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New York Matrimonial Trial Handbook

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

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

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.

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