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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.

The New York Matrimonial Trial Handbook was reviewed in the New York Law Journal. Click here to read the review.

The New York Matrimonial Trial Handbook was also reviewed in Readers Favorite Book Reviews. Click here for that review.

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents

Tuesday, December 27, 2011

Important New Decisions - December 27, 2011

Where Family Court Has No Jurisdiction to Issue Order of Protection, Such Order Is Void Ab Initio for All Purposes, Including the Power to Hold a Party in Contempt

In Matter of Parrella v Freely, --- N.Y.S.2d ----, 2011 WL 6091331 (N.Y.A.D. 2 Dept.) in January 2010 the appellant was dating the former boyfriend of Lisa Ann Parrella, with whom Parrella had a child. At that time, Parrella filed a petition against the appellant, alleging that the appellant violated a previous order of protection. On July 13, 2010, the Family Court entered an order which, granted the petition and directed the appellant to stay away from Parrella and to refrain from communicating with or about Parrella for a period of two years. The Appellate Division reversed finding that the Family Court lacked subject matter jurisdiction over the proceeding. It observed that Family Court is a court of limited jurisdiction and, thus, it cannot exercise powers beyond those granted to it by statute. It held that where the Family Court has no jurisdiction to issue an order of protection or temporary order of protection initially, such an order is void ab initio for all purposes, including the power to hold a party in contempt (citing Matter of Robert B.- H. [Robert H.], 82 AD3d 1221, 1222; see Matter of Fish v. Horn, 14 N.Y.2d 905, 906). Pursuant to Family Court Act 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur among enumerated classes of people, including persons who share an "intimate relationship" with each other (Family Ct Act 812[1][e]. Here, there was no evidence in the record that the appellant and Parrella had a direct relationship. Instead, the evidence revealed that the parties had met personally only during the course of the court proceedings and that the appellant had never met Parrella's child. Therefore, there was no evidence that the parties' relationship was an "intimate relationship" within the meaning of Family Court Act 812(1)(e). Since the parties did not have an "intimate relationship" within the meaning of Family Court Act 812(1)(e), the Family Court lacked subject matter jurisdiction to issue the original order of protection or to issue the order appealed from.


Courts Will Not Require Children to Subsidize Parent's Financial Decision to Forgo Present Employment for Potential Future Income.


In Matter of Berrada,--- N.Y.S.2d ----, 2011 WL 6090172 (N.Y.A.D. 3 Dept.) the parties were married in 1996 and had three minor children. After they separated in 2006, the mother obtained custody of the children and petitioned for child support (Matter of Berrada v. Berrada, --- AD3d ---- [appeal No. 511629, decided herewith] ). Rejecting the father's claim that he was unable to find employment, a Support Magistrate determined that he had failed to conduct a thorough job search, imputed an annual earning capacity to him of $125,000, and directed him to pay $2,834 a month in child support. The father did not file objections to that order. He did, however, file modification petitions in 2009, again asserting that he was unable to find work. The Support Magistrate dismissed the petitions, finding that the father had not demonstrated a
substantial change in circumstances. Family Court denied the father's objections and the Appellate Division affirmed. It held that in order to succeed upon his modification petitions, the father was required to establish a substantial change in circumstances since the entry of the child support order that warranted a modification of his obligation
to pay child support. At the time of the hearing, the father remained unemployed, devoting his attention to various sales enterprises that paid on commission without producing consistent income. While he made an effort to find full-time employment within his narrow area of expertise, his search did not extend elsewhere. Moreover, the
father was attempting to develop his own business and testified that he would only
"jump on" a full-time job offer if it paid a substantial salary. Notwithstanding the father's argument that the new venture constitutes a substantial change of circumstances in that it may produce income in the future, the courts will not require the children to subsidize a parent's financial decision" to forgo present employment for potential future income.


Family Court Did Not Abuse Discretion by Terminating the Father's Child Support Obligation Where Mother Deliberately and Unjustifiably Frustrated Father's Visitation.

In Matter of Luke v Luke,--- N.Y.S.2d ----, 2011 WL 6090137 (N.Y.A.D. 3 Dept.)
Petitioner (father) and respondent (mother) were the parents of one child (born in 2001). The parties separated prior to the child's birth. In 2003, the parties agreed to a stipulated order of joint custody, physical custody to the mother and visitation with the father on alternate weekends. These visits apparently only occurred for one or two months. Also in 2003, a support order was entered against the father. The father then moved to New Jersey. Each party claimed that he or she lacked contact information for the other after 2003. In 2004, Family Court issued a default order awarding the mother sole custody, with visitation to the father as agreed upon by the mother. In 2007, the father returned to Schuyler County. That same year, the mother apparently moved to New Jersey and then Pennsylvania. In 2009, the father sought Family Court's assistance to locate the mother and filed a petition seeking visitation with the parties' daughter. In October 2009, after these proceedings had commenced, the mother moved back to Schuyler County, but within a few months she moved to Steuben County. The father filed numerous petitions seeking visitation, custody and downward modification of support, and alleging that the mother violated the prior visitation order as well as temporary orders entered during these proceedings. Following a hearing Family Court awarded the parties joint custody with the child spending four days per week with the father and three days per week with the mother. The court also terminated the father's support obligation effective January 2010, the date he filed his support modification petition.
The Appellate Division held that Family Court's modification of custody has a sound and substantial basis in the record. The parties' numerous moves, the father trying to reestablish contact and the mother hindering those efforts all provided changed circumstances reflecting a need to modify the prior custody and visitation order. Although the father did not actively attempt to enforce his visitation rights and pursue his relationship with his daughter from 2003 to 2009, he testified that he had no vehicle in New Jersey, had no contact information for the mother or child and did not know how to find them. The mother stopped bringing the child to visitation after one or two months in 2003 and-despite having agreed to the visitation-filed unsubstantiated petitions to terminate the visitation soon after entering the stipulation. The mother moved numerous times, including four times during the pendency of these proceedings, and never informed the father. One was a safe house where she fled to escape domestic abuse by her paramour-abuse that was witnessed by the daughter and caused her to fear the paramour. The mother also violated almost every temporary visitation order entered during the pendency of these proceedings by failing to bring the child to visit with the father. When she did not have a suitable place to live, she wrote a letter assigning custody of her daughter and son to her paramour's adult daughter, without consulting the father. The paramour's daughter also deprived the father of his court-ordered visitation, and the mother passed blame to her. At the time of the Lincoln hearing, the child had not seen her mother for almost two months, and the mother testified that she called only when she had minutes on her phone. While the father had lost contact with his daughter for several years and did not adequately explain why he took so long to attempt to reestablish a connection, at the time of the hearing he had been working for a year to form a relationship with her. Those efforts were constantly thwarted by the mother and her paramour's daughter, who failed to bring the child to visits and even kept the child out of school on Fridays when the father was supposed to pick the child up for weekend visitation. Everyone agreed that the child should remain in the same school district; the father lived near the child's school, while the mother had moved to a different district. The father also agreed to open a preventative services file
with the local social services agency and bring the child to mental health counseling.
Family Court did not err in placing the child with the father for four days per week.
While the law expresses a preference for keeping siblings together, the rule is
not absolute and has become complicated by changing family dynamics and the
presence of multiple half siblings the court must ultimately decide what is
best for the child at issue. Here, the custody petitions regarding the mother's son-the half brother of the daughter involved in this appeal-were withdrawn or dismissed, leaving that child in the mother's custody. Evidence indicated that the son would have difficulty being separated from his half sister, but there was no evidence of ill effects to the daughter from any separation. In any event, Family Court's order left those children together for three days each week. Considering the totality of the circumstances, including the custodial interference by the mother, the record contained a sound and substantial basis for the court's custody determination.
The Appellate Division held that Family Court did not abuse its discretion by terminating the father's child support obligation. The court was authorized to suspend support payments for periods when the mother wrongfully interfered with or withheld visitation. The record supported the finding that the mother deliberately and unjustifiably frustrated the father's visitation by failing to produce the child, moving without notifying the father and attempting to informally transfer custody to another
person who also did not produce the child for visitation-again without informing
the father. Additionally, the court's custody determination placed the child in the father's care for the majority of each week, providing a basis to eliminate his support obligation. Hence, the court did not err in terminating the father's support obligation as of January 2010, the date he filed a petition seeking such relief.



Family Offense Petition is Sufficient if it Alleges specific acts committed at identified places and times, which, if proven, would constitute a family offense enumerated in Family Court Act 812(1)

In Matter of Little v Renz, --- N.Y.S.2d ----, 2011 WL 6224696 (N.Y.A.D. 2 Dept.) the Appellate Division observed that a proceeding pursuant to article eight of the Family Court Act is originated by the filing of a petition containing an allegation that the respondent committed an enumerated family offense. As a general matter, the factual allegations in a pleading must be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013; Family Ct Act 165). It found that the petition in this case was not "a vague and conclusory repetition of the statutory language inasmuch as it alleged specific acts committed at identified places and times, which, if proven, would constitute a family offense . Accordingly, the allegations contained in the petition were sufficient to allege a family offense enumerated in Family Court Act 812(1), and the Family Court erred in denying the petition and dismissing the proceeding on the ground that the petition was insufficient.


