Wednesday, June 18, 2014

Family Offense Statute Declared Unconstitutional

In People v Golb, ___NY3d __,2014 WL 1883943 (2014) the Court of Appeals held that (Penal Law § 240.30(1)(a), aggravated harassment in the Second Degree   was unconstitutional, under both Federal and State law because it was vague and overbroad.  The statute, which is frequently invoked in family offense proceedings, provides that “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm..” The Court noted that three federal judges have already found this statute unconstitutional.

Wednesday, June 04, 2014

Important New Decisions - June 1, 2014

Pendente Lite Maintenance -  Domestic Relations Law § 236(b)(5-a) - Second Department Holds That  Formula Amount Is Intended to Cover All of a  Payee Spouse's Basic Living Expenses, Including Housing Costs, the Costs of Food and Clothing, and Other Usual Expenses. However, it May Be Appropriate to Direct Payment by the Monied Spouse of the Mortgage and Taxes on the Marital Residence and Other Expenses of the Nonmonied Spouse under Certain Circumstances 

In Vistocco v Jardin--- N.Y.S.2d ----, 2014 WL 1465580 (N.Y.A.D. 2 Dept.), the parties were married in 1995 and had three unemancipated children. The Supreme Court awarded the defendant $3,000 per week for child support and $3,000 per week in temporary spousal maintenance, directed the plaintiff to pay the mortgage and taxes on the marital residence where the defendant resided with the parties' children, directed the plaintiff to pay the defendant's car insurance, and awarded the defendant interim counsel fees and expert fees in the sums of $12,500 and $3,500, respectively. The Appellate Division affirmed.   The plaintiff argued, inter alia, that the Supreme Court erred in directing him to pay, in addition to spousal maintenance, the mortgage and taxes on the marital residence and the defendant's car insurance. He contends that the pendente lite maintenance award is intended to cover the defendant's basic living expenses, which include the mortgage, property taxes, and her car insurance. The Court observed that the formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a  payee spouse's basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses (see  Khaira v. Khaira, 93 AD3d 194). However, it may be appropriate to direct payment by the monied spouse of the mortgage and taxes on the marital residence and other expenses of the nonmonied spouse under certain circumstances (see id.). In light of the evidence that the plaintiff's income exceeded $500,000 and the gross disparity between the plaintiff's income and the defendant's income, the Supreme Court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence (Domestic Relations Law § 236[B][5-a][c][2][a][ii] ), as well as the defendant's car insurance (see e.g. Goldberg v. Goldberg, 98 AD3d 944; Macagnone v. Macagnone, 7 AD3d 680).

Equitable Distribution - Property Distribution - Marital Debt -  General Rule Is That Financial Obligations Incurred During Marriage Which Are Not Solely Responsibility of One Party Should Be Shared Equally by the Parties. However, a party is entitled to a credit for payments made to satisfy the other spouse's legal obligations.
In McKay v Groesbeck, --- N.Y.S.2d ----, 2014 WL 1910489 (N.Y.A.D. 2 Dept.), the Appellate Division pointed out that a party's maintenance and child support obligations are retroactive to the date of the application therefor, and except as otherwise provided, any retroactive amount due shall be paid, as the court directs, taking into account any amount of temporary maintenance or child support which has been paid (DRL § 236[B][6][a]; DRL§ 236[B][7][a]). Generally, voluntary payments made by a parent for the benefit of his or her children may not be credited against amounts due pursuant to a judgment of divorce. A party is not entitled to a credit for payments made to satisfy that party's own legal obligations that were not made pursuant to a pendente lite order of support . In this case, there was a pendente lite order for temporary child support of $1,000 per month issued in 2006, but no payments were made pursuant to that order. However, a party is entitled to a credit for payments made to satisfy the other spouse's legal obligations. It held that the defendant should have received a credit towards arrears for any payments he made toward the plaintiff's car payments and insurance, and for one half of the payments he made
toward the mortgage and carrying charges on the marital home, as those payments were made to satisfy the plaintiff's legal obligations.

