 2012. Prior to trial, the plaintiff moved to hold the defendant in contempt, and the defendant cross-moved to hold the plaintiff in contempt, for their alleged willful disobedience of the automatic orders applicable to matrimonial actions (see Domestic Relations Law § 236[B][2][b]; Judiciary Law § 753[A][1]; Uniform Rules for Trial Courts [22 NYCRR] § 202.16). The Supreme Court referred both contempt motions to trial. At the conclusion of the trial, in a decision and order dated February 13, 2015, the court granted the plaintiff’s motion, found that the defendant was in contempt, and denied the defendant’s cross motion, finding that the plaintiff’s conduct did not rise to the level of sanctionable conduct.
The Appellate Division agreed with the Supreme Court’s determination that the defendant knowingly failed to comply with the court’s automatic order which restricted him from transferring, selling, or converting marital funds, and that the defendant’s actions resulted in prejudice to the plaintiff (see Judiciary Law § 753[A][3]). It agreed with the court’s grant of the plaintiff’s motion to hold the defendant in contempt.
The Appellate Division held that Supreme Court should not have awarded the plaintiff arrears for unreimbursed medical and extracurricular expenses the defendant was directed to pay in a pendente lite order dated February 11, 2013. A party to a matrimonial action may make an application for a judgment directing payment of such arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law § 244). However, an application for a judgment directing payment of arrears must be made “upon such notice to the spouse or other person as the court may direct” (id.). Here, the plaintiff made no such application.
Only child, parent or Indian custodian from whose custody child removed, and Indian child’s tribe have standing to allege a violation of ICWA 1911, 1912, or 1913
In Matter of Connor, --- N.Y.S.3d ----, 2019 WL 3436659, 2019 N.Y. Slip Op. 05979 (2d Dept., 2019) in January 2010, the subject child was born to the mother and the nonparty birth father, a member of the Choctaw Indian tribe. The mother and the birth father were never married. Thereafter, in January 2012, the mother married Jacob D. (respondent). In May 2012, the respondent, with the mother’s consent, filed a petition for adoption of the child. The birth father voluntarily relinquished his parental rights to the child during the adoption proceeding. On May 15, 2013, the Family Court issued an order of adoption, approving the adoption of the then three-year-old child by the respondent. On May 5, 2017, the respondent commenced an action for a divorce against the mother. In April 2018, while the divorce action was pending, the mother moved in the Family Court, in effect, pursuant to Domestic Relations Law § 114(3) to vacate the order of adoption in favor of the respondent on the ground that the child was an Indian child and the adoption proceeding was not held in compliance with sections 1911, 1912, and 1913 of the Indian Child Welfare Act of 1978 (25 USC § 1901 et seq.; ICWA) or, in the alternative, on the ground that the adoption was effectuated through fraud, misrepresentation, and other misconduct. Family Court, inter alia, denied the mother’s motion.
The Appellate Division affirmed. It agreed with the Family Court’s determination that the mother lacked standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA. The ICWA provides that “[a]ny Indian Child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title” (25 USC § 1914; see 25 CFR 23.137[a] ). Although the adoption proceeding involved the voluntary termination of the birth father’s parental rights to the subject child, the plain language of both 25 USC § 1914 and 25 CFR 23.137(a) was clear that only the child, the parent or Indian custodian from whose custody the child has been removed, and the Indian child’s tribe have standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA (see 25 USC § 1914; 25 CFR 23.137[a] ). Since the mother did not fall into any of those categories, she lacked standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA (see 25 USC § 1914; 25 CFR 23.137[a]). “[T]he language of [section] 1914 itself ... limits standing to challenge state-law terminations of parental right to parents ‘from whose custody such child was removed’ ” (Matter of Adoption of Child of Indian Heritage, 111 N.J. 155, 179, 543 A.2d 925, 937, quoting 25 USC § 1914; see Matter of S.C., 1992 OK 98, ¶ 23, 833 P.2d 1249, 1254, overruled on other grounds Matter of Baby Boy L., 2004 OK 93, 103 P.3d 1099).
The Appellate Division also agreed with the Family Court’s determination that the order of adoption should not be vacated on any of the other grounds asserted by the mother. Domestic Relations Law § 114(3) permits a court in which an order of adoption was made to “open, vacate or set aside such order of adoption for fraud, newly discovered evidence or other sufficient cause.” “[T]he fraud which will suffice to vacate an order or judgment must be fraud in the very means by which the judgment was procured”. The mother’s allegations of domestic violence during her marriage to the respondent, and that the respondent “never intended to be a decent and loving parent to [the child] as promised,” did not amount to fraud or otherwise provide a legal ground upon which the order of adoption may be vacated.