Violation Petition Insufficient Where it Lacked Sufficient Specificity to Provide Respondent with Proper Notice of Alleged Violation and Failed to Outline How Petitioners Rights Prejudiced

In Miller v Miller, --- N.Y.S.2d ----, 2011 WL 6090163 (N.Y.A.D. 3 Dept.) the parties were the parents of two children, born in 2004 and 2005. A custody order entered in March 2008 granted sole legal custody to respondent (mother) with visitation to petitioner (father) as agreed between the parties. Among other provisions, it further required that the children be properly supervised at all times and that neither parent smoke or allow a third party to smoke in a vehicle in which the children are passengers. In June 2010, the father filed a violation petition alleging that the mother was in contempt of this order in that she failed to properly supervise and discipline the children, as she had permitted the older child to be violent towards others and to smoke. Finding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father's rights had been prejudiced, Family Court dismissed the petition without a hearing, but ordered a neglect investigation by the St. Lawrence County Department of Social Services. The Appellate Division affirmed. It held that the petition was subject to the requirements of CPLR 3013, and thus required to "be sufficiently particular" as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action (CPLR 3013; Family Ct. Act 165[a] ). The generalized allegations of the petition, even liberally construed, failed to provide the mother with notice of a particular event or violation such that she could prepare a defense (CPLR 3026). Further, the father failed to assert how the mother's alleged failings " 'defeated, impaired, impeded or prejudiced' " his rights, as required to sustain a civil contempt finding. Although Family Court properly ordered an investigation to determine whether a neglect or abuse proceeding should be initiated, this protective measure did not serve to remedy the defects in the father's petition. Accordingly, there was no error in the dismissal of the petition
without a hearing.


Appeal Dismissed for Failure of Appellant to Include Transcripts

In Matter of Katz v Dotan, --- N.Y.S.2d ----, 2011 WL 6091334 (N.Y.A.D. 2 Dept.) the Appellate Division observed that it is the obligation of the appellant to assemble a proper record on appeal (see Family Ct Act 1118; CPLR 5525[a]). The failure to provide necessary transcripts inhibits the Court's ability to render an informed decision on the merits of the appeal. In this case, the full record of the proceedings in the
Family Court had not been transcribed. The appeal was dismissed, as the papers provided were patently insufficient for the purpose of reviewing the issues the father has raised.


Appeal Dismissed for Failure to Full Trial Transcript in Record

In Clarke v Clarke, --- N.Y.S.2d ----, 2011 WL 6225188 (N.Y.A.D. 2 Dept.) the plaintiff appealed from a judgment of the Supreme Court which, after a nonjury trial, inter alia, failed to direct the defendant to pay child support arrears, failed to award her maintenance, and failed to equitably distribute the value of the defendant's medical license. The Appellate Division dismissed the appeal. It observed that an appellant is obligated to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court (CPLR 5525[a]; 5526). The record must also "contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings" ( Matison v. County of Nassau, 290 A.D.2d 494, 494). Here, the plaintiff appealed from a judgment which failed to direct the defendant to pay child support arrears, failed to award the plaintiff
maintenance, and failed to equitably distribute the value of the defendant's medical license. However, the plaintiff's failure to provide the Court with the full transcript of the nonjury trial conducted before the Supreme Court rendered the record on appeal inadequate to enable the Court to reach an informed determination on the merits. Thus, the appeal had to be dismissed.


Father's Failure to Properly File a Full Record on Appeal, Despite His Contrary Statement Made Pursuant to CPLR 5531, Warranted Imposition of Costs

In Haleniuk v. Persaud, 89 A.D.3d 601, 933 N.Y.S.2d 33 (1 Dept, 2011), in affirming the order of Family Court, the Appellate Division found that the evidence in the record sufficiently supported Family Court's finding that the father failed to meet his burden of showing that the child was constructively emancipated. Although the record reflected a strained relationship between the father and child, it did not support a finding that the child completely refused to have a relationship with the father. The Appellate Divison held that the father's failure to properly file a full record on appeal, despite his contrary statement made pursuant to CPLR 5531, warranted the imposition of costs incurred in preparing and filing a respondent's appendix (CPLR 5528[e]; 22 NYCRR 600.10[c][1] ).

Wednesday, December 07, 2011

Important New Decisions - December 7, 2011

Child Denied the Meaningful Assistance of Appellate Counsel Where Attorney for Child Failed to Consult with and Advise Child in Manner Consistent with the Child's Capacities"

In Matter of Lamarcus E., --- N.Y.S.2d ----, 2011 WL 5984243 (N.Y.A.D. 3 Dept.)
Respondent was the father of the child (born in 2002). In August 2009, while under petitioner's supervision, the father told petitioner that he intended to relocate to Connecticut in October 2009 to work and live with his girlfriend, but that he would not be taking his son with him. Thereafter, petitioner filed a neglect petition against the father alleging that he planned to permanently relocate to Connecticut without his child and without any viable plan for the child's care in his absence, and that the father planned to place the child in foster care. Upon receipt of the petition, Family Court removed the child and placed him in the custody of petitioner. The father relocated to Connecticut the next day. Following a fact-finding hearing, the father was determined to have neglected his child and, after a dispositional hearing, Family Court directed that the child continue his placement with petitioner. The father appealed. No appeal was taken on behalf of the child. The Appellate Division observed that the attorney assigned to represent the child on this appeal was not the same attorney who continued to represent the child in Family Court. Although the child's appellate attorney had taken a position on this appeal that was consistent with that taken by the child's attorney in Family Court, she reported in her brief that she had not personally met with her client, who was now nine years old. She explained that the child's attorney in the ongoing proceedings in Family Court had been "able to provide me with continuing information on my client, his position and the status of the [proceedings in Family Court]." The child's appellate attorney provided the Appellate Division with no further explanation. Given the foregoing, the Appellate Division found that the child had been denied the meaningful assistance of appellate counsel. Counsel's failure to "consult with and advise the child to the extent of and in a manner consistent with the child's capacities" (22 NYCRR 7.2[d][1] ) constituted a failure to meet her essential responsibilities as the attorney for the child. Client contact, absent extraordinary circumstances, is a significant component to the meaningful representation of a child. Therefore, given the circumstances, and for the reasons clearly articulated in Matter of Mark T. v. Joyanna U. (64 A.D.3d 1092, 1093-1095 [2009] ) and Matter of Lewis v. Fuller, (69 A.D.3d 1142 [2010] ), the child's appellate counsel was relieved, the decision was withheld, and new counsel to be assigned to represent the child on the appeal.


Error to Dismiss Custody Case for Lack of Personal Jurisdiction Given Provision UCCJEA Providing That Physical Presence Of, or Personal Jurisdiction Over, a Party or a Child Not Necessary or Sufficient to Make a Child Custody Determination.

In Matter of Malek v Kwiatkowski, --- N.Y.S.2d ----, 2011 WL 5984260 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two daughters (born in 2004 and 2008). The father commenced the proceeding for joint custody and visitation in June 2010, alleging that the mother had relocated with the children in April 2010. The mother appeared pro se by telephone at Family Court's first two hearings, but she withheld her out-of-state address from the father because she alleged that she and the children were fearful of him. At the third appearance, the mother's counsel appeared on her behalf and claimed that she was financially unable to travel to New York at that time. Although the mother's counsel raised the issue of the lack of personal jurisdiction over his client, Family Court stated that the mother had submitted to the court's jurisdiction, set a trial date and told counsel that the mother's failure to appear on that date would result in a default. At the scheduled trial date, however, Family Court directed the mother's counsel to again make a motion to dismiss based on lack of jurisdiction, determined that the mother had not waived service by appearing and dismissed the petition with prejudice.
The Appellate Division reversed. It held that the Family Court erred in dismissing the case for lack of personal jurisdiction given the provision of the Uniform Child Custody Jurisdiction and Enforcement Act found at Domestic Relations Law 76(3), which provides that "[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination." Further, under the circumstances, it was improper to dismiss the father's petition without first ordering service by an alternative method (see Domestic Relations Law 75-g [1][c] ). The mother had not revealed her address to the father, making normal service of process impractical. Additionally, the court had stated previously that the mother had submitted to its jurisdiction and ordered her to appear for a trial, thus giving the father no reason to believe that jurisdiction remained an issue. The court's peremptory resurrection of the issue when the mother did not appear on the trial date and its grant of the motion without affording the father an opportunity to serve the mother by alternative means was improper under these circumstances and it reversed and
remitted for that purpose.



Support Order Which Fails to Comply with Family Ct Act 413(1)(H) Is Invalid and Unenforceable.

In Matter of McKenna v McKenna, --- N.Y.S.2d ----, 2011 WL 5984262 (N.Y.A.D. 3 Dept.) upon the oral stipulation of petitioner (mother) and respondent (father), an order was entered that set the father's basic monthly child support obligation for the parties' two children at $1,235. In March 2010, the father filed an application to vacate the order, claiming that it did not comply with Family Ct Act 413(1)(h). Family Court affirmed the Support Magistrate's denial of the father's motion.
The Appellate Division reversed. It found that the order was invalid and unenforceable because it failed to include, as required, " 'a provision stating that the parties have been advised of the provisions of [the Child Support Standards Act] and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded' . While the parties acknowledged that they had agreed to the amount that the father would pay in basic child support-before any additional amount was added for child care and health insurance, no reference was made to the presumptive amount of child support under the Child Support Standards Act in their agreement or at the hearing, or in the order ultimately issued by Family Court. Because neither the agreement nor the order advised the parties in accordance with the nonwaiveable requirements of the Child Support Standards Act and the record contained no explanation as to whether or why there has
been a deviation from the child support calculation provided by that statute, the
support order at issue was invalid and unenforceable. The matter was remitted to Family Court to determine the amount of child support that the father was obligated to pay.


