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Saturday, December 28, 2013

Important New Decisions - December 28, 2013

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

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

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

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

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

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

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

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

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

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

2013 New York Legislature Enacts Laws Protecting Victims of Domestic Violence

The 2013 New York Legislature amended  Domestic Relations Law, the Family Court Act and the Criminal Procedure Law, to protect victims of domestic abuse by recognizing, as family offenses, some forms of economic abuse perpetrated against victims by their abusers. 

Family Court Act, §812 (1), Family Court Act § 821 (1) (a), Criminal Procedure Law § 530.11, were amended to add as family offenses, identity theft in the first degree, identity theft in the second degree and identity theft in the third degree (Penal Law §190.80, §190.79 and §190.38), grand larceny in the third degree and grand larceny in the forth degree ( Penal Law §155.35 and §155 30), and coercion in the second degree (Penal Law § 135.60, subdivisions one, two and three.) Laws of 2013, Ch 526, effective December 18, 2013. See NY Legis Memo 526 (2013)

Domestic Relations Law § 240 (3) (a), Domestic Relations Law § 252, Family Court Act § 446, Family Court Act § 551, Family Court Act § 656, Family Court Act § 842, Family Court Act § 1056, and Criminal Procedure Law § 530.12 were amended to provide that an order of protection may require the petitioner or respondent to promptly return specified identification documents to the protected party, in whose favor the order of protection or temporary order of protection is issued. "Identification document" means any of the following exclusively in the name of the protected party: birth certificate, passport, social security card, health insurance or other benefits card, a card or document used to access bank, credit or other financial accounts or records, tax returns, any driver's license, and immigration documents including but not limited to a United States permanent resident card and employment authorization document. Upon motion and after notice and an opportunity to be heard, "Identification document" means any of the following, including those that may reflect joint use or ownership, that the court determines are necessary and are appropriately transferred to the protected party: any card or document used to access bank, credit or other financial accounts or records, tax returns, and any other identifying cards and documents. The order may include any appropriate provision designed to ensure that any such document is available for use as evidence in the proceeding, and available if necessary for legitimate use by the party against whom the order is issued; and specify the manner in which such return shall be accomplished. Laws of 2013, Ch 526, effective December 18, 2013. See NY Legis Memo 526 (2013)

The 2013 legislature amended the domestic relations law, the family court act and the criminal procedure law to protect victims of domestic violence from being charged with and prosecuted for violating their own order of protection.

Among other statutes amended Domestic Relations Law § 240, (3) (b) was amended and a new paragraph i was added. Domestic Relations Law §252 (2) was amended and a new subdivision 9-a was added. The amendments make it clear that victims cannot be prosecuted for violating orders of protection issued in their favor, and are intended to clarify that the protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor and that such protected party may not be arrested for violating such an order. The amendments require a notice in orders of protection that make it clear that the order of protection will remain in effect even if the protected party has, or consents to have, contact or communication with the restrained party and that the protected party cannot be held to violate an order issued in his/her favor nor can such party be arrested for violating such an order. The amendments were enacted November 13, 2013 and apply to all orders of protection regardless of when such orders were issued, except for sections of the law that require the addition of a notice on the order of protection, which sections are effective on January 12, 2013, and shall apply to orders issued on or after such effective date. Laws of 2013, Ch 480, effective November 13, 2013.

2013 New York Legislation Restricts Parental Rights of Sexual Perpetrators When a Child Is Born as a Result of Sexual Offenses.

Domestic Relations Law 240 (1-c) was amended to provide that there shall be a rebuttable presumption that it is not in the best interests of the child to be placed in the custody of or to visit with a person who has been convicted (in this state or in another jurisdiction) of one or more of the following sexual offenses, when a child who is subject of the proceeding was conceived as a result: rape in the first or second degree; course of sexual conduct against a child in the first degree; predatory sexual assault; or predatory sexual assault against a child. Laws of 2013, Ch 371, §1, effective immediately.

Domestic Relations Law 111-a (1) was amended to provide that a person who has been convicted (in this state or in another jurisdiction) of rape in the first or second degree; course of sexual conduct against a child in the first degree; predatory sexual assault; or predatory sexual assault against a child shall not be entitled to receive notice of adoption proceedings, when the child subject to these proceedings was conceived as the result of the sexual offenses committed. Laws of 2013, Ch 371, §2, effective immediately.

Wednesday, August 14, 2013

Second Department Clarifies CPLR 2215 Rule Regarding Cross Motions

In Fried v. Holding, 2011-00620, NYLJ 1202614927053, at *1 (App. Div., 2nd, Decided August 7, 2013) Justice Balkin, in an opinion for the court clarified the rules with regard to the service of a notice of cross motion. She pointed out that before 1981, CPLR 2215 ("Relief demanded by other than moving party") said: "At least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice demanding relief, with or without supporting papers. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party."

This vaguely worded provision caused uncertainty about what, exactly, was "a notice demanding relief." The Judicial Conference and the Chief Administrator proposed a solution, namely, the insertion of the phrase "of cross-motion" into the first sentence of CPLR 2215, so that it would say: "[a]t least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers." A memorandum submitted in support of the statutory amendment indicated that the proposed amendment was "strictly intended to clarify the obligations of a cross-movant [and] is not intended to place any restriction on the court's powers to grant affirmative relief" (Mem. Office of Court Admin., McKinney's Session Laws 1980, at 1965). The Legislature adopted the change (see L 1980, ch 132). Despite the hope and intent to clarify the "obligations" of a cross movant, the Memorandum itself led to some confusion over whether a notice of cross motion is mandatory 3. Precedent on the issue has not been consistent (see Weinstein-Korn-Miller, NY Civ Prac CPLR ¶2215.01 at 22-89).

Justice Balkin concluded that given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion, at least to have a right that the request be determined on the merits. Otherwise, a party who seeks relief by way of a notice of cross motion would be in a position less favorable than that of a party who merely makes the request without a notice of cross motion: the party who makes a formal cross motion would be required to comply with the notice and service requirements and deadlines imposed by the statute, but a party seeking relief merely by requesting it would enjoy greater flexibility. Nonetheless, courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Litigants, however, must be cognizant of an important distinction between the two situations: a party in compliance with CPLR 2215 is entitled to have its cross motion considered; a party not in compliance with the statute must hope that the court opts, in the exercise of its discretion, to entertain the request. Thus, the Second Department was in agreement with the Appellate Division, Third Department, who, in Fox Wander W. Neighborhood Assn. v. Luther Forest Community Assn. (178 AD2d at 872), held that, even in the absence of an explicit notice of cross motion, the Supreme Court is not "prohibited" from entertaining the nonmoving party's request for relief.

Justice Balkin emphasized that as with most matters addressed to a court's discretion, more than one factor is relevant, including the need to encourage careful, forthright practice. Other relevant factors include the interrelatedness of the relief requested by the nonmoving party and the relief requested in the main motion, the prominence in the opposition papers of the affirmative request for relief and the movant's opportunity to address that request, and the interest of judicial economy. Another consideration for careful practitioners is the availability of appellate review. A request for relief made in the absence of a notice of cross motion is not a "motion made upon notice", so an order granting or denying the request is not appealable as of right, and permission to appeal is necessary. By contrast, generally, a party may appeal as of right to challenge the disposition of a motion or cross motion made on notice.