Appellate Division, Third Department
Third Department Joins Fourth Department holding child in a custody matter does not have full party status
In Matter of Kanya J v. Christopher K, 2019 WL 3475277 (3d Dept.,2019) Family Court issued an order in February 2018, which, among other things, granted the father joint legal custody of the child. The Appellate Division, inter alia, denied the mother’s motion to strike the attorney for the child’s brief on the basis that the attorney for the child failed to indicate in her brief whether she had met with the child, what the child’s preferences were and why she was substituting her judgment. In her responding affirmation, and again during oral argument, the appellate attorney for the child confirmed that she had interviewed the child and had determined that the arguments made by the trial attorney for the child were still appropriate arguments on the appeal. The Court found that the foregoing demonstrated that the appellate attorney for the child has complied with the requirements of 22 NYCRR 7.2(d)(3) and, therefore, the mother’s motion was denied. In a footnote the court observed that contrary to the father’s contention, the mother had standing to bring this motion inasmuch as a child in a custody matter does not have full party status (see Matter of Lawrence v. Lawrence, 151 A.D.3d 1879, 1279 [2017]; Matter of Kessler v. Fancher, 112 A.D.3d 1323, 1324, 978 N.Y.S.2d 501 [2013]).
August 1, 2019
Recent Legislation
Unlawful dissemination or publication of an intimate image added to Family Court Act §812
Laws of 2019, Ch 109 added the crime of unlawful dissemination or publication of an intimate image to the Penal Law as § 245.15 effective September 21, 2019. It amended Family Court Act 812 to include it in the list of crimes that constitute a family offense and added it to Criminal Procedure Law 530. 11The Civil Rights Law was amended to add new cause of action, in Civil Rights Law § 52–b titled Private right of action for unlawful dissemination or publication of an intimate image. It provides, among other things, that any person depicted in a still or video image, regardless of whether or not the original still or video image was consensually obtained, shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated or published, or threatened to disseminate or publish, such still or video image, where such image: was taken when such person had a reasonable expectation that the image would remain private; and depicts (i) an unclothed or exposed intimate part of such person; or (ii) such person engaging in sexual conduct, as defined in subdivision ten of section 130.00 of the penal law, with another person; and was disseminated or published, or threatened to be disseminated or published, without the consent of such person.
Recent Articles of Interest
The Special Section on Matrimonial Law in the July 29, 2019 edition of the New York Law Journal contains an article by Joel R. Brandes titled “Inchoate Rights to Marital Property.” It appears on page 55, and is also in the online edition. Click here to read the article
“Enforcing Counsel Fee, Support and Distributive Awards by Execution of Judgment,” by Joel R. Brandes appeared in the July 18, 2019 edition of the New York Law Journal. Click here to read the article.
“What is the Status of Child in a Custody Case?” by Joel R. Brandes appeared in the July 8, 2019 edition of the New York Law Journal. Click here to read the article
Appellate Division, First Department
Interstate Compact for the Placement of Children (ICPC), codified in Social Services Law ' 374Ba, does not apply to out‑of‑state noncustodial parents
In Matter of Emmanuel B, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3146376, 2019 N.Y. Slip Op. 05640 (1st Dept., 2019) the Appellate Division held, as a matter of first impression for the Court, that the Interstate Compact for the Placement of Children (ICPC), codified in Social Services Law ' 374Ba, does not apply to out‑of‑state noncustodial parents.
The Administration for Children=s Services (ACS) filed a petition alleging that Lynette J. (mother) had neglected two‑year‑old Emmanuel (child). The petition further alleged that the mother slapped and bit the child, and left him unsupervised for long periods of time. The child, who had been residing with the mother at a New York City Department of Social Services facility, was subsequently removed from the mother=s care and placed in the custody of ACS. ACS directly placed the child in the home of his paternal aunt. The nonparty Andrell B. (father), who resided in New Jersey, filed a petition for custody of the child. The Family Court denied custody, due to the father=s residence in New Jersey, but ordered that the father have liberal visitation with the child. The father filed an order to show cause, seeking an order to have the child immediately released into his care. According to the father, he had resided with the mother and the child for the first six months of the child=s life, and had visited the child every weekend after he and the mother separated. The parties appeared in Family Court. ACS conceded that it did not have any concern about the child residing with the father in that it had no reason to believe that the father was unfit or abusive or that he posed any imminent harm to the child. However, ACS stated that it believed that as the father resided in New Jersey, compliance with the ICPC was mandatory and any placement was predicated on ICPC approval. The Family Court denied the father=s application and issued an order remanding the care and custody of the child to the Commissioner of Social Services. The court concluded that the ICPC process had to be completed and the placement approved prior to granting the father custody as the child was in the legal custody of the Commissioner of Social Services, and subject to the continuing jurisdiction of Family Court. According to the court, the father Aas a non‑custodial, non‑resident parent, does not have custody or possession of the child as a matter of parental right@ and Arequires parental authority to be conferred on him by the state.@
The Appellate Division observed that the ICPC, codified in Social Services Law ' 374Ba, is a statutory agreement with the express purpose of fostering cooperation and communication between all 50 states so that children requiring placement in another state Ashall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care@ (Social Services Law ' 374Ba, Article I). The ICPC=s provisions are to be Aliberally construed to effectuate the purposes thereof@ (Social Services Law ' 374Ba, Article X). With respect to the conditions of a child=s placement in another state, Article III of the ICPC provides as follows: A(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this Article.... A(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...@ (emphasis added). The ICPC does not apply to A[t]he sending or bringing of a child into a receiving state by his parent, step‑parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non‑agency guardian in the receiving state@ (Social Services Law ' 374Ba, Article VIII). The language explicitly limits its applicability to out‑of‑state placements in foster care or as a preliminary to a possible adoption (see Social Services Law ' 374Ba).