Action for a Divorce  - Voluntary Discontinuance - CPLR 3217 -  Motion  Denied Where Motion Is an Attempt to Avoid an Adverse Order and Discontinuance Would Result in Prejudice to Defendant 

In Turco v Turco--- N.Y.S.2d ----, 2014 WL 1798397 (N.Y.A.D. 2 Dept.), the Appellate Division observed that in the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" ( Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d at 883, 969 N.Y.S.2d 67). Supreme Court providently exercised its discretion in denying the plaintiff's application, in effect, to voluntarily discontinue the action, made on the first day of trial, since the record supported a finding that she was merely attempting to avoid an adverse order of the court, and there was a showing that the defendant would be prejudiced by such discontinuance.

Agreements - Construction - Forum Selection Clause - New York State's Public Policy with Regard Removal of Barriers to Remarriage (DRL § 253) Cannot Override Forum Selection Clause in  Prenuptial  Agreement

In Ofer v Sirota, --- N.Y.S.2d ----, 2014 WL 1386552 (N.Y.A.D. 1 Dept.) the Appellate Division held that  Supreme Court properly found that the parties' prenuptial agreement was enforceable and that the forum selection clause in the agreement, which granted exclusive jurisdiction over any divorce litigation to a competent Israeli court, was also enforceable (Sterling Natl. Bank v. Eastern Shipping Worldwide, Inc., 35 AD3d 222, 222 [1st Dept 2006] ). Accordingly, Supreme Court properly dismissed this action.  The fact that plaintiff alleged that defendant refused to grant her a get (Jewish divorce decree) as required by their agreement was irrelevant to determining whether to enforce the forum selection clause.  There was no merit to plaintiff's claim that she would be deprived of her day in court in Israel because Israel does not provide for no fault divorce and defendant's consent to a divorce is required there. While litigation in Israel may be more challenging, plaintiff would have her day in court. It was inappropriate for plaintiff to attempt to avoid Israel's legal system because New York's legal system may treat her more favorably by permitting her to obtain a no fault divorce. Plaintiff, an Israeli citizen, was well aware that Jewish religious laws govern Israeli divorces when she consented to the forum selection clause in the agreement. This State's strong and important public policy with regard to compelling civil litigants to remove any barriers to remarriage (DRL § 253) cannot override the forum selection clause that  the parties knowingly included in their prenuptial agreement, particularly because plaintiff will not be deprived of her day in court in the chosen forum.

Child Support - Award - Disparity in Income and Expenses, and Availability of Tax Deductions Rendered Presumptive Amount of Child Support Unjust or Inappropriate

In Smith v Smith, --- N.Y.S.2d ----, 2014 WL 1316325 (N.Y.A.D. 3 Dept.), Supreme Court calculated the mother's presumptive weekly child support obligation to be $258.33, but concluded that it would be "just and appropriate" to reduce it to $30 per week. The court also directed that child support be paid retroactive to the date of the judgment of divorce, excluding a nine-month period when the mother was unemployed and received inpatient treatment for alcohol dependency. Finally, the court denied the father's request for recoupment of the child support payments he made to the mother pursuant to the judgment of divorce. The Appellate Division found that father's income was twice that of the mother and such a disparity, alone, can justify a deviation. The father also received significant tax deductions and credits for the children, whereas the mother received none (Domestic Relations Law  240[1-b][f][4]  ). Additionally, the mother was responsible for paying a significant portion of the children's uninsured health-related and child-care expenses, as well as other costs associated with her extended and substantial parenting time, all of which impacted the mother's financial resources (Domestic Relations Law § 240[1-b][f][1] ). The mother purchased a home within the children's school district to facilitate the custodial arrangement, as a result of which she has a significant commute to work, with its attendant expenses. Giving careful consideration to the relevant factors, it found no  abuse of Supreme Court's discretion in concluding that the presumptive amount of child support attributable to the mother was unjust or inappropriate. Nonetheless, Supreme Court's reduction to $30 weekly was excessive and, it found $150 per week to be "just and appropriate" under the circumstances present here (Domestic Relations Law §240[1-b][g]  ). The Court agreed with the father that the mother's child support obligation should have been made retroactive to February 9, 2009, the date the father made a specific demand therefor in his complaint. (Domestic Relations Law § 236[B][7][a]). 

Child Custody - Award - Standing - Natural Parent Has Standing to Seek Legal Custody of His or Her Child 

In Matter of Sanchez v Bonilla, --- N.Y.S.2d ----, 2014 WL 1043094 (N.Y.A.D. 2 Dept.) the Appellate Division held that  Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children.   A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70 [a]. According to the petitioner, the children's father abandoned the children and, due to their immigration status, they could be returned to El Salvador where they had been subjected to abuse by family members and threats by gang members.   The petitioner alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status. Since the Family Court dismissed the petition without conducting a hearing or considering the best interests of the children, it remitted the matter to the Family Court for a hearing and a new determination of the custody petition thereafter.