Mistrial Granted an New Attorney Assigned Based upon Failure of Attorney for the Child to Fulfill Attorney's Obligations under 22 Nycrr 7.2 (D) to Advocate Child’s Wishes

In Michael H v April H,--- N.Y.S.2d ----, 2011 WL 6015796 (N.Y.Fam.Ct.) on October 4, 1999, the Court issued an Order awarding April "H ("the mother") and Michael "H." ( "the father") joint legal custody of the subject child, Seth "H." with the mother having
primary physical custody of the subject child subject to a schedule of visitation
for the father. On August 3, 2011, the father filed a modification petition seeking sole legal and physical custody. The father alleged among other things, that the child has resided with the father since June 22, 2011, when the mother essentially kicked the child out of her home. During the trial, held on November 2, 2011, the Court conducted a Lincoln hearing to take the subject child's testimony under oath. See, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659 [1969]. During the Lincoln hearing, the child, a mature fourteen year old, expressed a clear position to the Court and a reasonable basis for his position. During closing arguments, the Attorney for the Child advocated for a disposition that directly contradicted the wishes of the child as expressed in the Lincoln hearing.
As a result of the Attorney for the Child's closing arguments, the Court became concerned that the Attorney for the Child was not fulfilling her obligations under 22 NYCRR 7.2(d). This section requires the Attorney to zealously advocate for the child's position. See, Krieger v. Krieger, 65 AD3d 1350, 886 N.Y.S.2d 463 [2d Dept 2009]; and Mark T. v. Joyanna U., 64 AD3d 1092, 882 N.Y.S.2d 773 [3d Dept 2009]. Except in two circumstances, the Attorney for the Child must be directed by the wishes of the child even when the attorney believes that what the child wants is not in the child's best interest. The first exception applies when the child is not capable of knowing, voluntary and considered judgment.. The second exception applies when the child's wishes are likely to result in substantial risk of imminent, serious harm to the child.
After considering the events of the trial, the Court, sua sponte, moved for a mistrial and an order assigning a new Attorney for the Child to represent the child's interests going forward based upon the apparent failure of the Attorney for the Child to fulfill the attorney's obligations under 22 NYCRR 7.2 (d). In the Court's opinion the mother in effect stated that that the child was capable of knowing, voluntary and considered judgment as those terms are used by 22 NYCRR 7.2(d). Neither the father nor the Attorney for the Child argued that the child was not capable of knowing, voluntary and considered judgment. The Attorney for the Child's credit frankly acknowledged that she failed to zealously advocate for her client during the closing argument. She acknowledged that although it was an honest mistake, it was a mistake.
The Court declared a mistrial. It found that counsel's error was not harmless. Reasonable minds could differ regarding what order served the best interest of the child
and therefore, closing arguments were important in this case. If counsel elects to
make a closing argument, the closing argument may not advocate for an outcome
which directly opposed the child's position (except in the two circumstances described above). Second, if the Court were to ignore the Attorney for the Child's closing argument placed upon the record and make a decision in this case based upon the rest of the record, the legitimacy of the judicial process could be reasonably questioned. If the Court were to decide in the mother's favor, a reasonable mind may be suspicious that the Court was, in fact, not ignoring the Attorney for the Child's argument. If the Court were to decide in the father's favor, a reasonable mind may be suspicious that the Court was trying to manipulate the outcome in order to render this issue meaningless. Third, the Court could not be certain of the scope of the Attorney for the Child's error. If the error went beyond closing argument, the scope of the evidence admitted may have been effected. Given the Court's decision to declare a mistrial, it was consistent with the administration of justice and the best interest of the child to relieve the Attorney for the Child of any further responsibilities in the matter and to assign a new attorney to represent the child's interests going forward. The Court considered whether or not this issue should be raised sua sponte and acknowledged that neither parent nor the Attorney for the Child raised the issue or asked for any relief as a result of the issue. However, the trial judge was the only person present during the Lincoln hearing other than the child and the Attorney for the Child and thus, the parents and their counsel did not have an opportunity to evaluate the testimony of the child. Furthermore, the Court has an obligation to ensure that an individual's right to zealous advocacy is protected.

Wednesday, November 30, 2011

Important New Decisions - November 30, 2011

Billing Statements of Former Attorney Inadmissible in Counsel Fee Hearing

In Matter of Denton v Barr, --- N.Y.S.2d ----, 2011 WL 5922992 (N.Y.A.D. 1 Dept.) the Appellate Divison modified an order of the Family Court which awarded petitioner attorney's fees of $110,000 and child support arrears of $11,000 to award petitioner $11,742 in child support arrears and $5,322 in interest on the arrears, and to remand the matter for clarification of the amount of attorney's fees awarded to and reversed an order which directed that the $110,000 in attorney's fees be paid to petitioner and mailed to the offices of her counsel. On a prior appeal, the Court found that pursuant to the parties' stipulation of settlement, petitioner was "entitled to attorney's fees and remanded for a hearing to determine the amount of those fees" (69 AD3d 24, 32 [2009] ). It found that the court, in determining the amount of fees due to petitioner, relied on documents that constituted inadmissible hearsay, namely, billing statements of respondent's former attorney (cf. Seinfeld v. Robinson, 300 A.D.2d 208, 209 [2002] ). The matter was remanded to the trial court for clarification of the basis for the amount of fees awarded.

Family Courts Jurisdiction is Limited to Family Offenses Committed Against Persons Listed in Family Court Act 812 Only

In Matter of Janet GG v Robert GG,--- N.Y.S.2d ----, 2011 WL 5083241 (N.Y.A.D. 3 Dept.) in March 2010, petitioner (mother) filed a Family Ct Act article 8 petition alleging that respondent (father) committed a series of family offenses against her and their two children (born in 1996 and 1998). Specifically, she alleged that on March 2, 2010, the father telephoned the children's school, spoke to a guidance counselor and demanded to see his children. Because the counselor believed that an order of protection was in place that barred the father from having such contact with his children, the counselor informed the father that he should not come to the school and, in any event, would not be allowed by school authorities to visit with his children. The father, despite this admonition, went to the school and, upon entering the premises, confronted the school superintendent demanding to see his children. After he became loud and boisterous and refused to leave the premises, the police were notified and the father was placed under arrest. The mother subsequently filed a petition claiming that this conduct qualified as a family offense and, on that basis, sought an order of protection for herself and the children. The father argued that what had occurred, even if true, did not constitute a family offense and, therefore, Family Court did not have jurisdiction. The court agreed and dismissed the petition with prejudice. The Appellate Division affirmed. It observed that Family Court's jurisdiction over family offense proceedings is limited to those acts between family members that 'would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, ...stalking, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault (Family Ct Act 812[1] ). Family Court determined that while the father's actions may have constituted disorderly conduct, they did not amount to a family offense because, when committed, the father was not in contact with the mother or either of their children. Instead, the father's actions were directed at school personnel and not any member of his family. The Appellate Division agreed. The father's actions were directed not at the mother or the children, but at school personnel, and what occurred did not constitute a family offense. As such, Family Court was without jurisdiction to entertain this petition (Family Ct Act 812).

Second Department Construes Parties' Stipulation Providing for the Distribution of "Any Pension," to Refer Only to the Portion of Pension Representing Deferred Compensation.