The Appellate Division found, based on the plain language of Article III of the ICPC, the conditions for placement were expressly aimed at placements in foster care or adoptive settings. While the ICPC makes an exception for a parent or relative who takes a child over state lines (see Social Services Law ' 374Ba, Art VIII), by limiting the purview of placement conditions in article III to foster care and adoptive situations, the ICPC clearly did not contemplate the issue, where an out‑of‑state parent is seeking custody. It noted that in 2011, the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC), the official body charged with implementing the ICPC, amended Regulation 3(2)(a) to extend the statute=s reach to include placements with out‑of‑state noncustodial parents. The Court found that Regulation 3 does not carry the force of law (see Weiss v. City of New York, 95 N.Y.2d 1, 4B5 [2000]). The First Department declined to follow the interpretation of the Second Department which held that the ICPC applies to a nonrespondent parent living outside of New York (Matter of Alexus M. v. Jenelle F., 91 AD3d at 650B51; Matter of Tumari W., 65 AD3d at 1360) , because, in its opinion, it conflicts with the plain meaning of the statute and is in contravention of its legislative history. The order appealed from was vacated.
Appellate Division, Second Department
Child is not aggrieved by order which does not grant or deny any relief. Mere fact that an order contains language or reasoning that a party deems adverse to its interests does not furnish >a basis for standing to take an appeal In Lugo v Torres, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046162, 2019 N.Y. Slip Op. 05523 (2d Dept., 2019) the parties were married in July 2006 and had two minor children, Liya L. and Emery L. On June 8, 2012, the plaintiff commenced this action for a divorce. Over time, the plaintiff was awarded increasing access to the parties= children. Pursuant to an interim order of custody and parental access entered August 20, 2013, the plaintiff was awarded unsupervised parental access. In a decision after trial dated December 20, 2017, the Supreme Court, inter alia, modified the interim school year parental access schedule. The court awarded the parties joint legal custody, with final decision‑making authority to the defendant, after consultation with the plaintiff and assistance from a parenting coordinator, including on the issue of the children=s enrollment in summer camp. A judgment of divorce was entered on March 13, 2018, which incorporated the decision dated December 20, 2017. The defendant subsequently moved, inter alia, to hold the plaintiff in civil contempt for failure to comply with the judgment of divorce. The plaintiff cross‑moved, inter alia, to resettle the judgment of divorce. In an order entered July 16, 2018, the Supreme Court denied the defendant=s motion and the plaintiff=s cross motion. The plaintiff appealed from stated portions of the judgment of divorce and from part of the order entered July 16, 2018. The child Liya L. cross‑appealed from so much of the July 16, 2018 order, as re‑stated the provision, incorporated into the judgment of divorce, that the defendant had final decision‑making authority regarding that child=s summer camp.
The Appellate Division held that the cross appeal by the child Liya L. from the order entered July 16, 2018, had to be dismissed, on the ground that she was not aggrieved by that order. The portion of the order from which the child appealed did not grant or deny any relief, and the mere fact that an order Acontains language or reasoning that a party deems adverse to its interests does not furnish >a basis for standing to take an appeal=@ (Castaldi v. 39 Winfield Assoc., LLC, 22 A.D.3d 780, 781, 803 N.Y.S.2d 716, quoting Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 472B473, 510 N.Y.S.2d 67, 502 N.E.2d 982).
Presentation of rebuttal evidence rests within the sound discretion of the court,
In Matter of Gerner v Stalvey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046099, 2019 N.Y. Slip Op. 05529 (2d Dept., 2019) the Appellate Division affirmed an order which awarded the mother custody of the party’s child and granted her permission to relocate to South Carolina. It agreed with the Supreme Court=s determination to preclude the father from presenting a rebuttal case during the hearing. It held that the presentation of rebuttal evidence rests within the sound discretion of the court, and the court=s determination in that regard should not be disturbed on appeal absent an improvident exercise of discretion (see Farrell v. Gelwan, 30 A.D.3d 563, 564, 817 N.Y.S.2d 143). Based on the father=s offer of proof to the court, the rebuttal evidence either should have been presented on his direct case, or was collateral to the issues to be decided.