Wednesday, July 31, 2013

Uniform Rules Amended to Encourage Court Conferences By Telephone

The Uniform Civil Rules for the Supreme Court and the County Court, were amended by adding a new section 202.10, relating to appearances at conferences, to provide that any party may request to appear at a conference by telephonic or other electronic means. It appears that “other electronic means” refers to video conference or computer video services such as “skype”. The rule encourages the court to grant the request where “feasible and appropriate”. See NYS Register/June 19, 2013 Court Notices, 80

Monday, July 08, 2013

Important New Decisions - July 8, 2013

Court of Appeals Agreements - Prenuptial - Validity - Domestic Relations Law § 236 (B) (3) - Court of Appeals Holds That Because Affidavit of Notary Was Insufficient to Raise a Question of Fact Precluding Summary Judgment the Court Did Not Need to “Definitively Resolve the Question of Whether a Cure Is Possible” Where There Is Omission in the Requisite Language of the Certificate of Acknowledgment, Signatures on the Prenuptial Agreement Are Authentic, and No Claims of Fraud or Duress. In Galetta v Galletta, __NY3d__, 2013 WL 2338421 (2013) a matrimonial action, plaintiff Michelle Galetta sought a determination that a prenuptial agreement she and defendant Gary Galetta signed was invalid due to a defective acknowledgment. The Court of Appeals concluded that plaintiff was entitled to summary judgment declaring the agreement to be unenforceable under Domestic Relations Law § 236B(3), and reversed the order of the Appellate Division, which held there was a triable question of fact on that issue. Michelle Galetta and Gary Galetta were married in July 1997. About a week before the wedding, they each separately signed a prenuptial agreement. Neither party was present when the other executed the document and the signatures were witnessed by different notaries public. The parties' signatures and the accompanying certificates of acknowledgment were set forth on a single page of the document. The certificates appeared to have been typed at the same time, with spaces left blank for dates and signatures that were to be filled in by hand. The certificate of acknowledgment relating to Michelle's signature contained the boilerplate language typical of the time. However, in the acknowledgment relating to Gary's signature, a key phrase was omitted and, as a result, the certificate failed to indicate that the notary public confirmed the identity of the person executing the document or that the person was the individual described in the document. The Court of Appeals, in an opinion by Judge Graffeo, observed that Prenuptial agreements are addressed in Domestic Relations Law § 236B(3), which provides: “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” In Matisoff v. Dobi (90 N.Y.2d 127 [1997] ), where it held that an unacknowledged postnuptial agreement was invalid, the Court observed that the statute recognizes no exception to the requirement that a nuptial agreement be executed in the same manner as a recorded deed and “that the requisite formality explicitly specified in DRL 236B(3) is essential” (id. at 132, 659 N.Y.S.2d 209, 681 N.E.2d 376). Judge Graffeo noted that Real Property Law § 291, governing the recording of deeds, states that “[a] conveyance of real property ... on being duly acknowledged by the person executing the same, or proved as required by this chapter, ... may be recorded in the office of the clerk of the county where such real property is situated.” Thus, a deed may be recorded if it is either “duly acknowledged” or “proved” by use of a subscribing witness. The Court pointed out that an acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person and it imposes on the signer a measure of deliberation in the act of executing the document. The Court noted in Matisoff that the acknowledgment requirement imposed by Domestic Relations Law § 236B(3) is onerous and, in some respects, more exacting than the burden imposed when a deed is signed. Although an unacknowledged deed cannot be recorded (rendering it invalid against a subsequent good faith purchaser for value) it may still be enforceable between the parties to the document (i.e., the grantor and the purchaser). The same is not true for a nuptial agreement which is unenforceable in a matrimonial action, even when the parties acknowledge that the signatures are authentic and the agreement was not tainted by fraud or duress. In the certificate of acknowledgment relating to the husband's signature, the “to me known and known to me” phrase was omitted, leaving only the following statement: “On the 8[sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same.” Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. As New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective, the Court agreed the Appellate Division, which unanimously concluded that the certificate of acknowledgment did not conform with statutory requirements. Because the certificate of acknowledgment was defective, the Court of Appeals addressed the questions of (1) whether such a deficiency can be cured and, if so, (2) whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife's favor. Because the affidavit of the notary was insufficient to raise a question of fact precluding summary judgment the Court did not need to “definitively resolve the question of whether a cure is possible”. Judge Graffeo observed that in Matisoff, the Court found it was unnecessary to decide whether the absence of an acknowledgment could be cured. Since Matisoff, the Appellate Divisions have grappled with the “cure” issue, which has largely arisen in cases where a signature was not accompanied by any certificate of acknowledgment and the weight of Appellate Division authority is against permitting the absence of an acknowledgment to be cured after the fact, unless both parties engaged in a mutual “reaffirmation” of the agreement. When there is no acknowledgment at all, it is evident that one of the purposes of the acknowledgment requirement—to impose a measure of deliberation and impress upon the signer the significance of the document—has not been fulfilled. Thus, a rule precluding a party from attempting to cure the absence of an acknowledgment through subsequent submissions appeared to be sound. However, because this case did not involve the complete absence of an acknowledgment - there was an attempt to secure an acknowledged document but there was an omission in the requisite language of the certificate of acknowledgment - the Court noted that a compelling argument could be made that the door should be left open to curing a deficiency like the one that occurred here where the signatures on the prenuptial agreement are authentic, there are no claims of fraud or duress, and the parties believed their signatures were being duly acknowledged but, due to no fault of their own, the certificate of acknowledgment was defective or incomplete. The Court observed that the husband made a strong case for a rule permitting evidence to be submitted after the fact to cure a defect in a certificate of acknowledgment when that evidence consists of proof that the acknowledgment was properly made in the first instance—that at the time the document was signed the notary or other official did everything he or she was supposed to do, other than include the proper language in the certificate. By considering this type of evidence, courts would not be allowing a new acknowledgment to occur for a signature that was not properly acknowledged in the first instance; instead, parties who properly signed and acknowledged the document years before would merely be permitted to conform the certificate to reflect that fact. In this case, however, the proof submitted was insufficient. In his affidavit, the notary public did not state that he actually recalled having acknowledged the husband's signature, nor did he indicate that he knew the husband prior to acknowledging his signature. The notary averred only that he recognized his own signature on the certificate and that he had been employed at a particular bank at that time (corroborating the husband's statement concerning the circumstances under which he executed the document). As for the procedures followed, the notary had no independent recollection but maintained that it was his custom and practice “to ask and confirm that the person signing the document was the same person named in the document” and he was “confident” he had done so when witnessing the husband's signature. The affidavit by the notary public in this case merely paraphrased the requirement of the statute—he stated it was his practice to “ask and confirm” the identity of the signer—without detailing any specific procedure that he routinely followed to fulfill that requirement. Even assuming a defect in a certificate of acknowledgment could be cured under Domestic Relations Law § 236B(3), defendant's submission was insufficient to raise a triable question of fact as to the propriety of the original acknowledgment procedure. Plaintiff was therefore entitled to summary judgment declaring that the prenuptial agreement was unenforceable. Child Custody - Visitation - Court of Appeals Holds That There Is a Rebuttable Presumption in New York That Visitation with Non-custodial Parent Is in Child's Best Interest. Parent’s Incarceration Not an Automatic Reason for Blocking Visitation In Matter of Granger v Miscercola, --- N.E.2d ----, 2013 WL 1798581 (N.Y.) Petitioner, an inmate in New York's correctional system, who had acknowledged paternity of a child prior to his imprisonment, commenced a Family Court proceeding seeking visitation with the child after respondent mother refused to bring the child to the prison. Family Court granted the petition, awarding petitioner periodic four-hour visits at the prison with the child, who was then three years old. It noted that "the law in New York presumes visitation with a non-custodial parent to be in the child's best interest and the fact that such parent is incarcerated is not an automatic reason for blocking visitation."The court found that petitioner had "demonstrated that he was involved in a meaningful way in the child's life prior to his incarceration and seeks to maintain a relationship." It further found that the child was old enough to travel to and from the prison by car without harm, and would "benefit from the visitation with his father."The court considered the length of petitioner's sentence and reasoned that "[l]osing contact for such a long period is felt to be detrimental to an established relationship."The court concluded that visitation with petitioner would be in the child's best interests. The Appellate Division affirmed Family Court's order, finding "a sound and substantial basis in the record to support the court's determination to grant the father visitation with the child in accordance with the schedule set forth in the order" ( 96 AD3d 1694, 1695 [4th Dept 2012] ). While his appeal was pending, petitioner had been moved to a different correctional facility, further from respondent's home. The Appellate Division made no finding of fact in this regard, ruling that any such change in circumstance was more appropriately the subject of a modification petition. The Court of Appeals affirmed rejecting Respondent's primary contention that the lower courts employed an incorrect legal standard in reviewing the petition for visitation. The Court of Appeals, in an opinion by Judge Pigott, rejected Respondents contention that this presumption was contrary to this Court's holding in Tropea v. Tropea (87 N.Y.2d 727 [1996] ) pointing out that its holding was not that presumptions can never be relied upon, but that "each relocation request must be considered on its own merits ... and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child". It observed that in Weiss v. Weiss (52 N.Y.2d 170 [1981] ), it held that "in initially prescribing or approving custodial arrangements, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access, appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course". Subsequent Appellate Division decisions have frequently referred to a rebuttable presumption that, in initial custodial arrangements, a noncustodial parent will be granted visitation. "[I]t is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful" or proof that the noncustodial parent has forfeited the right to visitation. Family Court noted that New York law "presumes visitation with a non-custodial parent to be in the child's best interest." The Court reiterated its holding in Weiss, that a rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation. Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. Petitioner's incarceration, standing alone, does not make a visitation order inappropriate," but a demonstration "that such visitation would be harmful to the child will justify denying such a request". In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child's welfare, or that the right to visitation has been forfeited. The Court noted that In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms "substantial proof" and "substantial evidence." "[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence". This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration-that visitation would be harmful to the child-that proceeds by means of sworn testimony or documentary evidence. It held that the "substantial proof" language should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption of visitation. The presumption in favor of visitation may be rebutted through demonstration by a preponderance of the evidence. The Court of Appeals concluded that the lower courts used the appropriate legal standard, applying the presumption in favor of visitation and considering whether respondent rebutted the presumption through showing, by a preponderance of the evidence, that visitation would be harmful to the child. Termination of Parental Rights - Social Services Law § 384-b - Court of Appeals Holds that phrase "circumstances evincing a depraved indifference to human life" does not mean the same thing for purposes of Social Services Law § 384-b (8) (a) (I) as it does under the Penal Law. In re Dashawn W., --- N.E.2d ----, 2013 WL 1759867 (N.Y.) the Court of Appeals in an opinion by Judge Read, held that the phrase "circumstances evincing a depraved indifference to human life" does not mean the same thing for purposes of Social Services Law § 384-b (8) (a) (I) as it does under the Penal Law. The Court also held that a showing of diligent efforts to encourage and strengthen the parental relationship is not prerequisite to a finding of severe abuse under Family Court Act § 1051 (e) where the fact-finder determines that such efforts would be detrimental to the best interests of the child. The Court of Appeals observed that at the conclusion of the fact-finding phase in an article 10 proceeding, Family Court may, "[i]n addition to a finding of abuse, . . . enter a finding of severe abuse as defined in [Social Services Law § 384-b (8) (a)], which shall be admissible in a proceeding to terminate parental rights pursuant to [Social Services Law § 384-b]. If the court makes such additional finding of severe abuse . . ., the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence" (Family Court Act § 1051 [e]. Section 384-b (8) (a) of the Social Services Law, in turn, specifies that "[f]or purposes of this section [384-b]," which governs termination of parental rights, a child is "severely abused" if "(I) the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in [Penal Law § 10.00 (10)]; or "(ii) the child has been found to be [a sexually abused child]; provided, however, the [parent] must have committed or knowingly allowed to be committed [one of 11 enumerated felony sex offenses] . . .; or "(iii) [the child's parent has been convicted of certain felony offenses under the Penal Law, and] the victim or intended victim was the child or another child of the parent or another child for whose care such parent is or has been legally responsible; or . . . the parent of such child has been convicted under the law in any other jurisdiction of an offense which includes all of the essential elements [of these crimes]; and "(iv) the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. Where a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section" (Social Services Law § 384-b [8] [a] [i]-[iv] [emphases added]). In this appeal, the parties differed as to what is required to establish "circumstances evincing a depraved indifference to human life" within the meaning of Social Services Law 384-b (8) (a) (i); and whether the diligent efforts specified by subparagraph (iv) of this provision are prerequisite to a finding of severe abuse under Family Court Act § 1051 (e), or may be excused under Family Court Act §§ 1039-b and 1012 (j) or, alternatively, Social Services Law § 384-b (8) (a) (iv) itself. ACS, joined by the attorney for the children, argued that the cases discussing "circumstances evincing a depraved indifference to human life" within the meaning of the Penal Law do not control the interpretation of the same phrase in Social Services Law § 384-b (8) (a) (I). Judge Read pointed out that under the Penal Law, a person acts "intentionally" when "his conscious objective" is to cause a proscribed result (for example, death) or engage in conduct described by a statute (Penal Law § 15.05 [1]); and a person acts "recklessly" with respect to a proscribed result or a circumstance described by a statute "when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists" (Penal Law § 15.05 [3]). And "depraved indifference" bespeaks a state of mind reflecting "a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo" (Feingold, 7 NY3d at 293 ). It is "best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not[, and which reflects] wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts" (Suarez, 6 NY3d at 214). The Penal Law establishes crimes that are mutually exclusive, depending on these distinctions of culpable state of mind; specifically, second-degree intentional murder (Penal Law § 125.25 [1] [mens rea of intent to kill]), as contrasted with second-degree depraved indifference murder (Penal Law § 125.25 [2] [mens rea of recklessness plus mens rea of depraved indifference]), as contrasted with second-degree manslaughter (Penal Law § 125.15 [mens rea of recklessness]). Judge Read indicated that the same cannot be said of the child protective statutes. Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused "as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life" (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference (see Policano, 7 NY3d at 600 ["[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim" [internal quotation marks omitted]). Additionally, "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (Suarez, 6 NY3d at 212), whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute "circumstances evincing a depraved indifference to human life" refers to the risk intentionally or recklessly posed to the child by the parent's abusive conduct. Here, Antoine beat or struck a baby — an especially vulnerable victim because so tiny, defenseless and unformed. And the medical experts testimony about the age of Jayquan's injuries established that Antoine must have attacked him on at least two different occasions, separated by at least two weeks. Further, Antoine had to have been aware of the life-threatening risks he created when he applied brute force to Jayquan's chest and shoulder. After all, he knew that devastating injuries ensued when he brutalized his then four-month old namesake, Antoine, Jr. While this prior instance of abuse was too remote in time to support a finding of repeated abuse, it reflects Antoine's utter disregard for Jayquan's life, health and well-being. Additionally, Antoine neglected to summon medical aid for Jayquan's fractured ribs, even though the baby would have to have experienced and displayed continuous pain and distress; and he delayed seeking medical care for Jayquan on February 21, 2007 from 11:00 a.m., when he claimed to have first noticed the baby's suffering, until the early evening hours . Finally, Antoine offered unbelievable explanations for Jayquan's injuries to medical personnel and social workers, and he did not testify at the fact-finding hearing (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995] [where the mother did not testify in a child protective proceeding, we noted that "[a] trier of fact may draw the strongest inference that the opposing evidence permits"]). Thus, there was record support for the Appellate Division's finding, based on clear and convincing evidence, that Antoine, acting under circumstances evincing a depraved indifference to human life, severely abused Jayquan. It was undisputed that at no time did ACS make "diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate" Antoine (see Social Services Law § 384-b [8] [a] [iv]). The parties contested whether this omission was permissible in light of Family Court Act §§ 1051 (e), 1039-b and 1012 (j). The attorney for the children, joined by ACS, urged that a showing of diligent efforts is not required for a finding of severe abuse under Family Court Act § 1051 (e). Section 1039-b (a) of the Family Court Act states that "[i]n conjunction with, or at any time subsequent to, the filing of a[n abuse or neglect] petition . . ., the [presentment agency] may file a motion upon notice requesting a finding that reasonable efforts to return the child to his or her home are no longer required." The statute further provides that reasonable efforts "shall not be required" when "the parent of such child has subjected the child to aggravated circumstances, as defined in" Family Court Act § 1012 (j) (Family Court Act § 1039-b [b] [1]. Family Court Act § 1012 (j) defines "aggravated circumstances" to include "where a child has been either severely or repeatedly abused, as defined in" Social Services Law § 384-b (8). The Court of Appeals concluded that Family Court Act §§ 1051 (e) and 1012 (j) necessarily import Social Services Law § 384-b (8) (a) in its entirety. It could not read subparagraph (iv) out of the definition of severe abuse incorporated in these provisions when the Legislature did not choose to create such an exclusion, as it easily might have. The Court also concluded that Social Services Law § 384-b (8) (a) (iv) clearly states that Family Court may excuse diligent efforts when they are found to be detrimental to the best interests of the child. Judge Read recapitulated that Social Services Law § 384-b (8) (a) defines a child as "severely abused" if the victim of depraved indifference abuse (id. § 384-b [8] [a] [i]), or felony sex offense abuse (id. § 384-b [8] [a] [ii]), or other felony offense abuse (id. § 384-b [8] [a] [iii]), and "the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. Where a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section" (id. § 384-b [8] [a] [iv] [emphases added]). Thus, for a court to find severe abuse under Family Court Act § 1051 (e), the presentment agency must demonstrate by clear and convincing evidence that the parent committed an abusive act specified in subparagraphs (i), (ii) or (iii) of section 384-b (8) (a); and diligent efforts to reunite the family were not made because detrimental to the child's best interests; or such efforts were made but were unsuccessful and unlikely to succeed in the near term; or such efforts were not required because a court had previously determined that reasonable efforts to reunite the family were unnecessary. Judge Read concluded that Family Court in this case properly found that diligent efforts to encourage and strengthen the parental relationship would be detrimental to Jayquan's best interests, in accordance with Social Services Law § 384-b (8) (a) (iv). The judge determined that, in light of Antoine's abuse of Antoine, Jr., followed by his severe abuse of Jayquan some 14 years later, there was little prospect that Antoine's "chronic, long-standing" violent behavior would improve anytime soon, if ever, and it was not in Jayquan's best interests to languish in foster care in the meantime.