In Nugent-Schubert v Schubert, --- N.Y.S.2d ----, 2011 WL 5085506 (N.Y.A.D. 2 Dept.) the plaintiff former wife and the defendant former husband were divorced by judgment incorporating a stipulation of settlement. The stipulation of settlement provided for a 50% distribution to the plaintiff of the value of "any pension" received by the defendant. The plaintiff thereafter submitted to the Supreme Court a Qualified Domestic Relations Order ( QDRO), which included a provision entitling her to receive a share of any future disability pension, but limited to any portion thereof representing the defendant's earnings and years of credited service. However, the Supreme Court struck that provision of the QDRO. Subsequently, the defendant, who was employed by the New York City Police Department, retired on an accidental disability pension as a result of a line-of-duty injury. Pursuant to the QDRO in its current form, the plaintiff was receiving a portion of the defendant's accidental disability pension that represented compensation for personal injuries. The defendant moved to amend the QDRO so as to exclude this portion of his accidental disability pension from distribution to the plaintiff. The Appellate Division held that the motion should have been granted. It observed that where a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Under controlling law, pension benefits, "except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property" because they are "in essence, a form of deferred compensation derived from employment" during the marriage. However, any compensation a spouse receives for personal injuries is not considered marital property and is not subject to equitable distribution. Thus, to the extent [a] disability pension represents deferred compensation, it is subject to equitable distribution while to the extent that a disability pension constitutes compensation for personal injuries, that compensation is "separate property" which is not subject to equitable distribution. In Berardi v. Berardi, 54 A.D.3d at 984-985, 865 N.Y.S.2d 245 this Court concluded that, absent a provision in the stipulation specifically awarding the [wife] accident disability benefits, the Supreme Court had erred in amending the QDRO to award the wife a portion of the husband's pension representing compensation for personal injuries, as such a provision in the QDRO expanded the rights granted to the wife under the stipulation. Similarly, here, the parties' stipulation providing for the distribution of "any pension," which was entered into before the defendant became entitled to or applied for an accidental disability pension, must likewise be construed to refer only to the portion of the defendant's pension representing deferred compensation. The Appellate Division distinguished this case from its decisions in Rosenberger v. Rosenberger (63 A.D.3d 898, 882 N.Y.S.2d 426) and Pulaski v. Pulaski (22 A.D.3d 820, 820-821, 804 N.Y.S.2d 404). In those cases, the husbands had applied for disability benefits, based upon line-of-duty injuries, prior to execution of the stipulation such that they were "chargeable with knowledge of the prospect of [an] eventual disability retirement when [they] entered into the stipulation". Thus, in Pulaski and Rosenberger, where the husbands were aware, before entering into a stipulation, of the specific potential for receipt of pension benefits that they would be entitled to treat as separate property, the broad language in the stipulation referring to distribution of a pension generally, with no provision for separate-property treatment of the pension, was reasonably interpreted as intending to distribute the entire disability pension. Here, as in Berardi, where it was unknown and unanticipated that the defendant would qualify for a disability pension, there was no reason to conclude that a general provision providing for equal distribution of "any pension" was intended to opt out of the controlling law in order to distribute portions of any such pension that would not ordinarily be subject to equitable distribution. The fact that the plaintiff submitted a QDRO which would have limited the distribution of any future disability pension to that portion representing deferred compensation further evinced the parties' understanding that separate-property portions of "any pension" received by the husband would not be subject to distribution.

Third Department Affirms Initial Custody Award Made without Evidentary Hearing

In Matter of Cole v Cole, --- N.Y.S.2d ----, 2011 WL 4975299, 2011 N.Y. Slip Op. 07328 (NYAD 3 Dept) Petitioner (father) and respondent (mother) were the parents of two sons (born in 2007 and 2008). In June 2010, the father filed a petition for custody of the children. He thereafter left the marital residence at the home of the maternal grandmother, and relocated to the paternal grandmother's home. In July 2010, the mother filed a petition seeking custody of the children. At the initial appearance, Family Court assigned an attorney for the children and temporarily ordered joint legal custody of the children with physical custody to the mother and, when the mother was working, childcare provided by the father at the maternal grandmother's home. At the next appearance, the father requested shared physical custody of the children and Family Court granted this as to weekends, when the mother was working. At the third and final appearance, in November 2010, Family Court issued a final order essentially based upon this same arrangement. The Appellate Division affirmed. It rejected the mother’s argument that Family Court erred by issuing a final order without conducting a hearing or engaging in other formalities such as placing stipulations or consent of the parties upon the record. An evidentiary hearing is generally necessary to determine custody matters, but it is not obligatory where, as here, no request is made and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests. Although no sworn testimony was taken, all three appearances before Family Court were attended by each of the parents, their respective attorneys, and both grandmothers, and the court invited and received input from all involved. The attorney for the children attended the two later appearances, and advocated a position based on interviews with the mother, her employer, the father and various service providers for the children. Further, the Chemung County Department of Social Services provided Family Court with a report assessing the needs of the children and the current family circumstances. The two parents, with the support of the two grandmothers, were essentially collaborating relative to the matters of sharing time and the responsibilities of caring for their children during the course of the proceedings, and Family Court found this structure in the best interests of the children. Although the mother was represented by counsel at all three appearances, at no time did she or her counsel request a hearing or other formalities. Upon review, it found that Family Court had sufficient information before it to support the determination.

Third Department Holds that In Neglect Proceeding Attorney for Children May Advocate a Different Position When the Children's Wishes Would Likely "Result in a Substantial Risk of Imminent, Serious Harm to the Children

In Matter of Alyson J, --- N.Y.S.2d ----, 2011 WL 5083950 (N.Y.A.D. 3 Dept.) a neglect proceeding, the Appellate Division disagreed with respondent's contention that the attorney for the children failed to adequately represent the children's interests. It pointed out that the duty of the attorney for the children is to advocate and express the children's wishes to the court, but on occasion it is acceptable for counsel to deviate from this obligation; the attorney is specifically allowed to advocate a different position when the children's wishes would likely "result in a substantial risk of imminent, serious harm to the child[ren]" (Citing (22 NYCRR 7.2 [d][3]; see Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093-1094 [2009], lv denied 15 N.Y.3d 715 [2010] ). Here, counsel had been involved with the children for several years and was well aware of their conditions, and the Appellate Division accepted the contrary position as in the best interests of the children. At the fact-finding hearing, the attorney for the children did indicate his clients' wishes, and properly informed Family Court that he was deviating from them.

Child Support Provisions of So-ordered Stipulation Which Did Not Contain Recitals Mandated by the CSSA Not Enforceable, But Remaining Provisions Held Enforceable.

In Bushlow v Bushlow--- N.Y.S.2d ----, 2011 WL 5222909 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the plaintiff's contention, the parties' so-ordered stipulation of settlement dated January 26, 2009, which was incorporated, but not merged, into the judgment of divorce, did not comply with the requirements of the Child Support Standards Act (Domestic Relations Law 240[1-b][h]). The stipulation did not recite that the parties were advised of the provisions of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount of support to be awarded. "[A] party's awareness of the requirements of the CSSA is not the dispositive consideration under the statute" (Lepore v. Lepore, 276 A.D.2d 677, 678, 714 N.Y.S.2d 343). Moreover, the parties' prorated shares of child care expenses and future reasonable unreimbursed health care expenses deviated from the CSSA guidelines, since they were not calculated based upon the parties' "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Domestic Relations Law 240[1-b][b][5][I]; 240 [1-b][c][1]). Thus, the stipulation was required to contain the additional recitals setting forth, inter alia, the amount that the basic child support obligation would have been under the CSSA (see Domestic Relations Law 240[1-b][h]). Since the so-ordered stipulation of settlement did not contain the specific recitals mandated by the CSSA, its provisions, insofar as they concerned the plaintiff's basic child support payment and "add-ons" for child care and unreimbursed health care expenses, were not enforceable. Accordingly, the Supreme Court should not have incorporated them into the judgment of divorce. However, contrary to the plaintiff's contention, the remaining provisions of the so-ordered stipulation, and the parties' open-court stipulation entered into on September 9, 2008, continued to be enforceable. The record did not support a finding that these provisions were closely intertwined with the basic child support provisions. The matter was remitted to the Supreme Court, for a determination of the basic child support obligation, including the parties' prorated contributions towards child care and reasonable unreimbursed health care expenses, in accordance with the CSSA.

Appellate Division Explains Doctrine of Res Judicata and Collateral Estoppel. Incidents in Counterclaim Occurring More than 5 Years Before Commencement May Be Properly Included If Relevant to Evaluation of Party's Claim for Cruelty Divorce.

In Maybaum v Maybaum, --- N.Y.S.2d ----, 2011 WL 5244417 (N.Y.A.D. 2 Dept.) the defendant wife and the plaintiff husband were married on March 13, 1995. Two children were born of the marriage. In April 2010, the defendant commenced a proceeding pursuant to article 8 of the Family Court Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiff commenced the action for a divorce on the ground of cruel and inhuman treatment. On April 27, 2010, the parties appeared before the Family Court and entered into a stipulation on the record. The parties stipulated that the defendant was withdrawing the pending family offense petition, with prejudice, in exchange for the plaintiff giving the defendant exclusive use of the marital residence. The parties agreed that the stipulation was binding in the action for a divorce pending in the Supreme Court. Subsequently, the defendant answered the complaint in this action and asserted a counterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. In reply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that the defendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c), and, as a fourth affirmative defense, that the counterclaim was barred, in whole or in part, by the doctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulation between the parties. The parties made several motions and cross motions for relief.
The Appellate Division held that the Supreme Court erred in granting the plaintiff's motion to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A 'pragmatic' test has been applied to make this determination-analyzing 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage' " (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100-101). Applying this test, it concluded that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment did not form a convenient trial unit. Thus, the defendant was not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court.
The Appellate Division pointed out that collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same. The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action. Collateral estoppel effect will only be given to matters actually litigated and determined in a prior action. An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation. Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, could not be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts. Further, the circumstances set forth by plaintiff simply did not rise to a level of unconscionability warranting application of equitable estoppel.
Since the doctrines of res judicata, collateral estoppel, and equitable estoppel did not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted defendant's cross motion to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense has no merit.
The Appellate Division held that Supreme Court erred in granting plaintiff's motion to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage.

