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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 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

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.

Friday, November 04, 2011

Important New Decisions - November 4, 2011

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.

Wednesday, November 02, 2011

Important New Decisions - November 1, 2011

Factors Set Forth in Family Court Act 413(1)(F) Should Be Considered Only Where Court Is Able to Calculate Basic Child Support Obligation Pursuant to Family Court Act 413(1)(C), Not Where Calculated Pursuant to Family Court Act 413[1][K]

In Salvatore D. V Shyou H., --- N.Y.S.2d ----, 2011 WL 4975542 (N.Y.A.D. 1 Dept.), the Appellate Division affirmed an order which directed respondent to pay $950 a month for the support of the parties' child. It held that the Support Magistrate properly ordered child support based on the needs of the child, since respondent presented insufficient evidence to determine her gross income ( Family Court Act 413[1][k]). Respondent's stated expenses were more than twice the income reflected on her tax return. The Support Magistrate found incredible respondent's testimony regarding her employment, her living situation and loans from her employer and brother. The Support Magistrate properly declined to consider the factors set forth in Family Court Act 413(1)(f), including the child's receipt of Social Security disability benefits. Such factors should be considered only where, unlike here, the court is able to calculate the basic child support obligation pursuant to Family Court Act 413(1)(c). Respondent's testimony, including that she was a well-known esthetician with celebrity clients and 22 years of experience, supported the Support Magistrate's determination that she is able to pay the child support obligation. The Support Magistrate was not required to rely on respondent's account of her finances.


Third Department Holds That Emancipation by Employment Occurs Only When Child Attains Economic Independence. Fact That Child May Work Full Time Is Not Determinative Even Where Child Lives on His/her Own.

In Drumm v Drumm, --- N.Y.S.2d ----, 2011 WL 4975452 (N.Y.A.D. 3 Dept.)
Petitioner ( mother) and respondent (father) were the divorced parents of three children, Miranda, Nicholas and Matthew (born in 1990, 1994 and 1997, respectively). In May 2006, the parties entered into a separation agreement, pursuant to the terms of which they agreed to share physical custody of their children and to divide equally, among other things, the cost of the children's health insurance and any uncovered medical expenses. In apparent contemplation of that arrangement, the parties agreed to waive any child support "at [that] time." Although not entirely clear from the record, it appeared that Miranda and Nicholas thereafter elected to reside primarily with the mother, prompting the parties to enter into stipulations of settlement that referred various issues to Family Court, including child support for Miranda and Nicholas and the parties' respective obligations for the children's health care costs. The
separation agreement, as modified, was incorporated but not merged into the
parties' May 2009 amended judgment of divorce. In September 2009, the mother and the father entered into an order on consent wherein they agreed to, among other things, grant each other a "right of first refusal" during any period of time when the parent having physical custody of Matthew would be absent for five hours or longer. As the father often was required to work on weekends, he offered--and the mother frequently accepted-- the additional parenting time with Matthew. Shortly after entering into this stipulation, the mother commenced s modification proceeding contending that, having availed herself of the opportunity to spend more time with Matthew, she now had physical custody of him more than 50% of the time and, as such, was entitled to child support. Following a hearing, the Support Magistrate found that the mother's decision to exercise her right of first refusal did not alter the parties' shared custody arrangement as to Matthew and, therefore, the mother was not entitled to child support for him. The Support Magistrate further determined that Miranda became emancipated in June 2008 when she graduated from high school and obtained full-time employment and limited any award of support for Miranda accordingly. Family Court, sua sponte, dismissed the mother's subsequent objections to the Support Magistrate's order as untimely and, upon reargument, adhered to its prior decision. The Appellate Division reversed. It found that the record did not support Family Court's finding that the mother's objections were filed outside the 35-day window set forth in Family Ct Act 439(e) and held that Family Court erred in refusing to entertain the mother's objections on the merits. The Appellate Division held that with regard to the mother's request for child support for Matthew, the mere fact that the mother elected to exercise her right of first refusal with respect to this particular child did not fundamentally alter the parties' shared custody arrangement. At best, the mother's election resulted in her choosing to spend an additional three or four days each month with her son. In its view, regardless of the burden of proof employed, this minor and entirely voluntary "change in circumstances" was insufficient to warrant the mother's request for child support as to this child.
However, it found merit to the mother's objection regarding Miranda's alleged emancipation. A parent is statutorily obligated to support his or her child until the age of 21 (see Family Ct Act 413[1] ) unless the child is sooner emancipated, which occurs, insofar as is relevant here, when the child attains economic independence through employment. The fact that a child may work full time is not determinative, as
a child cannot be deemed economically independent if he or she still relies upon a
parent for significant economic support. This remains true even where, as here, the child in question no longer resides with one of the parties, for long as the child is still
dependent on one of them for a significant portion of his or her support. Here, although the father testified that Miranda went to work full time after graduating from high school, the record fell short of establishing that she had achieved economic independence. Notably, there was no documentation of Miranda's salary or expenses or the degree to which she continued to receive financial support from her mother. Accordingly, the Support Magistrate's determination in this regard could not stand. The Court was also persuaded that the Support Magistrate erred in failing to achieve some level of parity between the parties by consistently using their respective projected incomes for 2009 in computing child support. Although the Support Magistrate's decision to utilize the mother's projected income for 2009 instead of her actual income for 2008 was well founded (due to nonrecurring income that the mother received in the prior year), no similar explanation was offered for electing to use the father's actual 2008 income instead of his projected--and presumably higher--income for 2009. The record failed to disclose a valid reason for failing to utilize similar income valuations for both parties
when computing their respective support obligations for Miranda and Nicholas. The orders were reversed, on the law and the matter remitted to the Family Court for further proceedings not inconsistent with the Court's decision.
In a footnote the Court pointed out that to the extent that the parties' separation agreement defined emancipation as, among other things, a "child establishing a permanent residence away from his or her custodial parent," it noted that "the parties cannot contract away the duty of child support" (Matter of Thomas B. v. Lydia D., 69 A.D.3d 24, 30 [2009] ).


