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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and The Family New York, 2d (9 volumes) (Thomson Reuters), is both a treatise and a procedural guide. The text analyzes every aspect of New York Family Law. Law and the Family New York Forms, 2d (New York Practice Library, 5 Volumes) provides practitioner-tested forms for New York divorce and family law matters.

Sunday, December 02, 2018

Recent Decisions and Legislation September 16, 2018 to November 16, 2018


November 16, 2018


Matrimonial Rules and Forms Revised Effective September 30, 2018

By administrative order of the Chief Administrative Judge of the Courts section 202.50(b)(3) of the Uniform Civil Rules for the Supreme Court and the County Court (22 NYCRR § 202.50[b][3]), were amended effective September 30, 2018. The amended rules read as follows:
Section 202.50. Proposed judgments in matrimonial actions; forms
 (a) Form of judgments. Findings and conclusions shall be in a separate paper from the judgment, which papers shall be labelled ”FINDINGS OF FACT AND CONCLUSIONS OF LAW” and ”JUDGMENT,” respectively.

(b) Approved forms.

(1) Contested actions. The paragraphs contained in Chapter III, Subchapter B of Subtitle D (Forms) of this Title, modified or deleted as may be necessary to conform to the law and facts in a particular action, shall be used in the preparation of ”FINDINGS OF FACT AND CONCLUSIONS OF LAW,” ”JUDGMENT,” or ”REFEREE'S REPORT OF FINDINGS OF FACT AND CONCLUSIONS OF LAW.” Parenthesized portions indicate alternative provisions.

(2) Uncontested Actions. Parties in uncontested matrimonial actions shall use the forms and instructions in the Unified Court System Uncontested Divorce Packet as set forth in section 202.21 (i)(2) of this Part, unless the court permits otherwise pursuant to that section. The instructions to said Packets shall instruct litigants that they may include a request for transfer of title to the marital home, cooperative apartment or condominium apartment in their request for ancillary relief in the summons with notice or verified complaint, and shall provide instructions as to what must be done to effectuate a transfer. The instructions shall also advise litigants that, if they have a mortgage, they should speak with an attorney as well as the bank before the transfer is made.

(3) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraphs which shall supersede any inconsistent decretal paragraphs currently required for such forms:

ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the ___ day of _____, [ ] an original OR [ ] a transcript of which is on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment,* and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreement as if such terms and conditions were set forth in their entirety herein; and it is further

*In contested actions, this paragraph may read either [shall survive and shall not be merged into this judgment] or [shall not survive and shall be merged into this judgment].

ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the provisions of that (separation agreement) (stipulation agreement) as are capable of specific enforcement to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law, or both; and it is further

ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment shall be brought in a County wherein one of the parties resides; provided that if there are minor children of the marriage, such applications shall be brought in a county wherein one of the parties or the child or children reside, except. in the discretion of the judge, for good cause. Good cause applications shall be made by motion or order to show cause. Where the address of either party and any child or children is unknown and not a matter of public record, or is subject to an existing confidentiality order pursuant to DRL section 254 or FCA section 154-b, such applications may be brought in the county where the judgment was entered; and it is further

(4) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1), (2), and (3) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraph:

ORDERED AND ADJUDGED that pursuant to pursuant to the [ ] parties' Settlement Agreement dated ___________________ OR [ ] the court's decision after trial, all parties shall duly execute all documents necessary to formally transfer title to real estate or co-op shares to the [ ] Plaintiff OR [ ] Defendant as set forth in the [ ] parties' Settlement Agreement OR [ ] the court's decision after trial, including, without limitation, an appropriate deed or other conveyance of title, and all other forms necessary to record such deed or other title documents (including the satisfaction or refinance of any mortgage if necessary) to convey ownership of the marital residence located at _________________________, no later than ________________________; OR [ ] Not applicable: and it is further
(c) Judgments submitted to the court shall be accompanied by a complete form UCS 111 (Child Support Summary Form).



            By administrative order of the Chief Administrative Judge of the Courts the Unified Court System Uncontested Divorce Packet Instructions and Judgment of Divorce (Form UD-11) for use in undefended matrimonial actions pursuant to 22 NYCRR §§ 202.21(i) and 202.50, were repealed and new versions of that form and instructions were enacted as follows: Instructions (rev. 9/30/18); Judgment of Divorce (Form UD-11) (rev. 9/30/18).

            The administrative order was effective for divorce submissions made on or after
September 30, 2018. However, divorce submissions made using the earlier version of the divorce judgment were still accepted through October 30, 2018.

            The following are links to the revised forms and instructions

            See NYS Register October 31, 2018, p. 97


Appellate Division, First Department


Refusal to read order is not a defense to enforcement

            In Matter of Rosa N v Luis F,  --- N.Y.S.3d ----, 2018 WL 5913829, 2018 N.Y. Slip Op. 07682 (1st Dept., 2018) at the violation hearing, respondent admitted to sending petitioner texts after receiving the order of protection, which he said he refused to read. The Appellate Division held that Family Court properly rejected respondent’s defense based on his refusal to read the order.


Appellate Division, Fourth Department


General rule regarding downward modification of support should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason

            In Matter of Parmenter v Nash, --- N.Y.S.3d ----, 2018 WL 5875499, 2018 N.Y. Slip Op. 07553 (4th Dept.,2018) the Appellate Division observed that as a general rule, a parent who voluntarily quits a job will not be deemed without fault in losing such employment. Nevertheless, it held that “the general rule should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason, such as the need to live closer to a child. As one court has explained, a “parent who chooses to leave his [or her] employment rather than [live] hundreds of miles away from his [or her] children is not voluntarily unemployed or underemployed. Instead, he [or she] is a loving parent attempting to do the right thing for his [or her] children. To punish such a parent by requiring higher child support ... is neither good law nor good policy” (Abouhalkah v. Sharps, 795 N.E.2d 488, 492 [Ind. Ct. App. 2003] ). “  The equities weighed heavily in favor of the father given that the mother moved the child hundreds of miles away from the father and created the difficulties inherent in long-distance parenting. The father quit his job in Virginia and relocated to Onondaga County in order to rehabilitate his relationship with his son, which had suffered since the child was moved to New York. Under these circumstances, it concluded that the father demonstrated the requisite change in circumstances necessary to reexamine his child support obligation.


Where parent is recieient of public assistance imputation of income is a proper basis to refuse to cap unpaid child support arrears at $500 under Family Ct Act § 413[1][g]
           

            In Matter of Mandile v Deshotel, --- N.Y.S.3d ----, 2018 WL 5875868, 2018 N.Y. Slip Op. 07571 (4th Dept., 2018) the Appellate Division affirmed an order that, inter alia, confirmed the determination of the Support Magistrate that the mother willfully violated a prior child support order and awarded her judgment for arrears. It, among other things, rejected  the mother’s contention that the court erred in refusing to cap her unpaid child support arrears at $500. It observed  that “here the sole source of a noncustodial parent’s income is public assistance, unpaid child support arrears in excess of five hundred dollars shall not accrue ( Family Ct Act § 413[1][g] ). Although the mother received public assistance and did not maintain employment, circumstantial evidence suggested that she had access to, and received, financial support from her live-in paramour. Inasmuch as  a court need not rely upon a party’s own account of his or her finances, but may impute income to a party based on money received from friends and relatives” it concluded that the court did not err in denying the mother’s motion to cap her arrears at $500 (cf. Edwards, 233 A.D.2d at 885, 649 N.Y.S.2d 618).



November 1, 2018


Court of Appeals

Court of Appeals Holds that ACS failure to offer or provide mother with certain services claimed as “reasonable accommodations” under the Americans with Disabilities Act (ADA) at time six-month permanency reporting period ended did not preclude finding it made “reasonable efforts” toward family reunifications, as required by Family Court Act § 1089.

            In  Matter of Lacee L v Stephanie L, --- N.E.3d ----, 2018 WL 5046100, 2018 N.Y. Slip Op. 06966 (2018) Stephanie L sought to raise  the issue: can Family Court find that the New York City Administration for Children’s Services (ACS) made “reasonable efforts” toward family reunifications, as required by Family Court Act § 1089, if ACS failed to provide “reasonable accommodations” required by the Americans with Disabilities Act (ADA), which requires that governmental agencies make “reasonable accommodations” to ensure disabled persons have access to their services (42 USC § 12131 [2] )? Judge Wilson, writing for the Court noted that Stephanie L. had not identified any services allegedly required by the ADA that were not also required under New York law. 

            Applying section 1089, Family Court ordered ACS to provide the services Stephanie L. claimed as “reasonable accommodations” under the ADA. Family Court noted that Stephanie appeared generally to have received those services.  ACS did not provide its services eagerly or promptly, and provided some only because of stern admonitions from Family Court and vigorous follow up from Stephanie’s counsel. The Appellate Division determined that Family Court “look[ed] to the ADA’s standards ... evaluat[ed] the agency’s efforts in that light, [and] found that the agency tailored its efforts to the mother’s needs” (Matter of Lacee L. (Stephanie L.—Dekodia L.), 153 A.D.3d 1151, 60 N.Y.S.3d 164 [1st Dept. 2017]). Family Court’s determination – affirmed by the Appellate Division – that ACS had made “reasonable efforts” was supported by the record. The Court affirmed.