Children - Immigration -  8 USC § 1101(a)(27)(J) -Special Immigrant Juvenile Status- No Restriction as to Who May Qualify as a Guardian.

In Matter of Marisol N.H., --- N.Y.S.2d ----, 2014 WL 444170 (N.Y.A.D. 2 Dept.), the children, Samuel D.H., Marisol N.H., and Silvia J.H., ages 19, 18, and 16, respectively, were born in El Salvador to Miriam A.G.  mother) and Leonidas H. ( father). According to the allegations made in support of the petitions, the father drank often, and he verbally and physically abused the mother. When Samuel was just four years old, the mother left the father, taking the children with her to her mother's home. The father never again had meaningful contact with the children; he did not provide them with any financial support, give them any birthday or Christmas presents, or show any interest in them. It was further alleged that in El Salvador, in the small neighborhood where the mother and the  children settled, now abandoned by their father, they lived under the constant threat of violence from gangs. Members of a certain gang threatened to kill Samuel, as they did with many other children, if he refused to join their ranks, and they tried to extort money from his grandmother in exchange for sparing his life. Samuel knew nine children, one a close friend, who had refused to join that gang and were later killed. One gang member told the mother he would kill her, if she did not have sexual relations with him. The perilous situation led the mother to leave El Salvador for the United States so that she could establish a safe home for the children. She found work and lived with family and friends, saving money so that she could bring the children to her. Meanwhile, though, Samuel had stopped attending school because gang members had continued to threaten to kill him if he did not join them. Fearing for Samuel's life, the mother arranged for him to travel to the United States. Marisol and Silvia stayed behind with their grandmother. Subsequently, while the children's grandmother was walking home from work, she was killed by members of that gang. Three gang members were arrested for the murder, but the threats did not abate; other gang members threatened the lives of all the members of the mother's family. Marisol and Silvia stopped attending school, and would only leave their house if an unrelated adult male accompanied them. The mother then brought Marisol and Silvia to the United States. Now, the children lived with their mother in Nassau County, along with their teenaged uncle, Javier, who was left orphaned by the death of the children's grandmother. The mother, who was Javier's legal guardian, worked 60 hours per week in order to support him and the children.

The children petitioned the Family Court for the appointment of the mother as their guardian so that they could pursue special immigrant juvenile status ( SIJS) as a means to obtaining lawful residency status in the United States, and be freed from the fear of being returned to El Salvador, where they would have no parent to support and protect them. At a conference Family Court concluded that a best interests hearing was not warranted, inter alia, because the children had the "mother to protect them." There was "no reason," even if it was just "strictly for immigration purposes," to award the mother guardianship "of her own children." The Family Court dismissed the petitions without prejudice for failure to state a cause of action. 

The Appellate Division, in an opinion by Justice Chambers, reversed. She observed that to obtain SIJS status the child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. A state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child's best interests to be returned to his or her home country (see 8 USC § 1101[a][27][J][iii]; 8 CFR 204.11[c]; Matter of Marcelina M.-G. v Israel S., 112 AD3d at 107). In order to satisfy the requirement that the subject children be legally committed to an individual appointed by a state or juvenile court, they requested that their natural mother be appointed as their guardian.   An infant includes a person less than 21 years of age who consents to the appointment of a guardian (see Family Ct Act § 661[a]). 

The Second Department found that the Family Court has the statutory authority to appoint a natural parent to be the guardian of his or her children. Family Court Act § 661 provides that "the provisions of the surrogate's court procedure act shall apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the specific provisions of this act" (Family Ct Act § 661[a]). Under the Surrogate's Court Procedure Act, "any person" (SCPA 1703) may petition to be named as guardian of an infant, and a guardian is "[a]ny person to whom letters of guardianship have been issued by a court of this state, pursuant to this act, the family court act or article 81 of the mental hygiene law" (SCPA 103[24]). Since these statutes are without limitation, they include even the appointment of a natural parent as guardian. The Court concluded that the Family Court has the statutory authority to grant a natural parent's petition for guardianship of his or her child, regardless of whether the petition is opposed.