Ineffective Assistance of Counsel Requires Reversal of Neglect Orders

In Matter of Jaikob O., --- N.Y.S.2d ----, 2011 WL 4974840 (N.Y.A.D. 3 Dept.) the Appellate Division reversed an order which granted petitioner's application to adjudicate the children to be neglected. The Appellate Division held that as a result of deficiencies in the representation provided by his assigned trial counsel at the fact-finding hearing, he was denied meaningful representation. It found that counsel's ineffectiveness permeated the proceedings. At the fact-finding hearing, counsel failed to make an opening statement or to cross-examine petitioner's witnesses on relevant matters such as the children's exposure to respondent's allegedly neglectful conduct during the relevant time period (i.e., February to June 2008). Counsel's cross-examination of the mother and the wife, both clearly young victims of disturbing domestic violence, was at points tasteless and irrelevant, even prurient. Counsel made no motions at the close of petitioner's case and no closing arguments, stating only, "I think everything's been said." Counsel never submitted, as directed by Family Court, proposed findings of fact and conclusions of law. Likewise, petitioner submitted no findings or conclusions of law. Notably, at the close of the fact-finding hearing, Family Court merely stated that it found petitioner's witnesses to be "credible," but made no finding of neglect, deferring its decision thereon. Surprisingly, counsel then consented to immediately proceeding to a dispositional hearing. Particularly disturbing on the issue of whether counsel provided meaningful representation was a letter sent by counsel to respondent in prison after the fact-finding hearing, but before a neglect determination was issued, in response to his request for a new attorney. The letter contained a not-so-subtle threat that counsel would not send respondent anything, or convey any information to or cooperate with his next attorney, if he pursued a change of attorneys; counsel also flaunted that he had achieved financial success, upon which he elaborated, with his "clients who have money" and essentially did not need this assignment. The Appellate Division found that the letter was inappropriate and served to undermine any confidence respondent might have had in counsel effectively representing him. Accordingly, the fact-finding order was reversed. In light of the foregoing, all proceedings at which counsel represented respondent subsequent to the fact-finding hearing and order were invalid.
It also deemed it important to point out that, with regard to the dispositional hearing, counsel failed to object to petitioner's oral motion to dispense with its duty to make diligent reunification efforts for respondent and the children based upon the termination, years earlier, of respondent's (and the wife's) parental rights to their three oldest children. Such a motion by petitioner was required to be "in writing " and on notice to respondent, allowing him "the opportunity to gather evidence and raise issues of fact in answering papers and prepare for an evidentiary hearing". Moreover, absolutely no proof was offered by any party at the dispositional hearing addressing the children's "best interests" either on the propriety of terminating reasonable reunification efforts (see Family Ct. Act 1039-b[b][6] [last paragraph] ) or on the ultimate disposition upon the neglect finding (see Family Ct. Act 1045, 1052); the current status and placement of the children was not disclosed at the hearing or in the dispositional order. Counsel filed no notice of appeal from the resulting dispositional order. As respondent was denied meaningful representation by trial counsel at the fact-finding hearing, the fact-finding order, as well as the subsequent resulting orders of Family Court, could not stand.


Third Department Holds That Evidence of Child’s Needs Not Necessary in Fixing Child Support. CSSA Creates Rebuttable Presumption Guidelines Contained Will Yield Correct Amount of Child Support.