Family Court Erred by Granting the Father's Motion for Summary Judgment Modifying Custody Order Without Allowing Mother Opportunity to Present Evidence. Due Process Requires That a Parent Be Afforded "A Full and Fair Opportunity to Be Heard

In Matter of Jeffrey JJ v Stephanie KK, --- N.Y.S.2d ----, 2011 WL 4975012 (N.Y.A.D. 3 Dept.) Petitioner ( father) and respondent (mother) were the parents of a daughter (born in 2003). Pursuant to a prior order of custody, the parties' apparently shared legal custody of the child; the mother had primary physical custody and the father had liberal visitation time. The father commenced a proceeding seeking primary physical custody of the child after the Rensselaer County Department of Social Services commenced a neglect proceeding against the mother and her husband (stepfather) after receiving a report that the stepfather had been intoxicated while driving with the mother, the subject child and another child in the vehicle. At the fact-finding hearing, the father presented evidence of an existing order of protection that prohibited the stepfather from having any contact with the subject child until July 30, 2010. The father then made an oral motion for Family Court to award him custody, which the court granted over the mother's objection, after it concluded that it was "impossible [for] ... the child's primary residence to be with the mother[,] who is living with [the stepfather,] against whom there is an order of protection." The court further concluded that the issue of the child's best interests had "almost been determined by virtue of the fact that there is an order of protection against" the stepfather. The court then awarded the father primary physical custody of the child with parenting time to the mother. The Appellate Division agreed with the mother that Family Court erred by granting the father's motion without allowing her an opportunity to present any evidence. In a proceeding pursuant to Family Ct. Act article 6 seeking modification of a prior custody order, a full and comprehensive hearing is required. At such hearing, due process requires that a parent be afforded "a full and fair opportunity to be heard. Family Court violated the mother's due process rights when it granted the father's motion for summary judgment on the petition without permitting the mother an opportunity to present any evidence, call any witnesses, or even testify on her own behalf. While the court believed that the order of protection against the stepfather rendered it impossible for it to award the mother primary physical custody, on cross-examination the stepfather indicated that he was willing to move out of the mother's residence until that order expired. However, the mother was denied an opportunity to present evidence regarding the feasibility of this plan when the court granted the father's motion. In a footnote the court observed that the prior order was not included in the record on appeal, which omission ordinarily results in dismissal of the appeal (see Matter of Pratt v. Anthony, 30 A.D.3d 708, 815 N.Y.S.2d 832 [2006] ). However, since there was no dispute as to the terms of the prior order, which were put on the record in open court by Family Court, it decided to reach the merits of this appeal

Second Department Explains Requirements of Anders Brief and Responsibilities of Counsel in Relieving Assigned Counsel Who Filed Inadequate Brief

In Matter of Giovani S, --- N.Y.S.2d ----, 2011 WL 5222834 (N.Y.A.D. 2 Dept.) the mother appealed from a fact-finding order in a child protective proceeding which found that she had neglected the child. The mother's counsel submitted a brief pursuant to Anders v. California (386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), in which he moved for leave to withdraw as counsel for the appellant. The Appellate Division granted the motion, relieved assigned counsel for the appellant and appointed a new attorney as counsel to perfect the appeal from the fact-finding order. In its decision, written by Justice Skelos, the Court reviewed the basic principles espoused in Anders and their proper application, as well as the responsibilities of counsel in relation to the filing of briefs pursuant to Anders.
The Court observed that the fundamental principles upon which Anders was founded apply in both criminal and family law cases. The Due Process and Equal Protection Clauses of the Fourteenth Amendment converge to require that indigent criminal defendants, faced with the risk of loss of liberty or grievous forfeiture are granted equal rights to appeal through the representation and advocacy of assigned counsel. Likewise, a parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer (Matter of Ella B., 30 N.Y.2d 352, 356-357. Accordingly, indigent parties to certain Family Court proceedings, such as child protective proceedings pursuant to Family Court Act article 10, are entitled to be represented by assigned counsel (Family Ct Act 262[a][i]. Nonetheless, there is one limitation placed upon the right to counsel on appeal. It does not include the right to counsel for bringing a frivolous appeal. The United States Supreme Court in Anders set forth a procedure, subsequently adopted by the New York State Court of Appeals, which, when properly utilized in the context of potentially frivolous appeals, safeguards an indigent appellant's rights (see Anders v. California, 386 U.S. at 744). According to that procedure, if, after a conscientious examination of the record, assigned counsel finds a case to be wholly frivolous, counsel should so advise the court and request permission to withdraw. In fulfilling assigned counsel's role as an active advocate such requests to withdraw must be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If the court "finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. If, however, the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed, and the appeal decided.
The Appellate Division pointed out that there are essentially two steps to the Court's review of an attorney's motion to be relieved pursuant to Anders. First, the Court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Significantly, although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments. "Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel (see People v. Stokes, 95 N.Y.2d at 637; People v. Gonzalez, 47 N.Y.2d at 610-611). Further, assigned counsel "must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In searching for the strongest arguments available, the attorney must be zealous and resolve all doubts and ambiguous legal questions in favor of his or her client. Only after such a diligent and conscientious examination of the case will counsel be in a position to determine that there are no nonfrivolous issues to raise on appeal. Once that determination is made, as counsel must file a brief "reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. The Court noted that the Court of Appeals' decisions in Stokes and Gonzalez provide guidance as to what will be considered a deficient brief. These cases demonstrate, counsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority. Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal . Where counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal. If the Court is satisfied, however, that counsel diligently examined the case on the indigent appellant's behalf, the next step in the Court's review is to determine, based upon an independent review of the record, whether counsel's assessment that there are no nonfrivolous issues for appeal is correct. In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous. There must, however, be a finding of frivolity, not merely an evaluation of the likelihood that the defendant will prevail on the merits, because the exception to the constitutional requirement that certain indigent parties receive representation on appeal is predicated on the fact that the Fourteenth Amendment does not require appointed counsel to press wholly frivolous arguments. Thus, once a court determines that the trial record supports arguable claims, there is no basis for the exception" and the indigent appellant is entitled to representation. Accordingly, it is inappropriate for the Court to analyze the merits of any particular appellate issue where the appellant has not received the benefit of a merits-based brief prepared by counsel. The question, therefore, to be answered by the Court in every Anders case is only whether "the appeal lacks any basis in law or fact". The question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are "arguable" on the merits .
Turning to the present appeal, the Appellate Division found that counsel's Anders application failed on both levels of review. The Anders brief filed by assigned counsel for the mother contained a four-page statement of facts, in which he reviewed the testimony given by the sole witness (a police officer) presented by ACS, and ACS's documentary evidence. The brief reviewed only the witness's direct testimony, not the mother's counsel's cross-examination, and did not identify and evaluate the mother's counsel's objections. Significantly, although this case was resolved on motions, counsel's brief merely stated that motions were made, and indicates how they were decided, but does not include any summary of the arguments made by the parties. Finally, counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal. The "argument" section of counsel's brief merely stated in conclusory fashion: "The undersigned has fully analyzed the record below, performed the necessary legal research, and it is my legal opinion that there are no nonfrivolous issues to raise on appeal." Accordingly, counsel failed in his role as advocate by filing a deficient brief, and, on this basis alone, the mother was entitled to new counsel. It noted that based upon an independent review of the record, the record presented nonfrivolous issues including, but not limited to, whether ACS met its burden of showing that, as alleged in the petition, the mother was involved in a drug sale in the child's presence; whether ACS's evidence was insufficient to establish neglect, at least as a matter of law and relatedly, whether the matter was improperly decided on a motion for summary judgment.

Wednesday, November 16, 2011

Important New Decisions - November 11, 2011

Presumptive Amount of Temporary Maintenance Unjust or Inappropriate Where There Were Substantial Marital Assets Subject to Equitable Distribution, and Plaintiff Waited 3 ½ Years Prior to Seeking Temporary Maintenance


In Salai v Salai, --- N.Y.S.2d ----, 2011 WL 5526030 (N.Y.Sup.) Plaintiff wife moved for an order of temporary spousal maintenance of $9,571.22 per month. The parties were married on September 15, 1979. Plaintiff was a teacher in the husband was an attorney in private practice. Defendant was not opposed to the payment of some temporary maintenance but argued that plaintiff's requested amount exceeded her needs. The Supreme Court observed that Domestic Relations Law 236(B)(5-a)(c) provides the formula to calculate the presumptively correct award amount, which it applied to the parties' admitted income levels. It noted that DRL 236(B)(5-a)(d) provides that "the guideline amount of temporary maintenance shall be the lower" of two calculations, in this case $114,885 or $9,571 monthly. DRL 236(B)(5-a)(e)(1) provides that "[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of 17 factors. Having considered those factors the court found that an award of the presumptive amount calculated would be inappropriate and unjust because there were substantial marital assets subject to equitable distribution, and plaintiff had maintained a separate pre-divorce household for a period of three and one half years prior to seeking temporary maintenance. Review of the parties' Statements of New Worth indicated that approximately $2,440,000 of marital property was available for equitable distribution. Moreover, plaintiff maintained a pre-divorce separate household for three years and one-half years prior to seeking temporary maintenance. (DRL 236 (B)(5-a)(e)(1)(g)). Plaintiff had been virtually self supporting, aside from a $25,000 payment from defendant for a new car, for that period. This was not a case where the less-moneyed spouse can be said to have forgone her own career or educational ambitions in favor of the more moneyed spouse. Plaintiff has realized her full earning capacity and was not in need of any additional education. She had a Bachelor of Science degree, a permanent teaching certification,
and a full time permanent position paying $75,931 per year in the Penfield School
District. These factors together, together with the fact that a permanent
maintenance award, if any given the extent of equitable distribution contemplated
and plaintiff's ability to be virtually self supporting in her current job, argued
for a temporary maintenance award substantially less than the presumptive amount.
However, as plaintiff's earned income alone did not quite meet her reported current monthly expenses, it was appropriate to order an amount of maintenance to allow plaintiff to meet her expenses. Plaintiff took home $4,287 per month after taxes from her employment as a teacher. Plaintiff's claimed expenses were $5,886 per month. The
difference being $1,599 per month. In addition, while the parties appeared to live
well within their means, some consideration for the parties' standard of living
during the marriage had to be made. DRL 236(B)(5- a)(e)(1)(a). Accordingly, the court awarded maintenance in the amount of $3,000 per month, or $36,000 per year.



