Friday, January 07, 2011

The Court of Appeals amended its Rules of Practice effective December 8, 2010 .

Former section 500.2 was repealed in its entirety and a new section 500.2 was substituted for it. Sections 500.11, 500.12, 500.14 and 500.23 were amended. The number of paper copies of records, appendices and briefs has been reduced to 20 instead of the current 25 for normal coursed appeals and certified question reviews. In addition, parties are required to file on disk digital versions of each paper filing. Appeals to be considered under section 500.11 of the Rules are subject to a similar digital filing requirement. The companion briefs and record material in digital format must comply with the current "technical specifications" available from the clerk's office. The requirements regarding submission in digital format apply to all appeals for which the preliminary appeal statement is filed on or after the December 8, 2010 effective date.

Family Court Has Subject Matter Jurisdiction over Family Offense Proceedings Where Alleged Acts Occurred Outside State

In Matter of Richardson v Richardson, --- N.Y.S.2d ----, 2010 WL 4366892 (N.Y.A.D. 2 Dept.) the Appellate Division, in an opinion by Judge Levanthal, held that the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country. It held that Family Court t Act §812 grants the Family Court subject matter jurisdiction to hear such proceedings and that the Family Court properly exercised jurisdiction over the parties' petitions, despite the fact that the acts alleged occurred on the island territory of Anguilla. On March 4, 2009, Annette P. Richardson and her sons Aaron J. Hourie and Andrew G. Hourie (respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against Dorothy E. Richardson (appellant), Annette's mother, and her sons' grandmother. The alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Elmont, Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondents, the appellant pushed Annette to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at Annette during the assault. In addition, the appellant allegedly used a glass bowl to strike Andrew on the head, causing injuries. Further, the appellant allegedly chased Aaron with a meat cleaver and threw an ashtray at him, which hit him in the back. On March 6, 2009, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that on or about February 14, 2009, also in Anguilla, the respondents committed the family offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. During an initial appearance before the Family Court, the appellant's counsel objected to the court's exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that "the fact that this took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They're [all residents] of Nassau County and they're entitled to protection from future occurrences. Family Orders of Protection… are to prevent further hostility and further assault, attempted assault,… et cetera."On June 24, 2009, after a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant had committed certain family offenses against them and granted the respondents' respective petitions. The Family Court also entered three two-year orders of protection on behalf of the respondents and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant's three petitions. As a threshold matter, the court held that Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents (citing Family Ct Act §167; CPLR 320; cf. Matter of El-Sheemy v. El-Sheemy, 35 AD3d 738 [by appearing in article 6 proceeding and seeking custody, the mother waived her claim that the Family Court did not acquire personal jurisdiction over her]). It indicated that appellant's contentions provided the Court with an opportunity to address an issue which did not appear to have been previously addressed by an appellate court in this state: the limits of the subject matter jurisdiction of the Family Court with respect to family offenses which occurred outside of the state, and even outside of the country. In its analysis the court started with the proposition that the Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute. Family Court Act §812(2)(b) provides: "[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." Here, the plain language of Family Court Act §812 provides that the Family Court has jurisdiction over family offense proceedings where the petitions allege the commission of certain proscribed acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household. There is no geographic limitation in Family Court Act §812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. The next issue was whether the geographic or territorial limitation on the jurisdiction of the criminal court (see generally People v. McLaughlin, 80 NY2d 466, 472 [stating that "for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State"]) also limits the jurisdiction of the Family Court. Criminal Procedure Law §20.40(1)(a) provides, in pertinent part, that "[a] person may be convicted in an appropriate criminal court of a particular county, of an offense… when [c]onduct occurred within such county sufficient to establish [a]n element of such offense." The Appellate Division pointed out that Family Court is not a criminal court. Whereas the criminal court's subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court. Nothing in the state Constitution, Family Court Act §812, or the legislative history of Family Court Act article 8 requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction. It noted that its decision was generally consistent with various decisions of the Family Court. However, it held that to the extent that those cases relied upon a "minimum contacts analysis," or suggest that a residual injury within this state is necessary in order to confer subject matter jurisdiction upon the Family Court pursuant to New York's long arm statute (see CPLR 302), such reasoning should not be followed.

