Table Of Contents Chapter 3 Conduct of Trial 55 3-2. Opening and Closing Statements - When and how to make them 55 3-38. Right of Trial Judge to Call own witness 56 3-48. Cross- Examination - Impeachment of Witness by Prior Inconsistent Statement and Questions for Introduction 57 3-68. Trial Testimony - Prior Testimony - Admission of Prior Testimony 58 3-74. Duty of court to determine equitable distribution, maintenance, child support and custody 58 3-75. Motion to Reopen trial 60 3-76. Motion for Reconstruction of trial record 62 Appendix B - Domestic Relations Law § 240, November 11, 2020 211
The Court of Appeals has observed that the rule that the party having the affirmative of the issue in an action shall have the opportunity to make the opening and closing presentation of his case is deemed founded upon a substantial right, the denial of which is error. In its application to trials by jury it has ordinarily more practical importance than in those before the court without a jury and before referees. If it appears that a party could not have been prejudiced by the failure of the court to observe this rule, the error would not be available, and in trials by the court without jury or before referees that question would be dependent upon the circumstances of each case.[2]
In Matter of Stampfler v Snow, 290 A.D.2d 595, 735 N.Y.S.2d 255, (3d Dept.,2002) the parties were awarded joint custody and petitioner was directed to, inter alia, “follow the recommendations regarding drug and/or alcohol treatment made by the Champlain Valley Family Center” which, in turn, included remaining drug and alcohol free for at least three consecutive months before completing her treatment. In September 1999, Family Court received a letter indicating that petitioner had tested positive for marihuana in four of the six urine screens conducted between June 1999 and August 1999. Family Court, inter alia, issued an order to show cause seeking to have petitioner held in criminal contempt pursuant to Judiciary Law § 750(A)(3). Family Court also applied for two judicial subpoenas duces tecum seeking the records maintained by the Champlain Valley Family Center and the laboratory that conducted petitioner’s urinalysis. After a hearing, Family Court found petitioner guilty of criminal contempt. The Appellate Division reversed. It found that Family Court initiated the underlying contempt proceeding, applied for the subpoenas duces tecum, ruled upon petitioner’s respective motions to quash and dismiss, questioned the only witness to testify at the hearing, ruled upon counsel’s objections thereto, acted as the trier of fact at the contempt hearing and sentenced petitioner to serve 72 hours in the local jail. Family Court’s decision to serve as complainant, prosecutor, trial judge and sentencing court brought about a clear “clash in judicial roles” and, as such, recusal was warranted. At the very least, Family Court’s actions created the appearance of impropriety and, under the circumstances of this case, it deemed it to be an abuse of discretion for Family Court to fail to recuse itself after issuing the order to show cause.
In Matter of Blaize F., 74 A.D.3d 1454, 903 N.Y.S.2d 194 (3d Dept., 2010) petitioner brought a proceeding to extend supervision regarding respondent’s two stepdaughters and, in that petition, it also requested that respondent be granted unsupervised visitation with his son. At the ensuing hearing, both petitioner and the attorney for Blaize advocated for unsupervised visitation. Petitioner’s witnesses unequivocally supported permitting respondent to have unsupervised visitation with Blaize. Family Court nonetheless produced and admitted into evidence its own exhibit, a Canadian study entitled “A Meta–Analysis of the Effectiveness of Treatment of Sexual Offenders: Risk, Need and Responsibility.” Subsequently, in the closing statement, petitioner stated that it had erred in including Blaize in the petition and acknowledged that the petition should be dismissed as to him. However, Family Court rendered a decision (that included a lengthy quote from its exhibit) in which it granted the petition as to Blaize and extended the existing requirement for supervised visitation. The Appellate Division reversed as to Blaize. It pointed out that all the witnesses and all the parties supported unsupervised visitation. Petitioner acknowledged that it should not have even brought the proceeding as to Blaize and agreed with respondent that the petition should be dismissed. Family Court’s production of its own exhibit and then relying thereon in disregard to every witness and all the parties was improper (see generally People v. Arnold, 98 N.Y.2d 63, 67–69, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002]). The court’s determination that the witnesses were unreliable and lacked credibility was unsupported by the record. Since the record did not contain a sound or substantial basis supporting the petition and revealed that Family Court acted arbitrarily, it agreed that the petition as to Blaize must be dismissed.