Fourth Department States That Federal Poverty Income Guidelines Do Not Apply Where Income Is Imputed in Excess of Guidelines Amount

In Niagra County Department of Social Services ex rel Hueber v Hueber, --- N.Y.S.2d ----, 2011 WL 5433691 (N.Y.A.D. 4 Dept.) the Support Magistrate imputed income to Respondent based on the minimum wage for a period of over three years and ordered that he pay child support arrears for that period of $1,870.68. It was undisputed that the father was incarcerated for all but the last 4 ½ months of that time period. The Appellate Divison affirmed. It held that the Support Magistrate did not abuse her discretion by imputing income to the father for the period during which he was incarcerated for the purpose of calculating his child support obligation. To the extent that the father's financial hardship was the result of his own wrongful conduct, he was not entitled to a reduction of his obligation to pay child support ( Matter of Knights v. Knights, 71 N.Y.2d 865, 866-867). The father's contention that the child support arrears should be reduced to $500 because his income was below the federal poverty income guidelines was not preserved for review inasmuch as it is raised for the first time on appeal. In any event, the Appellate Division stated that his contention was without merit because the father's income for the purpose of calculating his child support obligation includes imputed income (Family Ct Act 413[1][b][5][iv], [v] ), and thus his income was above the federal poverty income guidelines (see generally s 413[1][g]; Matter of Julianska v. Majewski, 78 AD3d 1182). The father's further contention that a local ordinance limiting the locations where registered sex offenders may be employed has prevented him from finding employment was not raised in his written objections to the Support Magistrate's order and thus was not preserved for review.


Order of Protection Properly Denied Where Communications Sent with Legitimate Purpose of Attempting to Reconcile with Petitioner

In Ovsanik v Ovsanik, --- N.Y.S.2d ----, 2011 WL 5433772 (N.Y.A.D. 4 Dept.)
the Appellate Divison reversed an order of protection granted by the Family Court finding that Petitioner failed to meet her burden of proving by a preponderance of the evidence that respondent committed acts constituting a family offense. The
record established that the parties were married in 1987 and that, on at least two
occasions prior to the events leading up to the petition, the parties separated and then reconciled. In July 2009, petitioner left the marital home and began staying at a motel. Between October 2009 and September 2010, respondent visited petitioner at the motel on a daily basis, and it was undisputed that petitioner consented to those visits. In September 2010, petitioner informed respondent that she no longer wanted to be married to him and that he should no longer visit her. In an attempt to reconcile with petitioner, respondent left four handwritten letters and a store-bought card for her over a period of approximately one month. During that same period of time, respondent knocked on the door of petitioner's motel room at approximately 2 A.M. at least once or
twice. When respondent knocked on her door, petitioner ignored him, and respondent
left after a few minutes. Because petitioner worked overnight shifts, it was not unusual for her to be awake at 2 A.M., and respondent previously had visited petitioner during the early morning hours before September 2010. In light of the foregoing, the evidence was insufficient to establish that respondent acted with "no legitimate purpose" within the meaning of the stalking statute (Penal Law 120.45). "[T]he phrase 'no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten" (People v. Stuart, 100 N.Y.2d 412, 428). Here, the letters and the card were sent with the legitimate purpose of attempting to reconcile with petitioner, a purpose that was not unreasonable based upon the parties' lengthy marriage and history of separation and reconciliation. The evidence was also insufficient to establish that respondent knew or reasonably should have known that his conduct caused "material harm to [petitioner's] mental or emotional health". Notably, there was nothing on the face of the letters or the card that was improper or threatening. Petitioner's testimony that respondent was physically violent during
the marriage did not tend to establish that respondent's conduct in 2010 constituted stalking. Indeed, the only incident of violence that was described in any particularity occurred in the early 1990s. Although there was no statute of limitations for family offenses, and acts not "relatively contemporaneous with the date of the petition" are entitled to consideration (Family Ct Act 812[1]), petitioner's remote allegations of physical violence did not establish "a cognizable pattern of behavior" on respondent's part so as to render his behavior devoid of any legitimate purpose.


Attorney Witness Properly Disqualified Based upon Advocate Witness Rule

In Jozefik v Jozefik, --- N.Y.S.2d ----, 2011 WL 5433996 (N.Y.A.D. 4 Dept.) plaintiff contended on appeal that he was deprived of his right to counsel of his own choosing when Supreme Court disqualified his attorney based upon an alleged conflict of interest. The Appellate Divison rejected that contention. It observed that the decision to disqualify an attorney lies within the sound discretion of the trial court. It concluded that the court did not abuse its sound discretion in disqualifying plaintiff's attorney, based on rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). Rule 3.7(a) provides that "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact," with certain exceptions not relevant here. Although not binding upon the courts, the advocate-witness rule provides guidance for the courts in determining whether a party's attorney should be disqualified during litigation. The record established that it was likely that plaintiff's original trial attorney would be a witness on a significant issue of fact. During the first trial in this action, plaintiff testified that he requested and/or facilitated the transfer of an amount of wages ranging from $15,000 to $17,000 from his employer to his attorney's business account, and it appeared from the record that the transfer was in violation of an order appointing a receiver to receive plaintiff's income. Plaintiff's attorney transferred some of the funds to plaintiff and remitted the remaining funds to plaintiff's accountant, again in apparent violation of the above-referenced order. When the court questioned plaintiff's attorney on the record about that testimony, the attorney replied that he was "taking the Fifth." The court thereupon declared a mistrial and discharged plaintiff's attorney, reasoning that a conflict of interest had developed because the attorney was "likely to be called upon as a witness in this proceeding and may become a witness in another tribunal." Thus, the record established that plaintiff's attorney was likely to be a witness on a significant issue of fact in violation of rule 3.7 of the Rules of Professional Conduct, namely, the issue whether plaintiff violated the court's order appointing a receiver and, in so doing, diverted or otherwise obscured his income. As plaintiff conceded in correspondence to the court, his attorney "continually told [him], and apparently [his] wife's attorney did not disagree, that the only issues were the amount of child support and the amount and duration of maintenance." Thus, the extent of plaintiff's income was a significant issue of fact throughout the litigation. Notably, the record reflected that plaintiff's attorney was subpoenaed to turn over documents and to testify at trial against plaintiff. Although it appeared that plaintiff's attorney did not in fact testify at the second trial, the express language of rule 3.7 provides only that it is "likely" that the attorney will be called as a witness, and the Court concluded on this record that it was in fact likely. The Court rejected plaintiff's further contention that the court erred in failing to make a "searching inquiry ... to ascertain whether plaintiff understood the
dangers and disadvantages of self-representation. No such searching inquiry was required inasmuch as there is no right to counsel in a divorce action (see Matter of Smiley, 36 N.Y.2d 433), and the court was not obligated to elicit a waiver of such right by way of a searching inquiry before permitting plaintiff to proceed pro se.


Direction That Maintenance Be Nontaxable to Spouse Is "A Departure from the Norm Envisioned by Current Internal Revenue Code Provisions" and Requires Sufficient Evidence

In Siskind v Siskind, --- N.Y.S.2d ----, 2011 WL 5429488 (N.Y.A.D. 2 Dept.), an action for a divorce, Supreme Court, inter alia, awarded the plaintiff child support of $34,000 per year, and maintenance of $65,000 per year, nontaxable to the plaintiff, commencing on May 1, 2010, until the plaintiff reaches her 65th birthday, directed the defendant to obtain and maintain a life insurance policy of $4,000,000 to secure the child support and maintenance payments, directed that certain funds retained by the defendant's
attorneys in escrow be transferred to custodial accounts to pay for educational
expenses for the parties' two college-age children, and that the defendant be
responsible for payment of 90 percent of the college expenses of these two
children not covered by the funds in the custodial accounts, equitably distributed
the marital portions of the parties' investments by awarding the plaintiff $216,109.50, awarded the plaintiff an attorney's fee of $340,000, and denied that branch of his motion which was for a downward modification of his pendente lite child support and maintenance obligations. The Appellate Division modified. It held that in light of the parties' ages as well as their respective financial circumstances, the Supreme Court should have awarded the plaintiff $65,000 per year in maintenance until the earliest of her attainment of her 65th birthday, her remarriage, or her death. In found that there was insufficient evidence to justify Supreme Court's direction that maintenance be nontaxable to the plaintiff, which is "a departure from the norm envisioned by current Internal Revenue Code provisions" (Grumet v. Grumet, 37 A.D.3d 534, 536, 829 N.Y.S.2d 682). It also held that based on the evidence in the record, including the trial testimony, the defendant's financial records, and the tax returns of the parties and the defendant's businesses, the Supreme Court providently imputed income to the defendant and calculated the amount of child support by applying the statutory percentage of 17% to all of the defendant's income, which was $199,655, for child support purposes. While Supreme Court correctly required the defendant to obtain and maintain a life insurance policy in order to secure his maintenance and child support obligations, in view of those obligations, the amount of insurance that the defendant must maintain should be reduced from t$4,000,000 to $3,000,000. It held that the Supreme Court did not improvidently exercise its discretion in awarding an attorney's fee of $340,000 to the plaintiff in view of the relative financial circumstances of the parties, their ability to pay, the nature and extent of the services rendered, the complexity of the defendant's business endeavors, and the fact that the defendant litigated the issue of custody and visitation of the parties' daughter until it was settled by stipulation during the trial.