Wednesday, May 22, 2013

Law Revision Commission Issues Maintenance Report

New York State Law Revision Commission Issues Final Report on Maintenance Awards in Divorce Proceedings on May 15, 2013 (Click here to download a copy of the Report)

Wednesday, May 15, 2013

Important New Decisions - May 15, 2013

Court of Appeals

Paternity - Defense of Equitable Estoppel - Applied to Deny Non-Biological Father Right to Deny Paternity

In Commissioner of Social Services on Behalf of Elizabeth S. v. Julio J., 20 N.Y.3d 995, 985 N.E.2d 127, 961 N.Y.S.2d 363 (2013) the Court of Appeals observed that before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child's biological parent, the court must be convinced that applying equitable estoppel is in the child's best interest (Matter of Shondel J. v Mark D., 7 NY3d 320 [2006]). The party seeking to prove paternity, whether by estoppel or otherwise, must do so by clear and convincing evidence. Although the Appellate Division stated that its reversal was on the law, that court, considering the same evidence as Family Court, made different factual findings to support its conclusion that the Commissioner of Social Services had not proven by clear and convincing evidence that respondent Julio J. should be estopped from denying paternity. Accordingly, the Court of Appeals reviewed the record to determine which set of findings more nearly comported with the weight of the evidence (see Matter of Jamie M., 63 NY2d 388, 393 [1984]), and concluded that the evidence more nearly comported with Family Court's findings that the child, who was eight years old at the time of the hearing, knows respondent, with his encouragement, as her father; that a relationship existed insofar as the child was concerned; and that the child relied on respondent to be her father sufficiently such that it would be to her detriment for the court to direct "DNA testing. Upon those findings, Family Court properly decided that respondent should be equitably estopped from asserting nonpaternity.

Appellate Division, First Department

Child Support - Award - CSSA - Shared Custody - First Department Rejects Rule Established in Baraby
That in an Equally Shared Custody Case the Parent Who Has the Greater Income Should Be Considered the Noncustodial Parent for Purposes of Support

In Rubin v. Salla,  --- N.Y.S.2d ----, 2013 WL 1681220 (N.Y.A.D. 1 Dept.)  the Appellate Division, First Department rejected the rule established in Baraby v Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), that in an equally shared custody case the parent who has the greater income should be considered the noncustodial parent for purposes of support. It held, based on the plain language of the Child Support Standards Act, that a custodial parent cannot be directed to pay child support to a noncustodial parent, and that the  “custodial parent”, in an equally shared custody case, is “the parent who has the child the majority of the time, which is measured by the number of overnight time that parent has with the child.”  Inexplicably, the Court distinguished the decision in Baraby, although it appears to have rejected its holding entirely.