In Matter of Keaghn Y., 84 A.D.3d 1478, 921 N.Y.S.2d 737 (3d Dept., 2011) a neglect proceeding, respondent argued on appeal, inter alia, that by becoming intimately involved in the examination of witnesses who testified at the hearing and by issuing, on its own accord, a subpoena calling for the production of certain records, Family Court, demonstrated that is was biased against her and did not provide her with a fair hearing. It pointed out that Family Court, on its own motion, issued an order directing that the child’s school records be produced and that an expert who it appointed to review these records advise the court on the child’s educational needs. The Appellate Division noted that While such a practice, coupled with the court’s involvement in the examination of the witnesses who testified at the hearing, may, in some circumstances, present legitimate questions regarding the court’s impartiality neither party opposed the court’s decision to issue the subpoena or objected to its questioning of witnesses and, therefore, such a challenge was not preserved for review. Moreover, the records that were requested were clearly relevant to the issues raised at this hearing and were sought for a benign purpose of determining the legitimate educational needs of the child (seeFamily Ct. Act § 1089[d][2][v]) In a footnote the court indicated that this finding should not be interpreted as an approval by this Court of the practices employed by Family Court in this proceeding (see Matter of Blaize F. [Christopher F.], 74 A.D.3d at 1455, 903 N.Y.S.2d 194; Matter of Stampfler v. Snow, 290 A.D.2d at 596, 735 N.Y.S.2d 255).
A witness’s testimony in a prior proceeding may be incorporated into a later proceeding if it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine.[10]
3-74. Duty of court to determine equitable distribution, maintenance, child support and custody Domestic Relations Law 236[B] and Domestic Relations Law 240 require the Court to determine the ancillary issues of equitable distribution, maintenance, child support and custody before granting a judgment dissolving the marriage, unless there is a waiver of the right to seek such relief in an agreement between the parties in accordance with Domestic Relations Law &s;§236[B] [3].
Domestic Relations Law 236[B] [5] provides, inter alia, that except where the parties have provided in an agreement for the disposition of their property pursuant to Domestic Relations Law &s;§236[B] [3], the court, in an action where all or part of the relief granted is divorce, ““shall”” determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.
In addition, Domestic Relations Law &s;§236[B][6][a] provides, inter alia, in relevant part that [e]xcept where the parties have entered into an agreement pursuant to Domestic Relations Law &s;§236[B][3] providing for maintenance, in any matrimonial action the court may order temporary maintenance or maintenance in such amount as justice requires.
Domestic Relations Law &s;§236 [B][7][a] provides, that in any matrimonial action, the court as provided in Domestic Relations Law &s;§240 ““shall order either or both parents to pay temporary child support or child support without requiring a showing of immediate or emergency need.””
Domestic Relations Law §240 (1) provides that in an action for divorce the court must give such direction between the parties for the custody and support of any child of the parties as in the Court’s discretion justice requires having regard to the circumstances of the case and of the respective parties and to the best interests of the child. Thus, the court is required to enter orders for custody and support as, in the court=s discretion, justice requires. The mandatory aspect denoted by the use of the word “must” requires that the court properly exercise its broad discretion respecting the issues of custody and child support and that it may not refrain from exercising such discretion. A judgment of divorce will be vacated where the court fail to exercise its jurisdiction to determine custody and child support.[11]
The judgment of divorce will also be vacated where it is devoid of any provision addressing the equitable distribution of the parties= marital assets or debts. [12]
The trial judge is the “final arbiter of the record” certified to the appellate courts. Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer. Judges confronted with allegations of error in that record, especially allegations of their own error, may hold a reconstruction hearing with the parties, any witnesses or evidence the court deems helpful. Not every dispute about the record mandates a reconstruction hearing. In certain circumstances, Supreme Court can deny a party's request for such a hearing when it concludes the exercise is not necessary to elucidate what originally took place. Even when a judge's recollection of the disputed or missing portion of a transcript is unclear, other information may suffice to allow him or her to resettle the record without a reconstruction hearing. [20]
[9]In Matter of Donald G v Hope H, 160 A.D.3d 1061, 74 N.Y.S.3d 135 (3d Dept., 2018) the Appellate Division affirmed an order which granted petitioner’s application, to modify a prior order of custody. The Appellate Division rejected the mothers argument on appeal that that Family Court erred in permitting the father to admit into evidence three audio recordings of various comments made by the mother without laying a proper foundation. This claim was waived as to two of the recordings. It noted that the mother was given the required opportunity to explain the inconsistency between her hearing testimony and her remarks on the recording admitted for impeachment purposes (referring to People v. Laurey, 24 A.D.3d 1107, 1109, 807 N.Y.S.2d 437 [2005]). The mother did object to admission of the third recording on foundational grounds. Family Court overruled the objection and admitted the recording into evidence for impeachment purposes on the ground that the mother had acknowledged that the recording contained her voice, and that she and the father had the recorded conversation. Here, the mother was not given the requisite opportunity to explain the inconsistency and her counsel did not specifically object to this failure. If counsel had done so, the Appellate Division stated that it would have found that the error was harmless; the court cited other evidence as the basis for its finding that the mother’s testimony was “not credible as a whole” and made no reference to this recording.