Appeal by the nonparty child from order which held plaintiff in civil contempt for failure to comply with an order requiring the plaintiff to pay the defendant counsel fees dismissed as she was not aggrieved by the order appealed
In Lugo v Torres, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046149 (Mem), 2019 N.Y. Slip Op. 05525 (2d Dept.,2019) the plaintiff appealed, and the nonparty child Liya L. separately appealed, from an order of the Supreme Court, which held the plaintiff in civil contempt for failure to comply with an order entered April 13, 2018, requiring the plaintiff to pay the defendant counsel fees of $193,549 within 30 days of the date of the order, and directed him to be imprisoned for 30 days, as may be extended, or until he had paid the arrears owed to the defendant for counsel fees. The Appellate Division dismissed the appeal by the child as she was not aggrieved by the order appealed from (see CPLR 5511; Edgar S. v. Roman, 115 A.D.3d 931, 982 N.Y.S.2d 529). It observed that unlike matters involving, for instance, custody and parental access, where a child=s interest in the outcome of the litigation is so immediate and substantial as to be self‑evident (see Matter of Newton v. McFarlane, BBB A.D.3d BBBB, BBB N.Y.S.2d BBBB, 2019 N.Y. Slip Op. 04386). It could not discern what possible interest a young child might have in the outcome of a purely financial dispute between her parents centered around one parent=s failure to pay the other=s counsel fees.
Motion to enforce settlement agreement, incorporated but not merged into the judgment of divorce is not subject to statute of limitations applicable to breach of contract actions
In Brewster v Anthony-Brewster, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046291 (Mem), 2019 N.Y. Slip Op. 05510 (2d Dept.,2019) the Appellate Division held that a motion which was to enforce so much of a settlement agreement, which was incorporated but not merged into the judgment of divorce is not subject to the statute of limitations applicable to breach of contract actions (see Denaro v. Denaro, 84 A.D.3d 1148, 924 N.Y.S.2d 453; Bayen v. Bayen, 81 A.D.3d 865, 917 N.Y.S.2d 269; Fragin v. Fragin, 80 A.D.3d 725, 916 N.Y.S.2d 783).
Not appropriate to apply the statute of limitations applicable to Aan action based upon fraud@ under CPLR 213(8) in proceeding to vacate an acknowledgment of paternity on the grounds of fraud, duress, or material mistake of fact
In Matter of Vaskovtsev v Melska, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3044174, 2019 N.Y. Slip Op. 05551 (2d Dept.,2019) on June 21, 2007, the parties purportedly executed an acknowledgment of paternity, stating that the petitioner was the father of the child. In April 2016, the mother filed a petition for child support against the petitioner. In June 2016, the petitioner commenced a proceeding pursuant to Family Court Act ' 516Ba to vacate the acknowledgment of paternity, alleging that his signature on the acknowledgment was forged. The mother moved pursuant to CPLR 3211(a) to dismiss the petition to vacate arguing, among other things, that the proceeding was time‑barred and that the petitioner should be equitably estopped from denying paternity. The Support Magistrate denied the mother=s motion. Family Court denied the mother=s objections.
The Appellate Division agreed with the Family Court=s determination that the proceeding was not time‑barred and that a hearing had to be held on the issue of whether the father was entitled to vacatur of the acknowledgment of paternity on the ground of fraud (see Matter of Santos Ernesto R. v. Maria S.C., 66 A.D.3d 910, 911B912, 887 N.Y.S.2d 265), A signatory to an acknowledgment of paternity who was at least 18 years old at the time of execution may file a petition to vacate the acknowledgment within the earlier of 60 days of the date of execution or the date of a proceeding relating to the subject child in which the signatory is a party (see Family Ct. Act ' 516Ba[b][i]). Further, after the expiration of the time limit, any of the signatories to an acknowledgment of paternity may challenge the acknowledgment in court by alleging and proving fraud, duress, or material mistake of fact@ (Family Ct. Act ' 516Ba[b][iv]). The procedure for commencing a proceeding to vacate an acknowledgment of paternity was specifically set forth by the Legislature, which chose to include an exception to the 60Bday time limit to commence a proceeding where the petitioner seeks to vacate an acknowledgment of paternity on the grounds of fraud, duress, or material mistake of fact (see Family Ct. Act ' 516Ba[b][i], [iv]). Therefore, it would not be appropriate to apply the statute of limitations applicable to Aan action based upon fraud@ under CPLR 213(8).
It also agreed with the Family Court that dismissal of the petition was not warranted at this time based upon the doctrine of equitable estoppel. Family Court should not entertain an estoppel issue untilAafter it has found a basis to permit vacatur of the acknowledgment. Consideration of the issue of whether the father should be estopped from vacating the acknowledgment was premature.
Family Court Act ' 439(e), concerning the filing of objections, does not apply a determination of a support magistrate recommending incarceration
In Matter of Garuccio v Curcio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3310159, 2019 N.Y. Slip Op. 05777 (2d Dept.,2019) the Appellate Division agreed with Family Court=s determination confirming the Support Magistrate=s recommendation that the father be incarcerated without holding a second hearing and before the time for him to file objections had expired. It observed that Family Court Act ' 454(3)(a) provides that if the court finds that a respondent willfully failed to obey an order of support, the court may commit the respondent to jail for a term not to exceed six months. The mother established her case of willful violation. The Family Court was not required to hold a second hearing before issuing the order. The father was given a full and fair opportunity to be heard at the hearing on his defense to the claim of willfulness. Upon the father=s failure to appear for a scheduled court date on May 1, 2018, the court did not improvidently exercise its discretion in confirming the recommendation of the Support Magistrate that the father be incarcerated (see Matter of John T. v. Olethea P., 64 A.D.3d 484, 883 N.Y.S.2d 38). Furthermore, the Family Court was under no obligation to wait until the father=s time to file objections pursuant to Family Court Act ' 439(e) had expired to confirm the Support Magistrate=s recommendation of incarceration. Thus, the determination of the Support Magistrate recommending incarceration had no force and effect until confirmed. Since a determination of a support magistrate recommending incarceration can have no force and effect until confirmed, and could never constitute a final order, the procedure under Family Court Act ' 439(e) concerning the filing of objections does not apply (see Matter of Roth v. Bowman, 245 A.D.2d 521, 666 N.Y.S.2d 695).