Mother Held In Contempt for Violating Anti-Alienation Provision of Judgment.

In Rubin v Rubin, --- N.Y.S.2d ----, 2010 WL 4539522 (N.Y.A.D. 2 Dept.) the parties October 30, 2003 stipulation of settlement was incorporated, but not merged, into their judgment of divorce dated March 26, 2004. With respect to custody and visitation, the stipulation of settlement provided that the parties would share legal custody of the two children, that the mother would have sole physical custody of the children, and that the father would have certain visitation. In addition, pursuant to those provisions, each party was specifically prohibited from doing anything that would have the effect of alienating the children from the other party. The Appellate Division affirmed an order which held the mother in contempt for failure to comply with this provision. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Where, a period of incarceration is imposed to vindicate the authority of the court or to compel respect for the court's mandate, the contemnor's willful violation of the court's mandate must be proven beyond a reasonable doubt The father met this burden. At the hearing it was established, among other things, that the mother violated the custody and visitation provisions of the stipulation of settlement by intentionally doing certain things which would have the natural effect of "turn [ing]" the children "away from" the father, and which actually had that effect. However, under the particular facts of this case, a sentence directing the mother's immediate incarceration "would serve no purpose"and the court held that it was appropriate to suspend the sentence subject to the mother's future compliance with the custody and visitation provisions of the stipulation of settlement.

Child Support Payments May Be Suspended Where Noncustodial Parent Establishes Right of Reasonable Access to Child Unjustifiably Frustrated by Custodial Parent

In Thompson v Thompson, --- N.Y.S.2d ----, 2010 WL 4540329 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which granted the father's petition alleging a violation of a previous order of visitation and suspended the father's obligation to pay child support and related expenses regarding the child, nunc pro tunc from December 24, 2008, unless and until a determination was made that visitation between the father and the child has resumed. In January 2004 the father commenced a proceeding seeking visitation with the parties' who was born in 1996. After a hearing, by order entered January 11, 2006, the Family Court granted the father's petition for therapeutic visitation. On appeal, the Appellate Division modified that order by adding a directive that the father and the child submit to individual therapy (Matter of Thompson v. Yu-Thompson, 41 AD3d 487). Soon after the Family Court entered its order, the father filed a petition alleging violation of the order by the mother. Visits finally commenced in December 2006 and went well, but one month later, the father filed this petition alleging that the mother was not responding to repeated requests to schedule further visitations. During the proceedings on the petition, visitations resumed, but interactions between father and son became progressively more strained, with the child refusing to visit with his father at all or to engage with his father when visits did occur. After a hearing, the Family Court found that the child was so closely allied with his mother and her negative view of the father that "it appears that the hoped-for reconnection between [the child] and his father" was unlikely at that time. Finding that the mother had failed to encourage, and had interfered with, visitation, the Family Court granted the father's violation petition and suspended the father's child support payments until visitation resumes. The Appellate Division held that where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended. Such suspension of child support is warranted only where the custodial parent's actions rise to the level of 'deliberate frustration' or 'active interference' with the noncustodial parent's visitation rights. The evidence at the hearing supported the Family Court's finding that the mother deliberately frustrated the child's court-ordered visitation with his father such that suspension of child support payments until visitation resumed was warranted. There was evidence that the mother communicated her enmity towards the father to the child, made inappropriate disclosures concerning the parties' history, and failed to encourage and facilitate regular visitation, missing numerous scheduled visitations and ultimately supporting the child's decision to refuse visitation. The evidence supported the finding that the mother, by her example, her actions, and her inaction, deliberately frustrated visitation by manipulating the child's loyalty and orchestrating and encouraging the estrangement of father and son.