[10] In Matter Aponte v Jagnariain, 205 A.D.3d 803, 169 N.Y.S.3d 105 (2d Dept.,2022) the Appellate Division held that a witness’s testimony in a prior proceeding may be incorporated into a later proceeding if it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine. Here, the prior testimony was given under oath and referred to the same subject matter, and the mother was allowed to cross-examine the witness at the earlier hearing, but declined to avail herself of that opportunity when she voluntarily absented herself from that hearing. In addition, the mother had the opportunity to call the witness to testify at the hearing in the custody and parental access proceeding, and, if necessary, to request that the court deem her to be a hostile witness so that the mother could impeach her, but she failed to do so.
[11] In Rodriguez v. Rodriguez, 79 A.D.2d 550, 550-51, 434 N.Y.S.2d 22 (1st Dep’t 1980), two divorce actions, where plaintiffs specifically sought an award of custody of the issue of their respective marriages, Trial Term did not determine the issue of custody. In the Rodriguez action, the defendant husband appeared, admitted service of the summons which stated that the plaintiff wife was seeking a judgment of divorce and an award of custody of their two children, waived service of all further papers and consented to the entry of judgment. In the Heiek action, the defendant husband failed to appear and defaulted. While finding both plaintiffs entitled to a divorce, Trial Term deleted the provision in each of the two respective submitted judgments which provided for the granting of custody of the issue of the marriage to the plaintiff. The Appellate Division observed that that Section 240 of the Domestic Relations Law which provides, in pertinent part: “In any action . . . for a divorce . . . the court must give such direction, between the parties, for the custody . . . of any child of the parties, as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child” The mandatory aspect denoted by the use of the word “must” requires that the court properly exercise its broad discretion respecting the issue of custody and that it may not refrain from exercising such discretion. The mere striking out of the provisions of the submitted judgments which granted custody to the plaintiffs by Trial Term, without any basis being set forth by the court for its action, whether in a decision or in some other judicially acceptable fashion, constituted a refusal to exercise the discretion mandated by the statute. The stricken provisions awarding custody of the issue of the respective marriages to the respective plaintiffs were reinstated. See also Puri v. Puri, 213 A.D.2d 389, 622 N.Y.S.2d 978 (2d Dep’t 1995).
[12] Serao v. Bench-Serao 149 A.D.3d 645, 53 N.Y.S.3d 628 (1st Dept.,2017); See also Wong v Wong,300 A.D.2d 473, 474, 752 N.Y.S.2d 85, 86, (2 Dept.,2002) (“Moreover, to the extent that the judgment contained no provision concerning equitable distribution or maintenance, it must be reopened.”)
[13] Clemente v. Clemente, 16 Misc. 3d 769, 773, 842 N.Y.S.2d 276, 279 (Sup 2007), aff'd as modified, 50 A.D.3d 514, 857 N.Y.S.2d 78 (1st Dep't 2008) (““Temporary Orders of Support are ““by [their] very nature temporary and effective only during the pendency of the litigation.”” Sass v. Sass, 129 A.D.2d 622, 624, 514 N.Y.S.2d 257 (2d Dep't 1987). A pendente lite order, in contrast to a permanent order, is generally based on limited information and allegations of the parties ...””).