Child Not Constructively Emancipated Where Father Contributed to Deterioration of Relationship with His Son

In Matter of Glen LS v Deborah AS, --- N.Y.S.2d ----, 2011 WL 5431519 (N.Y.A.D. 2 Dept.) the Appellate Division observed that under the doctrine of constructive emancipation, where a minor of employable age and in full possession of his or her faculties, voluntarily and without cause, abandons the parent's home, against the will of the parent and for the purpose of avoiding parental control he or she forfeits his or her right to demand support. In contrast, where it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent (Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97). The burden of proof as to emancipation is on the party asserting it. Here, there was an insufficient basis in the record to support the Family Court's determination that the parties' son unjustifiably refused contact and visitation with his father. The testimony elicited at the hearing established the father's claim that his son chose not to speak with him on the telephone and did not return his text messages following an altercation between the two in February 2008. However, the evidence also revealed that the altercation between the two prompted the son to state that "he wanted to commit suicide" and resulted in therapeutic intervention. Based on these mental health concerns, the son, via his mother, requested that the father not contact him so that he could "sort out" the issues, indicating a temporary reluctance on the son's part to contact the father. The father acknowledged that he made no effort to enforce visitation with the assistance of the court. The father made no efforts to contact the son through the school other than one telephone call to a guidance counselor, and admittedly never attempted to visit the son at his mother's home after the incident. All attempts at communication by the father ceased in October 2009, eight months after the incident. The father made no attempts to contact his son during his senior year of high school and made no effort to discuss or gain information regarding the son's college plans. In June 2009, having rented out a portion of his house, the father removed the son's belongings from his home and dropped them off at the mother's home with an email communicating, in effect, that the door was open for the son to come to him "[i]f eventually he can work his issues out and feels he needs the other part of his family." However, shortly thereafter, the father
refused an invitation to his son's high school graduation and failed to acknowledge or congratulate his son upon graduation in any manner. While the father sent a birthday card to his son without response in 2008, the father also failed to respond to an Easter card sent to him by his son in 2010. The Appellate Division found that the totality of the father's efforts to establish a relationship with his son, over a period of several months, could not be deemed a serious effort that was in turn egregiously rejected by the son. A child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation. Rather, the doctrine of constructive emancipation is applicable to situations where the child refuses to submit to the authority and control of the noncustodial paying parent or actively abandons the noncustodial parent by refusing all contact and visitation. The facts here showed that the father contributed to the deterioration of his relationship with his son. The record demonstrated that the father's own behavior was the parallel and coequal cause of the deterioration in the relationship. Accordingly, the father failed to meet his burden of establishing that his son was constructively emancipated and Family Court should not have granted the father's petition to vacate the child support provisions of the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce.


Interpreter Who Did Not Interpret Word for Word on One or Two Occasions, Engaged in Conversations with Witness, and Erred in Her Translation of One or Two Violated Standards for Court Interpreters


In Matter of Yovanny L, 931 N.Y.S.2d 485, 2011 N.Y. Slip Op. 21354 (Fam Ct), a juvenile delinquency proceeding, the Family Court found that that there were errors made by the court appointed Mandarin interpreter when interpreting the complainant's testimony. For example, the interpreter stated motorcycle before being corrected to say bicycle. In another instance the witness answered a question by saying he saw someone three to four times per week, while the interpreter interpreted two to three times. Additionally, at times it appeared that there was a conversation occurring between the interpreter and the complainant, and some statements may have been paraphrased rather than word-for-word.
The Family Court observed that Rule of Court 22 NYCRR 217 provides that "In all civil and criminal cases, when a court determines that a party or witness, or an interested parent or guardian in a Family Court proceeding, is unable to understand or communicate to the extent that he or she cannot meaningfully participate in the proceedings, the court shall appoint an interpreter." General standards expressed in the limited case law in this area set forth that since the interpreter is the conduit from the witness to the trier-of-fact, interpretation should be word-for-word rather than summarized, no conversation between the witness and the interpreter, no significant differences in the length of dialogue of the witness and the interpreter, and no bias or interest in the proceedings. (Citing, e.g., Matter of James L., 143 A.D.2d 533, 532 N.Y.S.2d 941; see also, Dat Pham v. Beaver, 445 F.Supp.2d 252; US v. Joshi, 896 F.2d 1303). In the OCA internal Court Interpreter Manual and Code of Ethics, the following "responsibilities" are indicated. Under "Accuracy", interpreters must faithfully and accurately interpret what is said without embellishment or omission, and there is additional advice for impartiality, confidentiality, proficiency, and professional demeanor. Under "proficiency" and "errors", interpreters must provide professional services only in areas where they can perform accurately, and when in doubt inform the court; and the interpreter must immediately inform the judge of an error, even if perceived after the proceeding has concluded. Because the interpreter did not interpret word for word on one or two occasions, engaged in conversations with the witness, and erred in her translation of one or two words, the Court found that she violated the standards for court interpreters. However, the bulk of her work, in the 30- 40 minutes of testimony, did meet proper standards, and the individual errors were isolated instances.
The Family Court noted that in People v. Singleton, 59 A.D.3d 1131, 873 N.Y.S.2d 838, the Court held that while there were some errors in interpretation, the defendant failed to establish that he "was prejudiced by those errors", and the conviction was affirmed. In People v. Dat Pham, 283 A.D.2d 952, 725 N.Y.S.2d 245, also, while there were some errors in the translation, the jury was informed of the errors, and the conviction was affirmed because the defendant did not show that he was seriously prejudiced. Other cases have held that the failure of the defendant to object as to the adequacy of the translation during trial or otherwise preserve proof of any serious error does not provide the basis for a reversal. Here the errors made were relatively minor and few, and did not affect the main aspects of the witness's testimony, and this Court, as the trier of fact in this Family Court juvenile delinquency case, was able to discern the testimony notwithstanding these errors. Therefore, as there had been no major prejudice to any party, and the drastic remedy requested by the Presentment Agency, that of striking the testimony and starting anew, was denied, as not warranted under the circumstances of this case. The Court directed that trial would resume with the continued testimony of the witness, with a different Mandarin interpreter to be supplied by the Clerk of the Court and the interpreter service unit.

Friday, November 11, 2011

Important New Decisions - November 11, 2011

Child Support Provisions of So-ordered Stipulation Which Did Not Contain Recitals Mandated by the Cssa Not Enforceable, but Remaining Provisions Held Enforceable.


In Bushlow v Bushlow--- N.Y.S.2d ----, 2011 WL 5222909 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the plaintiff's contention, the parties' so-ordered stipulation of settlement dated January 26, 2009, which was incorporated, but not merged, into the judgment of divorce, did not comply with the requirements of the Child Support Standards Act (Domestic Relations Law 240[1-b][h]). The stipulation did not recite that the parties were advised of the provisions of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount of support to be awarded. "[A] party's awareness of the requirements of the CSSA is not the dispositive consideration under the statute" (Lepore v. Lepore, 276 A.D.2d 677, 678, 714 N.Y.S.2d 343). Moreover, the parties' prorated shares of child care expenses and future reasonable unreimbursed health care expenses deviated from the CSSA guidelines, since they were not calculated based upon the parties' "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Domestic Relations Law 240[1-b][b][5][I]; 240 [1-b][c][1]). Thus, the stipulation was required to contain the additional recitals setting forth, inter alia, the amount that the basic child support obligation would have been under the CSSA (see Domestic Relations Law 240[1-b][h]). Since the so-ordered stipulation of settlement did not contain the specific recitals mandated by the CSSA, its provisions, insofar as they concerned the plaintiff's basic child support payment and "add-ons" for child care and unreimbursed health care expenses, were not enforceable. Accordingly, the Supreme Court should not have incorporated them into the judgment of divorce. However, contrary to the plaintiff's contention, the remaining provisions of the so-ordered stipulation, and the parties' open-court stipulation entered into on September 9, 2008, continued to be enforceable. The record did not support a finding that these provisions were closely intertwined with the basic child support provisions. The matter was remitted to the Supreme Court, for a determination of the basic child support obligation, including the parties' prorated contributions towards child care and reasonable unreimbursed health care expenses, in accordance with the CSSA.