Appellate Division, Third Department
Appellate Divison sustains agreement provision that if either party seeks to modify the agreement, the party seeking modification must reconvey all consideration which such party had received pursuant to the agreement.
In Matter of Yerdon v Yerdon, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3226535, 2019 N.Y. Slip Op. 05748 (3d Dept.,2019) the parties entered into a settlement agreement (hereinafter the agreement), in which the parties agreed to opt‑out of the Child Support Standards Act. They agreed that the mother would waive her right to child support from the father, in return for which the father agreed to convey his half interest in the marital residence to the mother. The agreement provided that if either party sought to modify the agreement, the party seeking modification Ashall, in advance of and as a condition precedent to the commencement of such action or proceeding, retransfer, reconvey, return, reassign and repay to the other party all assets, income, payments, or other transfers or consideration which such party had received pursuant to [the] agreement.@ This agreement was incorporated, but not merged, with a judgment of divorce entered April 15, 2016. In August 2017, the mother commenced a proceeding in Family Court to modify the child support provisions of the judgment of divorce. The father moved in the Supreme Court to compel the mother to return to him the money and the interest in the marital home that she received under the agreement. Supreme Court dismissed the mother=s petition, finding that the agreement was enforceable and the mother failed to meet the condition precedent prior to filing for modification. The Appellate Division affirmed. It rejected the mother=s contention that the agreement was unenforceable because it did not contain the language specified in Domestic Relations Law ' 236(B)(7)(d). Assuming, without deciding, that such language must be included in a settlement agreement, such infirmity would not void the entire agreement. Rather, it would serve as a ground to modify the agreement to include the relevant language.
Supreme Court
Supreme Court holds that Domestic Relations Law 170(7) is not a Acause of action@ under DRL ' 230(3), such that the durational residency requirement was reduced from two (2) years to one (1) year.
In Patty P v Jason P, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3242691, 2019 N.Y. Slip Op. 29223 (Sup. Ct., 2019) Supreme Court dismissed the divorce action filed by the plaintiff on the grounds that the Court did not have jurisdiction over the proceeding pursuant to DRL ' 230 and CPLR 302(b). Supreme Court found that during the parties= marriage, they had five (5) matrimonial domiciles none of which were New York State. They spent six (6) years of their marriage in Oklahoma until July 2017. Defendant still resided in Oklahoma. Plaintiff contended that she left the matrimonial domicile in Oklahoma in July 2017 and moved to New York State where, she alleged, she has resided continuously ever since. Plaintiff alleged that after she left Oklahoma, she spent time in a Asafe house@ then moved to Brooklyn, New York. She filed the action in February 2019. In her Verified Complaint plaintiff alleged that she had been a resident of New York for at least two (2) years continuously immediately before the commencement of the action. The Court observed that based upon plaintiff=s filing, she would have had to have been a resident of New York State by February 6, 2017 in order to satisfy the two (2) years of continuous residence immediately before the commencement of the action. In her affidavit in opposition to defendant=s motion to dismiss, plaintiff alleged that she had been a resident of New York State for one (1) year and that DRL 170(7) is a Acause of action@ sufficient to trigger DRL ' 230(3).
Supreme Court held that Domestic Relations Law 170(7) is not a Acause of action@ and granted the motion to dismiss. It noted that in Stancil v. Stancil, 47 Misc.3d 873, 1 N.Y.S.3d 917 [Sup. Ct. 2015] the Supreme Court held that DRL ' 170(7), did not create a Acause@ under DRL ' 230(3), such that the residency requirement was reduced from two (2) years to one (1) year. The Court agreed and held that if it adopted plaintiff=s theory that the DRL '170(7) Airretrievable breakdown@ in the marital relationship was a cause of action sufficient to satisfy DRL ' 230(3) the Court would be reducing the general residency requirement to seek a divorce in New York State from two (2) years to one (1) year contrary to the legislative intent and, in effect, by judicial fiat. The legislature did not enact changes to DRL ' 230 concomitants with the enactment of the Airretrievable breakdown@ provision provided for in DRL ' 170(7). The Court could not and should not extend or modify the residency requirement established by the Legislature in the statute. The Court held that in light of her conflicting statements and lack of documentary evidence, plaintiff had not satisfied any statutory predicate of DRL ' 230. The parties= marriage did not occur in this State, this State was not a matrimonial domicile, and no cause of action occurred in New York. Plaintiff failed to establish that she had standing to commence this action for divorce under DRL ' 230.