Plaintiff (mother) and defendant  ( father) were the unmarried parents of a 9–year–old son. The mother and father always lived  separately. In April 2009, the mother commenced an  action seeking sole legal and residential custody of the child, and an order compelling the father to pay child support. The father also sought primary custody of the child. After  trial, the court  awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each midwinter school break, and the other school breaks were evenly divided. In addition, each parent was given two weeks with the child during the summer. With respect to legal custody, the court awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion.

Following the custody decision, the father moved for summary judgment dismissing the mother’s cause of action for child support. He argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. He argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father’s motion included a calendar showing that during the period from July 2012 to June 2013 there were 206 overnights with the father and 159 with the mother. These custodial periods equated to the child being with the father 56% of the time and with the mother 44% of the time. The mother conceded that the child would reside with the father “most of the time,” that the father was the “de-facto custodial parent,” and that she may not be the “custodial parent” for purposes of the Child Support Standards Act (CSSA). She also agreed that under a “strict application” of the CSSA, the father could not be ordered to pay child support. Nevertheless, the mother argued that she was entitled to an award of child support because any other result would be unjust and inappropriate.

Supreme Court denied the father’s summary judgment motion, finding that an award of child support to the mother was not precluded because the parties had “parallel legal custody” of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father was the custodial parent for child support purposes. The court also focused on the disparity between the parents’ financial circumstances and concluded that, regardless of whether the father was the custodial parent, it had the discretion to award the mother child support because she needed funds to pay her monthly rent and to maintain the type of home she could not otherwise afford without the father’s assistance.

In reversing the order of the Supreme Court, Justice Richter, writing the opinion for the First Department,  held that under the current child support structure enacted by the Legislature, the father, as the custodial parent, cannot be directed to pay child support to the mother, the noncustodial parent. The CSSA provides for “a precisely articulated, three-step method for determining child support” awards in both Family Court and Supreme Court.  Unlike the discretionary system of the past, a court is required to make its child support award pursuant to the CSSA’s provisions. Under the CSSA’s plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1–b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation.” The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction.

Justice Richter observed that in Bast v. Rossoff,  91 N.Y.2d 723 (1998) the Court of Appeals addressed how child support awards should be calculated in cases involving shared custody. Contrary to the conclusion reached by the court below, Bast left no other option than to direct payment by the noncustodial parent to the custodial parent. The Court in Bast recognized that there are “practical challenges” in applying the CSSA to shared custodial arrangements. Nevertheless, Bast made clear that even in shared custody cases, courts are required to identify the “primary custodial parent”. Bast explained that “[i]n most instances, the court can determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of time”.

Justice Richter, referring to Baraby v Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), pointed out that only where the parents’ custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, have courts deemed the parent with the higher income to be the noncustodial parent for child support purposes. She noted that Courts have uniformly followed Bast, finding that where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for CSSA purposes. The great disparity in overnights here—56% to 44%—stood in marked contrast to the cases cited by the mother where the parents had equal, or essentially equal, custodial time.

Justice Richter found that the Supreme Court ignored its own custody schedule when it stated that the parents here shared “very nearly equal” physical custody of the child. In an attempt to equalize the custodial time, the court focused on how much “waking, non-school time” the child spent with each parent. The Supreme Court suggested that a custodial parent could be identified by calculating the number of waking hours he or she spends with the child.  This approach was  rejected in Somerville v. Somerville,.5 AD3d 878 (3d Dept 2004).  She reached the same result here and rejected the counting of waking hours as a method of determining who is the custodial parent.

Although the Court in Bast did not elaborate on what constitutes a “majority of time,” Justice Richter believed that the number of overnights, not the number of waking hours, is the most practical and workable approach. She found that there are sound policy reasons why calculating the waking hours spent with each parent should not be the method used to determine who is the custodial parent. Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing. Furthermore, because a child’s activities are subject to constant change, the number of hours spent with each parent becomes a moving target. The use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the “custodial parent”. An hour-by-hour analysis of custodial time is just not workable and would run afoul of the “greater uniformity [and] predictability” the CSSA was designed to promote.

Justice Richter wrote that in finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties’ financial circumstances rather than their custodial status. Neither the CSSA, nor Bast v. Rossoff, allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal.  Moreover, there was no support for the mother’s argument that in shared custody cases, a court has the discretion to determine the custodial parent based on what is “just” and “appropriate.”

Child Support- Award - Imputed Income - Court May Impute Income Based upon  Value of His Employer-provided Apartment - Support Magistrate Properly Declined to Credit Respondent with "Extraordinary Expenses" in Connection with His Visitation with the Child.

In Matter of Perel v. Gonzalez, --- N.Y.S.2d ----, 2013 WL 1578227 (N.Y.A.D. 1 Dept.), the Appellate Division affirmed an order which denied respondent's objection to the Support Magistrate's imputation to him of income based on the full market value of his employer-provided apartment, and an order which denied his objections to the parts of the Support Magistrate's order of support that required him to pay child support in the amount of $476.49 per week, applied the child support percentage to the parties' combined income above the $130,000 statutory cap, and required respondent to pay his pro rata share of the child's private pre-kindergarten tuition. It held that the court correctly determined the parties' income for purposes of  calculating their basic child support obligations based on his 2008 annual gross income and the value of his employer-provided apartment and petitioner's income based on her 2008 annual gross income and her previous full-time employment as a concierge.

The Appellate Division held that the Support Magistrate properly declined to credit respondent with "extraordinary expenses" in connection with his visitation with the child. The Court of Appeals considered and expressly rejected any use in New York of the proportional offset formula in  Bast v. Rossoff (91 N.Y.2d 723, 728-730 [1998] ). Thus, it declined to follow  Matter of Carlino v. Carlino (277 A.D.2d 897 [4th Dept 2000]), as urged by respondent.

The Appellate Division rejected respondent's arguments that income may not be imputed to him based on the value of his employer-provided apartment because the value of lodging furnished to an employee pursuant to employment is excluded from income under the Internal Revenue Code (26 USC § 119[a] ), the Supremacy Clause of the United States Constitution requires the value to be excluded as income for child support purposes, and it is unconstitutional because it conflicts with the Internal Revenue Code. The Family Court Act provides that "at the discretion of the court,
the court may attribute or impute income from[ ] such other resources as may be available to the parent, including, but not limited to: ... lodging ... or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirec[t]ly confer personal economic benefits" (Family Court Act § 413[1][b][5][iv][B]. The record showed that respondent had a separate office in the same building, that he was not required to be on the premises after completing his 9 to 5 shift, that he used the apartment for his daily living activities, and that he was not restricted in any way in his use of the apartment.