            The Court of Appeals held that although ACS must comply with the ADA, ACS’s failure to offer or provide certain services at the time a six-month permanency reporting period ends does not necessarily mean that ACS has failed to make “reasonable efforts.” Family Court is not required to determine compliance with the ADA in the course of a permanency proceeding. The ADA’s “reasonable accommodations” test is often a time- and fact-intensive process with multiple layers of inquiry. That adjudication is best left to separate administrative or judicial proceedings, if required (see 28 CFR §§ 35.107[b], 35.170; 42 USC § 12133). Family Court is charged with assessing whether reasonable efforts were made to achieve the permanency goal “in accordance with the best interest and safety of the child” (Family Court Act § 1089 [d]). The record reflected that Family Court was working assiduously to evaluate and accommodate Stephanie L.’s need for services tailored to her own disabilities as they related to parenting Lacee L. Stephanie L. disclaimed any attempt to have brought an ADA claim in Family Court and did not prove in any other forum an ADA violation, but instead argued that certain accommodations would have been required under the ADA. The ADA contains no fixed time period for compliance, and the reasonableness of efforts to provide an accommodation will vary with the facts of each case. New York’s six-month measuring period is not a final determination as to an agencies’ efforts to provide services, but a periodic checkpoint to help ensure that at-risk children are not falling through bureaucratic fissures (see Family Court Act § 1089). Family Court has substantial discretion to make factual determinations that ACS’ inchoate attempts to provide services have been “reasonable.” In other words, even as to accommodations that might be required under the ADA, the failure of ACS to offer or deliver such accommodations by the end of a given measuring period does not necessarily mean that ACS has violated the ADA or failed to make reasonable efforts under New York law.

Appellate Division, Second Department


Voluntary Payments Made for The Support and Legal Obligations of a Spouse Should Be Applied as A Credit to The Calculation of Arrears Owed by The Payor Spouse


            In Stern v Stern, --- N.Y.S.3d ----, 2018 WL 5020059, 2018 N.Y. Slip Op. 06959
(2d Dept., 2018) in a preliminary conference order entered September 11, 2006, the parties addressed pendente lite relief. At that time, the defendant was voluntarily making payments to support the plaintiff and the children of the marriage, as well as paying the expenses of the household. The preliminary conference order provided as to pendente lite relief: “Status quo to be maintained. No motion at this time.” The stipulation was so-ordered by the Supreme Court. As a result, there was no separate order concerning spousal maintenance issued at that time. After a judgment of divorce was entered the plaintiff moved pursuant to Domestic Relations Law § 244, inter alia, for a money judgment against the defendant for unpaid maintenance arrears totaling $353,400, plus prejudgment interest, after crediting payments made by the defendant under an interim order dated January 22, 2009. The defendant opposed the motion, arguing, among other things, that he was entitled to credits totaling $393,516.53 against his maintenance obligation. The Supreme Court, inter alia, granted plaintiff a money judgment for unpaid maintenance arrears of $353,400 and for an award of prejudgment interest on that sum, retroactive to the date of default.

             The Appellate Division held that voluntary payments made for the support and legal obligations of a spouse should be applied as a credit to the calculation of arrears owed by the payor spouse (see McKay v. Groesbeck, 117 A.D.3d 810, 811, 985 N.Y.S.2d 686; Heiny v. Heiny, 74 A.D.3d 1284, 1288, 904 N.Y.S.2d 191). When the payor spouse relieves the other spouse from paying obligations for which the other spouse would be responsible, such payments must be considered as satisfying, in whole or part, maintenance and/or child support. It found that defendant was entitled to credits against his maintenance obligation as established in the judgment of divorce with regard to the plaintiff’s share of such expenses such as mortgage, real estate taxes, and automobile insurance payments. The Court disagreed with the plaintiff’s contention that the defendant’s voluntary payments made pursuant to a preliminary conference order, which did not specifically enumerate the payments to be made, cannot qualify as “payments of pendente lite spousal maintenance actually made pursuant to Court Order.” The preliminary conference order, as so-ordered by the Supreme Court, plainly contemplated that the defendant would continue to make voluntary payments for the benefit of the plaintiff and the parties’ children. To deny the payor spouse a credit for payments made on account of the other spouse’s expenses would not only be inequitable by providing a windfall for the benefitted spouse, but it would also discourage voluntary support payments during the pendency of matrimonial actions and likely cause a precipitous rise of pendente lite motion practice by nonmonied spouses. The matter was remitted to the Supreme Court, Nassau County, for a hearing to determine which of the payments claimed by the defendant, if any, constituted appropriate credits against maintenance as provided in the judgment of divorce, and a new determination


Appellate Division Holds that placement in a juvenile delinquency matter does not satisfy the dependency requirement necessary for a SIJS finding

            In Matter of Keanu S, --- N.Y.S.3d ----, 2018 WL 5020237, 2018 N.Y. Slip Op. 06918 (2d Dept., 2018) the Appellate Division affirmed an order that denied the motion of Keanu S. for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). On November 2, 2015, the Family Court adjudicated the child a juvenile delinquent and placed him on probation for a period of 12 months. On May 19, 2016, the Department of Probation filed a petition alleging that based on an incident on January 29, 2016, and his failure to attend school regularly, the child willfully violated the terms of his probation. In June 2016, the Family Court remanded the child to the Administration for Children’s Services of the City of New York for detention pending further proceedings. In an order dated July 13, 2016, the Family Court vacated the order of disposition dated November 2, 2015, and placed the child in the custody of the Commissioner of Social Services of the City of New York for a period of 12 months in “non-secure placement.” Family Court denied the child’s renewed motion, stating, in pertinent part: “This court declines to adopt [the child’s] position, and finds that a placement in a juvenile delinquency matter does not satisfy the dependency requirement necessary for a SIJS finding.... “First, there exists no Appellate authority in this State to support a finding that a juvenile delinquency proceeding constitutes a dependency upon the Family Court for [specific] findings in a SIJS matter. Second, such determination would circumvent the legislative intent behind the SIJS statute, and would not further the underlying policies or legislative intent of the SIJS statute. Expanding SIJS status to include juvenile delinquency matters would put this court in the untenable position of rewarding immigrant children for committing acts, which if done by an adult, would constitute a crime under the Penal Law. A reward not available to a law abiding immigrant child, and an intent this court is not willing to ascribe to Congress. The Family Court rejected the child’s contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent.

            The Appellate Division agreed with the Family Court’s determination and concluded that such a placement does not satisfy the requirement of dependency under the statute. On appeal, the child urged the Court to find that he had been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court for SIJS purposes by virtue of his juvenile delinquency adjudication. The Court declined to do so. It agreed with the Family Court that the dependency requirement had not been satisfied. It held that the child was not an intended beneficiary of the SIJS provisions. He was not placed in the custody of the Commissioner of Social Services due to his status as an abused, neglected, or abandoned child. Instead, he was placed in the custody of the Commissioner of Social Services after committing acts which, if committed by an adult, would have constituted serious crimes. His violent acts and misconduct have resulted in painful and terrible consequences to his victims. In effect, the child attempted to utilize his wrongdoings and the resultant juvenile delinquency adjudication as a conduit or a vehicle to meet the dependency requirement for SIJS. Such a determination is in conflict with the primary intent of Congress in enacting the SIJS scheme, namely, to protect abused, neglected, and abandoned immigrant children. The Majority opinion could not fathom that Congress envisioned, intended, or proposed that a child could satisfy this requirement by committing acts which, if committed by adults, would constitute crimes, so as to warrant a court’s involvement or the legal commitment to an individual appointed by a state or juvenile court.


Attorney Sanctioned for Continuing to Advance Contention Which Court Had Previously Ruled Was Without Merit.
           
            In Tamburello v Tamburello, --- N.Y.S.3d ----, 2018 WL 5020051, 2018 N.Y. Slip Op. 06961 (2d Dept., 2018) the Appellate Division held that Supreme Court improvidently exercised its discretion in denying the plaintiff’s application to impose sanctions in the form of attorneys’ fees and expenses against the defendant’s attorney pursuant to 22 NYCRR 130–1.1. The defendant, through her attorney, moved to set aside the parties prenuptial agreement contending, in effect, that there had been a novation such that the prenuptial agreement had been replaced by an affidavit of support submitted to the Department of Homeland Security. The defendant’s attorney provided no legal authority supporting this contention. Even though the court granted that branch of the plaintiff’s cross motion which was, in effect, to preclude the defendant from seeking to set aside the parties’ prenuptial agreement, the defendant’s attorney later attempted, at the nonjury trial, to question the plaintiff about the affidavit of support, arguing, in effect, that the affidavit of support replaced the prenuptial agreement. The defense then rested without presenting evidence. The Appellate Division found that the conduct of the defendant’s attorney was frivolous within the meaning of 22 NYCRR 130–1.1(c). The defendant’s attorney continued to advance his contention relating to the affidavit of support, which was completely without merit in law, in contravention of the Supreme Court’s prior ruling. Moreover, that contention could not be supported by a reasonable argument for an extension, modification, or reversal of existing law, and the conduct of the defendant’s attorney appears to have been undertaken primarily to delay or prolong the resolution of the litigation. It remitted the matter to the Supreme Court for a determination of the appropriate amount of the attorneys’ fees and expenses to be awarded to the plaintiff.



Appellate Division Finds It Inequitable to Require That Husband Name Wife as Beneficiary of His Retirement Benefits and Thereby Preclude Him from Sharing Those Benefits with A Subsequent Spouse.