In Marlinghaus v. Marlinghaus, 202 A.D.2d 994, 609 N.Y.S.2d 503 (4th Dep't 1994), the Appellate Division held that the Supreme Court erred in failing to fix the amount of the husband's child support obligation pursuant to the Child Support Standards Act and in failing to set forth pursuant to NY Dom Rel Law &s;§236(B)(6)(b) the factors it considered and the reasons for its award of spousal maintenance. It was improper to affirm summarily prior orders by another judge awarding temporary child support and spousal maintenance and holding such support and maintenance in abeyance while the husband was unemployed, especially where the record failed to show the circumstances underlying his unemployment or, indeed, that he was unemployed.
In Adinolfi v. Adinolfi, 168 A.D.2d 401, 402, 562 N.Y.S.2d 528, 530 (2d Dep't 1990) although the plaintiff's cause of action for a divorce was dismissed for failure to state a cause of action and failure of proof, the judgment left standing all of the defendant's counterclaims for ancillary relief . Therefore, the court did not err in directing the continuance of the prior pendente lite orders pending a final determination of the defendant's claims for ancillary relief (cf., Sass v. Sass, 129 A.D.2d 622, 514 N.Y.S.2d 257 (2d Dep't 1987); Flynn v. Flynn, 128 A.D.2d 583, 584, 512 N.Y.S.2d 847 (2d Dep't 1987)).
In Gilbert v. Gilbert, 32 A.D.3d 416, 820 N.Y.S.2d 609 (2d Dep't 2006), the Appellate Division held that the Supreme Court erred in failing to terminate the existing pendente lite order for the period between its decision after trial and the entry of judgment while obligating the defendant to pay child support from the date of the decision. This resulted in a double shelter allowance during that period. Likewise, the plaintiff was receiving 100%% of the rental income from a portion of the second marital residence during this period. Consequently, upon remittitur, Supreme Court had to recalculate the arrears in child support, if any, or the credit to which the defendant may be entitled. In so doing, the court was required to credit the defendant with that portion of his mortgage payments and other carrying charges for the period between the Supreme Court's decision and the entry of judgment that exceed his interest in the second marital residence resulting from the recalculation on remittitur in the companion appeal. The court also had to credit the defendant with that portion of the rental income representing his interest in the second marital residence.
In Ramirez v. Velez, 78 A.D.3d 1062, 911 N.Y.S.2d 466 (2d Dep't 2010), the Appellate Division held that issues regarding a temporary custody order were rendered academic on appeal from the order awarding the father permanent custody of the child. The order awarding the father temporary custody of the child was superseded by the order awarding him permanent custody, and the temporary order was no longer in effect. Any alleged defect in the temporary order would not render the permanent order defective, since the permanent order was based upon a full and fair hearing.
[19]Shapiro v. Shapiro, 151 A.D.2d 559, 542 N.Y.S.2d 339 (2d Dep’t 1989);(see, Mulligan v Wetchler, supra. Matter of Wareham v Wareham, 34 AD2d 647. Noga v Noga, 235 A.D.2d 1002, 653 N.Y.S.2d 47, 1997 N.Y. Slip Op. 00805 (3d Dept., 1997) (After judgment of divorce was entered defendant requested the court to reconsider its decision and to reopen the trial. In support of his motion, defendant relied on a letter dated March 28, 1994 which set the value of the pension at a lower figure. Supreme Court denied the motion on the ground that defendant failed to explain why such evidence was not presented at trial. The Appellate Division affirmed stating: “. There is no evidence in the record that defendant ever objected at trial to the submission of the March 19, 1993 letter into evidence or that he contested the calculation of his interest in the pension plan by offering an alternative valuation of his interest. There is no proof that defendant was not afforded sufficient time for discovery. Nor is there evidence that defendant was denied the opportunity to submit proof on this issue. Defendant has also failed to offer any reason why he did not act more expeditiously in obtaining the information which he now seeks to submit as evidence (see, Mauro v. Mauro, 148 A.D.2d 684, 685, 539 N.Y.S.2d 432).