           The record supported the Support Magistrate's finding that respondent consented to the enrollment of the child in a private pre-kindergarten school. He admitted that before enrolling the child in the school he and petitioner had looked at several other private schools. There was no evidence that the parties ever considered enrolling the child in a public pre-kindergarten program. Respondent did not sign the enrollment contract, but he was aware that petitioner had made a non-refundable deposit to reserve the child's place in February 2009.  It deferred to the Support Magistrate's finding that respondent's consistent denial that he ever consented to the child's enrollment in private school was "wholly incredible and self serving."

Appellate Division, Second Department

Child Custody - Visitation - Grandparent Visitation - Domestic Relations Law § 72 - Grandparent Visitation Order Reversed Where evidence in the record, and children's apprehension regarding visitation with grandmother, established that visitation was not in the best interests of the children.

In Matter of   Pinsky v. Botnick, --- N.Y.S.2d ----, 2013 WL 1442510 (N.Y.A.D. 2 Dept.) The mother, Estee Botnick married Jason Botnick on August 15, 1999, and there were four children of the marriage. On November 27, 2011, Jason passed away at the age of 35, at which time the children were ages 9, 7, 5, and 3, respectively. According to the mother, immediately prior to Jason's death, "[a]s the ICU team was literally trying to resuscitate Jason," the paternal grandmother, Janet Pinsky (grandmother), said to her, "We are going to have to make a schedule with the kids ."On January 3, 2012, the mother received a letter from the grandmother's attorney, threatening legal action if the mother did not permit the grandmother immediate visitation with the children, and requesting a response by noon the following day. The mother responded by inviting the grandmother over for a visit that evening. In a reply email, the grandmother asserted that her major concern was access to the children going forward, which the mother's email did not address, and requested that the mother respond to the grandmother's attorney as to when the mother or her legal representative could meet before the end of the week. Thereafter, the mother invited the grandmother to her home to visit with the children on January 8, 2012. Nevertheless, three days later, and approximately six weeks after Jason's death, the grandmother caused the mother to be served with the petition for visitation while the mother was at home with the children.

        At the hearing on the petition, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that the mother was a fit parent. The mother testified that after she was served at home with the petition, the three older children, who were grieving the death of their father, became "hysterical" upon learning that the mother had to go to court. The mother testified that by initiating this proceeding, the grandmother had caused the three
older children to become fearful that the grandmother was going to take them away. She testified that the children needed time to get over their fears, and to "deal with the fact that their father has passed away."The attorney for the children informed the Family Court that the children did not wish to see their grandparents.  The Family Court accepted into evidence a report prepared by Peter J. Favaro, Ph.D., who was retained by the mother. In the report, Dr. Favaro opined, inter alia, that the children were experiencing symptoms common to "complicated bereavement." According to Dr. Favaro, the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. He concluded that for the sake of the children's future relationship with the grandmother, "it would be unwise to have them pair thoughts of fear of seeing [her] with their father's passing," and that forcing an interaction would only strengthen their fears.

          In an order dated March 22, 2012, the Family Court, inter alia, granted the petition for visitation to the extent of awarding the grandmother three hours of visitation with the children every other Sunday commencing on June 3, 2012, as well as such other visitation as to which the parties shall agree. The court also directed the grandmother and the children to communicate daily via email until visitation commenced. On March 23, 2012, the same day the grandmother received a copy of the March 22, 2012, order, she sent an email to the mother informing her that she would be emailing the children daily starting that day, requesting that the mother direct the two older children to respond to the emails, and directing that either the mother or the two older children respond on behalf of the two younger children.

            In May 2012, the mother moved to modify the order dated March 22, 2012, so as to delay the commencement of visitation until October 14, 2012. In her supporting affidavit, the mother averred that prior to the date visitation was scheduled to   commence, the grandmother, without authorization, began attending the children's after-school and extracurricular activities. The mother stated that on one occasion, the grandmother showed up at one of the children's after-school activities and watched her through the windows of the gymnasium. The mother indicated that the child did not go to the bathroom because the grandmother was staring at her through the window next to the bathroom, and that the child had reported feeling "stalk[ed]." In addition, the mother asserted that the grandmother had contacted school officials and the children's coaches, and demanded inclusion on mailing lists relating to the children's schedules and activities. The mother maintained that the grandmother's conduct had caused the children distress, and had led to two of the children refusing to attend their little league baseball games. In a reply affidavit, the mother averred that on June 18, 2012, the grandmother and her husband showed up at the kindergarten graduation ceremony of one of the children, and, after the ceremony, each stood at opposite corners of the "party room" by the exit doors. The mother asserted that a security guard noticed what was happening, and escorted the mother and the child to a classroom where they remained during the party. In an order dated July 25, 2012, the Family Court denied the mother's motion.

The Appellate Division observed that a court determining a petition for grandparent visitation under Domestic Relations Law § 72(1), must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or equitable circumstances (see  Matter of E.S. v. P.D., 8 NY3d 150, 157). If the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child (see  Matter of E.S. v. P.D., 8 NY3d at 157; Matter of Wilson v. McGlinchey, 2 NY3d 375, 380). The courts should not lightly intrude on the family relationship against a fit parent's wishes. It is strongly presumed that a fit parent's decisions are in the child's best interests. It held that the Family Court should have denied the grandmother's petition for visitation. The death of the children's father provided the grandmother with automatic standing to seek visitation (Domestic Relations Law § 72 [1]. Nevertheless, the Family Court improvidently exercised its discretion in granting the petition. The evidence in the record, including, inter alia, the mother's testimony, the report of Dr. Favaro, and the children's apprehension regarding visitation with the grandmother, established that visitation was not in the best interests of the children at the time the Family Court granted the petition.

Pendente Lite Maintenance -  Domestic Relations Law § 236(b)(5-a) - Better for the Court to Proceed Sequentially in Accordance with the Statutory Procedure

In Goncalves v Goncalves, --- N.Y.S.2d ----, 2013 WL 1632072 (N.Y.A.D. 2 Dept.) the Appellate Division observed that Domestic Relations Law § 236B (5-a) sets forth the substantive and procedural requirements for an award of temporary maintenance, addressing both the amount and the duration of the temporary award.  Here, the Supreme Court performed the required calculations, but it did not
proceed sequentially through the statutory procedure. Instead, upon its consideration of all the relevant statutory factors, which it explained at length, the court awarded temporary maintenance to the wife that was significantly in excess of the amount that would have been yielded solely by application of the statutory formula. It held that although it would have been better for the court to proceed sequentially in accordance with the statutory procedure (see e.g. H.K. v. J.K., 32 Misc.3d 1226[A] ), the court's award of temporary maintenance was "appropriately supported and explained" ( Khaira v. Khaira, 93 AD3d 194, 201), and it declined to disturb it (cf.  Woodford v. Woodford, 100 AD3d 875, 877).