            In Button v Button. --- N.Y.S.3d ----, 2018 WL 5292748, 2018 N.Y. Slip Op. 07216 2018 WL 5292748 (3d Dept., 2018) Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in October 2006 and are the parents of three children (born in 2012, 2013 and 2015). The husband argued on appeal, inter alia, that the court erred in ordering that he provide the wife with “the minimum survivor benefit” for his pension plan. The Appellate Division took judicial notice of the applicable rules of the New York State and Local Retirement System. It observed that a participant may designate a former spouse to receive a portion of the preretirement ordinary death benefit and may name others to receive the remainder of that benefit. However, only one beneficiary, or alternate payee, may be named for retirement benefits. It agreed with the husband that it would be inequitable to require that he name the wife as a beneficiary of his retirement benefits and thereby preclude him from sharing those benefits with any other person, such as a subsequent spouse. In that regard, it noted that the marital portion of the pension wass small, the parties were relatively young and the wife had the prospect of gaining employment that should enable her to provide for retirement. Therefore, it modified the judgment by specifically awarding the wife one half of the martial portion of the husband’s pension according to the Majauskas formula, including one half of the marital portion of the ordinary preretirement death benefit, but excluding any requirement that the husband elect any option that would continue postretirement benefits to the wife following his death.


Diamond engagement purchased for fiancée prior to commencement of action held to be Marital Property.  Supreme Court should not have imputed income to wife based on statistical information from the Department of Labor that was not admitted in evidence at trial

            In Gorman v Gorman, --- N.Y.S.3d ----, 2018 WL 5274250, 2018 N.Y. Slip Op. 07104 (2d Dept., 2018) the parties were married on May 16, 1987. The action for a divorce was commenced on August 2, 2011.

            The Appellate Division, inter alia, disagreed with the determination of the Supreme Court to impute to the plaintiff an annual income of $151,192. Taking into account the plaintiff’s lack of candor in his testimony as to his finances, his history of gambling winnings and related benefits, and his failure to submit a current net worth statement and disclose his living expenses (which he shared with his fiancé), it was appropriate to impute to the plaintiff additional income above his basic governmental salary). However, it found it appropriate to impute to the plaintiff an annual income of $100,000, which attributed to the plaintiff enhanced income from his gambling activities and reflected an adjustment for the savings that the plaintiff should obtain from sharing living expenses with his fiancé.

            The Appellate Division held that Supreme Court should not have imputed income to the wife based on statistical information from the New York State Department of Labor that was not admitted in evidence at trial (see McAuliffe v. McAuliffe, 70 A.D.3d 1129, 1132–1133, 895 N.Y.S.2d 228).

            The Appellate Division held that Supreme Court should not have determined, nearly two years after the parties’ youngest child had attained the age of 21, what the child support would have been for that child based on the trial testimony. A temporary order of support was issued which required the plaintiff to pay to the defendant$6,300 per month in unallocated maintenance and child support. At the time the order of support was made, one of the parties’ two children was under 21. Thus, for purposes of determining the retroactivity of support, it determined that one-half (i.e., $3,150) of the temporary support order was attributable to child support and that the plaintiff is responsible for that amount for the period from May 31, 2012, to August 24, 2014, when the subject child turned 21.

            The Appellate Division held that the court also should have directed the plaintiff to provide health insurance for the plaintiff until she becomes eligible for coverage through employment or through Medicare (see Domestic Relations Law § 236[B][8][a]; Costello v. Costello, 304 A.D.2d 517, 757 N.Y.S.2d 588). Since this direction should be effective as of the date of the defendant’s verified answer, February 7, 2012, we remit the matter to the Supreme Court, Orange County, for a determination as to what, if any, amounts are owed by the plaintiff to the defendant on account of this direction.

            The Appellate Division observed that 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. Here, the plaintiff purchased a diamond engagement ring for $3,200 for his fiancée prior to commencement of the action, and failed to prove that it was separate property. It held that Supreme Court should have given the defendant a 50% credit of the ring’s purchase price, i.e., $1,600, toward her distributive award.



Relocation Provision in Custody Agreement Disregarded. No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest

            In Matter of Jaimes v Gyerko, --- N.Y.S.3d ----, 2018 WL 5274177, 2018 N.Y. Slip Op. 07125 (2d Dept., 2018) the parties March 13, 2014, custody stipulation that was so-ordered and incorporated, but not merged, into their judgment of divorce permitted the mother to relocate within 55 miles of her current residence without the express written permission of the father or a court order. After the mother informed the father that she and the children would be relocating from Mamaroneck, New York, to Woodbridge, Connecticut, the father filed a petition to modify the so-ordered stipulation based on a change in circumstances, to enjoin the mother from relocating with the children. The father argued that the relocation, while within 55 miles of the mother’s Mamaroneck residence, would not be in the children’s best interests. The Family Court, finding that the parties’ custody stipulation permitting the relocation was dispositive, granted the mother’s motion pursuant to CPLR 3211(a)(1) to dismiss the petition. The Appellate Division reversed holding that Family Court should not have granted the relief requested by the mother. No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95). Thus, although the parties agreed in their stipulation that the mother could relocate to within 55 miles of her residence in Mamaroneck, such an agreement is not dispositive, but rather, is a factor to be considered along with all of the other factors a hearing court should consider when determining whether the relocation is in the best interests of the children. Further, the father made an evidentiary showing that the mother’s proposed move might not be in the children’s best interests. Where, as here, facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required (see S.L. v. J.R., 27 N.Y.3d 558, 564)


October 16, 2018

Appellate Division, First Department


Modification of Custody or Visitation, Even on A Temporary Basis, Requires A Hearing, Except in Cases of Emergency. A Hearing May Be “As Abbreviated, In the Court’s Broad Discretion, As the Particular Allegations and Known Circumstances Warrant”

            In Matter of Kenneth J v Lesley B, --- N.Y.S.3d ----, 2018 WL 4778935, 2018 N.Y. Slip Op. 06625 (1st Dept.,2018) the Appellate Division remanded for a further hearing. It held that Family Court improperly determined the mother’s modification petition and the father’s petitions for enforcement, by suspending all contact between the father and child without a hearing. Modification of custody or visitation, even on a temporary basis, requires a hearing, except in cases of emergency. A hearing may be “as abbreviated, in the court’s broad discretion, as the particular allegations and known circumstances warrant” (Martin R.G. v. Ofelia G.O., 24 A.D.3d 305, 306, 809 N.Y.S.2d 1 [1st Dept. 2005]). The court granted suspension of all contact between parent and child based solely upon its in camera interview with the child and its review of the motion papers and some portion of the court file, which included an unsworn and uncertified report by Family Court Mental Health Services (MHS) and unsworn letters from the child’s treating therapist and from therapists who had seen the parties and child for family therapy. It was not clear from the record what portions of the record of the earlier custody case Family Court relied on in reaching its determination.

            The Appellate Division held that Family Court improperly considered the MHS report, since it was not referenced in or attached to the mother’s or the child’s attorney’s motion, was neither sworn nor certified and thus not in admissible form, as is required on a motion for summary judgment, contained inadmissible hearsay and was not subject to cross-examination. Moreover, even if the court could have considered the report, it did not support suspension of all contact between the father and the parties’ child.

            It also held that the court also improperly considered the therapists’ unsworn letters, which were not attached to the mother’s or the child’s attorney’s motion, and which also contained inadmissible hearsay. Even if the court could have considered them, they did not support the award of summary judgment to the mother, since they failed to establish that there were no material facts in dispute and that the mother was entitled to the relief sought as a matter of law. The mother had alleged that the father’s disparagement of her in the child’s presence and his discussion of his adult problems with the child caused the child’s anxiety and suicidal thoughts. The father claimed that the child’s distress was the result of the mother’s efforts to alienate the child from him. The therapists’ observations were not a substitute for a formal neutral forensic mental health evaluation, and did not establish that suspension of all contact between the father and child was in the child’s best interests.


Appellate Division, Second Department


Review and Adjustment Procedures in FCA § 413–A Apply Equally to Support Orders Based on An Agreement Opting Out of The CSSA And Those Based Solely on the CSSA. After an Objection Is Filed a De Novo Review Is Required

            In Murray v Murray, --- N.Y.S.3d ----, 2018 WL 4608783, 2018 N.Y. Slip Op. 06245 (2d Dept., 2018) the parties entered into a child support agreement in which they opted out of the CSSA child support provisions. In March 2017, the SCU notified the parties of a cost-of-living adjustment (COLA) to the father’s child support obligation for the parties’ one remaining unemancipated child, which increased the father’s weekly child support obligation to $822. The mother filed an objection to the COLA pursuant to Family Court Act § 413–a, and a hearing was held before a Support Magistrate. At the time, the child was 20 years old and entering her third year of college. After the hearing, the Support Magistrate, vacated the COLA increase and, upon recalculating the amount of child support for the child pursuant to Family Court Act § 413, fixed the father’s child support obligation at $360 per week. The Support Magistrate found that although the parties’ combined parental income was $371,697.08, the mother failed to set forth a basis upon which to apply the statutory child support percentage to any income above the statutory cap of $143,000.

            The Appellate Division affirmed. It held that although the parties agreed in the stipulation to opt out of the provisions of the CSSA (Domestic Relations Law § 240[1–b]; Family Ct. Act § 413), after the mother filed an objection to the COLA, the Support Magistrate was required, pursuant to Family Court Act § 413–a, to conduct a de novo review of the father’s support obligation under the CSSA. The review and adjustment procedures set forth in Family Court Act § 413–a apply equally to orders based on an agreement and those based solely on the child support standards (Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d at 336, 756 N.Y.S.2d 115, 786 N.E.2d 14). Parties to an agreement that deviates from the guidelines set forth in the CSSA may demonstrate why, in light of the agreement, it would be unjust or inappropriate to apply the guideline amounts.  It held that in recalculating the father’s child support obligation, the Support Magistrate properly considered the guidelines set forth in the CSSA. The mother failed to demonstrate why, in light of provisions of the stipulation, it was unjust or inappropriate for the Support Magistrate to decline to apply the child support percentage to the parties’ combined income over the statutory cap.