The Court also held that Family Court erred in refusing to conduct a hearing to determine whether granting the guardianship petition would be in the best interests of the children. "When considering guardianship appointments, the infant's best interests are paramount". The fact that a child has one fit parent available to care for him or her "does not, by itself, preclude the issuance of special findings under the SIJS statute." Rather, a child may be eligible for SJIS findings "where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar state law basis". Moreover, in determining whether it is in the best interests of a child to grant a guardianship petition, it is entirely consistent with the legislative aim of the SIJS statute to consider the plight the child would face if returned to his or her native country and placed in the care of a parent who had previously abused, neglected, or abandoned him or her. In this case there were sufficient allegations in the guardianship petitions and supporting papers to suggest that naming the mother as guardian of the subject children would be in their best interests .The father abandoned the children (see Matter of Marcelina M.-G. v Israel S., 112 AD3d at 110, 114). If the children were returned to their native country, they may be separated from their only other parent, who first left El Salvador because she was threatened with sexual assault and wanted to earn enough money to bring the children to the United States. The children will not have the protection of their grandmother who became their temporary, de facto guardian in El Salvador once the mother immigrated to the United States, as members of a gang murdered her. Alone, without either parent or their maternal grandmother, the children would face the prospect of having to protect themselves from violent gang members, which, cruelly, may be possible only by joining them. Naming the mother as guardian of the children may potentially enable the children to pursue legal status in the United States. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils present in El Salvador. 

Friday, May 09, 2014

Temporary Maintenance Cap Adjusted

Temporary Maintenance Guidelines Cap Adjusted to $543,000

As of January 31, 2014, the Income Cap under the Temporary Maintenance Guidelines has been adjusted from $524,000 to $543,000. TheTemporary Maintenance Worksheet and Calculator may be found at Temporary Maintenance Worksheet and Calculator.

Thursday, April 03, 2014

New Child Support Standards Chart released March 12, 2014


         According to the Child Support Standards Chart, [LDSS 4515 (3/14)] released March 12, 2014, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, the 2014 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,670 and the 2012 self-support reserve is $15,755. 

          The combined parental income amount is $141,000. It is adjusted every two years (effective January 31st) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The Child Support Standards Chart is released each year on or before April 1. The income tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989.  The chart may be downloaded from

[See also]

Saturday, December 28, 2013

Important New Decisions - December 28, 2013

First Department Holds Parents Who Are Directed to Pay Fees of Attorney Appointed to Represent Child May Raise Defense of Legal Malpractice to Attorney's Claim For Fees.

In Venecia C. v. August V., --- N.Y.S.2d ----, 2013 WL 6325172 (N.Y.A.D. 1 Dept.), the divorced parents had three children, age 17, 14 and 11. In the divorce action, although the parties stipulated to joint custody, it was left to the trial court to direct that plaintiff mother would have primary residential custody in the marital apartment in Manhattan. In 2009, the mother moved for an order allowing her to relocate with the children to Demarest, New Jersey, approximately 12 miles outside Manhattan, and the father responded by moving for a change of custody. The motion court appointed the attorney for the children in this context. On November 22, 2011, the attorney for the children moved for an order directing the father to pay the outstanding fees he owed in the amount of $2,034.60, and for an additional sum covering the cost of making the enforcement application. The attorney for the children stated that the father never objected to any of her bills and had previously paid his 30% share of the fees billed. The motion court granted the motion by the attorney for the children, ordering the father to pay the sum of $2,034.60 for his share of outstanding fees, as well as $1,500 for fees she incurred in making the application. It rejected the argument that the Court's ruling in Mars v. Mars (19 AD3d at 196), gave a parent the right to challenge the fee of an attorney for the child on the ground of malpractice. In any event, it found no factual basis for the malpractice claim.

The Appellate Division, in an opinion by Justice Saxe, held that parents who are directed to pay the fees of the attorney appointed to represent the children may raise the defense of legal malpractice to that attorney's claim for fees. He observed that in Mars v. Mars (19 AD3d at 196), the Court held that a parent may assert legal malpractice as an affirmative defense to a Law Guardian's fee application "to the extent of challenging that portion of the fees attributable to advocacy, as opposed to guardianship." He noted that the ruling was limited by the then-prevailing view that attorneys appointed as law guardians for children in divorce cases often functioned in a role similar to a guardian ad litem, advocating for what they believed to be the best interests of the child, as opposed to what the child desired. The Court reaffirmed the essence of the Mars v. Mars ruling, namely that a parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised. 