Equitable Distribution - Marital Residence - Proper to Award Wife Sole Ownership of Martial Residence Where, Inter Alia,, Supreme Court Noted That it Was Directing  Plaintiff to Convey His Interest in the Property in Lieu Of, Inter Alia, Maintenance and an Attorney's Fee.
In Henery v Henery, --- N.Y.S.2d ----, 2013 WL 1632079 (N.Y.A.D. 2 Dept.) the Appellate Division found that contrary to the plaintiff's contention, the Supreme Court did not abdicate its responsibility by adopting the defendant's proposed findings of fact, particularly since the court edited them by deleting some of the proposed findings, which necessitated the court's revision of the proposed judgment submitted by the defendant.   In awarding the defendant sole ownership of the parties' marital residence, Supreme Court noted that it was directing the plaintiff to convey his interest in the property in lieu of, inter alia, maintenance and an attorney's fee. The court also noted that the mortgage on the marital residence had been satisfied by the defendant's parents, and that the expenses paid by the defendant, her financial sacrifices, her waiver of an attorney's fee, and the loss of retirement benefits resulting from the plaintiff's discharge for cause from a school administrative position, exceeded the plaintiff's share in the equity of the martial residence. It held that under the circumstances of this case, the Supreme Court providently exercised its discretion in awarding sole ownership of the marital residence to the defendant ( citing Ropiecki v. Ropiecki, 94 AD3d 734, 735; Mahon v. Mahon, 129 A.D.2d 684, 684;  Teabout v. Teabout, 269 A.D.2d 719, 721).

Child Support - Modification - UIFSA -  Family Ct Act § 580-611[a] [1] - Family Court Had Jurisdiction to Modify Pennsylvania Support Order, upon Registration

     In  Matter of Gowda v Reddy, --- N.Y.S.2d ----, 2013 WL 1632549 (N.Y.A.D. 2 Dept.) the Appellate Division noted that the Uniform Interstate Family Support Act ( UIFSA), codified in article 5-B of the Family Court Act, provides, in pertinent part, that a party seeking to modify and/or enforce a child support order issued in another state "shall register that order in this state" (Family Ct Act § 580-609). The support order governing the father's child support obligations, which was issued by the Court of Common Pleas of Montgomery County, Pennsylvania, and was effective beginning on June 3, 2004 was registered in the Family Court, Suffolk County, pursuant to UIFSA, on May 26, 2009. The Family Court had jurisdiction to modify the Pennsylvania support order, upon registration thereof, since none of the parties resided in Pennsylvania, the petitioner mother did not reside in New York, and the respondent father, at all relevant times, was subject to personal jurisdiction in Suffolk County (Family Ct Act § 580-611[a] [1] ). It held that the Family Court erred in calculating the father's child support
arrears to include the period prior to August 6, 2008, the date the mother's petition filed in Pennsylvania to modify the father's child support obligation set forth in the Pennsylvania support order was dismissed, upon the parties' stipulation, with prejudice. A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata. Thus, to the extent this proceeding sought recovery of the same child support arrears that were sought in the Pennsylvania proceeding which was dismissed upon the parties' stipulation, with prejudice, it was barred by the doctrine of res

Arbitration  - Stipulation  Which Provides for Arbitration of  “ All Disputes Related to Matters Addressed in the Stipulation”  Is Enforceable Subject to Vacatur on Public Policy Grounds

       In Wieder v Wieder, --- N.Y.S.2d ----, 2013 WL 1632809 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which granted the plaintiff's motion, in effect, to compel arbitration before a rabbinical court and to stay all proceedings in the action and in a related action entitled Wieder v. Wieder, while the arbitration was pending, and denied her cross motion to stay arbitration.    The parties' stipulation of settlement dated January 11, 2011, which was incorporated but not merged into their judgment of divorce dated January 24, 2011, provided that all disputes related to matters addressed in the stipulation would be subject to arbitration before a rabbinical court. Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, in effect, to compel arbitration before a rabbinical court of the financial disputes between the parties and properly denied the defendant's cross motion to stay arbitration.  It observed that all financial issues, including the amount of child support, may be determined by an arbitration subject to vacatur on public policy grounds such as failure to comply with the Child Support Standards Act and not being in the best interests of the parties' children (see  Berg v. Berg, 85 AD3d 952, 953; Frieden v. Frieden, 22
AD3d 634, 635; Matter of Hirsch v. Hirsch, 4 AD3d 451, 452-453). Contrary to the defendant's contention, the determination as to whether the stipulation of settlement is unconscionable as a whole is for the arbitrator or arbitrators to decide (see  Tsadilas v. Providian Natl. Bank, 13 AD3d 190).

Supreme Court

Maintenance - Modification - DRL § 236(B)(9)(b) -Surviving Agreement - Downward - Extreme Hardship - Extreme Hardship Is Not Merely the Medical Consequence of a Maturing Life but its Plain Meaning Calls for a Substantial Dislocation of the Financial Circumstances So That the Litigant Is Nearly Without Resources or Shelter

In Long v Long,  2011 WL 10618898 (N.Y.Sup.), 2011 N.Y. Slip Op. 52549 (U) the retired plaintiff sought to modify his non-durational maintenance obligations to his now infirm and Medicaid-supported former spouse. He argued that he was enduring an "extreme hardship" from the continued enforcement of this longstanding obligation, and that circumstances have changed to justify a modification.  The parties' divorce decree was entered on July 9, 1987. In December 1985, the parties signed a separation agreement, which was subsequently incorporated but not merged into the decree. The husband agreed to pay non-durational maintenance payments of $160.00 per week until the wife remarried, and provide medical insurance for a five-year period following the divorce. He paid for more than 20 years.   The husband retired from full-time employment with New York State in October 1998, but continued to work part-time installing carpets. Recently, the husband has suspended his part-time employment because of health issues. A retirement pension and social security are now the husband's only sources of income. As the husband's second job income declined because of his own infirmities, his maintenance payments became sporadic. As of the filing of this application, $10,183 of unpaid maintenance obligations have accrued.

The wife, 72, was permanently disabled and resided at Monroe Community Hospital, where Medicaid would cover the costs of her care for the  foreseeable future. Because the wife was disabled and publicly-supported, the husband sought to modify his non-durational maintenance and either discontinue the payments or significantly reduce them. In a statement of net worth, prepared
by his accountant, the husband contended that "there has been a significant change in my financial circumstances and my financial ability to provide the support as ordered."The statement showed that the husband owns a $135,000 house encumbered  by a $126,448 mortgage. He had monthly income from his pension and social security totaling $5,470. In his monthly expenses, he listed the mortgage payment at $1,140. In addition, he has what appeared to be credit card charges and associated consumer debt totaling more than $1,500 monthly. There was no explanation in the statement
as to how the personal consumer-related debt accrued, but if this amount is deducted from his expenses, his monthly usual expenses were substantially less than his $5,470 income, and could easily accommodate the estimated $640 per month in maintenance payments to his wife.