Clear and Convincing Evidence Necessary to Overcome Presumption That Commingled Property Is Marital Property.


            In Belilos v Rivera, --- N.Y.S.3d ----, 2018 WL 4608918, 2018 N.Y. Slip Op. 06223 (2d Dept., 2018) the Appellate Division affirmed a judgment of divorce which, inter alia, deducted from the distribution to the defendant of certain funds held in escrow $150,000 as the plaintiff’s separate property from inheritance, and distributed that sum to the plaintiff. 

            The Appellate Division noted that to overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest. The plaintiff established through her own testimony, the defendant’s testimony, and copies of checks from her uncle’s estate, that during the marriage, she inherited the aggregate sum of $150,000 from her uncle. The plaintiff deposited the inheritance monies into one of the parties’ joint accounts merely because she did not have any bank accounts titled solely in her name. The defendant admitted at the trial that, at his deposition, he testified that he intended to return the plaintiff’s inheritance monies to her when the instant litigation settled, and that he intended to make things “right” with respect to the plaintiff’s inheritance. Thus, contrary to the defendant’s contentions, he recognized the separate character of the inheritance monies, such that the presumption that the commingled funds were marital was overcome.


October 1, 2018

Time Table for Service of Motion Papers

            In this issue we have included for counsels reference our updated 2018 Time Table for Service of Motion Papers which is based upon the provisions of CPLR 2214 (b), CPLR 2215 and CPLR 2103(b). A pdf copy of the timetable may be downloaded from our website at www.nysdivorce.com.




Appellate Division, Second Department


Lack of Contempt Warning and Notice May Be Waived by Contesting Application on The Merits

            In Dalton v Dalton, --- N.Y.S.3d ----, 2018 WL 4473038, 2018 N.Y. Slip Op. 06078 (2d Dept., 2018) the Appellate Division rejected the defendant’s argument that the the Supreme Court was without authority to adjudicate him in contempt because the plaintiff’s order to show cause failed to include the notice and warning requirements of Judiciary Law § 756. By contesting the contempt application on the merits without raising this objection, the defendant waived any objections to the validity of the application based upon those requirements.



Family Court Act § 413(1)(a) does not require a third party who is awarded custody, but not a parent to financially support a child.


            In Lozaldo v Cristando, --- N.Y.S.3d ----, 2018 WL 4344611, 2018 N.Y. Slip Op. 06015 (2d Dept., 2018) the maternal aunt and uncle of the subject children were awarded residential custody of the children after the death of the mother, and shared joint legal custody with the father. After a hearing the father was ordered to pay 100% of the children’s unreimbursed medical and educational expenses, and to maintain a life insurance policy in the sum of $1,000,000, designating the children as irrevocable primary beneficiaries. The Appellate Division observed that Family Court Act § 413(1)(a) provides that “the parents of a child under the age of [21] years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine”. The statute does not require a third party who is not a parent to financially support a child.  While Courts have employed the doctrine of equitable estoppel, sometimes in conjunction with that of implied contract, to hold parties responsible for paying child support in the absence of a biological or adoptive connection to the subject child or an established parent-child relationship where, among other things, those parties agreed to adopt the child (see Matter of H.M. v. E.T., 76 A.D.3d 528, 906 N.Y.S.2d 85; Wener v. Wener, 35 A.D.2d 50, 312 N.Y.S.2d 815) such circumstances did not exist here. The fact that the petitioners have residential custody and joint legal custody of the children did not relieve the father of his obligation pursuant to Family Court Act § 413(1)(a), as the children’s parent, to financially support them.

Monday, September 17, 2018

Recent Decisions, Legislation and Trends since July 1, 2018


September 16, 2018


Recent Legislation


Laws of 2018, Chapter 218, Amended CPLR 2305
 
          Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.”

    
          CPLR 2305(d) provides as follows:

(d) Subpoena duces tecum for a trial; service of subpoena and delivery for records.  Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.

            The amendment was effective immediately and applies to all actions
   pending on or after such effective date.


Laws of 2018, Chapter 217 added CPLR 4540-a

   
            Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure.

            According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence.


            New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.").

            CPLR 4540-a, effective January 1, 2019 reads as follows:

 Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party.  Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an
adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.


Laws of 2018, Chapter 235 adds new privileged communications

            Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege.
 
            Judiciary Law §498, new subdivision 2 reads as follows:

 2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents.



Appellate Division, First Department


Adoption Subsidy Should Be Considered as A Resource of The Child When Determining Child Support

            In Barbara T v Acquinetta T, --- N.Y.S.3d ----, 2018 WL 3789133, 2018 N.Y. Slip Op. 05736 (1st Dept., 2018), a support proceeding, the Appellate Division held that Family Court erred in determining that the Children’s Law Center (CLC) which had been appointed as attorney for the child with no limitations on the scope of its representation did not have standing to file objections in Family Court. It rejected the argument that Family Court Act § 439(e) restricts the filing of objections to a “party or parties.” That section does not prohibit children’s attorneys, where appointed, from filing or rebutting objections to a Support Magistrate’s order. It found that the child’s attorney had standing to file objections to the Support Magistrate’s order. CLC also had standing to bring the appeal. The final order of a Support Magistrate is appealable after objections have been reviewed by a judge (FCA § 439[e]). In addition, the Court has discretion to entertain an appeal of any Family Court order other than an order of disposition (FCA § 1112).
           
            The child was born on December 21, 2000. In or about 2010, he was removed from his birth mother’s home and placed in non-kinship foster care with respondent Acquinetta M. (mother or Ms. M), who thereafter adopted him. When the adoption became final she began to receive a monthly adoption subsidy for him, which was administered by the Administration for Children’s Services (ACS). On December 2, 2015, the petitioner in the proceeding, the child’s godmother, Barbara T. (guardian or Ms. T), filed a petition for guardianship and in or about February 2016, the child began living with her full-time. Ms. M did not contest the petition, and it was granted on March 28, 2016. In March 2016, Ms. M advised ACS that the child was no longer living with her and that she wished to stop receiving the subsidy. Based solely on her request, ACS issued a notice to the mother stating that the subsidy had been “suspended” effective April 14, 2016 at her request. On March 31, 2016, the child’s guardian filed a petition seeking child support from Ms. M.

            The Appellate Division held, inter alia, that Family Court properly determined that an adoption subsidy should be considered as a resource of the child when determining child support. The Court observed that foster parents apply for the subsidy prior to adoption (18 NYCRR 421.24 [b], [c][1]), and sign a contract with ACS (18 NYCRR 421.24[c][3]). The minimum provisions of such contracts are set by regulation (18 NYCRR 421.24[c][3]). The applicable regulations further provide that the written agreement “will remain in effect until the child’s 21st birthday. No payments may be made if [ACS] determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child” (18 NYCRR 421.24[c][5]). Similarly, the Social Services Law provides that, once approved, subsidy payments “shall be made until the child’s twenty first birthday” (SSL § 453 [1][a] ) and that payment of the subsidy may only be suspended if ACS “determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents” (SSL § 453[1][c]; see also 42 USC § 673[a][4][A][ii], [iii] ). The Appellate Division held that Family Court erred in determining that receipt of the subsidy, once the contract is entered into, is at the adoptive parent’s election or that the subsidy terminates when the adoptive parent “opts” not to receive it.  The mother’s claim that she was no longer eligible to receive the subsidy once the child no longer resided with her was contrary to the applicable statutes and regulations and the required language of the adoption subsidy agreement.

            The Appellate Division held that although the statute does not presently permit anyone other than an adoptive parent to receive the subsidy on the child’s behalf, there is no statutory or regulatory requirement that the child continue to reside with the adoptive parent in order for the subsidy to continue. Accordingly, Family Court erred when it determined that it is “inappropriate, if not illegal, for a person to apply for and receive adoption subsidies for a minor who is not in said person’s care.” The subsidy may be considered in determining whether the non-custodial parent’s statutory child support obligation is “unjust or inappropriate” (FCA § 413 [1][f]). Adoptive parents, just like biological parents, remain legally responsible for the support of their children until they are 21 (FCA § 413[1][a]). The adoption subsidy (see 18 NYCRR 421.24) is not income that can be imputed to the adoptive parent (see A.E. v. J.I.E., 179 Misc. 2d 663, 686 N.Y.S.2d 613).

            However, Family Court erred in determining that a deviation based on the subsidy would be improper because it would “force” the mother to take steps to undo the subsidy’s suspension. Awarding child support in the amount of the subsidy is not unlike awarding support based on a parent’s historic earning potential, which similarly requires the parent to do what the court has determined he or she is capable of doing based on past performance. Family Court further erred in failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to determine whether the mother’s basic child support obligation is unjust or inappropriate.” Considering these factors, it found that awarding child support in at least the amount of the subsidy for so long as the mother was eligible to receive it on the child’s behalf was an appropriate deviation from the basic child support obligation (see Smith, 75 A.D.3d 802, 903 N.Y.S.2d 758).  However, it was not clear from the record whether the mother may obtain the subsidy retroactive to the date on which it was suspended and remanded for further proceedings.