Notwithstanding that the father may have standing to assert such a defense, Justice Saxe agreed with the motion court that the father's accusations here did not establish a prima facie showing of legal malpractice and disciplinary violations. He also found that the father never objected to any of the bills presented by the attorney for the children despite the fact that they were in his possession for a significant amount of time (Pedreira v. Pedreira, 34 AD3d 225 [1st Dept 2006] ). The court therefore acted properly in ordering him to pay the fees under an account stated theory (Shaw v. Silver, 95 AD3d 416, 416 [1st Dept 2010] ).

Second Department Holds Petitioner must Demonstrate Respondent’s Conduct Was Intended to Cause, or Recklessly Created a Risk of Causing, Public Inconvenience, Annoyance, or Alarm.

In Casie v Casie, --- N.Y.S.2d ----, 2013 WL 3813824 (N.Y.A.D. 2 Dept.) the Second Department, in an opinion by Judge Skelos, held that to establish the family offense of disorderly conduct, a petitioner must demonstrate that the challenged conduct was intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm.

On February 15, 2012, the petitioner, Dionne Cassie, filed a family offense petition against her husband, Richard Cassie which alleged that, on February 11, 2012, the parties engaged in a dispute or altercation because the husband had promised that he was going to leave the marital home and had "reneged on his promise." According to the wife, the husband attempted, unsuccessfully, to push her down a flight of stairs, twisted her arm, causing pain, and pushed her against a wall. Based upon this alleged conduct, the wife asserted that the husband had committed the family offenses of, among others, attempted assault, assault in the second or third degree, harassment in the first or second degree, and disorderly conduct. The wife requested an order of protection requiring the husband to stay away from her and the marital home.
At the close of the evidence, the Family Court found that the husband "engaged in the offense of disorderly conduct in the home, in that he fought with [the wife]." The court thereupon issued a two-year order of protection , directing the husband to refrain from various forms of conduct, such as harassment and disorderly conduct.

The Appellate Division reversed in an opinion by Justice Skelos. He observed that in a family offense proceeding, the petitioner has the burden of establishing, by a "fair preponderance of the evidence," that the charged conduct was committed as alleged in the petition. (Family Ct Act § 832). Under the Penal Law, "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture;..."(Penal Law § 240.20). Justice Skelos pointed out that critical to a charge of disorderly conduct is a finding that the disruptive statements and behavior were of a public rather than an individual dimension". In that respect, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem. In assessing whether an act carries public ramifications, relevant factors to consider are the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances. The complicating factor in this case, which was a family offense proceeding rather than a criminal action, is that Family Court Act § 812 provides: "For purposes of this article, 'disorderly conduct' includes disorderly conduct not in a public place" (Family Ct Act §812[1] ). The husband contended that, even though the Family Court Act specifies that the conduct need not occur in a public place, the petitioner must nonetheless prove either an intent to cause public inconvenience, annoyance, or alarm, or the reckless creation of a risk thereof.

Justice Skelos pointed out that the First and Fourth Departments had held, albeit summarily, that lack of proof of an intent to cause, or reckless creation of a risk of causing, public ramifications, required dismissal of those branches of family offense petitions that charged the respondent with disorderly conduct. Matter of Janice M. v. Terrance J. ,96 A.D.3d 482, 945 N.Y.S.2d 693 (1st Dept); Matter of Brazie v. Zenisek, 99 A.D.3d 1258, 951 N.Y.S.2d 458(4th Dept). Here, the Court now held that even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct. The plain language of the provision of Family Court Act § 812, in contrast, provides only that the conduct need not occur in a public place. The plain language of Family Court Act § 812 therefore pertains only to the actus reus of the offense-specifically, the place where it is committed-and does not speak to the mens rea of the offense. Indeed, since Family Court Act § 812 does not specify an alternative culpable mental state, if the mens rea provided for in the Penal Law were not applicable in family offense proceedings, it is unclear what the mens rea of this family offense would be.

The Court held that that the wife was required to prove that the husband's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm. The wife did not sustain that burden. Accordingly, the order of protection was reversed, on the facts, the petition was denied, and the proceeding is dismissed.