          Supreme Court observed that modification of a maintenance obligation is permissible only when compliance with the order creates an "extreme hardship" for the obligated spouse. DRL § 236(B)(6)(a);  Pintus v.. Pintus 104 A.D.2d 866, 867-868 (2d Dept 1984). The party seeking modification bears the burden of proving extreme hardship. Pintus at 868.  DRL § 236(B)(6)(a). Soba v. Soba, 213 A.D.2d 472, 473 (2d Dept 1995). When assessing the merits for maintenance modification, the court must assess the cause of the hardship. Fendsack v. Fendsack, 290 A.D.2d 682, 684 (2d Dept 2002). Anticipated retirement alone, however, cannot be a catalyst for downward modification.  Id. at 684; Di Novo v. Robinson, 250 A.D.2d 898, 899 (3d Dept 1998) (voluntary actions resulting in a diminished income does not warrant downward modification of a maintenance obligation).  The husband voluntary retired from full-time employment in late 1998, but continued to work part-time until a back ailment forced a second retirement. There was no evidence before the Court on the amount of income lost to the husband as a consequence of his retirement from his second job. Nevertheless, in the absence of any data substantiating the loss of income due to his second retirement, modification of maintenance was improper. Due to the age of the husband and the physically demanding nature of installing carpets, eventual retirement from all employment must have been anticipated. Therefore, the Court was not concerned with the loss of income due to cessation of the husband's part-time employment for modification purposes. McKeown v. Woessner, 249 A.D.2d 396, 397-398 (2d Dept 1998). Moreover, the husband continued to enjoy sizable pension distributions, augmented by social security income. The Court also noted that a large portion of the husband's monthly expenditures were related to consumer credit counseling services, suggesting much of the husband's financial woes were self-inflicted. Kaplan v. Kaplan, 23 Misc.3d 1123A (Sup.Ct. Nassau Cty 2009) (self-imposed loss of income or increased debt does not constitute a severe hardship sufficient o justify a modification). Accordingly, it was difficult for this Court to see how the alleged fiscal crisis of the husband was relevant for maintenance modification purposes. Unpaid general creditors should not displace the former spouse in the hierarchy of the husband's payment obligations. It observed that "Extreme hardship is not merely the medical consequence of a maturing life but its plain meaning calls for a substantial dislocation of the financial circumstances so that the litigant is nearly without resources or shelter". For these reasons, the husband's stressed financial condition as contained in his application did not meet the test of an "extreme hardship" sufficient to justify a modification of his agreed maintenance obligation.

Family Court

Child Custody - Award - Standing - Family Court Holds That Domestic Partner, Having Succeeded in Having Petitioner Declared a Parent for Child Support Purposes Was Judicially Estopped From Asserting That Petitioner Was Not a Parent in this Custody-Visitation Proceeding.

In Matter of Estrellita A. v. Jennifer D., --- N.Y.S.2d ----, 2013 WL 1660674 (N.Y.Fam.Ct.) the parties registered as domestic partners in 2007. Thereafter, they decided to have a child and together went to North Shore University Hospital to choose a sperm donor. In February of 2008, respondent became pregnant by artificial insemination and as a result the child, Hannah Elizabeth A.-D., was born on November 23, 2008. Although there were discussions between the parties regarding petitioner adopting Hannah, no adoption was filed. In September of 2012 the parties stopped residing together.
On October 24, 2012 the respondent herein filed a Petition for an Order of Support of the child against Estrellita A. Ms. D. asserted in her petition that she and Ms. A. had a child in common, Hannah Elizabeth A.-D., born November 23, 2008. The biological father of the child was not legally established as the child was donor conceived. The Family Court was asked to rule upon whether Ms. A. should be declared a parent for the purposes of establishing a child support order. After a hearing it was established that Estrellita A. was a parent to Hannah A.-D. and petitioner was charged with support of the child.  

On January 10, 2013 the petitioner Estrellita A. filed a Petition for Custody of Hannah. The petition alleged that the respondent Jennifer D. was the biological mother, and that the child Hannah is their child in common. The petitioner further asserted that it would be in the child's best interest that she have custody as she is better suited to foster a relationship between the child and her biological mother. Respondent asserted that the custody petition must be dismissed as the Petitioner was not a "parent" for purposes of custody/ visitation under the Family Court Act  Article 6, Domestic Relations Law  § 70  and §240, and thus has no standing to bring this action. Ms. D. relied upon the rulings in two Court of Appeals cases,  Alison D. v. Virginia M ., 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991) and  Debra H. v. Janice R., 14 N.Y.3d 576, 930 N.E.2d 184, 904 N.Y.S.2d 363 (2010), Alison D. holding where, as here, the biological mother is a fit parent, that the court cannot displace her choices as to the child's best interest, including those with whom she allows the child to associate.

             The petitioner argued that she sought custody as a person who had already been adjudicated to be a parent of the subject child and was not asking the court to confer such standing by estoppel. The petitioner argued that she has standing per the "uncontroverted" facts that establish her as a parent to Hannah and asserts that the Court must allow the custody matter to proceed to a "best interests" hearing.   Family Court found that  in her own child support petition Respondent alleged  that she and the petitioner had "a child in common". She requested and received an estoppel hearing. At that hearing respondent testified, among other things, that petitioner not only performed as a parent, she was in fact a parent. The court relying on this testimony issued an order adjudicating petitioner to be a parent and referred the matter to a support magistrate for the entry of an appropriate child support order. Now, in a complete reversal, and in an effort to preclude petitioner from having her day in court, respondent now claimed that petitioner has no standing to bring a custody/ visitation proceeding because petitioner was not a parent. This is referred to as "inconsistent positions".  The Family Court observed that the  doctrine against inconsistent positions, or judicial estoppel precludes a party from assuming a position in a court proceeding contrary to one previously taken simply because his or her interests have changed ( Mukuralinda v. Kingombe, 100 A.D.3d 1431, 954 N.Y.S.2d 316 (4th Dept.2012). Respondent asserted in one proceeding that petitioner was a parent in order to secure a child support award. In the later custody proceeding she adopted a wholly contradictory position in an attempt to preclude the person from exercising any right or control with respect to that child. Having petitioned the court to recognize the petitioner as a parent, having testified that petitioner was in fact a parent and having prevailed in that matter, the respondent was judicially estopped in this custody/ visitation proceeding from asserting that petitioner was not a parent, and her motion to dismiss was denied.

Monday, May 06, 2013

Statement of Clients Rights Rule Amended effective April 15, 2013

Part 1210.1 of the Official Compilation of Codes Rules, and Regulations of the State of New York, containing the the Statement of Clients Rights that must be posted in every law office, was amended effective April 15, 2013. Part 1210.1 now provides:




1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and nonlawyer personnel in your lawyer’s office.

2. You are entitled to have your attorney handle your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to discharge your attorney and terminate the attorney-client relationship at any time. (Court approval may be required in some matters, and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge.)

3. You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

4. You are entitled to be charged reasonable fees and expenses and to have your lawyer explain before or within a reasonable time after commencement of the representation how the fees and expenses will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill

from your attorney at reasonable intervals. You may refuse to enter into any arrangement for fees and expenses that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon

your request.

5. You are entitled to have your questions and concerns addressed promptly and to receive a prompt rely to your letters, telephone calls, emails, faxes, and other communications.

6. You are entitled to be kept reasonably informed as to the status of your matter and are entitled to have your attorney promptly comply with your reasonable requests for information, including your requests for copies of papers relevant to the matter. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter and make informed decisions regarding the representation.

7. You are entitled to have your legitimate objectives respected by your attorney. In particular, the decision of whether to settle your matter is yours and not your lawyer’s.

Court approval of a settlement is required in some matters.)

8. You have the right to privacy in your communications with your lawyer and to have your confidential information preserved by your lawyer to the extent required by law.

9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the New York Rules of Professional Conduct.

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