To Extent Defendant Promised Plaintiff, In Contemplation of Marriage, That She Would Raise Any Children They Had as Vegetarians, The Promise Is Not Binding

          In Kesavan v Kesavan, 162 A.D.3d 445, 78 N.Y.S.3d 345, 2018 N.Y. Slip Op. 04088 (1st Dept., 2018) in the parties parenting agreement, the parties agreed to jointly determine all major matters with respect to the child, including “religious choices.” The 24–page agreement did not otherwise mention the child’s religious upbringing and made no reference at all to dietary requirements. Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish. The Appellate Division held that this was an abuse of discretion (see De Arakie v. De Arakie, 172 A.D.2d 398, 399, 568 N.Y.S.2d 778 [1st Dept. 1991]). To the extent defendant promised plaintiff, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding (Stevenot v. Stevenot, 133 A.D.2d 820, 520 N.Y.S.2d 197 [2d Dept. 1987]), particularly in view of the parenting agreement, which omits any such understanding. Nor was there support in the record for a finding that a vegetarian diet is in the child’s best interests.



Appellate Division, Second Department


In proceeding pursuant to FCA § 661(a) there is no express statutory fingerprinting requirement, or express requirement to submit documentation to OCFS.

            In Matter of A v P , 161 A.D.3d 1068, 78 N.Y.S.3d 189, 2018 N.Y. Slip Op. 03674 (2d Dept., 2018)   the mother commenced a proceeding pursuant to Family Court Act article 6 to be appointed guardian of the child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and 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). The mother also moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Family Court denied the mother’s motion without a hearing and dismissed the guardianship petition for “failure to prosecute,” respectively.

            The Appellate Division reversed. It held that in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is no express statutory fingerprinting requirement, or any express requirement to submit documentation pertaining to the Office of Children and Family Services. Further, under the circumstances of this case, the court erred in dismissing the petition and denying the motion for “failure to prosecute” based upon the mother’s failure to submit documentation regarding, inter alia, the child’s enrollment in school. Since the Family Court dismissed the guardianship petition and denied the mother’s motion without conducting a hearing or considering the child’s best interests, it remitted the matter to the Family Court for a hearing and a new determination thereafter of the petition and the motion.



Second Department Holds that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 should no longer be followed. Family Court’s Determinations Following A Permanency Hearing Must Be Made ‘In Accordance with The Best Interests and Safety of The Child

            In Matter of Victoria B, --- N.Y.S.3d ----, 2018 WL 3748220, 2018 N.Y. Slip Op. 05675 (2d Dept., 2018) after issuing the order of fact-finding of neglect and disposition, the Family Court held a permanency hearing. In a permanency hearing order dated August 30, 2017, the court changed the permanency goal from reunification to placement for adoption and continued the child’s placement in the custody of the Commissioner until the completion of the next permanency hearing or pending further order of the court. The order also directed the filing of a petition to terminate the father’s parental rights.

            The Appellate Division held that the father’s appeal was academic insofar as the permanency hearing order dated August 30, 2017, continued the child’s placement with the Commissioner. This portion of the order had already expired. However, it concluded that the portions of the August 30, 2017, permanency hearing order which changed the permanency goal from reunification to placement for adoption and directed the filing of a petition to terminate the father’s parental rights was not academic. It agreed with the First and Third Departments that since the permanency goal was changed so as to alter the objectives to be sought by the petitioner in the course of future permanency proceedings from working toward reunification to working toward permanent placement and termination of parental rights, any new orders would be the direct result of the order appealed from, and the issue of whether the order appealed from was proper will continue to affect the father’s rights (see Matter of Jacelyn TT. [Tonia TT. —Carlton TT.], 80 A.D.3d 1119, 1120, 915 N.Y.S.2d 732; see also Matter of Justyce HH. [Andrew II.] 136 A.D.3d 1181, 26 N.Y.S.3d 376; accord Matter of Alexander L. [Andrea L.], 109 A.D.3d 767, 972 N.Y.S.2d 229). To the extent that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 are to the contrary, they should no longer be followed.

            In affirming the order upon its review, the Appellate Division observed that Article 10–A “establishes a system of ‘permanency hearings’ for children who have been removed from parental custody”. The hearings are “scheduled at six-month intervals” (see Family Ct Act § 1089[a][3]). “At the conclusion of each 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”. Permissible permanency goals include returning the child to a parent or placing the child for adoption (Family Ct Act § 1089[d][2][i]). “At a permanency hearing, the petitioner bears the burden of establishing the appropriateness of a permanency goal, or a goal change, by a preponderance of the evidence” The Family Court’s determinations following a permanency hearing “must be 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’”



Appellate Division, Fourth Department


Family Court Does Not Have Authority to Compel Child to Participate in Permanency Hearing When Child Has Waived Right to Participate Following Consultation with Attorney

           In Matter of Shawn S, 163 A.D.3d 31, 77 N.Y.S.3d 824, 2018 N.Y. Slip Op. 042081(4th Dept., 2018), the Family Court, directed 14-year-old child to be present for any permanency hearing, despite the child’s waiver of right to participate in hearing. The Appellate Division reversed. It held that the Family Court does not have the authority to compel a child to participate in a permanency hearing when that child has waived his or her right to participate following consultation with his or her attorney (see Family Ct Act § 1090–a [a][2]). The question was one of statutory interpretation. Here, the statutory language was clear and unambiguous. Although the permanency hearing must include “an age appropriate consultation with the child” (Family Ct Act § 1090–a [a][1]), that requirement may not “be construed to compel a child who does not wish to participate in his or her permanency hearing to do so” (Family Court act§ 1090–a [g]). The choice belongs to the child.  “A child age fourteen and older shall be permitted to participate in person in all or any portion of his or her permanency hearing in which he or she chooses to participate” (§ 1090–a [b][1]). Moreover, “a child who has chosen to participate in his or her permanency hearing shall choose the manner in which he or she shall participate, which may include participation in person, by telephone or available electronic means, or the issuance of a written statement to the court” (§ 1090–a [c]). Although the court may limit the participation of a child under the age of 14 based on the best interests of the child (see § 1090–a [a][3]; [b][2] ), the court lacks the authority to compel the participation of a child who has waived his or her right to participate in a permanency hearing after consultation with his or her attorney (see § 1090–a [a][2]; [g] ).


September 1, 2018

Recent Legislation


Laws of 2018, Chapter 218, Amended CPLR 2305
 
          Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.”

    
          CPLR 2305(d) provides as follows:

(d) Subpoena duces tecum for a trial; service of subpoena and delivery for records.  Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.

            The amendment was effective immediately and applies to all actions
   pending on or after such effective date.


Laws of 2018, Chapter 217 added CPLR 4540-a

   
            Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure.

            According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence.


            New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.").

            CPLR 4540-a, effective January 1, 2019 reads as follows:

 Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party.  Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an
adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.


Laws of 2018, Chapter 235 adds new privileged communications

            Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege.
 
            Judiciary Law §498, new subdivision 2 reads as follows:

 2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents.



Appellate Division, First Department


Adoption Subsidy Should Be Considered as A Resource of The Child When Determining Child Support

            In Barbara T v Acquinetta T, --- N.Y.S.3d ----, 2018 WL 3789133, 2018 N.Y. Slip Op. 05736 (1st Dept., 2018), a support proceeding, the Appellate Division held that Family Court erred in determining that the Children’s Law Center (CLC) which had been appointed as attorney for the child with no limitations on the scope of its representation did not have standing to file objections in Family Court. It rejected the argument that Family Court Act § 439(e) restricts the filing of objections to a “party or parties.” That section does not prohibit children’s attorneys, where appointed, from filing or rebutting objections to a Support Magistrate’s order. It found that the child’s attorney had standing to file objections to the Support Magistrate’s order. CLC also had standing to bring the appeal. The final order of a Support Magistrate is appealable after objections have been reviewed by a judge (FCA § 439[e]). In addition, the Court has discretion to entertain an appeal of any Family Court order other than an order of disposition (FCA § 1112).
           
            The child was born on December 21, 2000. In or about 2010, he was removed from his birth mother’s home and placed in non-kinship foster care with respondent Acquinetta M. (mother or Ms. M), who thereafter adopted him. When the adoption became final she began to receive a monthly adoption subsidy for him, which was administered by the Administration for Children’s Services (ACS). On December 2, 2015, the petitioner in the proceeding, the child’s godmother, Barbara T. (guardian or Ms. T), filed a petition for guardianship and in or about February 2016, the child began living with her full-time. Ms. M did not contest the petition, and it was granted on March 28, 2016. In March 2016, Ms. M advised ACS that the child was no longer living with her and that she wished to stop receiving the subsidy. Based solely on her request, ACS issued a notice to the mother stating that the subsidy had been “suspended” effective April 14, 2016 at her request. On March 31, 2016, the child’s guardian filed a petition seeking child support from Ms. M.

            The Appellate Division held, inter alia, that Family Court properly determined that an adoption subsidy should be considered as a resource of the child when determining child support. The Court observed that foster parents apply for the subsidy prior to adoption (18 NYCRR 421.24 [b], [c][1]), and sign a contract with ACS (18 NYCRR 421.24[c][3]). The minimum provisions of such contracts are set by regulation (18 NYCRR 421.24[c][3]). The applicable regulations further provide that the written agreement “will remain in effect until the child’s 21st birthday. No payments may be made if [ACS] determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child” (18 NYCRR 421.24[c][5]). Similarly, the Social Services Law provides that, once approved, subsidy payments “shall be made until the child’s twenty first birthday” (SSL § 453 [1][a] ) and that payment of the subsidy may only be suspended if ACS “determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents” (SSL § 453[1][c]; see also 42 USC § 673[a][4][A][ii], [iii] ). The Appellate Division held that Family Court erred in determining that receipt of the subsidy, once the contract is entered into, is at the adoptive parent’s election or that the subsidy terminates when the adoptive parent “opts” not to receive it.  The mother’s claim that she was no longer eligible to receive the subsidy once the child no longer resided with her was contrary to the applicable statutes and regulations and the required language of the adoption subsidy agreement.