July 16, 2019
Appellate Division, First Department
22 NYCRR Part 1400 may be waived
In Strauss v Strauss, 2019 WL 2619942 (1st Dept.,2019) the Appellate Division observed that compliance with 22 NYCRR Part 1400 may be waived by the client (see Rivacoba v. Aceves, 110 A.D.3d 495, 973 N.Y.S.2d 585 [1st Dept. 2013]).
Appellate Division, Second Department
Biological father of child conceived with anonymous egg donor and born to gestational surrogate may adopt child and terminate parental rights held by surrogate
In Matter of John, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2607522, 2019 N.Y. Slip Op. 05132 (2d Dept.,2019) the issue presented on appeal was whether the biological father of a child conceived with an anonymous egg donor and born to a gestational surrogate may adopt the child and thereby terminate any parental rights held by the gestational surrogate. The Appellate Division held that under the circumstances presented by this case, the adoption could proceed. Contrary to the determination of the Family Court, the proposed adoption was authorized by the governing statute and was consistent with the underlying legislative purposes.
The appellant was a single, gay man who, in 2012 had embryos created using his sperm and eggs from an anonymous egg donor. The egg donor relinquished all rights to the eggs and any resulting children. The appellant had some of the embryos implanted in an unpaid gestational surrogate. The remaining embryos were frozen. In 2013, twins were born. The appellant adopted them, obtaining an order of adoption from the Family Court. In 2017, a friend of his agreed to carry the remaining embryos and entered into a surrogacy agreement with the appellant. They agreed that the appellant would adopt the child from the surrogate and thereby relieve her of any responsibility for the child. A fertility clinic implanted two embryos into the gestational surrogate. One embryo was unsuccessful. The other embryo resulted in the birth of the child, John, in October 2017. John had been in the care of the appellant since leaving the hospital after his birth. The birth certificate listed the surrogate as the mother and did not list a father. The appellant filed a petition to adopt the child. The surrogate executed an extrajudicial consent, utilizing the statutorily‑mandated form, to the adoption, surrendering her parental rights (see Domestic Relations Law '' 111[1][c]; 115Bb). The surrogate also submitted affidavits in which she described the circumstances of the child=s conception and birth and averred that she voluntarily agreed to have the appellant be the sole parent of the child and that, in effect, there were no other persons who had, or claimed to have, any parentage rights with respect to the child. Family Court dismissed the adoption petition, holding, inter alia, that permitting the adoption would validate Aa patently illegal surrogacy contract@ and there was no authority for a parent to adopt his or her own biological child.
The Appellate Division held that dismissal of the adoption petition because it would validate Aa patently illegal surrogacy contract@ was plainly erroneous. New York=s present public policy is that all surrogate parenting contracts are against public policy and are void and unenforceable (see Domestic Relations Law ' 122). The agreement made by the appellant was within the statutory proscription. However, that did not end the discussion. The Legislature has restricted active measures for a one‑time violation of the expressed public policy to the imposition of civil penalties only and, even at that, only as against those involved in commercial surrogacy contracts. The only sanction against unpaid surrogacy contracts is to treat them as void and unenforceable.
The Legislature, though it declared surrogate parenting contracts to be against public policy, recognized the prospect that, notwithstanding its declaration, parties might proceed to enter into such contracts and that children would be born as the result of such contracts. Domestic Relations Law ' 124 states that, in any action or proceeding Ainvolving a dispute between the birth mother@ and one or more genetic parents or grandparents Aregarding parental rights, status or obligations with respect to a child born pursuant to a surrogate parenting contract ... the court shall not consider the birth mother=s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations@ (Domestic Relations Law ' 124[1]). This statute Asimply provides that the gestational carrier=s participation in a surrogate parenting contract should not be held against her@ where there is a dispute regarding parentage. Where, as here, there is no dispute because the genetic and gestational parents are in agreement with respect to the legal parentage of the child, the protection of the gestational mother contemplated in Domestic Relations Law '' 122 and 124 is not implicated. The Legislature also made provision for the gestational surrogate to validly terminate her parental rights to a child born of a surrogate parenting contract. The statute expressly provides that a gestational surrogate may execute Aa valid surrender or consent to the adoption@ (Domestic Relations Law ' 124[2]). Thus, it was plain that the fact that a child was born as the result of an unenforceable surrogacy agreement did not foreclose an adoption of the resulting child, upon the surrogate=s consent.
The Appellate Division held that Family Court should not have viewed the adoption petition presented by the appellant as requiring the court to validate or enforce a surrogate parenting contract. The appellant was not seeking to have the surrogate parenting contract specifically enforced or otherwise seeking a remedy for a purported breach of the contract. The contract had been performed and a child conceived and born on account of it. The court was asked only to approve an adoption which had been agreed to, by use of a statutorily‑prescribed mechanism and form, by the gestational mother, exercising her right to do so as expressly recognized by governing statute.