In Matter of Marcklinger v Liebert, --- N.Y.S.2d ----, 2011 WL 4975510 (NYAD 3 Dept)
in a prior appeal in this child support case, the Appellate Division rejected petitioner's contention that the Support Magistrate improperly considered the parties' combined income exceeding $80,000 in the calculation of the basic child support obligation for their unemancipated child, but remitted the matter to Family Court for an articulation of a rationale for using the statutory percentage rather than the so-called "paragraph (f)" factors or a combination of both (72 A.D.3d 1431 [2010] ). Upon remittal, the Support Magistrate recalculated petitioner's support obligation, using a higher adjusted gross income for respondent as petitioner had previously requested and in accordance with Family Court's prior order, which reflected respondent's receipt of maintenance payments from petitioner. This resulted in petitioner's pro rata share being decreased to 57.65% and respondent's share being increased to 42.35%. The Support Magistrate then applied the statutory percentage set forth in the Child Support Standards Act to the parties' total combined income--first to the portion up to $80,000 and then to the portion that exceeds that amount--and determined that petitioner's pro rata share amounted to $256 per week. The Appellate Division affirmed. It noted that in his amended order, the Support Magistrate reasoned that the application of the statutory percentage yielded an amount that was "neither unjust nor inappropriate" considering that (1) the child would have enjoyed an enhanced standard of living had the parties remained married, (2) the $80,000 cap had not been adjusted for inflation since 1989, (3) the income disparity between the parties, and (4) petitioner did not offer any reason for a contrary finding. This articulation of reasoning indicated that the Support Magistrate carefully considered the parties' circumstances and found no reason to depart from the prescribed percentage. Although petitioner faulted respondent for not submitting evidence of the child's needs, application of the CSSA "creates a rebuttable presumption that the guidelines contained therein will yield the correct amount of child support" and, if petitioner believed that his presumptive pro rata share was unjust or inappropriate, it was his burden to establish such.



Appellate Division Holds Family Court Has Jurisdiction to Determine Paternity of Child Born to Married Woman Rejecting Argument Based upon Statutory Definitions of "Child," "Mother" and "Father" Limiting Those Terms to Situations Involving "A Child Born out of Wedlock"

In Matter of Nathan O v Jennifer P, --- N.Y.S.2d ----, 2011 WL 4975692 (N.Y.A.D. 3 Dept.) up until at least April 6, 2009, petitioner and respondent Jennifer P.
( mother) engaged in a sexual relationship, although they disputed when that relationship ended. In mid-April 2009, the mother engaged in a sexual relationship and began cohabiting with respondent Uwe P. The mother married Uwe P. in June 2009 and gave birth to a child on December 6, 2009. At the time of the birth, Uwe P. was listed as the child's father on the birth certificate. Shortly after the child's birth, petitioner filed two petitions seeking a declaration of paternity and either custody or visitation. Uwe P. cross-petitioned for a declaration of paternity. Family Court denied the mother's motion to dismiss the petitions and ordered the parties and child to submit to DNA testing, with the results sealed pending further proceedings. During a hearing to address whether the presumption of legitimacy should preclude DNA testing (see Family Ct Act 532 [a] ), the parties consented to unsealing the DNA test results, which revealed a high likelihood that petitioner was the biological father. The parties then stipulated to an order of parenting time for petitioner, subject to respondents'
right to appeal the court's ruling on jurisdiction and standing. Over respondents'
objections, Family Court declared that petitioner was the father of the child, entered an order of filiation to that effect, and dismissed Uwe P.'s paternity petition. The Appellate Division affirmed.
Respondents argued on appeal that the court had no jurisdiction to determine paternity of a child born to a married woman. The argument was based upon statutory definitions of "child," "mother" and "father" limiting those terms to situations involving "a
child born out of wedlock" (Family Ct Act 512). The Appellate Division held that Respondents' interpretation could not not be harmonized with other aspects of Family Ct Act article 5. For example, their interpretation is belied by the statutory phrase "presumption of legitimacy of a child born to a married woman" (Family Ct Act 532[a] ); the use of the word "married" would be unnecessary and superfluous under respondents' view. Considering the broad grant of jurisdiction in the N.Y. Constitution and in Family Ct Act 511, along with the numerous cases where courts have addressed paternity of children born to married mothers and the conflict between the definitions in Family Ct Act 512 and other aspects of Family Ct Act article 5, it held that Family Court has subject matter jurisdiction to address the paternity of a child born to a married woman. As a "person alleging to be the father," petitioner had standing to
commence a paternity proceeding (Family Ct Act 522). Family Ct Act 523 only requires
the petition to allege that a certain individual is the father of the subject child. A party seeking paternity testing under the Family Ct Act need not provide factual support for the allegations of paternity or nonpaternity; he or she need only articulate some basis for them," sufficient to show that a nonfrivolous controversy exists regarding paternity. In his application filed less than a month after the child's birth, petitioner alleged that he engaged in a sexual relationship with the mother during the probable time of conception, that the mother was not married at that time, and that he was the child's father. This information was sufficient to commence the paternity proceeding. Respondents consented--during the middle of a hearing--to Family Court unsealing the DNA test results. Upon learning of those results, the parties stipulated to the entry of an order of visitation to petitioner, subject to respondents' reservation of the right to appeal based on the court's ruling regarding jurisdiction and standing. In light of their consent, with this limited reservation of rights, respondents waived their argument that Family Court was required to conduct a full hearing concerning the child's best interests (see Family Ct Act 532[a] ) before issuing an order of filiation. Hence, it did not address that argument.


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.