            The Appellate Division held that although the statute does not presently permit anyone other than an adoptive parent to receive the subsidy on the child’s behalf, there is no statutory or regulatory requirement that the child continue to reside with the adoptive parent in order for the subsidy to continue. Accordingly, Family Court erred when it determined that it is “inappropriate, if not illegal, for a person to apply for and receive adoption subsidies for a minor who is not in said person’s care.” The subsidy may be considered in determining whether the non-custodial parent’s statutory child support obligation is “unjust or inappropriate” (FCA § 413 [1][f]). Adoptive parents, just like biological parents, remain legally responsible for the support of their children until they are 21 (FCA § 413[1][a]). The adoption subsidy (see 18 NYCRR 421.24) is not income that can be imputed to the adoptive parent (see A.E. v. J.I.E., 179 Misc. 2d 663, 686 N.Y.S.2d 613).

            However, Family Court erred in determining that a deviation based on the subsidy would be improper because it would “force” the mother to take steps to undo the subsidy’s suspension. Awarding child support in the amount of the subsidy is not unlike awarding support based on a parent’s historic earning potential, which similarly requires the parent to do what the court has determined he or she is capable of doing based on past performance. Family Court further erred in failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to determine whether the mother’s basic child support obligation is unjust or inappropriate.” Considering these factors, it found that awarding child support in at least the amount of the subsidy for so long as the mother was eligible to receive it on the child’s behalf was an appropriate deviation from the basic child support obligation (see Smith, 75 A.D.3d 802, 903 N.Y.S.2d 758).  However, it was not clear from the record whether the mother may obtain the subsidy retroactive to the date on which it was suspended and remanded for further proceedings.


To Extent Defendant Promised Plaintiff, In Contemplation of Marriage, That She Would Raise Any Children They Had as Vegetarians, The Promise Is Not Binding

            In Kesavan v Kesavan, 162 A.D.3d 445, 78 N.Y.S.3d 345, 2018 N.Y. Slip Op. 04088 (1st Dept., 2018) in the parties parenting agreement, the parties agreed to jointly determine all major matters with respect to the child, including “religious choices.” The 24–page agreement did not otherwise mention the child’s religious upbringing and made no reference at all to dietary requirements. Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish. The Appellate Division held that this was an abuse of discretion (see De Arakie v. De Arakie, 172 A.D.2d 398, 399, 568 N.Y.S.2d 778 [1st Dept. 1991]). To the extent defendant promised plaintiff, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding (Stevenot v. Stevenot, 133 A.D.2d 820, 520 N.Y.S.2d 197 [2d Dept. 1987]), particularly in view of the parenting agreement, which omits any such understanding. Nor was there support in the record for a finding that a vegetarian diet is in the child’s best interests.



Appellate Division, Second Department


In proceeding pursuant to FCA § 661(a) there is no express statutory fingerprinting requirement, or express requirement to submit documentation to OCFS.

            In Matter of A v P , 161 A.D.3d 1068, 78 N.Y.S.3d 189, 2018 N.Y. Slip Op. 03674 (2d Dept., 2018)   the mother commenced a proceeding pursuant to Family Court Act article 6 to be appointed guardian of the child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and 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). The mother also moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Family Court denied the mother’s motion without a hearing and dismissed the guardianship petition for “failure to prosecute,” respectively.

            The Appellate Division reversed. It held that in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is no express statutory fingerprinting requirement, or any express requirement to submit documentation pertaining to the Office of Children and Family Services. Further, under the circumstances of this case, the court erred in dismissing the petition and denying the motion for “failure to prosecute” based upon the mother’s failure to submit documentation regarding, inter alia, the child’s enrollment in school. Since the Family Court dismissed the guardianship petition and denied the mother’s motion without conducting a hearing or considering the child’s best interests, it remitted the matter to the Family Court for a hearing and a new determination thereafter of the petition and the motion.



Second Department Holds that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 should no longer be followed. Family Court’s Determinations Following A Permanency Hearing Must Be Made ‘In Accordance with The Best Interests and Safety of The Child

            In Matter of Victoria B, --- N.Y.S.3d ----, 2018 WL 3748220, 2018 N.Y. Slip Op. 05675 (2d Dept., 2018) after issuing the order of fact-finding of neglect and disposition, the Family Court held a permanency hearing. In a permanency hearing order dated August 30, 2017, the court changed the permanency goal from reunification to placement for adoption and continued the child’s placement in the custody of the Commissioner until the completion of the next permanency hearing or pending further order of the court. The order also directed the filing of a petition to terminate the father’s parental rights.

            The Appellate Division held that the father’s appeal was academic insofar as the permanency hearing order dated August 30, 2017, continued the child’s placement with the Commissioner. This portion of the order had already expired. However, it concluded that the portions of the August 30, 2017, permanency hearing order which changed the permanency goal from reunification to placement for adoption and directed the filing of a petition to terminate the father’s parental rights was not academic. It agreed with the First and Third Departments that since the permanency goal was changed so as to alter the objectives to be sought by the petitioner in the course of future permanency proceedings from working toward reunification to working toward permanent placement and termination of parental rights, any new orders would be the direct result of the order appealed from, and the issue of whether the order appealed from was proper will continue to affect the father’s rights (see Matter of Jacelyn TT. [Tonia TT. —Carlton TT.], 80 A.D.3d 1119, 1120, 915 N.Y.S.2d 732; see also Matter of Justyce HH. [Andrew II.] 136 A.D.3d 1181, 26 N.Y.S.3d 376; accord Matter of Alexander L. [Andrea L.], 109 A.D.3d 767, 972 N.Y.S.2d 229). To the extent that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 are to the contrary, they should no longer be followed.

            In affirming the order upon its review, the Appellate Division observed that Article 10–A “establishes a system of ‘permanency hearings’ for children who have been removed from parental custody”. The hearings are “scheduled at six-month intervals” (see Family Ct Act § 1089[a][3]). “At the conclusion of each 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”. Permissible permanency goals include returning the child to a parent or placing the child for adoption (Family Ct Act § 1089[d][2][i]). “At a permanency hearing, the petitioner bears the burden of establishing the appropriateness of a permanency goal, or a goal change, by a preponderance of the evidence” The Family Court’s determinations following a permanency hearing “must be 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’”



Appellate Division, Fourth Department


Family Court Does Not Have Authority to Compel Child to Participate in Permanency Hearing When Child Has Waived Right to Participate Following Consultation with Attorney

           In Matter of Shawn S, 163 A.D.3d 31, 77 N.Y.S.3d 824, 2018 N.Y. Slip Op. 042081(4th Dept., 2018), the Family Court, directed 14-year-old child to be present for any permanency hearing, despite the child’s waiver of right to participate in hearing. The Appellate Division reversed. It held that the Family Court does not have the authority to compel a child to participate in a permanency hearing when that child has waived his or her right to participate following consultation with his or her attorney (see Family Ct Act § 1090–a [a][2]). The question was one of statutory interpretation. Here, the statutory language was clear and unambiguous. Although the permanency hearing must include “an age appropriate consultation with the child” (Family Ct Act § 1090–a [a][1]), that requirement may not “be construed to compel a child who does not wish to participate in his or her permanency hearing to do so” (Family Court act§ 1090–a [g]). The choice belongs to the child.  “A child age fourteen and older shall be permitted to participate in person in all or any portion of his or her permanency hearing in which he or she chooses to participate” (§ 1090–a [b][1]). Moreover, “a child who has chosen to participate in his or her permanency hearing shall choose the manner in which he or she shall participate, which may include participation in person, by telephone or available electronic means, or the issuance of a written statement to the court” (§ 1090–a [c]). Although the court may limit the participation of a child under the age of 14 based on the best interests of the child (see § 1090–a [a][3]; [b][2] ), the court lacks the authority to compel the participation of a child who has waived his or her right to participate in a permanency hearing after consultation with his or her attorney (see § 1090–a [a][2]; [g] ).





August 16, 2018

Appellate Division, Second Department


Second Department Holds That Request at Trial for Judgment for Arrears of Temporary Maintenance Must Be Made on Notice


In Cravo v Diegel, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3559159, 2018 N.Y. Slip Op. 05447 (2d Dept., 2018) in affirming the judgment of divorce, the Appellate Division held, inter alia, that Supreme Court did not improvidently exercise its discretion in failing to the husband him maintenance arrears accruing under a pendente lite order dated December 29, 2014, because he failed to make an application for such an award. A party to a matrimonial action may make an application for a judgment directing payment of maintenance 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 maintenance arrears must be made Aupon such notice to the spouse or other person as the court may direct@ (Domestic Relations Law ' 244). Here, the defendant made no such application (see Domestic Relations Law ' 244; Matter of Fixman v. Fixman, 31 A.D.3d 637, 637B638, 819 N.Y.S.2d 770).