The Appellate Division observed that the adoption statute specifies the categories of persons who may adopt a child. It states that A[a]n adult unmarried person, an adult married couple together, ... any two unmarried adult intimate partners together,@ or a formally separated person may adopt another person (id.). (Domestic Relations Law ' 114[1]). The appellant here, as an Aadult unmarried person,@ was among those who are statutorily authorized to adopt a child. That he fit within the statutory definition was not, however, conclusive, as loyalty must be to the statute=s legislative purpose. Here, the appellant, an otherwise qualified Aadult unmarried person,@ sought to adopt a child in order to gain legal and social recognition for the parent/child relationship already existing between himself and the child. The Family Court disallowed it on the ground that there is no authority for a parent to adopt his or her biological child. The Appellate Division disagreed. The blanket prohibition, invoked by the Family Court, against legal adoption of a child by a biological parent, is not supported by either the language of the statute or its purpose. There is nothing in the text of the Domestic Relations Law which precludes a parent from adopting his or her own biological child. Domestic Relations Law ' 110 expressly provides that A[a]n adult or minor married couple together may adopt a child of either of them born in or out of wedlock.@ Thus, the statute expressly provides that a married person may adopt his or her own child together with his or her spouse, and does not limit the couple to a second‑parent adoption.
The Appellate Division distinguished Matter of Zoe D.K., 26 A.D.3d 22, 804 N.Y.S.2d 197, which held that an unwed biological mother could not adopt her own child so as to remove the biological father from the birth certificate. As the Appellate Division, Fourth Department, viewed it, the adoption did not provide A>a means of securing the best possible home=@ for the child. The situation here was significantly different. Since the adoption statute permits adoption by an unmarried adult, an adoption which results in the child having only one legal parent is not against the language or purpose of the adoption statute. Moreover, the continuity of a fictitious family structure whereby a gestational surrogate with no genetic ties or intention to be a parent remains a legal parent is hardly consonant with a child=s best interests. Thus, under the circumstances presented, the adoption of one=s biological child from a gestational surrogate complied with the purpose of the adoption statute and should be permitted where, as in all adoption cases generally, the proposed adoption in the best interests of the child.
Direct examination of adverse party called as a witness, by leading questions, rests in the sound discretion of trial court.
In Matter of Argila v Edelman, --- N.Y.S.3d ----, 2019 WL 2843931, 2019 N.Y. Slip Op. 05398 (2d Dept., 2019) the Appellate Division held, among other things, that as a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the character and credibility findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record. Here, the court’s determination had a sound and substantial basis in the record, as the father established that there had been a change in circumstances, such that modification of the stipulation so as to award the parties joint legal custody was necessary to ensure the best interests of the child (see Matter of Carter v. Carter, 111 A.D.3d 715, 715, 974 N.Y.S.2d 545).
The Appellate Division rejected the mother’s argument that Family Court improperly restricted her examination of the father as part of her direct case by refusing to permit her to use leading questions. While an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the [sound discretion of the trial court. The mother already had the opportunity to cross-examine the father using leading questions when he testified as part of his own direct case. In any event, the father was “not reluctant or evasive in answering questions” mother’s counsel asked many leading questions despite the court’s ruling, and to the extent objections were sustained, the mother, on appeal, identified no instance in which she was unable to elicit necessary information without the use of leading questions. Thus, it agreed with the Family Court’s determination to deny the mother’s requests to conduct direct examination of the father through the use of leading questions.
Appellate Division, Third Department
Exclusion of testimony in custody case, as to father’s fitness as a parent, constituted denial of procedural due process
In Matter of Liska J v Benjamin K, --- N.Y.S.3d ----, 2019 WL 2835000, 2019 N.Y. Slip Op. 05347 (3d Dept., 2019) following a trial Family Court awarded the parties joint legal custody, with the mother having primary physical custody. The father argued on appeal that he was deprived of procedural due process when Family Court excluded testimony as to his fitness as a parent. The Appellate Division noted that Family Court expressly held that because the father did not file a custody petition, it could “only take into consideration the testimony brought by the mother.” There were several instances during the trial where the court precluded testimony from the father and his witness because he did not file a petition. As a result, the father was prevented from addressing all of the relevant factors, including who should be the primary custodian and what he did to foster a relationship between the child and the mother. The father’s stepfather was precluded from testifying as to his observations of the father as a parent. The father was allowed to briefly testify as to his average day with the child at the conclusion of testimony on March 29, 2017. When testimony resumed on March 31, 2017, the court precluded further testimony as to the average day, allowed a brief statement as to inside activities and then sustained an objection as to outside activities. The Appellate Division held the court’s failure to allow the father a full and fair opportunity to present evidence, coupled with the court’s own limitations on its decision, constituted a fundamental due process error requiring reversal of Family Court’s order. Given the limited record presented, the matter was remitted to Family Court for a new hearing.