Party Who Accepts Benefits of Separation Agreement for Considerable Period of Time Deemed to Have Ratified it but Party Who Receives Virtually No Benefits from Agreement Cannot Be Said to Have Ratified It.

In Kessler v Kessler, --- N.Y.S.2d ----, 2011 WL 5241275 (N.Y.A.D. 2 Dept.) on June 10, 1980, after 25 years of marriage, the parties entered into a separation agreement, which provided that the plaintiff husband would make payments to the defendant wife for her support and maintenance and for the mortgage and carrying costs relating to the marital residence, where the defendant continued to reside. The plaintiff complied with the terms of the separation agreement and, in 2009, he commenced this action for a conversion divorce. In response to the plaintiff's motion for summary judgment, the defendant submitted an affidavit asserting that the plaintiff had procured the separation agreement through fraud and duress, and that the agreement was unconscionable. The defendant alleged that the plaintiff had concealed from her
his vast wealth, and had induced her to enter into the separation agreement at a time when, unbeknownst to her, New York's equitable distribution law was about to be enacted. The Supreme Court granted the plaintiff's motion for summary judgment, and subsequently entered a judgment of divorce directed the parties to comply with the terms of the separation agreement which was incorporated, but not merged into, the judgment of divorce. The Appellate Division affirmed. It held that a party who accepts the benefits provided under a separation agreement for any considerable period of time is deemed to have ratified the agreement and, thus, relinquishes the right to challenge that agreement. By contrast, when a party received virtually no benefits from the agreement, he or she cannot be said to have ratified it. Assuming the truth of the allegations set forth in the defendant's affidavit, the benefits she received pursuant to the separation agreement were far less than those she likely would have received had there been an equitable distribution of the assets accumulated during the marriage. The record, however, did not support a finding that the defendant received "virtually no benefits" from the agreement. Moreover, while a spouse will not necessarily be held to have ratified an agreement if it is found to be the product of duress and overreaching, the disadvantage to the defendant created by the alleged fraud and duress in this case could not be deemed to have persisted throughout the 29-year period during which the defendant accepted the benefits of the separation agreement without challenging it. Thus, the plaintiff made a prima facie showing that the defendant ratified the separation agreement. In opposition, the defendant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment.


Appellate Division Explains Doctrine of Res Judicata and Collateral Estoppel. Incidents in Counterclaim Occurring More than 5 Years Before Commencement May Be Properly Included If Relevant to Evaluation of Party's Claim for Cruelty Divorce.

In Maybaum v Maybaum, --- N.Y.S.2d ----, 2011 WL 5244417 (N.Y.A.D. 2 Dept.) the defendant wife and the plaintiff husband were married on March 13, 1995. Two children were born of the marriage. In April 2010, the defendant commenced a proceeding pursuant to article 8 of the Family Court Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiff commenced the action for a divorce on the ground of cruel and inhuman treatment. On April 27, 2010, the parties appeared before the Family Court and entered into a stipulation on the record. The parties stipulated that the defendant was withdrawing the pending family offense petition, with prejudice, in exchange for the plaintiff giving the defendant exclusive use of the marital residence. The parties agreed that the stipulation was binding in the action for a divorce pending in the Supreme Court. Subsequently, the defendant answered the complaint in this action and asserted a counterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. In reply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that the defendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c), and, as a fourth affirmative defense, that the counterclaim was barred, in whole or in part, by the doctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulation between the parties. The parties made several motions and cross motions for relief.
The Appellate Division held that the Supreme Court erred in granting the plaintiff's motion to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A 'pragmatic' test has been applied to make this determination-analyzing 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage' " (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100-101). Applying this test, it concluded that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment did not form a
convenient trial unit. Thus, the defendant was not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court.
The Appellate Division pointed out that collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same. The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action. Collateral estoppel effect will only be given to matters actually litigated and determined in a prior action. An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation. Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, could not be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts. Further, the circumstances set forth by plaintiff simply did not rise to a level of unconscionability warranting application of equitable estoppel.
Since the doctrines of res judicata, collateral estoppel, and equitable estoppel did not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted defendant's cross motion to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense had no merit.
The Appellate Division held that Supreme Court erred in granting plaintiff's motion to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage.



Second Department Explains Requirements of Anders Brief and Responsibilities of Counsel in Relieving Assigned Counsel Who filed Inadequate Brief

In Matter of Giovani S, --- N.Y.S.2d ----, 2011 WL 5222834 (N.Y.A.D. 2 Dept.) the mother appealed from a fact-finding order in a child protective proceeding which found that she had neglected the child. The mother's counsel submitted a brief pursuant to Anders v. California (386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), in which he moved for leave to withdraw as counsel for the appellant. The Appellate Division granted the motion, relieved assigned counsel for the appellant and appointed a new attorney as counsel to perfect the appeal from the fact-finding order. In its decision, written by Justice Skelos, the Court reviewed the basic principles espoused in Anders and their proper application, as well as the responsibilities of counsel in relation to the filing of briefs pursuant to Anders.
The Court observed that the fundamental principles upon which Anders was founded apply in both criminal and family law cases. The Due Process and Equal Protection Clauses of the Fourteenth Amendment converge to require that indigent criminal defendants, faced with the risk of loss of liberty or grievous forfeiture are granted equal rights to appeal through the representation and advocacy of assigned counsel. Likewise, a parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer (Matter of Ella B., 30 N.Y.2d 352, 356-357. Accordingly, indigent parties to certain Family Court proceedings, such as child protective proceedings pursuant to Family Court Act article 10, are entitled to be represented by assigned counsel (Family Ct Act 262[a][i]. Nonetheless, there is one limitation placed upon the right to counsel on appeal. It does not include the right to counsel for bringing a frivolous appeal. The United States Supreme Court in Anders set forth a procedure, subsequently adopted by the New York State Court of Appeals, which, when properly utilized in the context of potentially frivolous appeals, safeguards an indigent appellant's rights (see Anders v. California, 386 U.S. at 744). According to that procedure, if, after a conscientious examination of the record, assigned counsel finds a case to be wholly frivolous, counsel should so advise the court and request permission to withdraw. In fulfilling assigned counsel's role as an active advocate such requests to withdraw must be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If the court "finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. If, however, the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed, and the appeal decided.
The Appellate Division pointed out that there are essentially two steps to the Court's review of an attorney's motion to be relieved pursuant to Anders. First, the Court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Significantly, although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments. "Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel (see People v. Stokes, 95 N.Y.2d at 637; People v. Gonzalez, 47 N.Y.2d at 610-611). Further, assigned counsel "must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In searching for the strongest arguments available, the attorney must be zealous and resolve all doubts and ambiguous legal questions in favor of his or her client. Only after such a diligent and conscientious examination of the case will counsel be in a position to determine that there are no nonfrivolous issues to raise on appeal. Once that determination is made, as counsel must file a brief "reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. The Court noted that the Court of Appeals' decisions in Stokes and Gonzalez provide guidance as to what will be considered a deficient brief. These cases demonstrate, counsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority. Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal . Where counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal. If the Court is satisfied, however, that counsel diligently examined the case on the indigent appellant's behalf, the next step in the Court's review is to determine, based upon an independent review of the record, whether counsel's assessment that there are no nonfrivolous issues for appeal is correct. In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous. There must, however, be a finding of frivolity, not merely an evaluation of the likelihood that the defendant will prevail on the merits, because the exception to the constitutional requirement that certain indigent parties receive representation on appeal is predicated on the fact that the Fourteenth Amendment does not require appointed counsel to press wholly frivolous arguments. Thus, once a court determines that the trial record supports arguable claims, there is no basis for the exception" and the indigent appellant is entitled to representation. Accordingly, it is inappropriate for the Court to analyze the merits of any particular appellate issue where the appellant has not received the benefit of a merits-based brief prepared by counsel. The question, therefore, to be answered by the Court in every Anders case is only whether "the appeal lacks any basis in law or fact". The question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are "arguable" on the merits .
Turning to the present appeal, the Appellate Division found that counsel's Anders application failed on both levels of review. The Anders brief filed by assigned counsel for the mother contained a four-page statement of facts, in which he reviewed the testimony given by the sole witness (a police officer) presented by ACS, and ACS's documentary evidence. The brief reviewed only the witness's direct testimony, not the mother's counsel's cross-examination, and did not identify and evaluate the mother's counsel's objections. Significantly, although this case was resolved on motions, counsel's brief merely stated that motions were made, and indicates how they were decided, but does not include any summary of the arguments made by the parties. Finally, counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal. The "argument" section of counsel's brief merely stated in conclusory fashion: "The undersigned has fully analyzed the record below, performed the necessary legal research, and it is my legal opinion that there are no nonfrivolous issues to raise on appeal." Accordingly, counsel failed in his role as advocate by filing a deficient brief, and, on this basis alone, the mother was entitled to new counsel. It noted that based upon an independent review of the record, the record presented nonfrivolous issues including, but not limited to, whether ACS met its burden of showing that, as alleged in the petition, the mother was involved in a drug sale in the child's presence; whether ACS's evidence was insufficient to establish neglect, at least as a matter of law and relatedly, whether the matter was improperly decided on a motion for summary judgment.