Appellate Division, Fourth Department


Fourth Department Holds That Comity Requires Recognition of Property Rights Arising from Civil Union in Vermont

       In O=Reilly- Morshead v O=Reilly-Morshead, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3567116, 2018 N.Y. Slip Op. 05419 (4th Dept., 2018) Plaintiff and defendant were residents of New York who, on June 9, 2003, traveled to Vermont and entered into a civil union under the laws of that state. On June 9, 2006, they were married in Canada. In 2014, plaintiff commenced this action seeking dissolution of the marriage and defendant counterclaimed for, inter alia, dissolution of the civil union and the equitable distribution of property acquired during the civil union. The Appellate Division held that Supreme Court properly declined to treat the civil union as equivalent to a marriage for the purposes of the equitable distribution of property under the Domestic Relations Law. It observed that when the New York State Legislature enacted the Marriage Equality Act, it granted same‑sex couples the right to marry, but it did not grant those couples who had entered into civil unions the same rights as those who marry. The Domestic Relations Law provides that A[a] marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex@ (DRL' 10Ba [1]). While the word Amarriage@ is not defined in the Domestic Relations Law, the disposition of property in a matrimonial action is dependent on whether that property is A[m]arital property@ (DRL' 236[B][5][c]). The Domestic Relations Law defines A >marital property= @ as property acquired Aduring the marriage@ (DRL' 236[B][1][c]) and, as relevant here, Aseparate property@ is defined as Aproperty acquired before marriage@ (' 236[B][1][d][1]). The parties were married on June 9, 2006, and thus the property at issue was acquired prior to the parties= marriage.

However, the Appellate Division concluded that the court erred in denying defendant=s request to apply principles of comity to the civil union and recognize that both parties have rights with respect to property acquired during the civil union. In Debra H. v. Janice R., 14 N.Y.3d 576, 904 N.Y.S.2d 263, 930 N.E.2d 184 (2010) the Court of Appeals left open the question whether New York should extend comity to the civil union for purposes other than parentage. The Appellate Division concluded that comity does require the recognition of property rights arising from a civil union in Vermont. One of the consequences of the parties= civil union in Vermont was that they would receive Aall the same benefits, protections, and responsibilities under law ... as are granted to spouses in a civil marriage@ (Vt. Stat. Ann, tit. 15, ' 1204[a]), including rights with respect to Adivorce ... and property division@ (' 1204 [d]; see DeLeonardis v. Page, 188 Vt. 94, 101, 998 A.2d 1072, 1076 [2010]). That rule is consistent with the public policy of New York, inasmuch as the laws of Vermont and New York both Apredicate [] [property rights] on the objective evidence of a formal legal relationship,@ i.e., legal union between the parties. In other words, under the laws of both Vermont and New York, property acquired during a legal union of two people‑in Vermont a civil union or marriage, and in New York, a marriage‑is subject to equitable distribution under the governing statutes of the state. The relevant New York and Vermont statutes both provide similar factors for the court to consider when determining the equitable distribution of the property. It concluded that, under the principles of comity, the property acquired during the civil union and prior to the marriage is subject to equitable distribution, and such property will therefore be equitably distributed after trial, along with the property acquired during the marriage.


Terms of agreement are to be interpreted consistently corresponding statutory scheme

In Burns v Burns, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3569023, 2018 N.Y. Slip Op. 05411
(4th Dept., 2018) the parties settlement agreement pursuant to Domestic Relations Law ' 236(B)(3) which was incorporated into their judgment of divorce provided that  A[a]ll matters affecting interpretation of this [a]greement and the rights of the parties [t]hereto shall be governed by the laws of the State of New York.@ The agreement obligated the husband to pay Arehabilitative maintenance@ to the wife pursuant to a schedule, until November 30, 2010 but was silent  regarding the effect, if any, of the wife=s remarriage upon the husband=s maintenance obligation. The wife remarried in December 2015. In April 2016, the husband emailed the wife to inform her that he would stop paying maintenance as a result of her remarriage.  The wife then moved to, inter alia, recover a monetary judgment for the amount outstanding and hold the husband in contempt for ending the maintenance payments. The Appellate Division rejected the wiles= argument that  Aa plain reading of ... the agreement [] leads to only one conclusion: [the husband=s] rehabilitative maintenance obligation survives [her] remarriage.@because A[o]ther than November 30, 2020, no termination events are identified in the agreement.           

The Appellate Division held that when parties enter into an agreement authorized by or related to a particular statutory scheme, the courts will presumeCabsent something to the contraryCthat the terms of the agreement are to be interpreted consistently with the corresponding statutory scheme (Dolman v. United States Trust Co. of N.Y., 2 N.Y.2d 110, 116, 157 N.Y.S.2d 537, 138 N.E.2d 784 [1956]). The statutory scheme corresponding to the agreement in this case is Domestic Relations Law ' 236, which includes the following caveat: any maintenance award Ashall terminate upon the death of either party or upon the payee=s valid or invalid marriage@. As thus defined, the concept of maintenance is unequivocally limited to payments made to an unmarried ex‑spouse. And unless the parties contract otherwise, the statutory limitation is incorporated directly into a divorce settlement agreement Aas though it were expressed or referred to therein@. It rejected the wife=s argument that the statutory definition of maintenance embodied in Domestic Relations Law ' 236(B)(1)(a) is irrelevant simply because the parties chose to settle the terms of their divorce in a written agreement.  The concept of Amaintenance,@, is explicitly limited by statute to payments made to an unmarried payee.



August 1, 2018

Appellate Division, Second Department

Party Moving for Attorney=s Fees Must Make Prima Facie Showing of Substantial Compliance With 22 NYCRR 1400.2 And 1400.3

In Matter of Tarpey v Tarpey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3371501, 2018 N.Y. Slip Op. 05178 (2d Dept., 2018) the Appellate Division reversed an order which granted the mother=s petition for an upward modification of child support and attorneys fees. It pointed out that an attorney may recover fees from a client or the client=s spouse only if the attorney has substantially complied with 22 NYCRR 1400.2 and 1400.3, which, inter alia, require counsel to provide the client with Awritten, itemized bills at least every 60 days@ (Gahagan v. Gahagan, 51 A.D.3d 863, 864, 859 N.Y.S.2d 218). The party moving for attorney=s fees must make a prima facie showing of substantial compliance with 22 NYCRR 1400.2 and 1400.3 (see Gottlieb v. Gottlieb, 101 A.D.3d 678, 679, 957 N.Y.S.2d 132). It held that the Support Magistrate erred in awarding the mother attorney=s fees, as the mother did not demonstrate, prima facie, substantial compliance with 22 NYCRR 1400.2 or 1400.3. The mother failed to submit appropriate evidence in support of her application for attorney=s fees
Recording Call Placed on Speaker at Request of Party to Conversation Is Not Eavesdropping 

            In Perlman v Perlman, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3371321, 2018 N.Y. Slip Op. 05212 (2d Dept., 2018) the Appellate Division, inter alai, affirmed an order denying defendant=s motion to preclude the plaintiff from offering a tape recording of a telephone call into evidence at trial. Generally, A[t]he contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury@ (CPLR 4506[1]). AA person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication@ (Penal Law ' 250.05).  It found that the plaintiff=s actions in recording a telephone call, which apparently took place between the defendant and the children after the defendant requested that the children place the call on speaker so that the plaintiff could hear what he had to say, did not constitute the crime of eavesdropping. The plaintiff=s actions did not amount to Amechanical overhearing of a conversation [,]@ as she was present at, and a party to, the conversation at issue (Penal Law ' 250.00[2]; cf. People v. Badalamenti, 27 N.Y.3d 423, 432, 34 N.Y.S.3d 360, 54 N.E.3d 32). Thus, the recordings of that conversation were admissible pursuant to CPLR 4506(1) (see CPLR 4506[1]; Penal Law '' 250.05, 250.00[1], [2]).



Provision of Postnuptial Agreement Waiving Right to Seek Attorney=s Fee Held Unenforceable

            In Maddaloni v Maddaloni, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3450169, 2018 N.Y. Slip Op. 05295 (2d Dept., 2018) the Appellate Division affirmed an order which, among other things, granted the plaintiffs motion for post judgment and interim appellate counsel fees. The parties= 1988 postnuptial agreement provided that in the event that either of the parties was unable or unwilling to continue the marriage arrangement, neither of the parties would be entitled to counsel fees. It observed that  A[t]he determination as to whether or not a provision waiving the right to seek an award of an attorney=s fee is enforceable must be made on a case‑by‑case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced@ (Kessler v. Kessler, 33 A.D.3d 42, 48, 818 N.Y.S.2d 571; see Abramson v. Gavares, 109 A.D.3d 849, 851, 971 N.Y.S.2d 538).  Here, based on the disparity between the financial positions of the parties, and all of the circumstances of this matter, the provision of the parties= postnuptial agreement waiving the right to seek an award of an attorney=s fee was unenforceable.


Appellate Division, Third Department


Net Loss on Rental Property Excluded from Income for Child Support Calculation


In DeSouza v DeSouza, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3383635, 2018 N.Y. Slip Op. 05237 (3d Dept., 2018) the Appellate Division held that where a net loss is sustained on rental property for a given year, such rental income is properly excluded from the calculation of the parties= total gross income for child support purposes (see Domestic Relations Law ' 240[1Bb] [b][5][ii]).


July 16, 2018

Rules of Professional Conduct amended effective June 1. 2018

The Judicial Departments of the Appellate Division of the New York Slate Supreme Court, amended Title 22 of the Official Compilation of Code, Rules, and Regulations of the State of New York Part 1200 (Rules of Professional Conduct, Rule 8.4[g) and Part 1210 (Statement of Client's Rights) to prohibit discrimination in the practice of law on the basis. of, gender identity. or gender expression, as follows:

Part 1200. Attorney Rules of Professional Conduct
•••
Rule 8.4. Misconduct
A lawyer or law firm shall not:
•••
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis. of age, race, creed, color, national origin, sex, disability, marital status, sexual orientation, gender identity. or gender
expression. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding.