Appellate Division, Fourth Department
Enhanced retirement income after the judgment of divorce deemed marital property where husband elected upon retirement to combine service credits and collect single retirement payment from NYSLRS
In Mancuso v Graham, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2707847, 2019 N.Y. Slip Op. 05268 (4th Dept., 2019) the parties= stipulation, which was incorporated but not merged into their judgment of divorce, provided that plaintiff=s marital share of defendant=s pension be calculated according to the formula articulated in Majauskas v. Majauskas, 61 N.Y.2d 481, 489B491 (1984). During the marriage, defendant was employed by the New York State Department of Aviation, where he accrued pension benefits under the NYSLRS. In 2003, after the judgment of divorce, defendant was transferred to the City of Syracuse Fire Department, where he accrued benefits under the New York State Police and Fire Retirement System (Police and Fire System) until he retired in January 2017. He elected upon retirement, however, to combine his service credits and collect a single retirement payment from NYSLRS. The Appellate Division rejected defendant=s contentions that Supreme Court should have applied the Majauskas formula to only that part of the retirement benefits that he earned through the NYSLRS, and that his benefit from the Police and Fire System is an entirely separate benefit that he earned after the termination of the marriage. It is well settled that the Aportion of a pension based on years of employment during the marriage is marital property@. Therefore, along with pension rights earned during a marriage prior to a separation agreement or matrimonial action, enhanced retirement income is deemed marital property subject to equitable distribution. Here, because defendant=s final benefit included Acompensation for past service that occurred during the marriage, it constituted marital property.
The Appellate Division also held that inasmuch as the DRO properly reflected the terms of the parties= stipulation that was incorporated, but not merged, in the judgment of divorce, defendant=s motion sought a revision of the terms and provisions of the parties= stipulation. Therefore, instead of denying the motion on the merits, the court should have denied the motion on the ground that Aa motion is not the proper vehicle for challenging a [stipulation] incorporated but not merged into a divorce judgment. Rather, defendant should have commenced a plenary action seeking recission or reformation of the stipulation.
July 1, 2019
Court of Appeals
Court of Appeals hold that Marital assets are not owned by one spouse or another, and the dissolution of a marriage involving the division of marital assets does not render one ex‑spouse the creditor of another
In Pangea Capital Management, LLC v Lakian, ‑‑‑ N.E.3d ‑‑‑‑, 2019 WL 2583109 2019 WL 2583109 (2019) the United States Court of Appeals for the Second Circuit certified the following question to the Court of Appeals: If an entered divorce judgment grants a spouse an interest in real property pursuant to Domestic Relations Law ' 236, and the spouse does not docket the divorce judgment in the county where the property is located, is the spouse=s interest subject to attachment by a subsequent judgment creditor that has docketed its judgment and seeks to execute against the property? The Court of Appeals answered the question in the negative.
John and Andrea Lakian were married in 1977. In 2002, they purchased a home on Shelter Island, Suffolk County, for $4.5 million. Title to the property was recorded in John=s name and immediately transferred to a trust, for which John was the sole trustee and each spouse was a 50% beneficiary as tenant in common. In 2013, Andrea commenced an action for divorce. A judgment entered on June 11, 2015 incorporated by reference an agreement that settled all issues, including providing for the sale of the Shelter Island property. Under the settlement, Andrea would receive 62.5% of the proceeds plus another $75,000 and John would receive the balance.
In 2012, Pangea Capital Management, LLC brought an action against John. Pangea voluntarily discontinued that action in favor of arbitration. The arbitrator ruled in Pangea=s favor on January 6, 2016, and Pangea subsequently brought an action in federal court to enforce the $14 million arbitral award against John. Pangea sought and obtained an order of attachment on the Shelter Island property. Several months later, John asked the Federal District Court to modify the order of attachment to permit the sale of the home. The court allowed Andrea to intervene and the parties agreed to the sale and further agreed that the proceeds, totaling over $5 million, would be deposited with the Clerk of the Court while the dispute over Pangea=s claim to the proceeds was litigated. The parties also agreed that their rights to the proceeds would constitute the Acash equivalent@ of their rights in the Shelter Island property. During this time, the Federal District Court confirmed the $14 million arbitral award against John and entered a judgment in Pangea=s favor in November 2016, which Pangea promptly docketed.
Andrea contended that, pursuant to the terms of the divorce settlement, she was entitled to 62.5% of the sale proceeds, plus $75,000. Pangea argued that, because it docketed its judgment before Andrea docketed her judgment of divorce in Suffolk County, CPLR 5203 gave Pangea priority over Andrea with respect to the Shelter Island property.
The Court of Appeals noted that CPLR 5203(a) concerns APriority and lien on docketing judgment,@ and provides, in relevant part: ANo transfer of an interest of the judgment debtor in real property, against which property a money judgment may be enforced, is effective against the judgment creditor either from the time of the docketing of the judgment with the clerk of the county in which the property is located until ten years after filing of the judgment‑roll, or from the time of the filing with such clerk of a notice of levy pursuant to an execution until the execution is returned.@
The Court of Appeals explained that under Domestic Relations Law ' 236(B)(1)(c), marital property is Aall 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, regardless of the form in which title is held.@ Andrea had an interest in that marital property. Legal rights to specific marital property vest upon the judgment of divorce, with Ainchoate rights@ becoming Aactual ownership interests by virtue of [an] equitable distribution judgment[ ]@ (McDermott v. McDermott, 119 A.D.2d 370, 379, 507 N.Y.S.2d 390 [2d Dept. 1986]