Part 1210. Statement of Client’s Rights
§ 1210.1. Posting

Every attorney with an office located in! he State of New York shall insure that there is posted in that office, in a manner visible to clients of the attorney, a statement of client's rights in the form set forth below. Attorneys in offices that provide legal services without fee may delete from the statement those provisions dealing with fees. The statement
shall contain the following:

STATEMENT Of CLIENT' S RIGHTS •••

10. You may not be refused representation on the basis of race. creed. color. religion, sex, sexual orientation, gender identity, gender expression, age, national origin, or disability.


Statewide Practice Rules of the Appellate Division Amended and Local Rules Adopted

           
            22 NYCRR Part 1250, Statewide Practice Rules of the Appellate Division  were adopted by the four Judicial Departments of the Appellate Division on December 12, 2017 and revised by joint order on June 29, 2018, to take effect on September 17, 2018See: Joint Order of the Departments of the New York State Supreme Court, Appellate Division

            22 NYCRR Part 1250 applies to all matters that are commenced in the Appellate Division, or in which a notice of appeal to the Appellate Division is filed, on or after September 17, 2018. Unless otherwise ordered by the Court upon a showing that application of part 1250 to the matter would result in substantial prejudice to a party or would be manifestly unjust or impracticable under the circumstances, part 1250 applies to each matter pending in the Appellate Division on September 17, 2018.
Due to the differences inherent in practice among the four departments of the Appellate Division, each department has also adopted a set of local rules.

The Appellate Divison, First Judicial Department rescinded 22 NYCRR Part 600 and adopted a new 22 NYCRR Part 600 to supplement the statewide Practice Rules of the Appellate Division, effective on September 17, 2018.
The Appellate Division, Second Judicial Department rescinded 22 NYCRR Part 670 and adopted a new 22 NYCRR Part 670, effective September 17, 2018.
        The Appellate Division, Third Department rescinded 22 NYCRR Part 850 and adopted a new 22 NYCRR Part 850 effective September 17, 2018.
            The Appellate Division, Fourth Department repealed in its entirety 22 NYCRR Part 1000, governing practice before the Court and enacted a new 22 NYCRR Part 1000, effective September 17, 2018.
Appellate Division, Second Department
Mother Did Not Consent to Reference Merely by Participating in The Proceeding Without Requesting Judge to Hear Case

In Matter of Rose v Simon, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3131427, 2018 N.Y. Slip Op. 04736 (2d Dept.., 2018) the father filed a petition for sole physical custody of the child. During the pendency of the custody proceeding, the mother filed a family offense petition against the father. The matters were heard before a Court Attorney Referee, who, after a consolidated hearing, granted the father=s petition and dismissed the mother=s family offense petition. The Appellate Division observed that a referee derives authority from an order of reference by the court (see CPLR 4311, 4317). The order of reference did not authorize the Court Attorney Referee to hear and report or to hear and determine a contested family offense petition. The Court Attorney Referee therefore lacked jurisdiction to dismiss the mother=s family offense petition.

With respect to the determination of custody, the order of reference recited that, upon the parties= stipulation, a court attorney referee is authorized to hear and determine the parties= rights to custody of and visitation with the child, including the determination of motions and temporary orders of custody. A review of the record revealed that the parties had not stipulated to the reference in the manner prescribed by CPLR 2104, and, absent such stipulation, the Court Attorney Referee had the power only to hear and report her findings. It further found that the mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge. The order of reference was therefore deemed an order to hear and report. Thus, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties= respective rights of custody and visitation. The portion of the order, which determined custody and visitation, was deemed a report (see CPLR 4320[b]), and the custody matter was remitted for further proceedings pursuant to CPLR 4403 before a judge of the Family Court.


Attorney Sanctioned for Submissions Filled with Half Truths, Distortions of Facts, Facts Taken Out of Context, And Omissions of Material Facts and Relevant Decisions

            In Matter of Ermini v Vittori, --- N.Y.S.3d ----, 2018 WL 3295635, 2018 N.Y. Slip Op. 05038 (2d Dept., 2018) after Family Court, issued a final order of protection in favor of the mother and the children and against the father, the attorney for the children moved pursuant to Family Court Act § 842 to extend that order of protection. The father cross-moved, in effect, to enforce certain purported orders of an Italian Court pertaining to visitation, and to remove the attorney for the children. The attorney for the children cross-moved, inter alia, pursuant to 22 NYCRR 130–1.1 for an award of an attorney’s fee. The mother’s attorney made an application pursuant to 22 NYCRR 130–1.1 for an award of an attorney’s fee. Family Court, inter alia, granted the cross motion of the attorney for the children, and the separate application of the mother’s attorney, pursuant to 22 NYCRR 130–1.1 for an award of attorneys’ fees to the extent of directing the father’s attorney, to pay the sum of $2,000 to each attorney. On the issue of attorney’s fees pursuant to 22 NYCRR 130–1.1, the court concluded, in part, that the father’s “submissions are filled with half truths, distortions of facts, facts taken out of context, and most distressingly, omissions of material facts and relevant decisions” and that most of the father’s “submissions were an attempt to revise and re-litigate facts that were already decided.” The father and his attorney appealed from those portions of the order. The Appellate Division affirmed.

Appellate Division, Third Department
           
Procedures mandated by FCA § 1017 must be strictly followed. Placement order must be set aside if a failure to comply with statute prejudiced either the rights of a relative to seek placement or the child’s right to be placed with a suitable relative

            In Matter of Richard HH v Saratoga County of Social Services, --- N.Y.S.3d ----, 2018 WL 3276162, 2018 N.Y. Slip Op. 04990 2018 WL 3276162 (3d Dept., 2018) in September 2014, the children were removed from the mother’s care and placed in the custody of respondent (DSS) after neglect petitions were filed against the mother and the children’s father. In February 2015, Family Court issued an order finding the children to be neglected and continuing their placement in the custody of DSS. In October 2015, petitioner, the children’s maternal uncle, filed two petitions seeking custody of the children and for permission to intervene in the neglect proceedings pursuant to Family Ct. Act § 1035 (f). Family Court’s denial of the uncle’s motion to intervene was reversed on appeal and upon remittal, the uncle was joined and two permanency hearings were conducted with respect to the younger child. Following a trial on the uncle’s custody petition and a Lincoln hearing, Family Court dismissed the uncle’s petition. The Appellate Division reversed.

            The Appellate Division held that the uncle was  prejudiced by DSS’s failure to comply with Family Ct. Act § 1017, which provides, as relevant here, that when a court determines that a child must be removed from his or her home based on neglect, the court shall direct the local commissioner of social services to conduct an immediate investigation to locate relatives who may be a placement resource and to provide any such individuals with written notice of the pendency of the neglect proceeding and the opportunity to seek custody of the child (see Family Ct. Act § 1017[1][a] ). After the investigation is completed, the court must determine whether there is a relative with whom the child may appropriately reside (see Family Ct. Act § 1017[1][c]). If a suitable relative exists, the court is required to “either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent,” and, notably, only if no suitable relative can be located should Family Court consider another placement. The statute, in short, is intended to guard not only the rights of relatives of a child who is removed from his or her home, but also to protect the rights and interests of children to be placed with their relatives”. It accomplishes this purpose by requiring that the initial placement of children who must be removed from their homes be made, whenever possible, with a relative, thereby allowing them to form or maintain bonds with family members rather than with foster parents. A placement order must be set aside if a failure to comply with [Family Ct. Act § 1017] prejudiced either the rights of a relative to seek placement or the child’s right to be placed with a suitable relative.

             The Appellate Division found that the uncle testified that he received a single telephone call from DSS personnel approximately four months after the children were placed in DSS custody asking whether he would be a custodial resource if the mother’s parental rights were terminated, and that he responded affirmatively. He stated that DSS did not contact him again until after he filed the instant custody petition—more than one year after the children were first removed from the mother’s home—when it sent him the New York State Handbook for Relatives Raising Children. In its appellate brief, DSS admitted that it did not timely provide the uncle with the required information but criticized him for not sooner seeking custody. Notably, the statute did not impose a duty on the uncle to have affirmatively sought placement based solely upon DSS’s inquiry regarding his willingness to be a custodial resource if the mother’s parental rights were terminated and before he was advised of the procedures by which he could do so. Rather, the statute imposed a duty on DSS to “immediately” conduct an investigation to locate relatives and provide the required information, in writing (Family Ct. Act § 1017[1][a]).

            The Appellate Division found that the failure of Family Court and DSS to strictly follow the statutory mandate to seek initial placement with a relative in this case created the very harm the statute was intended to prevent—long-term placement in foster care rather than with a suitable relative. Not only did DSS fail to identify the uncle as a custodial resource and to provide him with the mandated information, it ignored his initial expression of willingness to serve as a custodial resource for the child. Moreover, when the uncle filed his custody petition, he was treated as an unwelcome interloper by both DSS and Family Court, which erroneously denied his motion to intervene in the Family Ct Act article 10 proceeding and contemplated staying an investigation regarding the uncle’s suitability as a custodial resource that was being conducted in Texas pursuant to the Interstate Compact on the Placement of Children (see Social Services Law § 374–a [hereinafter ICPC]). Family Court’s conclusion that “[h]ad the [u]ncle requested that [the child] be placed with him in September, 2014, when she was initially placed in foster care, DSS may very well have placed [the child] with the [u]ncle” ignored the fact that DSS failed to fulfill its statutory duty to inform the uncle of the methods by which he could seek placement of the child. These failures were especially egregious given that Family Court and DSS now agreed that the uncle and his wife were able to provide a good home for the child. The procedures mandated by Family Ct. Act § 1017 are to be strictly followed.